II

106TH CONGRESS

1ST SESSION S. 1790

To provide for the issuance of a promotion, research, and information order

applicable to certain handlers of Hass avocados.

IN THE SENATE OF THE UNITED STATES

OCTOBER 26, 1999

Mrs. FEINSTEIN (for herself and Mrs. BOXER) introduced the following bill;

which was read twice and referred to the Committee on Agriculture, Nutrition, and Forestry

A BILL

To provide for the issuance of a promotion, research, and

information order applicable to certain handlers of Hass

avocados.

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; TABLE OF CONTENTS.

4 (a) SHORT TITLE.—This Act may be cited as the

5 ‘‘Hass Avocado Promotion, Research, and Information

6 Act of 1999’’.

7 (b) TABLE OF CONTENTS.—The table of contents of

8 this Act is as follows:

Sec. 1. Short title; table of contents.

Sec. 2. Findings and declaration of policy.
2

•S 1790 IS

Sec. 3. Definitions.

Sec. 4. Issuance of orders.

Sec. 5. Required terms in orders.

Sec. 6. Referenda.

Sec. 7. Petition and review.

Sec. 8. Enforcement.

Sec. 9. Investigations and power to subpoena.

Sec. 10. Confidentiality.

Sec. 11. Authority for Secretary to suspend or terminate order.

Sec. 12. Construction.

Sec. 13. Regulations.

Sec. 14. Authorization of appropriations.

1 SEC. 2. FINDINGS AND DECLARATION OF POLICY.

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

3 (1) Hass avocados are an integral food source

4 in the United States that are a valuable and healthy

5 part of the human diet and are enjoyed by millions

6 of persons every year for a multitude of everyday

7 and special occasions.

8 (2) Hass avocados are a significant tree fruit

9 crop grown by many individual producers, but vir10 tually all domestically produced Hass avocados for

11 the commercial market are grown in the State of

12 California.

13 (3) Hass avocados move in interstate and for14 eign commerce, and Hass avocados that do not move

15 in interstate or foreign channels of commerce but

16 only in intrastate commerce directly affect interstate

17 commerce in Hass avocados.

18 (4) In recent years, large quantities of Hass av19 ocados have been imported into the United States

20 from other countries.
3

•S 1790 IS

1 (5) The maintenance and expansion of markets

2 in existence on the date of enactment of this Act,

3 and the development of new or improved markets or

4 uses for Hass avocados are needed to preserve and

5 strengthen the economic viability of the domestic

6 Hass avocado industry for the benefit of producers

7 and other persons associated with the producing,

8 marketing, processing, and consuming of Hass avo9 cados.

10 (6) An effective and coordinated program of

11 promotion, research, and consumer information re12 garding Hass avocados is necessary for the mainte13 nance, expansion, and development of markets for

14 Hass avocados.

15 (b) PURPOSE.—It is the purpose of this Act to au16 thorize the establishment, through the exercise of the pow17 ers provided in this Act, of an orderly procedure for the

18 development and financing (through an adequate assess19 ment on Hass avocados sold by producers and importers

20 in the United States) of an effective and coordinated pro21 gram of promotion, research, and consumer information,

22 including funds for marketing and market research activi23 ties, that is designed to—

24 (1) strengthen the position of the Hass avocado

25 industry in the domestic marketplace; and
4

•S 1790 IS

1 (2) maintain, develop, and expand markets and

2 uses for Hass avocados.

3 (c) LIMITATION.—Nothing in this Act may be con4 strued to provide for the control of production or otherwise

5 limit the right of any person to produce, handle, or import

6 Hass avocados.

7 SEC. 3. DEFINITIONS.

8 As used in this Act:

9 (1) BOARD.—The terms ‘‘Avocado Board’’ and

10 ‘‘Board’’ mean the Hass Avocado Board established

11 under section 5.

12 (2) CONSUMER INFORMATION.—The term ‘‘con13 sumer information’’ means any action or program

14 that provides information to consumers and other

15 persons on the use, nutritional attributes, and other

16 information that will assist consumers and other

17 persons in making evaluations and decisions regard18 ing the purchase, preparation, and use of Hass avo19 cados.

20 (3) CUSTOMS.—The term ‘‘Customs’’ means

21 the United States Customs Service.

22 (4) DEPARTMENT.—The term ‘‘Department’’

23 means the United States Department of Agriculture.

24 (5) HASS AVOCADO.—
5

•S 1790 IS

1 (A) IN GENERAL.—The term ‘‘Hass avo2 cado’’ includes—

3 (i) the fruit of any Hass variety avo4 cado tree; and

5 (ii) any other type of avocado fruit

6 that the Board determines is so similar to

7 the Hass variety avocado as to be indistin8 guishable to consumers.

9 (B) FORM OF FRUIT.—Except as provided

10 in subparagraph (C), the term includes avocado

11 fruit described in subparagraph (A) whether in

12 fresh, frozen, or any other processed form.

13 (C) EXCEPTIONS.—In any case in which a

14 handler further processes avocados described in

15 subparagraph (A), or products of such avoca16 dos, for sale to a retailer, the Board may deter17 mine that such further processed products do

18 not constitute a substantial value of the product

19 and that, based on its determination, the prod20 uct shall not be treated as a product of Hass

21 avocados subject to assessment under the order.

22 In addition, the Board may exempt certain fro23 zen avocado products from assessment under

24 the order.

25 (6) HANDLER.—
6

•S 1790 IS

1 (A) QUALIFIED HANDLER.—The term

2 ‘‘qualified handler’’ means a person operating

3 in the Hass avocados marketing system that

4 sells domestic or imported Hass avocados for

5 United States domestic consumption, and who

6 is responsible for remitting assessments to the

7 Board. The term includes an importer or pro8 ducer who sells directly to consumers Hass avo9 cados that the importer or producer has im10 ported into the United States or produced, re11 spectively.

12 (B) EXEMPT HANDLER.—The term ‘‘ex13 empt handler’’ means a person who would oth14 erwise be considered a qualified handler, except

15 that all avocados purchased by the person have

16 already been subject to the assessment for the

17 Board.

18 (7) IMPORTER.—The term ‘‘importer’’ means

19 any person who imports Hass avocados into the

20 United States.

21 (8) INDUSTRY INFORMATION.—The term ‘‘in22 dustry information’’ means information and pro23 grams that are designed to increase efficiency in

24 processing, enhance the development of new markets

25 and marketing strategies, increase marketing effi-
7

•S 1790 IS

1 ciency, and activities to enhance the image of Hass

2 avocados and the Hass avocado industry domesti3 cally and internationally.

4 (9) ORDER.—The term ‘‘order’’ means the

5 Hass avocado promotion, research, and information

6 order issued under this Act.

7 (10) PERSON.—The term ‘‘person’’ means any

8 individual, group of individuals, firm, partnership,

9 corporation, joint stock company, association, coop10 erative, or other legal entity.

11 (11) PRODUCER.—The term ‘‘producer’’ means

12 any person who—

13 (A) is engaged in the domestic production

14 of Hass avocados for commercial use; and

15 (B) owns, or shares the ownership and risk

16 of loss, of such Hass avocados.

17 (12) PROMOTION.—The term ‘‘promotion’’

18 means any action to advance the image, desirability,

19 or marketability of Hass avocados, including paid

20 advertising, sales promotion, and publicity, in order

21 to improve the competitive position and stimulate

22 sales of Hass avocados in the marketplace.

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

24 any type of test, study, or analysis relating to mar25 ket research, market development, and marketing ef-
8

•S 1790 IS

1 forts, or relating to the use, quality, or nutritional

2 value of Hass avocados, other related food science

3 research, or research designed to advance the image,

4 desirability, and marketability of Hass avocados.

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

6 means the Secretary of Agriculture.

7 (15) STATE.—The term ‘‘State’’ means each of

8 the several States of the United States, the District

9 of Columbia, the Commonwealth of Puerto Rico, the

10 Commonwealth of the Northern Mariana Islands,

11 the United States Virgin Islands, Guam, American

12 Samoa, the Republic of the Marshall Islands, and

13 the Federated States of Micronesia.

14 (16) UNITED STATES.—The term ‘‘United

15 States’’ means the United States collectively.

16 SEC. 4. ISSUANCE OF ORDERS.

17 (a) IN GENERAL.—

18 (1) ISSUANCE.—To effectuate the policy of this

19 Act specified in section 2(b), the Secretary, subject

20 to the procedures provided in subsection (b), shall

21 issue orders under this Act applicable to producers,

22 importers, and qualified handlers of Hass avocados.

23 (2) SCOPE.—Any order shall be national in

24 scope.
9

•S 1790 IS

1 (3) ONE ORDER.—Not more than one order

2 shall be in effect at any one time.

3 (b) PROCEDURES.—

4 (1) PROPOSAL FOR AN ORDER.—An existing or5 ganization of avocado producers established pursu6 ant to a State statute, or any other person who will

7 be affected by this Act, may request the issuance of,

8 and submit a proposal for an order.

9 (2) PUBLICATION OF PROPOSAL.—The Sec10 retary shall publish a proposed order and give notice

11 and opportunity for public comment on the proposed

12 order not later than 60 days after receipt by the

13 Secretary of a proposal for an order from an exist14 ing organization of avocado producers established

15 pursuant to a State statute, as provided in para16 graph (1).

17 (3) ISSUANCE OF ORDER.—

18 (A) IN GENERAL.—After notice and oppor19 tunity for public comment are provided in ac20 cordance with paragraph (2), the Secretary

21 shall issue the order, taking into consideration

22 the comments received and including in the

23 order such provisions as are necessary to ensure

24 that the order is in conformity with this Act.
10

•S 1790 IS

1 (B) EFFECTIVE DATE.—The order shall be

2 issued and become effective only after an af3 firmative vote in a referendum as provided in

4 section 6, but not later than 180 days after

5 publication of the proposed order.

6 (c) AMENDMENTS.—The Secretary, from time to

7 time, may amend an order. The provisions of this Act ap8 plicable to an order shall be applicable to any amendment

9 to an order.

10 SEC. 5. REQUIRED TERMS IN ORDERS.

11 (a) IN GENERAL.—An order shall contain the terms

12 and provisions specified in this section.

13 (b) HASS AVOCADO BOARD.—

14 (1) ESTABLISHMENT AND MEMBERSHIP.—

15 (A) ESTABLISHMENT.—The order shall

16 provide for the establishment of a Hass Avo17 cado Board, consisting of 11 members, to ad18 minister the order.

19 (B) MEMBERSHIP.—

20 (i) APPOINTMENT.—The order shall

21 provide that members of the Board shall

22 be appointed by the Secretary from nomi23 nations submitted as provided in this sub24 section.
11

•S 1790 IS

1 (ii) COMPOSITION.—The Board shall

2 consist of participating domestic producers

3 and importers.

4 (2) DISTRIBUTION OF APPOINTMENTS.—

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

6 that the membership of the Board shall consist

7 of—

8 (i) 7 members who are domestic pro9 ducers of Hass avocados and are subject to

10 assessments under the order;

11 (ii) 2 members representing importers

12 that are qualified handlers of Hass avoca13 dos; and

14 (iii) 2 members who are domestic pro15 ducers of Hass avocados and are subject to

16 assessments under the order or are import17 ers that are qualified handlers, to reflect

18 the proportion of domestic production and

19 imports supplying the United States mar20 ket, which shall be based on the Sec21 retary’s determination of the average vol22 ume of domestic production proportionate

23 to the average volume of imports in the

24 United States market over the previous

25 three years.
12

•S 1790 IS

1 (B) ADJUSTMENT IN BOARD REPRESENTA2 TION.—Three years after the assessment of

3 funds commences pursuant to an order, and at

4 the end of each three-year period thereafter, the

5 Avocado Board shall adjust the proportion of

6 producer representatives to importer represent7 atives on the Board under subparagraph

8 (A)(iii) on the basis of the amount of assess9 ments collected from producers and importers

10 over the immediately preceding three-year pe11 riod. Any adjustment under this subparagraph

12 shall be subject to the review and approval of

13 the Secretary.

14 (C) DEFINITION.—In this paragraph, the

15 term ‘‘importer that is a qualified handler’’

16 means an entity whose principal activity is the

17 importation, sale, and marketing of Hass avoca18 dos in the United States (either directly or as

19 an agent, broker, or consignee of any person or

20 nation that produces or handles Hass avocados

21 outside the United States for sale in the United

22 States), and who is subject to assessments as a

23 qualified handler under the order.

24 (3) NOMINATION PROCESS.—The order shall

25 provide that—
13

•S 1790 IS

1 (A) 2 nominees shall be submitted for each

2 appointment to the Board;

3 (B) nominations for each appointment of a

4 producer or an importer shall be made by do5 mestic producers or importers, respectively—

6 (i) in the case of producers, through

7 an election process which utilizes existing

8 organizations of avocado producers estab9 lished pursuant to a State statute, with ap10 proval by the Secretary; and

11 (ii) in the case of importers, nomina12 tions are submitted by importers under

13 such procedures as the Secretary deter14 mines appropriate; and

15 (C) in any case in which producers that

16 are qualified handlers or importers that are

17 qualified handlers fail to nominate individuals

18 for an appointment to the Board, the Secretary

19 may appoint an individual to fill the vacancy on

20 a basis provided in the order or other regula21 tions of the Secretary.

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

23 the selection of alternate members of the Board by

24 the Secretary in accordance with procedures speci25 fied in the order.
14

•S 1790 IS

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

2 (A) each term of appointment to the Board

3 shall be for 3 years, except that, of the initial

4 appointments, 4 of the appointments shall be

5 for 2-year terms, 4 of the appointments shall be

6 for 3-year terms, and 3 of the appointments

7 shall be for 4-year terms; and

8 (B) no member of the Board may serve

9 more than 2 consecutive terms of three years,

10 except that any member serving an initial term

11 of 4 years may serve an additional term of 3

12 years.

13 (6) REPLACEMENT.—The order shall provide

14 that if a member or alternate of the Board who was

15 appointed as a domestic producer or importer that

16 is a qualified handler ceases to belong to the group

17 for which such member was appointed, such member

18 or alternate shall be disqualified from serving on the

19 Board.

20 (7) COMPENSATION.—The order shall provide

21 that members of the Board shall serve without com22 pensation, but shall be reimbursed for the reasonable

23 expenses of the members incurred in performing du24 ties as members of the Board.
15

•S 1790 IS

1 (c) GENERAL RESPONSIBILITIES OF THE AVOCADO

2 BOARD.—The order shall define the general responsibil3 ities of the Avocado Board, which shall include the respon4 sibility to—

5 (1) administer the order in accordance with the

6 terms and provisions of the order;

7 (2) recommend to the Secretary rules and regu8 lations to effectuate the terms and provisions of the

9 order;

10 (3) employ such persons as the Board deter11 mines are necessary, and set the compensation and

12 define the duties of the persons;

13 (4)(A) develop budgets for the implementation

14 of the order and submit the budgets to the Secretary

15 for approval under subsection (d); and

16 (B) propose and develop (or receive and evalu17 ate), approve, and submit to the Secretary for ap18 proval under subsection (d) plans or projects for

19 Hass avocado promotion, industry information, con20 sumer information, or related research;

21 (5)(A) implement plans and projects for Hass

22 avocado promotion, industry information, consumer

23 information, or related research, as provided in sub24 section (d); or
16

•S 1790 IS

1 (B) contract or enter into agreements with ap2 propriate persons to implement the plans and

3 projects, as provided in subsection (e), and pay the

4 costs of the implementation, or contracts and agree5 ment, with funds received under the order;

6 (6) evaluate on-going and completed plans and

7 projects for Hass avocados and avocado products

8 promotion, industry information, consumer informa9 tion, or related research;

10 (7) receive, investigate, and report to the Sec11 retary complaints of violations of the order;

12 (8) recommend to the Secretary amendments to

13 the order;

14 (9) invest, pending disbursement under a plan

15 or project, funds collected through assessments au16 thorized under this Act only in—

17 (A) obligations of the United States or any

18 agency of the United States;

19 (B) general obligations of any State or any

20 political subdivision of a State;

21 (C) any interest-bearing account or certifi22 cate of deposit of a bank that is a member of

23 the Federal Reserve System; or

24 (D) obligations fully guaranteed as to prin25 cipal and interest by the United States, except
17

•S 1790 IS

1 that income from any such invested funds may

2 be used only for a purpose for which the in3 vested funds may be used;

4 (10) borrow funds necessary for the startup ex5 penses of the order; and

6 (11) provide the Secretary such information as

7 the Secretary may require.

8 (d) BUDGETS; PLANS AND PROJECTS.—

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

10 require the Board to submit to the Secretary for ap11 proval budgets, on a fiscal year basis, of the antici12 pated expenses and disbursements of the Board in

13 the implementation of the order, including the pro14 jected costs of Hass avocado promotion, industry in15 formation, consumer information, and related re16 search plans and projects.

17 (2) PLANS AND PROJECTS.—

18 (A) PROMOTION AND CONSUMER INFORMA19 TION.—The order shall provide—

20 (i) for the establishment, implementa21 tion, administration, and evaluation of ap22 propriate plans and projects for adver23 tising, sales promotion, other promotion,

24 and consumer information with respect to

25 Hass avocados, and for the disbursement
18

•S 1790 IS

1 of necessary funds for the purposes de2 scribed in this clause; and

3 (ii) that any plan or project referred

4 to in clause (i) shall be directed toward in5 creasing the general demand for Hass avo6 cados.

7 (B) INDUSTRY INFORMATION.—The order

8 shall provide for the establishment, implementa9 tion, administration, and evaluation of appro10 priate plans and projects that will lead to the

11 development of new markets, new marketing

12 strategies, or increased efficiency of the Hass

13 avocado industry, and activities to enhance the

14 image of the Hass avocado industry, and for

15 the disbursement of necessary funds for the

16 purposes described in this subparagraph.

17 (C) RESEARCH.—The order shall provide

18 for—

19 (i) the establishment, implementation,

20 administration, and evaluation of plans

21 and projects for market development re22 search, research with respect to the sale,

23 distribution, marketing, use, quality, or

24 nutritional value of Hass avocados, and

25 other research with respect to Hass avo-
19

•S 1790 IS

1 cado marketing, promotion, or consumer

2 information;

3 (ii) the dissemination of the informa4 tion acquired through the plans and

5 projects; and

6 (iii) the disbursement of such funds as

7 are necessary to carry out this subpara8 graph.

9 (D) SUBMISSION TO THE SECRETARY.—

10 The order shall provide that the Board shall

11 submit to the Secretary for approval a proposed

12 plan or project for Hass avocados promotion,

13 industry information, consumer information, or

14 related research, as described in subparagraphs

15 (A) and (B).

16 (3) APPROVAL BY SECRETARY.—A budget,

17 plan, or project for Hass avocados promotion, indus18 try information, consumer information, or related re19 search may not be implemented prior to approval of

20 the budget, plan, or project by the Secretary.

21 (e) CONTRACTS AND AGREEMENTS.—

22 (1) PROMOTION, CONSUMER INFORMATION, IN23 DUSTRY INFORMATION AND RELATED RESEARCH

24 PLANS AND PROJECTS.—
20

•S 1790 IS

1 (A) IN GENERAL.—To ensure the efficient

2 use of funds, the order shall provide that the

3 Board, with the approval of the Secretary, shall

4 enter into a contract or an agreement with an

5 avocado organization established by State stat6 ute in a State with the majority of Hass avo7 cado production in the United States, for the

8 implementation of a plan or project for pro9 motion, industry information, consumer infor10 mation, or related research with respect to

11 Hass avocados, and for the payment of the cost

12 of the contract or agreement with funds re13 ceived by the Board under the order.

14 (B) REQUIREMENTS.—The order shall pro15 vide that any contract or agreement entered

16 into under this paragraph shall provide that—

17 (i) the contracting or agreeing party

18 shall develop and submit to the Board a

19 plan or project, together with a budget

20 that includes the estimated costs to be in21 curred for the plan or project;

22 (ii) the plan or project shall become

23 effective on the approval of the Secretary;

24 and
21

•S 1790 IS

1 (iii) the contracting party or agreeing

2 party shall—

3 (I) keep accurate records of all

4 transactions of the party;

5 (II) account for funds received

6 and expended;

7 (III) make periodic reports to the

8 Board of activities conducted; and

9 (IV) make such other reports as

10 the Board or the Secretary shall re11 quire.

12 (2) OTHER CONTRACTS AND AGREEMENTS.—

13 The order shall provide that the Board, with the ap14 proval of the Secretary, may enter into a contract or

15 agreement for administrative services. Any contract

16 or agreement entered into under this paragraph

17 shall include provisions comparable to the provisions

18 described in paragraph (1)(B).

19 (f) BOOKS AND RECORDS OF BOARD.—

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

21 Board to—

22 (A) maintain such books and records

23 (which shall be available to the Secretary for in24 spection and audit) as the Secretary may re25 quire;
22

•S 1790 IS

1 (B) prepare and submit to the Secretary,

2 from time to time, such reports as the Sec3 retary may require; and

4 (C) account for the receipt and disburse5 ment of all the funds entrusted to the Board.

6 (2) AUDITS.—The Board shall cause the books

7 and records of the Board to be audited by an inde8 pendent auditor at the end of each fiscal year. A re9 port of each audit shall be submitted to the Sec10 retary.

11 (g) CONTROL OF ADMINISTRATIVE COSTS.—The

12 order shall provide that the Board shall, as soon as prac13 ticable after the order becomes effective and after con14 sultation with the Secretary and other appropriate per15 sons, implement a system of cost controls based on nor16 mally accepted business practices that will ensure that the

17 annual budgets of the Board include only amounts for ad18 ministrative expenses that cover the minimum administra19 tive activities and personnel needed to properly administer

20 and enforce the order, and conduct, supervise, and evalu21 ate plans and projects under the order. The Board shall

22 use, to the extent possible, the resources, staffs, and facili23 ties of existing organizations, as provided in subsection

24 (e)(1)(A).

25 (h) ASSESSMENTS.—
23

•S 1790 IS

1 (1) AUTHORITY.—

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

3 that each qualified handler shall remit to the

4 Board, in the manner provided in the order, an

5 assessment collected from the producer, except

6 to the extent that the sale is excluded from as7 sessments under paragraph (6). In the case of

8 imports, the assessment shall be levied upon im9 ports and remitted to the Board by Customs.

10 (B) PUBLISHED LISTS.—To facilitate the

11 payment of assessments under this paragraph,

12 the Board shall publish lists of qualified han13 dlers required to remit assessments under the

14 order and exempt handlers.

15 (C) MAKING DETERMINATIONS.—

16 (i) QUALIFIED HANDLER STATUS.—

17 The order shall contain provisions regard18 ing the determination of the status of a

19 person as a qualified handler or exempt

20 handler that include the rules and require21 ments specified in section 3(j).

22 (ii) PRODUCER-HANDLERS.—For pur23 poses of paragraph (3), a producer-handler

24 shall be considered the qualified handler of

25 Hass avocados produced by such producer-
24

•S 1790 IS

1 handler. The qualified handler shall be the

2 first person who packs the avocados for

3 sale at wholesale or retail.

4 (iii) IMPORTERS.—The assessment on

5 imported Hass avocados shall be paid by

6 the importer at the time of entry into the

7 United States and shall be remitted to the

8 Board. Importation occurs when Hass avo9 cados originating outside the United States

10 are released from custody of the United

11 States Customs Service and introduced

12 into the stream of commerce within the

13 United States. Importers include persons

14 who hold title to foreign-produced Hass av15 ocados immediately upon release by the

16 Customs Service, as well as any persons

17 who act on behalf of others, as agents or

18 brokers, to secure the release of Hass avo19 cados from Customs and the introduction

20 of the released Hass avocados into the cur21 rent of commerce.

22 (2) ASSESSMENT RATES.—With respect to as23 sessment rates, the order shall contain the following

24 terms:
25

•S 1790 IS

1 (A) INITIAL RATE.—The rate of assess2 ment on Hass avocados shall be $.025 per

3 pound.

4 (B) CHANGES IN THE RATE.—

5 (i) IN GENERAL.—Once the order is

6 in effect, the uniform assessment rate may

7 be increased or decreased not more than

8 once annually, but in no event shall the

9 rate of assessment be in excess of $.05 per

10 pound.

11 (ii) REQUIREMENTS.—Any change in

12 the rate of assessment under this

13 subparagraph—

14 (I) may be made only if adopted

15 by the Board by an affirmative vote of

16 at least seven members of the Board

17 and approved by the Secretary as nec18 essary to achieve the objectives of this

19 Act (after public notice and oppor20 tunity for comment in accordance

21 with section 553 of title 5, United

22 States Code, and without regard to

23 sections 556 and 557 of such title);
26

•S 1790 IS

1 (II) shall be announced by the

2 Board not less than 30 days prior to

3 going into effect; and

4 (III) shall not be subject to a

5 vote in a referendum conducted under

6 section 6.

7 (3) COLLECTION BY QUALIFIED HANDLERS.—

8 Except as provided in paragraph (1)(C)(iii), the

9 qualified handler of Hass avocados shall—

10 (A) be responsible for the collection from

11 the producer of assessments under this sub12 section; and

13 (B) maintain a separate record of the

14 Hass avocados of each producer whose Hass av15 ocados are so handled, including the Hass avo16 cados owned by the handlers.

17 (4) TIMING OF SUBMITTING ASSESSMENTS.—

18 The order shall provide that each person required to

19 remit assessments under this subsection shall remit

20 to the Board the assessment due from each sale of

21 Hass avocados that is subject to an assessment with22 in such time period after the sale (not to exceed 60

23 days after the end of the month in which the sale

24 took place) as is specified in the order.
27

•S 1790 IS

1 (5) CLAIMING AN EXEMPTION FROM ASSESS2 MENTS.—To claim an exemption under section 3(6)

3 as an exempt handler for a particular fiscal year, a

4 person shall submit an application to the Board—

5 (A) stating the basis for such exemption;

6 and

7 (B) certifying such person will not pur8 chase Hass avocados in the United States on

9 which an assessment has not been paid for the

10 current fiscal year.

11 (6) EXCLUSION.—An order shall exclude from

12 assessments under the order any sale of Hass avoca13 dos for export from the United States.

14 (7) USE OF ASSESSMENT FUNDS.—The order

15 shall provide that assessment funds shall be used for

16 payment of costs incurred in implementing and ad17 ministering the order, with provision for a reason18 able reserve, and to cover the administrative costs

19 incurred by the Secretary in implementing and ad20 ministering this Act, including any expenses in21 curred by the Secretary in conducting referenda

22 under this Act, subject to subsection (i).

23 (8) ASSESSMENT FUNDS FOR STATE ASSOCIA24 TION.—The order shall provide that a State associa25 tion shall receive an amount equal to the product ob-
28

•S 1790 IS

1 tained by multiplying the aggregate amount of as2 sessments attributable to the pounds of Hass avoca3 dos produced in such State by 85 percent. A State

4 association shall use such funds and any proceeds

5 from the investment of such funds for financing—

6 (A) promotion, research, consumer infor7 mation, and industry information plans and

8 projects; and

9 (B) administrative expenses incurred in

10 connection with such plans and projects.

11 (i) REIMBURSEMENT OF SECRETARY EXPENSES.—

12 The order shall provide for reimbursing the Secretary—

13 (1) for expenses not to exceed $75,000 incurred

14 by the Secretary in connection with any referendum

15 conducted under section 6; and

16 (2) for administrative costs incurred by the Sec17 retary for supervisory work of up to 2 employee

18 years after an order or amendment to any order has

19 been issued and made effective.

20 (j) PROHIBITION ON BRAND ADVERTISING AND CER21 TAIN CLAIMS.—

22 (1) PROHIBITIONS.—Except as provided in

23 paragraph (2), a program or project conducted

24 under this Act shall not—
29

•S 1790 IS

1 (A) make any reference to private brand

2 names;

3 (B) make false, misleading, or disparaging

4 claims on behalf of Hass avocados; or

5 (C) make false, misleading, or disparaging

6 statements with respect to the attributes or use

7 of any competing products.

8 (2) EXCEPTIONS.—Paragraph (1) does not pre9 clude the Board from offering its programs and

10 projects for use by commercial parties, under such

11 terms and conditions as the Board may prescribe as

12 approved by the Secretary. For the purposes of this

13 subsection, a reference to State of origin does not

14 constitute a reference to a private brand name.

15 (k) PROHIBITION ON USE OF FUNDS TO INFLUENCE

16 GOVERNMENTAL ACTION.—

17 (1) IN GENERAL.—Except as otherwise pro18 vided in paragraph (2), the order shall prohibit any

19 funds collected by the Board under the order from

20 being used in any manner for the purpose of influ21 encing legislation or government action or policy.

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

23 apply to the development or recommendation of

24 amendments to the order.

25 (l) BOOKS AND RECORDS; REPORTS.—
30

•S 1790 IS

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

2 each qualified handler, producer, and importer sub3 ject to the order shall maintain, and make available

4 for inspection, such books and records as are re5 quired by the order and file reports at the time, in

6 the manner, and having the content required by the

7 order, to the end that such information is made

8 available to the Secretary and the Board as is ap9 propriate for the administration or enforcement of

10 this Act, the order, or any regulation issued under

11 this Act.

12 (2) CONFIDENTIALITY REQUIREMENT.—

13 (A) IN GENERAL.—Information obtained

14 from books, records, or reports under para15 graph (1) shall be kept confidential by all offi16 cers and employees of the Department of Agri17 culture and by the staff and agents of the

18 Board.

19 (B) SUITS AND HEARINGS.—Information

20 described in subparagraph (A) may be disclosed

21 to the public only—

22 (i) in a suit or administrative hearing

23 brought at the request of the Secretary, or

24 to which the Secretary or any officer of the
31

•S 1790 IS

1 United States is a party, involving the

2 order; and

3 (ii) to the extent the Secretary con4 siders the information relevant to the suit

5 or hearing.

6 (C) GENERAL STATEMENTS AND PUBLICA7 TIONS.—Nothing in this paragraph may be con8 strued to prohibit—

9 (i) the issuance of general statements,

10 based on the reports, of the number of per11 sons subject to the order or statistical data

12 collected from the reports, if the state13 ments do not identify the information fur14 nished by any person; or

15 (ii) the publication, by direction of the

16 Secretary, of the name of any person who

17 violates the order, together with a state18 ment of the particular provisions of the

19 order violated by the person.

20 (3) LISTS OF IMPORTERS.—

21 (A) REVIEW.—The order shall provide that

22 the staff of the Board shall periodically review

23 lists of importers of Hass avocados to deter24 mine whether persons on the lists are subject to

25 the order.
32

•S 1790 IS

1 (B) CUSTOMS SERVICE.—On the request of

2 the Secretary or the Board, the Commissioner

3 of the United States Customs Service shall pro4 vide to the Secretary or the Board lists of im5 porters of Hass avocados.

6 (m) CONSULTATIONS WITH INDUSTRY EXPERTS.—

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

8 the Board may seek advice from and consult with

9 experts from the production, import, wholesale, and

10 retail segments of the Hass avocado industry to as11 sist in the development of promotion, industry infor12 mation, consumer information, and related research

13 plans and projects.

14 (2) SPECIAL COMMITTEES.—

15 (A) IN GENERAL.—For the purposes de16 scribed in paragraph (1), the order shall au17 thorize the appointment of special committees

18 composed of persons other than Board mem19 bers.

20 (B) CONSULTATION.—A committee ap21 pointed under subparagraph (A)—

22 (i) may not provide advice or rec23 ommendations to a representative of an

24 agency, or an officer, of the Federal Gov25 ernment; and
33

•S 1790 IS

1 (ii) shall consult directly with the

2 Board.

3 (n) OTHER TERMS OF THE ORDER.—The order shall

4 contain such other terms and provisions, consistent with

5 this Act, as are necessary to carry out this Act (including

6 provision for the assessment of interest and a charge for

7 each late payment of assessments under subsection (h)).

8 SEC. 6. REFERENDA.

9 (a) REQUIREMENTS FOR INITIAL REFERENDUM.—

10 (1) REFERENDUM REQUIRED.—During the 60-

11 day period immediately preceding the proposed effec12 tive date of an order issued under section 4(b)(3),

13 the Secretary shall conduct a referendum among

14 qualified producers and importers required to pay

15 assessments under the order, as provided in section

16 5(h)(1).

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

18 shall become effective only if the Secretary deter19 mines that the order has been approved by a simple

20 majority of all votes cast in the referendum.

21 (b) VOTES PERMITTED.—

22 (1) IN GENERAL.—Each qualified producer and

23 importer eligible to vote in a referendum conducted

24 under this section shall be entitled to cast 1 vote if
34

•S 1790 IS

1 they satisfy the eligibility requirements as defined in

2 paragraph (2).

3 (2) ELIGIBILITY.—For purposes of paragraph

4 (1), producers and importers, as these terms are de5 fined in section 3, shall be considered to be eligible

6 to vote if they have been producers or importers

7 with sales of Hass avocados during a period of at

8 least 1 year prior to the referendum.

9 (c) MANNER OF CONDUCTING REFERENDA.—

10 (1) IN GENERAL.—Referenda conducted pursu11 ant to this Act shall be conducted in a manner de12 termined by the Secretary.

13 (2) ADVANCE REGISTRATION.—A qualified pro14 ducer or importer of Hass avocados who chooses to

15 vote in any referendum conducted under this Act

16 shall register with the Secretary prior to the voting

17 period, after receiving notice from the Secretary con18 cerning the referendum under paragraph (4).

19 (3) VOTING.—A qualified producer or importer

20 of Hass avocados who chooses to vote in any ref21 erendum conducted under this Act shall vote in ac22 cordance with procedures established by the Sec23 retary. The ballots and other information or reports

24 that reveal or tend to reveal the vote of any qualified

25 handler shall be strictly confidential.
35

•S 1790 IS

1 (4) NOTICE.—The Secretary shall notify all

2 qualified producers and importers at least 30 days

3 prior to the referendum conducted under this Act.

4 The notice shall explain the procedure established

5 under this subsection.

6 (d) SUSPENSION OR TERMINATION REFERENDA.—If

7 an order is approved in a referendum conducted under

8 subsection (a), effective beginning on the date that is 3

9 years after the date of the approval, the Secretary—

10 (1) at the discretion of the Secretary, may con11 duct at any time a referendum of qualified producers

12 and importers required to pay assessments under

13 the order, as provided in section 5(h)(1), subject to

14 the voting requirements of subsection (b), to ascer15 tain whether qualified producers and importers favor

16 suspension or termination of the order; and

17 (2) if requested by the Board or by a represent18 ative group comprising 30 percent or more of all

19 qualified producers and importers required to pay

20 assessments under the order, as provided in section

21 5(h)(1), subject to the voting requirements of sub22 sections (c) and (d), to ascertain whether producers

23 and importers favor suspension or termination of the

24 order.
36

•S 1790 IS

1 (e) SUSPENSION OR TERMINATION.—If, as a result

2 of a referendum conducted under subsection (d), the Sec3 retary determines that suspension or termination of the

4 order is favored by a simple majority of all votes cast in

5 the referendum, the Secretary shall—

6 (1) not later than 180 days after the ref7 erendum, suspend or terminate, as appropriate, col8 lection of assessments under the order; and

9 (2) suspend or terminate, as appropriate, activi10 ties under the order as soon as practicable and in

11 an orderly manner.

12 SEC. 7. PETITION AND REVIEW.

13 (a) PETITION AND HEARING.—

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

15 may file with the Secretary a petition—

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

17 the order, or any obligation imposed in connec18 tion with the order is not in accordance with

19 law; and

20 (B) requesting a modification of the order

21 or an exemption from the order.

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

23 the opportunity for a hearing on a petition filed

24 under paragraph (1), in accordance with regulations

25 issued by the Secretary. Any such hearing shall be
37

•S 1790 IS

1 conducted in accordance with section 9(b)(2) and be

2 held within the United States judicial district in

3 which the residence or principal place of business of

4 the person is located.

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

6 (2), the Secretary shall make a ruling on the peti7 tion, which shall be final if in accordance with law.

8 (4) LIMITATION.—Any petition filed under this

9 subsection challenging an order, any provision of the

10 order, or any obligation imposed in connection with

11 the order, shall be filed within 2 years after the ef12 fective date of the order, provision, or obligation

13 subject to challenge in the petition.

14 (b) REVIEW.—

15 (1) COMMENCEMENT OF ACTION.—The district

16 courts of the United States in any district in which

17 a person who is a petitioner under subsection (a) re18 sides or conducts business shall have jurisdiction to

19 review the ruling of the Secretary on the petition of

20 the person, if a complaint requesting the review is

21 filed no later than 20 days after the date of the

22 entry of the ruling by the Secretary.

23 (2) PROCESS.—Service of process in pro24 ceedings under this subsection shall be conducted in
38

•S 1790 IS

1 accordance with the Federal Rules of Civil Proce2 dure.

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

4 under this subsection determines that the ruling of

5 the Secretary on the petition of the person is not in

6 accordance with law, the court shall remand the

7 matter to the Secretary with directions—

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

9 determine to be in accordance with law; or

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

11 opinion the court, the law requires.

12 (c) ENFORCEMENT.—The pendency of proceedings

13 instituted under this section shall not impede, hinder, or

14 delay the Attorney General or the Secretary from obtain15 ing relief under section 8.

16 SEC. 8. ENFORCEMENT.

17 (a) JURISDICTION.—A district court of the United

18 States shall have jurisdiction to enforce, and to prevent

19 and restrain any person from violating, this Act or an

20 order or regulation issued by the Secretary under this Act.

21 (b) REFERRAL TO ATTORNEY GENERAL.—A civil ac22 tion brought under subsection (a) shall be referred to the

23 Attorney General for appropriate action, except that the

24 Secretary is not required to refer to the Attorney General

25 a violation of this Act, or an order or regulation issued
39

•S 1790 IS

1 under this Act, if the Secretary believes that the adminis2 tration and enforcement of this Act would be adequately

3 served by administrative action under subsection (c) or

4 suitable written notice or warning to the person who com5 mitted or is committing the violation.

6 (c) CIVIL PENALTIES AND ORDERS.—

7 (1) CIVIL PENALTIES.—

8 (A) IN GENERAL.—A person who violates a

9 provision of this Act, or an order or regulation

10 issued by the Secretary under this Act, or who

11 fails or refuses to pay, collect, or remit any as12 sessment or fee required of the person under an

13 order or regulation issued under this Act, may

14 be assessed by the Secretary—

15 (i) a civil penalty of not less than

16 $500 nor more than $5,000 for each viola17 tion; and

18 (ii) in the case of a willful failure to

19 remit an assessment as required by an

20 order or regulation, an additional penalty

21 equal to the amount of the assessment.

22 (B) SEPARATE OFFENSES.—Each violation

23 shall be a separate offense.

24 (2) CEASE AND DESIST ORDERS.—In addition

25 to or in lieu of a civil penalty under paragraph (1),
40

•S 1790 IS

1 the Secretary may issue an order requiring a person

2 to cease and desist from continuing a violation of

3 this Act, or an order or regulation issued under this

4 Act.

5 (3) NOTICE AND HEARING.—No penalty shall

6 be assessed, or cease and desist order issued, by the

7 Secretary under this subsection unless the Secretary

8 gives the person against whom the penalty is as9 sessed or the order is issued notice and opportunity

10 for a hearing before the Secretary with respect to

11 the violation. Any such hearing shall be conducted in

12 accordance with section 9(b)(2) and shall be held

13 within the United States judicial district in which

14 the residence or principal place of business of the

15 person is located.

16 (4) FINALITY.—The penalty assessed or cease

17 and desist order issued under this subsection shall

18 be final and conclusive unless the person against

19 whom the penalty is assessed or the order is issued

20 files an appeal with the appropriate district court of

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

22 (d) REVIEW BY DISTRICT COURT.—

23 (1) COMMENCEMENT OF ACTION.—

24 (A) IN GENERAL.—Any person against

25 whom a violation is found and a civil penalty is
41

•S 1790 IS

1 assessed or a cease and desist order is issued

2 under subsection (c) may obtain review of the

3 penalty or order by, within the 30-day period

4 beginning on the date the penalty is assessed

5 or the order is issued—

6 (i) filing a notice of appeal in the dis7 trict court of the United States for the dis8 trict in which the person resides or con9 ducts business, or in the United States

10 District Court for the District of Colum11 bia; and

12 (ii) sending a copy of the notice by

13 certified mail to the Secretary.

14 (B) COPY OF RECORD.—The Secretary

15 shall promptly file in the court a certified copy

16 of the record on which the Secretary found that

17 the person had committed a violation.

18 (2) 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.—

23 (1) IN GENERAL.—A person who fails to obey

24 a cease and desist order issued under subsection (c)

25 after the order has become final and unappealable,
42

•S 1790 IS

1 or after the appropriate United States district court

2 had entered a final judgment in favor of the Sec3 retary of not more than $5,000 for each offense,

4 after opportunity for a hearing and for judicial re5 view under the procedures specified in subsections

6 (c) and (d).

7 (2) SEPARATE VIOLATIONS.—Each day during

8 which the person fails to obey an order described in

9 paragraph (1) shall be considered as a separate vio10 lation of the order.

11 (f) FAILURE TO PAY A PENALTY.—

12 (1) IN GENERAL.—If a person fails to pay a

13 civil penalty assessed under subsection (c) or (e)

14 after the penalty has become final and unappealable,

15 or after the appropriate United States district court

16 has entered final judgment in favor of the Secretary,

17 the Secretary shall refer the matter to the Attorney

18 General for recovery of the amount assessed in any

19 United States district court in which the person re20 sides or conducts business.

21 (2) SCOPE OF REVIEW.—In an action by the

22 Attorney General under paragraph (1), the validity

23 and appropriateness of a civil penalty shall not be

24 subject to review.
43

•S 1790 IS

1 (g) ADDITIONAL REMEDIES.—The remedies provided

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

3 other remedies that may be available.

4 SEC. 9. INVESTIGATIONS AND POWER TO SUBPOENA.

5 (a) INVESTIGATIONS.—The Secretary may conduct

6 such investigations as the Secretary considers necessary

7 for the effective administration of this Act, or to determine

8 whether any person has engaged or is engaging in any

9 act that constitutes a violation of this Act or any order

10 or regulation issued under this Act.

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

12 (1) INVESTIGATIONS.—For the purpose of con13 ducting an investigation under subsection (a), the

14 Secretary may administer oaths and affirmations,

15 subpoena witnesses, compel the attendance of wit16 nesses, take evidence, and require the production of

17 any records that are relevant to the inquiry. The

18 production of the records may be required from any

19 place in the United States.

20 (2) ADMINISTRATIVE HEARINGS.—For the pur21 pose of an administrative hearing held under section

22 7(a)(2) or 8(c)(3), the presiding officer may admin23 ister oaths and affirmations, subpoena witnesses,

24 compel the attendance of witnesses, take evidence,

25 and require the production of any records that are
44

•S 1790 IS

1 relevant to the inquiry. The attendance of witnesses

2 and the production of the records may be required

3 from any place in the United States.

4 (c) AID OF COURTS.—

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

6 or refusal to obey a subpoena issued under sub7 section (b) to, any person, the Secretary may invoke

8 the aid of any court of the United States within the

9 jurisdiction of which the investigation or proceeding

10 is conducted, or where the person resides or con11 ducts business, in order to enforce a subpoena issued

12 under subsection (b).

13 (2) ORDER.—The court may issue an order re14 quiring the person referred to in a paragraph (1) to

15 comply with a subpoena referred to in paragraph

16 (1).

17 (3) FAILURE TO OBEY.—Any failure to obey

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

19 as a contempt of court.

20 (4) PROCESS.—Process in any proceeding

21 under this subsection may be served in the United

22 States judicial district in which the person being

23 proceeded against resides or conducts business, or

24 wherever the person may be found.
45

•S 1790 IS

1 SEC. 10. CONFIDENTIALITY.

2 (a) PROHIBITION.—No information regarding names

3 of voters or how a person voted in a referendum conducted

4 under this Act shall be made public.

5 (b) PENALTY.—Any person who knowingly violates

6 subsection (a) or the confidentiality terms of an order, as

7 described in section 5(k)(2), shall be subject to a fine of

8 not less that $1,000 nor more than $10,000 or to impris9 onment for not more than 1 year, or both. If the person

10 is an officer or employee of the Department of Agriculture

11 or the Board, the person shall be removed from office.

12 (c) ADDITIONAL PROHIBITION.—No information ob13 tained under this Act may be made available to any agency

14 or officer of the Federal Government for any purpose

15 other than the implementation of this Act or an investiga16 tory or enforcement action necessary for the implementa17 tion of this Act.

18 (d) WITHHOLDING INFORMATION FROM CONGRESS

19 PROHIBITED.—Nothing in this Act shall be construed to

20 authorize the withholding of information from Congress.

21 SEC. 11. AUTHORITY FOR SECRETARY TO SUSPEND OR

22 TERMINATE ORDER.

23 (a) GROUNDS FOR SUSPENSION OR TERMINATION.—

24 If the Secretary finds that an order, or any provision of

25 the order, obstructs or does not tend to effectuate the pol26 icy of this Act specified in section 2(b), the Secretary shall
46

•S 1790 IS

1 terminate or suspend the operation of the order or provi2 sion under such terms as the Secretary determines are ap3 propriate.

4 (b) EFFECT OF LACK OF APPROVAL OF ORDER.—

5 If, as a result of a referendum, the Secretary determines

6 that the order is not approved, the Secretary shall, within

7 180 days after making the determination, suspend, or ter8 minate, as appropriate, collection of assessments under

9 the order, and suspend or terminate, as appropriate, ac10 tivities under the order in an orderly manner as soon as

11 possible.

12 SEC. 12. CONSTRUCTION.

13 (a) TERMINATION OR SUSPENSION NOT AN

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

15 a provision of an order, shall not be considered an order

16 under the meaning of this Act.

17 (b) PRODUCER RIGHTS.—This Act—

18 (1) may not be construed to provide for control

19 of production or otherwise limit the right of indi20 vidual Hass avocado growers to produce Hass avoca21 dos; and

22 (2) shall be construed to treat all persons pro23 ducing Hass avocados fairly and to implement any

24 order in an equitable manner.
47

•S 1790 IS

1 (c) RELATIONSHIP BETWEEN SECRETARY AND

2 BOARD.—In carrying out the Secretary’s responsibilities

3 to oversee the collection and disbursement of assessment

4 funds and the operation of the program within the provi5 sions of this Act, no official or employee of the Depart6 ment shall attempt to make decisions as to the best use

7 of assessment funds or shape the program to the personal

8 preference of the official or employee. The Secretary’s re9 sponsibility is to ensure that the program operates in a

10 manner consistent with this Act and other applicable law.

11 The Board shall retain sole authority to structure the

12 projects and activities within the limits established by this

13 Act and the order issued pursuant to this Act, and the

14 Secretary shall not substitute its judgment to modify or

15 alter such projects and activities. The Secretary shall

16 eliminate any unnecessary regulatory costs or require17 ments to the industry in carrying out the Secretary’s over18 sight and regulatory responsibilities and shall promote the

19 most efficient use of producer and importer assessments.

20 (d) OTHER PROGRAMS.—Nothing in this Act may be

21 construed to preempt or supersede any other program re22 lating to Hass avocado promotion and consumer informa23 tion organized and operated under the laws of the United

24 States or of a State.
48

•S 1790 IS

1 SEC. 13. REGULATIONS.

2 The Secretary may issue such regulations as are nec3 essary to carry out this Act and the powers vested in the

4 Secretary by this Act, including regulations relating to the

5 assessment of late payment charges and interest.

6 SEC. 14. AUTHORIZATION OF APPROPRIATIONS.

7 (a) IN GENERAL.—There are authorized to be appro8 priated for each fiscal year such sums as are necessary

9 to carry out this Act.

10 (b) ADMINISTRATIVE EXPENSES.—Funds appro11 priated under subsection (a) may not be used for the pay12 ment of the expenses or expenditures of the Board in ad13 ministering a provision of an order.

Æ