I

103D CONGRESS

1ST SESSION H. R. 1738

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 others, and for other purposes.

IN THE HOUSE OF REPRESENTATIVES

APRIL 20, 1993

Mr. LEWIS of Florida (for himself, Mr. STENHOLM, Mr. DE LA GARZA, Mr.

PAYNE of New Jersey, Mr. HASTERT, Mr. HOUGHTON, Mr. ENGLISH of

Oklahoma, Ms. DANNER, Mr. KOPETSKI, Mr. CUNNINGHAM, Mr. PETERSON of Minnesota, Mr. CANADY, Mr. ALLARD, and Mr. BOEHNER) introduced the following bill; which was referred to the Committee on Agriculture

A BILL

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

others, and for other purposes.

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

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Fresh Cut Flowers

5 and Fresh Cut Greens Promotion and Information Act of

6 1993’’.
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1 SEC. 2. FINDINGS AND DECLARATION OF POLICY.

2 (a) FINDINGS.—Congress finds that—

3 (1) fresh cut flowers and fresh cut greens are

4 an integral part of life in the United States, are en5 joyed by millions of persons every year for a mul6 titude of special purposes (especially important per7 sonal events), and contribute a natural and beautiful

8 element to the human environment;

9 (2) cut flowers and cut greens are produced by

10 many individual producers throughout the United

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

12 and marketed by thousands of small-sized and me13 dium-sized businesses, and such production, han14 dling, and marketing constitute a key segment of the

15 United States horticultural industry and thus a sig16 nificant part of the Nation’s overall agricultural

17 economy;

18 (3) handlers play a vital role in the marketing

19 of cut flowers and cut greens in that they purchase

20 most of the cut flowers and cut greens marketed by

21 producers, prepare the cut flowers and cut greens

22 for retail consumption, serve as intermediary be23 tween source of product and retailer, otherwise fa24 cilitate the entry of cut flowers and cut greens into

25 the current of domestic commerce, and add effi26 ciencies to the market process that ensure the avail-
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1 ability of a much greater variety of product to retail2 ers and consumers;

3 (4) it is widely recognized that it is in the pub4 lic interest and important to the Nation’s agricul5 tural economy to provide an adequate, steady supply

6 of cut flowers and cut greens at reasonable prices to

7 the consumers of the Nation;

8 (5) cut flowers and cut greens move in inter9 state and foreign commerce, and cut flowers and cut

10 greens that do not move in such channels of com11 merce but only in intrastate commerce directly affect

12 interstate commerce in these articles;

13 (6) the maintenance and expansion of existing

14 markets and the development of new or improved

15 markets or uses for cut flowers and cut greens are

16 needed to preserve and strengthen the economic via17 bility of the domestic cut flowers and cut greens in18 dustry for the benefit of producers, handlers, retail19 ers, and the entire floral industry;

20 (7) generic programs of promotion and

21 consumer information can be effective in maintain22 ing and developing markets for cut flowers and cut

23 greens, and have the advantage of equally enhancing

24 the market position for all cut flowers and cut

25 greens marketed;
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1 (8) because cut flowers and cut greens produc2 ers are primarily agriculture-oriented rather than

3 promotion-oriented, and because the floral marketing

4 industry within the United States is comprised

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

6 the development and implementation of an adequate

7 and coordinated national program of generic pro8 motion and consumer information necessary for the

9 maintenance of existing markets and the develop10 ment of new markets for cut flowers and cut greens

11 have been prevented;

12 (9) there exist established State and commod13 ity-specific producer-funded programs of promotion

14 and research that are valuable efforts to expand

15 markets for domestic producers of cut flowers and

16 cut greens and that will be able to take advantage

17 of the promotion and consumer information program

18 authorized by this Act to enhance their market de19 velopment efforts for domestic producers;

20 (10) an effective and coordinated method for

21 ensuring cooperative and collective action in provid22 ing for and financing a nationwide program of ge23 neric promotion and consumer information is needed

24 to ensure that the cut flowers and cut greens indus25 try will be able to provide, obtain, and implement
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1 programs of promotion and consumer information

2 necessary to maintain, expand, and develop markets

3 for these articles; and

4 (11) the most efficient method of financing

5 such a nationwide program is to assess cut flowers

6 and cut greens at the point they are sold by han7 dlers into the retail market.

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

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

10 it is the purpose of this Act, to authorize the establish11 ment, through the exercise of the powers provided in this

12 Act, of an orderly procedure for the development and fi13 nancing (through an adequate assessment on cut flowers

14 and cut greens sold by handlers to retailers and related

15 entities in the United States) of an effective and coordi16 nated program of generic promotion, consumer informa17 tion,; and related research designed to strengthen the cut

18 flowers and cut greens industry’s position in the market19 place and to maintain, develop, and expand markets for

20 cut flowers and cut greens.

21 SEC. 3. DEFINITIONS.

22 As used in this Act:

23 (1) CONSUMER INFORMATION.—The term

24 ‘‘consumer information’’ means any action or pro25 gram to provide information to consumers and other
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1 persons on appropriate uses under varied cir2 cumstances, and on the care and handling, of cut

3 flowers or cut greens.

4 (2) CUT FLOWERS AND CUT GREENS.—

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

6 includes all flowers cut from growing plants and

7 used as fresh-cut flowers, produced either under

8 cover or in field operations; and the term ‘‘cut

9 greens’’ includes all cultivated or noncultivated

10 decorative foliage cut from growing plants and

11 used as fresh-cut decorative foliage (except

12 Christmas trees) produced either under cover or

13 in field operations. Neither term includes foli14 age plants, floral supplies, or flowering plants.

15 (B) SUBSTANTIAL PORTION.—In any case

16 in which a handler packages cut flowers or cut

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

18 gift basket or similar presentation, for sale to

19 retailers, the PromoFlor Council may deter20 mine, under procedures set out in the order,

21 that the cut flowers or cut greens in the article

22 do not constitute a substantial portion of the

23 value of the article and that, based on such de24 termination, such article shall not be treated as
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1 an article of cut flowers or cut greens subject

2 to assessment under such order.

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

4 sales price’’ means the total amount of the trans5 action in a sale of cut flowers or cut greens from a

6 handler to a retailer.

7 (4) HANDLER DEFINITIONS.—

8 (A) QUALIFIED HANDLER.—

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

10 handler’’ means a person (including a co11 operative) operating in the cut flowers or

12 cut greens marketing system that sells do13 mestic or imported cut flowers or cut

14 greens to retailers and exempt handlers

15 and whose annual sales of cut flowers and

16 cut greens to retailers and exempt handlers

17 are $750,000 or more.

18 (ii) INCLUSIONS AND EXCLUSIONS.—

19 The term ‘‘qualified handler’’ includes—

20 (I) bouquet manufacturers (sub21 ject to the ‘‘substantial portion’’ rule

22 under paragraph (2)(B));

23 (II) auction houses that clear

24 sales of cut flowers and cut greens to
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1 retailers and exempt handlers through

2 a central clearinghouse; and

3 (III) any distribution center that

4 is owned or controlled by a retailer

5 (aa) if the predominant retail business

6 activity of the retailer is floral sales or

7 (bb) when a majority of the cut flow8 ers and cut greens sales or transfers

9 from such center are to entities other

10 than entities owned or controlled by

11 the retailer. For purposes of deter12 mining sales of cut flowers and cut

13 greens to retailers from any such dis14 tribution center, each non-sale trans15 fer to a retailer shall be treated as a

16 sale in an amount calculated as pro17 vided in subparagraph (C).

18 The term ‘‘qualified handler’’ does not in19 clude a person who merely physically

20 transports or delivers cut flowers or cut

21 greens.

22 (iii) RULES OF CONSTRUCTION.—The

23 term ‘‘qualified handler’’ shall be deemed

24 to include an importer or producer that

25 sells cut flowers or cut greens that it has
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1 imported into the United States or pro2 duced, respectively, directly to consumers

3 and whose sales of such articles (as cal4 culated under subparagraph (C)), along

5 with sales of cut flowers and cut greens to

6 retailers or exempt handlers, annually are

7 $750,000 or more; and each direct sale to

8 consumers by any such qualified handler

9 shall be treated as a sale to a retailer or

10 exempt handler in an amount calculated as

11 provided in subparagraph (C). For pur12 poses of this paragraph, the term ‘‘pro13 ducer’’ has the same meaning as that pro14 vided for the term by section

15 5(b)(2)(B)(ii)(I) of this Act, and the term

16 ‘‘importer’’ has the same meaning as that

17 provided for the term by section

18 5(b)(2)(B)(iii)(I) of this Act.

19 (B) EXEMPT HANDLER.—The term ‘‘ex20 empt handler’’ means a person that would oth21 erwise be considered to be a qualified handler,

22 except that its annual sales of cut flowers and

23 cut greens to retailers and other exempt han24 dlers are less than $750,000.
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1 (C) ANNUAL SALES DETERMINED.—For

2 purposes of determining the amount of annual

3 sales of cut flowers and cut greens under sub4 paragraphs (A) and (B), the amount of a sale

5 shall be determined on the basis of the gross

6 sales price, as that term is defined in paragraph

7 (3), of product sold, except that with respect to

8 non-sale transfers of cut flowers or cut greens

9 from a distribution center, as described in sub10 paragraph (A)(ii)(III), and direct sales to con11 sumers, as described in subparagraph (A)(iii),

12 the amount of the sale shall be the price paid

13 by the distribution center, or importer, respec14 tively, to acquire the cut flowers or cut greens

15 plus an amount determined by multiplying such

16 acquisition price by a uniform percentage estab17 lished by the PromoFlor Council to represent a

18 wholesale handler’s mark-up on a sale to a re19 tailer (or in the case of direct sales to consum20 ers by producers, an amount determined by ap21 plying to the price paid by the consumer a uni22 form percentage established by the PromoFlor

23 Council to represent the cost of producing the

24 article and a wholesale handler’s mark-up on a

25 sale to a retailer).
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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) PROMOLFOLOR COUNCIL.—The term

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

7 and Fresh Cut Greens Promotion Council estab8 lished under section 5(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 Act, that sells

23 cut flowers or cut greens to consumers, and shall in24 clude any distribution center owned or controlled by

25 such person only if—
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1 (A) the predominant retail business activ2 ity of the retailer is not floral sales, and

3 (B) the majority of the cut flowers and cut

4 greens sales or transfers from such center are

5 to entities owned or controlled by such person.

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

7 means the Secretary of Agriculture.

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

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

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

11 all the territories and possessions of the United

12 States.

13 SEC. 4. ISSUANCE OF ORDERS.

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

15 of section 2(b), the Secretary, subject to the procedures

16 provided in subsection (b), shall issue orders under this

17 Act applicable to qualified handlers of cut flowers and cut

18 greens. Any such order shall be national in scope. Not

19 more than one order shall be in effect under this Act at

20 any one time.

21 (b) PROCEDURES.—

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

23 may propose the issuance of an order under this

24 Act, or an industry group that represents a substan25 tial number of the industry members who are to be
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1 assessed under the order, or any other person that

2 will be effected by this Act, may request the issuance

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

4 (2) PUBLICATION OF PROPOSAL.—Not later

5 than sixty days after the earlier of—

6 (A) the receipt by the Secretary of a pro7 posal for an order from an industry group or

8 interested person, as provided in paragraph (1)

9 of this subsection, or

10 (B) the determination of the Secretary to

11 propose an order, the Secretary shall publish

12 the proposed order and give due notice and op13 portunity for public comment on the proposed

14 order.

15 (3) ISSUANCE OF ORDER.—After notice and op16 portunity for public comment are given, as provided

17 in paragraph (2), the Secretary shall issue the order,

18 taking into consideration the comments received and

19 including in the order provisions necessary to ensure

20 that the order is in conformity with the require21 ments of this Act. Such order shall be issued and be22 come effective not later than one hundred fifty days

23 following publication of the proposed order.

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

25 time, may amend any order issued under this Act. The
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1 provisions of this Act applicable to an order shall be appli2 cable to amendments to the order.

3 SEC. 5. REQUIRED TERMS IN ORDERS.

4 (a) IN GENERAL.—Each order issued under this Act

5 shall contain the terms and provisions prescribed in this

6 section.

7 (b) PROMOLFLOR COUNCIL—

8 (1) ESTABLISHMENT AND MEMBERSHIP.—

9 (A) ESTABLISHMENT.—The order shall

10 provide for the establishment of a Fresh Cut

11 Flowers and Fresh Cut Greens Promotion

12 Council, consisting of twenty one members, to

13 administer the order.

14 (B) MEMBERSHIP.—The order shall pro15 vide that members of the PromoFlor Council

16 shall be participating qualified handlers rep17 resenting qualified wholesale handlers and pro18 ducers and importers that are qualified han19 dlers, and a member that represents retailers,

20 appointed by the Secretary from nominations

21 submitted by qualified wholesale handlers, pro22 ducers and importers that are qualified han23 dlers, and retailers, as provided in paragraphs

24 (2) and (3).

25 (2) DISTRIBUTION OF APPOINTMENTS.—
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1 (A) IN GENERAL.—The order shall provide

2 that the membership of the PromoFlor Council

3 shall be made up of—

4 (i) fourteen members representing

5 qualified wholesale handlers of domestic or

6 imported cut flowers and cut greens;

7 (ii) three members representing pro8 ducers that are qualified handlers of cut

9 flowers and cut greens;

10 (iii) three members representing im11 porters that are qualified handlers of cut

12 flowers and cut greens; and

13 (iv) one member representing cut

14 flowers and cut greens retailers.

15 (B) MEANING OF TERMS.—For purposes

16 of this subsection:

17 (i) QUALIFIED WHOLESALE HAN18 DLERS.—The term ‘‘qualified wholesale

19 handler’’ means a person in business as a

20 floral wholesale jobber or floral supplier

21 and that is subject to assessments as a

22 qualified handler under the order. For pur23 poses of this clause, the term ‘‘floral

24 wholesale jobber’’ means a person that

25 conducts a commission or other wholesale
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1 business in buying and selling cut flowers

2 or cut greens, and the term ‘‘floral sup3 plier’’ means a person engaged in acquir4 ing cut flowers or cut greens to be manu5 factured into floral articles or otherwise

6 processed for resale.

7 (ii) PRODUCER THAT IS A QUALIFIED

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

9 qualified handler’’ means an entity that—

10 (I) is engaged—

11 (aa) in the domestic produc12 tion, for sale in commerce, of cut

13 flowers or cut greens and that

14 owns or shares in the ownership

15 and risk of loss of such cut flow16 ers or cut greens; or

17 (bb) as a first processor of

18 noncultivated cut greens, in re19 ceiving such cut greens from the

20 persons that gather them for

21 handling; and

22 (II) is subject to assessments as

23 a qualified handler under the order.
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1 (iii) IMPORTER THAT IS A QUALIFIED

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

3 qualified handler’’ means an entity—

4 (I) whose principal activity is the

5 importation of cut flowers or cut

6 greens into the United States (either

7 directly or as an agent, broker, or

8 consignee of any person or nation that

9 produces or handles cut flowers or cut

10 greens outside the United States for

11 sale in the United States); and

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

14 the order.

15 (C) DISTRIBUTION OF QUALIFIED WHOLE16 SALE HANDLER APPOINTMENTS.—The order

17 shall provide that the qualified wholesale han18 dler appointments made by the Secretary to the

19 PromoFlor Council shall take into account the

20 geographical distribution of cut flowers and cut

21 greens markets in the United States.

22 (3) NOMINATION PROCESS.—The order shall

23 provide that—

24 (A) two nominees be submitted for each

25 appointment to the PromoFlor Council;
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1 (B) nominations for each appointment of a

2 qualified wholesale handler, producer that is a

3 qualified handler, or importer that is a qualified

4 handler to the PromoFlor Council shall be

5 made by qualified wholesale handlers, producers

6 that are qualified handlers, or importers that

7 are qualified handlers, respectively, through an

8 election process under regulations prescribed by

9 the Secretary;

10 (C) nominations for the retailer appoint11 ment shall be made by the American Floral

12 Marketing Council, or successor entity; and

13 (D) in any case in which qualified whole14 sale handlers, producers that are qualified han15 dlers, importers that are qualified handlers, or

16 retailers fail to nominate individuals for an ap17 pointment to the PromoFlor Council, the Sec18 retary may appoint a person to fill the vacancy

19 on a basis provided in the order or other regu20 lations of the Secretary.

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

22 the selection of alternate members of the PromoFlor

23 Council by the Secretary under procedures specified

24 in the order.
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1 (5) TERMS; COMPENSATION.—The order shall

2 provide that—

3 (A) each term of appointment to the

4 PromoFlor Council shall be for three years, ex5 cept that, of the initial appointments, one-third

6 shall be for two-year terms, one-third for three7 year terms, and one-third for four-year terms;

8 (B) no member of the PromoFlor Council

9 may serve more than two consecutive terms of

10 three years, except that any member serving on

11 initial term of four years may serve an addi12 tional term of three years; and

13 (C) PromoFlor Council members shall

14 serve without compensation, but shall be reim15 bursed for their expenses incurred in perform16 ing their duties as members of the PromoFlor

17 Council.

18 (6) EXECUTIVE COMMITTEE.—

19 (A) ESTABLISHMENT.—The order shall au20 thorize the PromoFlor Council to appoint from

21 among its members an executive committee of

22 not more than nine members. The membership

23 of the executive committee initially shall be

24 composed of four members representing quali25 fied wholesale handlers, two members represent-
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1 ing producers that are qualified handlers, two

2 members representing importers that are quali3 fied handlers, and one member representing re4 tailers; and thereafter appointments to the exec5 utive committee shall be made so as to ensure

6 that the committee reflects, to the maximum

7 extent practicable, the membership composition

8 of the PromoFlor Council as a whole. The ini9 tial appointments to the executive committee

10 each shall be for a term of two years. There11 after, appointments to the executive committee

12 each shall be for a term of one year.

13 (B) AUTHORITY.—The PromoFlor Council

14 may delegate to the executive committee its au15 thority under the order to hire and manage

16 staff and conduct the routine business of the

17 PromoFlor Council within the policies deter18 mined by the PromoFlor Council.

19 (c) GENERAL RESPONSIBILITIES OF THE

20 PROMOFLOR COUNCIL.—The order shall define the gen21 eral responsibilities of the PromoFlor Council, which shall

22 include the responsibilities to—

23 (1) administer the order in accordance with its

24 terms and provisions;
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1 (2) make rules and regulations to effectuate the

2 terms and provisions of the order;

3 (3) appoint members of the PromoFlor Council

4 to serve on an executive committee;

5 (4) employ such persons as the PromoFlor

6 Council determines are necessary, and set the com7 pensation and define the duties of such persons;

8 (5) develop budgets for the implementation of

9 the order and submit such budgets to the Secretary

10 for approval under subsection (d), and propose and

11 develop (or receive and evaluate), approve, and sub12 mit to the Secretary for approval under subsection

13 (d) plans and projects for cut flowers or cut greens

14 promotion, consumer information, or related re15 search;

16 (6) implement plans and projects for cut flow17 ers or cut greens promotion, consumer information,

18 or related research, as provided in subsection (d), or

19 contract or enter into agreements with appropriate

20 persons to implement such plans and projects, as

21 provided in subsection (e), and pay the costs of such

22 implementation, or contracts and agreements, with

23 funds received under the order;
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1 (7) evaluate on-going and completed plans and

2 projects for cut flowers or cut greens promotion,

3 consumer information, or related research;

4 (8) receive, investigate, and report to the Sec5 retary complaints of violations of the order;

6 (9) recommend to the Secretary amendments to

7 the order;

8 (10) invest, pending disbursement under a plan

9 or project, funds collected through assessments au10 thorized under this Act only in—

11 (A) obligations of the United States or any

12 agency thereof;

13 (B) general obligations of any State or any

14 political subdivision thereof;

15 (C) any interest-bearing account or certifi16 cate of deposit of a bank that is a member of

17 the Federal Reserve System; or

18 (D) obligations fully guaranteed as to prin19 cipal and interest by the United States.

20 Income from any such invested funds may only be

21 used for a purpose for which the invested funds may

22 be used; and

23 (11) furnish the Secretary with such informa24 tion as the Secretary may require.

25 (d) BUDGETS; PLANS AND PROJECTS.—
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1 (1) SUBMISSION OF BUDGETS.—The order shall

2 require the PromoFlor Council to submit to the Sec3 retary for approval budgets on a fiscal year basis of

4 its anticipated expenses and disbursements in the

5 implementation of the order, including projected

6 costs of cut flowers and cut greens promotion,

7 consumer information, and related research plans

8 and projects.

9 (2) PLANS OR PROJECTS.—

10 (A) PROMOTION AND CONSUMER INFORMA11 TION.—The order shall provide—

12 (i) for the establishment, implementa13 tion, administration, and evaluation of ap14 propriate plans and projects for advertis15 ing, sales promotion, other promotion, and

16 consumer information with respect to cut

17 flowers and cut greens, and for the dis18 bursement of necessary funds for such pur19 poses;

20 (ii) that any such plan or project shall

21 be directed toward increasing the general

22 demand for cut flowers or cut greens and

23 may make no reference to a private brand

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

25 supply, except that these limitations shall
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1 not preclude the PromoFlor Council from

2 offering its plans and projects for use by

3 commercial parties, under terms and con4 ditions prescribed by the PromoFlor Coun5 cil and approved by the Secretary; and

6 (iii) that no such plan or project may

7 make use of unfair or deceptive acts or

8 practices with respect to quality or value.

9 (B) RESEARCH.—The order shall provide

10 for the establishment, implementation, adminis11 tration, and evaluation of plans and projects for

12 market development research, research with re13 spect to the sale, distribution, marketing, or use

14 of cut flowers or cut greens, and other research

15 with respect to cut flowers or cut greens mar16 keting, promotion, or consumer information; for

17 the dissemination of the information gained by

18 such activities; and for the disbursement of nec19 essary funds for such purposes.

20 (C) SUBMISSION TO SECRETARY.—The

21 order shall provide that the PromoFlor Council

22 shall submit to the Secretary for approval any

23 proposed plan or project for cut flowers or cut

24 greens promotion, consumer information, or re-
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1 lated research, as described in subparagraphs

2 (A) and (B).

3 (3) APPROVAL BY SECRETARY.—No budget, or

4 plan or project for cut flowers or cut greens pro5 motion, consumer information, or related research,

6 shall be implemented prior to its approval by the

7 Secretary.

8 (e) CONTRACTS AND AGREEMENTS.—

9 (1) PROMOTION, CONSUMER INFORMATION, AND

10 RELATED RESEARCH PLANS AND PROJECTS.—

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

12 of funds, the order shall provide that the

13 PromoFlor Council, with the approval of the

14 Secretary, may enter into contracts or agree15 ments for the implementation of any plan or

16 project for promotion, consumer information, or

17 related research with respect to cut flowers or

18 cut greens, and for the payment of the cost

19 thereof with funds received by the PromoFlor

20 Council under the order.

21 (B) REQUIREMENTS.—The order shall pro22 vide that any such contract or agreement shall

23 provide that—

24 (i) the contracting or agreeing party

25 shall develop and submit to the PromoFlor
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1 Council a plan or project together with a

2 budget or budgets that shall show esti3 mated costs to be incurred for such plan or

4 project;

5 (ii) the plan or project shall become

6 effective on the approval of the Secretary;

7 and

8 (iii) the contracting or agreeing party

9 shall keep accurate records of all of its

10 transactions, account for funds received

11 and expended, make periodic reports to the

12 PromoFlor Council of activities conducted,

13 and make such other reports as the

14 PromoFlor Council or the Secretary may

15 require.

16 (2) OTHER CONTRACTS AND AGREEMENTS.—

17 The order shall provide that the PromoFlor Council

18 also may enter into contracts or agreements for ad19 ministrative services. Any such contract or agree20 ment shall include provisions comparable to those

21 provided in clauses (i), (ii), or (iii) of paragraph

22 (1)(B).

23 (f) BOOKS AND RECORDS OF THE PROMOFLOR

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

2 PromoFlor Council to—

3 (A) maintain such books and records

4 (which shall be available to the Secretary for in5 spection and audit) as the Secretary may pre6 scribe;

7 (B) prepare and submit to the Secretary,

8 from time to time, such reports as the Sec9 retary may prescribe; and

10 (C) account for the receipt and disburse11 ment of all funds entrusted to the PromoFlor

12 Council.

13 (2) AUDITS.—The PromoFlor Council shall

14 cause its books and records to be audited by an

15 independent auditor at the end of each fiscal year.

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

17 Secretary.

18 (g) CONTROL OF ADMINISTRATIVE COSTS.—The

19 order shall provide that the PromoFlor Council shall, as

20 soon as practicable after the order becomes effective and

21 after consultation with the Department of Agriculture and

22 other appropriate persons, implement a system of cost

23 controls based on normally accepted business practices

24 that will ensure that the PromoFlor Council’s annual

25 budgets only include amounts for administrative expenses
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1 that cover the minimum administrative activities and per2 sonnel needed to properly administer and enforce the

3 order and conduct, supervise, and evaluate plans and

4 projects under the order.

5 (h) ASSESSMENTS.—

6 (1) AUTHORITY.—

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

8 that each qualified handler shall pay to the

9 PromoFlor Council, in the manner prescribed

10 by the order, an assessment on each sale of cut

11 flowers or cut greens to a retailer or an exempt

12 handler (including each transaction described in

13 subparagraph (C)(ii)), except to the extent such

14 sale is excluded from assessments under section

15 6(a).

16 (B) PUBLISHED LISTS.—To facilitate the

17 payment of assessments under this paragraph,

18 the PromoFlor Council shall publish lists of

19 qualified handlers required to pay assessments

20 under the order and exempt handlers.

21 (C) MAKING DETERMINATIONS.—

22 (i) QUALIFIED HANDLER STATUS.—

23 The order also shall contain provisions re24 garding the making of determinations to

25 determine status as a qualified handler or
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1 exempt handler that include the rules and

2 requirements set out in sections 3(4) and

3 6(b).

4 (ii) COVERED TRANSACTIONS.—The

5 order shall provide that each non-sale

6 transfer of cut flowers or cut greens to a

7 retailer from a qualified handler that is a

8 distribution center, as described in section

9 3(4)(A)(ii)(III), and each direct sale of cut

10 flowers or cut greens to a consumer by a

11 qualified handler that is an importer or

12 producer, as described in section

13 3(4)(A)(iii), shall be treated as a sale of

14 cut flowers or cut greens to a retailer sub15 ject to assessments under this subsection,

16 in an amount equal to the price paid by

17 the distribution center or importer, respec18 tively, to acquire the cut flowers or cut

19 greens plus an amount determined by mul20 tiplying such acquisition price by a uni21 form percentage established by the

22 PromoFlor Council to represent a whole23 sale handler’s mark-up on a sale to a re24 tailer (or in the case of direct sales to con25 sumers by producers, an amount deter-
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1 mined by applying to the price paid by the

2 consumer a uniform percentage established

3 by the PromoFlor Council to represent the

4 cost of producing the article and a whole5 sale handler’s mark-up on a sale to a

6 retailer).

7 (2) ASSESSMENT RATES.—The order shall pro8 vide as follows:

9 (A) INITIAL RATE.—The rate of assess10 ment on each sale or transfer of cut flowers or

11 cut greens, for the first three years the order is

12 in effect, shall be one-half of 1 per centum of

13 the gross sales price of product sold or (in the

14 case of transactions described in paragraph

15 (1)(C)(ii)) of the amount of each transaction

16 calculated as provided in paragraph (1)(C)(ii).

17 (B) CHANGES IN THE RATE.—After the

18 first three years the order is in effect, the uni19 form assessment rate may be increased or de20 creased annually by not more than .25 per cen21 tum of gross sales price of product sold or (in

22 the case of transactions described in paragraph

23 (1)(C)(ii)) of the amount of each transaction

24 calculated as provided in paragraph (1)(C)(ii),

25 except that the assessment rate may in no case
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1 exceed 1 per centum of gross sales price or

2 transaction amount. Any such change in the

3 rate of assessment—

4 (i) may be made only if adopted by

5 the PromoFlor Council by a two-thirds ma6 jority vote and approved by the Secretary

7 as necessary to achieve the objectives of

8 this Act;

9 (ii) shall be announced by the

10 PromoFlor Council at least thirty days

11 prior to going into effect; and

12 (iii) shall not be subject to a vote in

13 a referendum under section 7.

14 (3) WHEN ASSESSMENTS SUBMITTED.—The

15 order shall provide that each person required to pay

16 assessments under this subsection shall remit, to the

17 PromoFlor Council, the assessment due from each

18 sale by that person of cut flowers or cut greens that

19 is subject to an assessment within such time period

20 after the sale (not to exceed sixty days from the end

21 of the month in which the sale took place) as speci22 fied in the order.

23 (4) REFUNDS FROM ESCROW ACCOUNT.—
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1 (A) ESTABLISHMENT OF ESCROW AC2 COUNT.—The order shall provide that the

3 PromoFlor Council shall—

4 (i) establish an escrow account to be

5 used for assessment refunds as needed,

6 and

7 (ii) place into such account an amount

8 equal to ten percent of the total amount of

9 assessments collected during the period be10 ginning on the date the order goes into ef11 fect, as provided in section 4(b)(3), and

12 ending on the date the initial referendum

13 on the order provided for in section 7(a) is

14 completed.

15 (B) RIGHT TO RECEIVE REFUND.—

16 (i) IN GENERAL.—The order shall

17 provide that, subject to subparagraph (C)

18 and the conditions specified in clause (ii),

19 any qualified handler shall have the right

20 to demand and receive from the PromoFlor

21 Council out of the escrow account a one22 time refund of any assessments paid by or

23 on behalf of such qualified handler during

24 the time period specified in subparagraph

25 (A)(ii), if—
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1 (I) such qualified handler is re2 quired to pay such assessments;

3 (II) such qualified handler does

4 not support the program established

5 under this Act;

6 (III) such qualified handler de7 mands such refund prior to the con8 duct of the referendum on the order

9 under section 7(a); and

10 (IV) the order is not approved by

11 qualified handlers in the referendum.

12 (ii) CONDITIONS.—The right of any

13 qualified handler to receive refunds under

14 clause (i) shall be subject to the following

15 conditions:

16 (I) Such demand shall be made

17 in accordance with regulations, on a

18 form, and within a time period pre19 scribed by the PromoFlor Council.

20 (II) Such refund shall be made

21 only on submission of proof satisfac22 tory to the Board that such qualified

23 handler paid the assessment for which

24 refund is demanded.
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1 (III) If the amount in the escrow

2 account required under subparagraph

3 (A) is not sufficient to refund the

4 total amount of assessments de5 manded by all qualified handlers de6 termined eligible for refunds and the

7 order is not approved in the referen8 dum on the order under section 7(a),

9 the PromoFlor Council shall prorate

10 the amount of all such refunds among

11 all eligible qualified handlers that de12 mand such refund.

13 (C) PROGRAM APPROVED.—The order shall

14 provide that, if the order is approved in the ref15 erendum under section 7(a), there shall be no

16 refunds made and all funds in the escrow ac17 count shall be returned to the PromoFlor Coun18 cil for use by the PromoFlor Council in accord19 ance with the other provisions of the order.

20 (5) USE OF ASSESSMENT FUNDS.—The order

21 shall provide that assessment funds (net of any re22 funds paid out under the terms of the order con23 tained in paragraph (4)) shall be used for payment

24 of costs incurred in implementing and administering

25 the order, with provision for a reasonable reserve,
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1 and to cover those administrative costs incurred by

2 the Secretary in implementing and administering

3 this Act, except for the salaries of Government em4 ployees incurred in conducting referenda.

5 (i) PROHIBITION.—The order shall prohibit the use

6 of any funds received by the PromoFlor Council in any

7 manner for the purpose of influencing legislation or gov8 ernment action or policy, except that such funds may be

9 used by the PromoFlor Council for the development and

10 recommendation to the Secretary of amendments to the

11 order.

12 (j) BOOKS AND RECORDS; REPORTS.—

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

14 each qualified handler shall maintain, and make

15 available for inspection, such books and records as

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

17 time, in the manner, and having the content pre18 scribed by the order, to the end that information is

19 made available to the Secretary and the PromoFlor

20 Council as is appropriate for the administration or

21 enforcement of this Act, the order, or any regulation

22 issued under this Act.

23 (2) CONFIDENTIALITY REQUIRED.—

24 (A) Information obtained from books,

25 records, or reports under the authority provided
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1 in paragraph (1), or from reports required

2 under section 6(b)(3), shall be kept confidential

3 by all officers and employees of the Department

4 of Agriculture and by the staff and agents of

5 the PromoFlor Council, and only such informa6 tion so obtained as the Secretary considers rel7 evant may be disclosed to the public by them

8 and then only in a suit or administrative hear9 ing brought at the request of the Secretary, or

10 to which the Secretary or any officer of the

11 United States is a party, and involving the

12 order.

13 (B) Nothing in subparagraph (A) may be

14 construed to prohibit—

15 (i) the issuance of general statements,

16 based on the reports, of the number of per17 sons subject to the order or statistical data

18 collected therefrom, which statements do

19 not identify the information furnished by

20 any person; or

21 (ii) the publication, by direction of the

22 Secretary, of the name of any person vio23 lating the order, together with a statement

24 of the particular provisions of the order

25 violated by such person.
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1 (3) LISTS OF IMPORTERS.—The order shall

2 provide that the staff of the PromoFlor Council peri3 odically shall review lists of importers of cut flowers

4 and cut greens to determine whether persons listed

5 therein are subject to the order; and the United

6 States Customs Service shall provide such lists at

7 the request of the PromoFlor Council.

8 (k) CONSULTATIONS WITH INDUSTRY EXPERTS.—

9 The order shall provide that the PromoFlor Council, from

10 time to time, may seek advice from and consult with ex11 perts from the production, import, wholesale, and retail

12 segments of the cut flowers and cut greens industry to

13 assist in the development of promotion, consumer informa14 tion, and related research plans and projects. For such

15 purpose, the order also shall authorize the appointment

16 of special committees composed of persons other than

17 PromoFlor Council members. No such committee may

18 provide advice or recommendations to an agency or officer

19 of the Federal Government, but shall consult directly with

20 the PromoFlor Council.

21 (1) OTHER TERMS OF THE ORDER.—The order shall

22 contain such other terms and provisions, not inconsistent

23 with this Act, as are necessary to effectuate this Act, (in24 cluding provision for the assessment of a charge for each
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1 late payment of assessments under subsection (h)) and as

2 provided in section 6.

3 SEC. 6. EXCLUSION; DETERMINATIONS.

4 (a) EXCLUSION.—Any order issued under this Act

5 shall exclude from assessments under the order any sale

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

7 States.

8 (b) MAKING DETERMINATIONS.—

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

10 $750,000 annual sales limitation to specific persons

11 in order to determine status as a qualified handler

12 or an exempt handler under section 3(4), or to spe13 cific facilities in order to determine status as an eli14 gible separate facility under section 7(b)(2), any

15 order issued under this Act shall provide that—

16 (A) a determination of a person’s or facili17 ty’s annual sales volume shall be based on the

18 sales of cut flowers and cut greens by such per19 son or facility during the most recently-com20 pleted calendar year, except as provided in sub21 paragraph (B); and

22 (B) with respect to new businesses and

23 other operations for which complete data on

24 sales during all or part of the most recently25 completed calendar year are not available to the
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1 PromoFlor Council, the determination may be

2 made using an alternative time period or other

3 alternative procedures specified in the order.

4 (2) RULE OF ATTRIBUTION.—For purposes of

5 determining the annual sales volume of a person or

6 a separate facility of a person, sales attributable to

7 a person shall include—

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

9 an individual, sales attributable to such per10 son’s spouse, children, grandchildren, parents,

11 and grandparents;

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

13 a partnership or member of a partnership, sales

14 attributable to the partnership and other part15 ners of the partnership;

16 (C) for both individuals and partnerships,

17 sales attributable to any corporation or other

18 entity in which the person owns more than 50

19 per centum of the stock or (if the entity is not

20 a corporation) that the person controls; and

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

22 a corporation, sales attributable to any cor23 porate subsidiary or other corporation or entity

24 in which the corporation owns more than 50 per
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1 centum of the stock or (if the entity is not a

2 corporation) that the corporation controls.

3 For purposes of this paragraph, stock or an owner4 ship interest in an entity that is owned by the

5 spouse, children, grandchildren, parents, grand6 parents, or partners of an individual, or by a part7 nership in which a person is a partner, or by a cor8 poration more than 50 per centum of the stock of

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

10 owned by the individual or person.

11 (3) REPORTS.—For purposes of this subsection,

12 the order may require each person that sells cut

13 flowers or cut greens to retailers to submit reports

14 to the PromoFlor Council on annual sales by such

15 person. Such reports shall be subject to the con16 fidentiality requirements provided in section 5(j)(2).

17 SEC. 7. REFERENDA.

18 (a) REQUIREMENT FOR INITIAL REFERENDUM.—

19 (1) CONDUCT.—Not later than thirty-six

20 months after the issuance of an order under section

21 4(b)(3), the Secretary shall conduct a referendum

22 among qualified handlers required to pay assess23 ments under the order, as provided in section

24 5(h)(1), subject to the rules on voting provided in
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1 subsection (b), to ascertain whether or not the order

2 then in effect shall be continued.

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

4 shall be continued only if the Secretary determines

5 that the order has been approved by a simple major6 ity of all votes cast in the referendum. If the order

7 is not approved, the Secretary shall terminate the

8 order as provided in subsection (d).

9 (b) VOTES PERMITTED.—

10 (1) IN GENERAL.—Each qualified handler eligi11 ble to vote in a referendum under this section shall

12 be entitled to cast one vote for each separate facility

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

14 defined in paragraph (2).

15 (2) ELIGIBLE SEPARATE FACILITY.—

16 (A) SEPARATE FACILITY.—A handling or

17 marketing facility of a qualified handler shall be

18 considered a separate facility if it is physically

19 located away from other facilities of the quali20 fied handler or its business function is substan21 tially different than the functions of other fa22 cilities owned or operated by the qualified han23 dler.

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

25 qualified handler shall be considered an eligible
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1 separate facility if the annual sales of cut flow2 ers and cut greens to retailers and exempt han3 dlers from such facility are $750,000 or more.

4 (C) ANNUAL SALES DETERMINED.—For

5 purposes of determining the amount of annual

6 sales of cut flowers and cut greens under sub7 paragraph (B) of this paragraph, the rules set

8 out in subparagraphs (A) and (C) of section

9 3(4) shall be applicable.

10 (c) SUSPENSION OR TERMINATION REFERENDA.—

11 Effective beginning three years after an order issued

12 under this Act is approved in a referendum conducted

13 under subsection (a), the Secretary—

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

15 at any time a referendum of qualified handlers re16 quired to pay assessments under the order, as pro17 vided in section 5(h)(1), subject to the rules on vot18 ing provided in subsection (b), to ascertain whether

19 or not qualified handlers favor suspension or termi20 nation of the order; and

21 (2) whenever requested by the PromoFlor

22 Council or by a representative group comprising

23 thirty percent or more of all qualified handlers re24 quired to pay assessments under the order, as pro25 vided in section 5(h)(1), shall conduct a referendum
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1 of all qualified handlers required to pay assessments

2 under the order, as provided section 5(h)(1), subject

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

4 ascertain whether or not qualified handlers favor

5 suspension or termination of the order.

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

7 of the referendum conducted under subsection (a)(2), the

8 Secretary determines that the order has not been approved

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

10 or as a result of a referendum conducted under subsection

11 (c), the Secretary determines that suspension or termi12 nation of the order is favored by a simple majority of all

13 votes cast in the referendum, the Secretary shall—

14 (1) within six months after the referendum,

15 suspend or terminate, as appropriate, collection of

16 assessments under the order; and

17 (2) suspend or terminate, as appropriate, activi18 ties under the order in an orderly manner as soon

19 as practicable.

20 (e) MANNER OF CONDUCTING REFERENDA.—

21 Referenda under this section shall be conducted in such

22 manner as is determined appropriate by the Secretary.

23 SEC. 8. PETITION AND REVIEW.

24 (a) PETITION AND HEARING.—
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1 (1) PETITION.—A person subject to an order

2 issued under this Act may file with the Secretary a

3 petition—

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

5 the order, or any obligation imposed in connec6 tion with the order is not in accordance with

7 law; and

8 (B) requesting a modification of the order

9 or an exemption from the order.

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

11 the opportunity for a hearing on a petition filed

12 under paragraph (1), in accordance with regulations

13 issued by the Secretary. Any such hearing shall be

14 conducted in accordance with section 10(b)(2) and

15 be held within the United States judicial district in

16 which the person’s residence or principal place of

17 business is located.

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

19 (2), the Secretary shall make a ruling on the peti20 tion, which shall be final if in accordance with law.

21 (b) REVIEW.—

22 (1) COMMENCEMENT OF ACTION.—The district

23 courts of the United States in any district in which

24 a person that is a petitioner under subsection (a) re25 sides or carries on business are hereby vested with
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1 jurisdiction to review the Secretary’s ruling on such

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

3 filed within twenty days after the date of the entry

4 of such ruling by the Secretary.

5 (2) PROCESS.—Service of process in proceed6 ings under this subsection shall be conducted in ac7 cordance with the Federal Rules of Civil Procedure.

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

9 under this subsection determines that the Sec10 retary’s ruling on the person’s petition is not in ac11 cordance with law, the court shall remand the mat12 ter to the Secretary with directions either—

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

14 determine to be in accordance with law; or

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

16 opinion of the court, the law requires.

17 (c) ENFORCEMENT UNDER SECTION 9.—The pend18 ency of proceedings instituted under this section shall not

19 impede, hinder, or delay the Attorney General or the Sec20 retary from obtaining relief under section 9.

21 SEC. 9. ENFORCEMENT.

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

23 United States are vested with jurisdiction specifically to

24 enforce, and to prevent and restrain any person from vio-
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1 lating, this Act or an order or regulation made or issued

2 by the Secretary under this Act.

3 (b) REFERRAL TO ATTORNEY GENERAL.—A civil ac4 tion brought under subsection (a) shall be referred to the

5 Attorney General for appropriate action, except that the

6 Secretary is not required to refer to the Attorney General

7 a violation of this Act, or an order or regulation issued

8 under this Act, if the Secretary believes that the adminis9 tration and enforcement of this Act would be adequately

10 served by administrative action under subsection (c) or

11 suitable written notice or warning to the person who com12 mitted or is committing the violation.

13 (c) CIVIL PENALTIES AND ORDERS.—

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

15 provision of this Act, or an order or regulation is16 sued by the Secretary under this Act, or who fails

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

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

19 regulation issued under this Act, may be assessed by

20 the Secretary—

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

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

23 and

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

25 an assessment as required by an order or regu-
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1 lation, an additional penalty equal to the

2 amount of such assessment.

3 Each violation shall be a separate offense.

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

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

6 the Secretary may issue an order requiring a person

7 to cease and desist from continuing any such viola8 tion of this Act, order, or regulation.

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

10 be assessed or cease and desist order issued by the

11 Secretary under this subsection unless the Secretary

12 gives the person against whom the penalty is as13 sessed or the order is issued notice and opportunity

14 for a hearing before the Secretary with respect to

15 such violation. Any such hearing shall be conducted

16 in accordance with section 10(b)(2) and be held

17 within the United States judicial district in which

18 the person’s residence or principal place of business

19 is located.

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

21 and desist order issued under this subsection shall

22 be final and conclusive unless the person against

23 whom the penalty is assessed or the order is issued

24 files an appeal with the appropriate district court of

25 the United States in accordance with subsection (d).
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1 (d) REVIEW BY DISTRICT COURT.—

2 (1) COMMENCEMENT OF ACTION.—Any person

3 against whom a violation is found and a civil penalty

4 assessed or cease and desist order issued under sub5 section (c) may obtain review of the penalty or order

6 by—

7 (A) filing, within the thirty-day period be8 ginning on the date such penalty is assessed or

9 order issued, a notice of appeal in the district

10 court of the United States for the district in

11 which such person resides or carries on busi12 ness, or in the United States district court for

13 the District of Columbia; and

14 (B) simultaneously sending a copy of the

15 notice by certified mail to the Secretary.

16 The Secretary promptly shall file in such court a

17 certified copy of the record on which the Secretary

18 found that the person had committed a violation.

19 (2) STANDARD OF REVIEW.—A finding of the

20 Secretary shall be set aside under this subsection

21 only if the finding is found to be unsupported by

22 substantial evidence.

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

24 fails to obey a cease and desist order issued under sub25 section (c) after the order has become final and
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1 unappealable, or after the appropriate United States dis2 trict court has entered a final judgment in favor of the

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

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

5 after opportunity for a hearing and for judicial review

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

7 Each day during which such failure continues shall be con8 sidered as a separate violation of such order.

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

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

11 after the penalty has become final and unappealable, or

12 after the appropriate United States district court has en13 tered final judgment in favor of the Secretary, the Sec14 retary shall refer the matter to the Attorney General for

15 recovery of the amount assessed in any United States dis16 trict court in which the person resides or carries on busi17 ness. In such action, the validity and appropriateness of

18 the civil penalty shall not be subject to review.

19 (g) ADDITIONAL REMEDIES.—The remedies provided

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

21 other remedies that may be available.

22 SEC. 10. INVESTIGATIONS AND POWER TO SUBPOENA.

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

24 investigations as the Secretary considers necessary for the

25 effective administration of this Act, or to determine wheth-
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1 er any person has engaged or is engaging in any act that

2 constitutes a violation of this Act, or any order or regula3 tion issued under this Act.

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

5 (1) IN GENERAL.—For the purpose of an inves6 tigation under subsection (a), the Secretary may ad7 minister oaths and affirmations, and issue subpoe8 nas to require the production of any records that are

9 relevant to the inquiry. The production of any such

10 records may be required from any place in the

11 United States.

12 (2) ADMINISTRATIVE HEARINGS.—For the pur13 pose of an administrative hearing held under section

14 8(a)(2) or 9(c)(3), the presiding officer may admin15 ister oaths and affirmations, subpoena witnesses,

16 compel their attendance, take evidence, and require

17 the production of any records that are relevant to

18 the inquiry. Such attendance of witnesses and the

19 production of any such records may be required

20 from any place in the United States.

21 (c) AID OF COURTS.—

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

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

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

25 United States within the jurisdiction of which such
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1 investigation or proceeding is carried on, or where

2 such person resides or carries on business, in order

3 to enforce a subpoena issued under subsection (b).

4 The court may issue an order requiring such person

5 to comply with such a subpoena. Any failure to obey

6 such order of the court may be punished by such

7 court as a contempt thereof.

8 (2) PROCESS.—Process in any proceeding

9 under this subsection may be served in the United

10 States judicial district in which the person being

11 proceeded against resides or carries on business or

12 wherever such person may be found.

13 SEC. 11. CONFIDENTIALITY.

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

15 voted in a referendum conducted under this Act shall be

16 made public.

17 (b) PENALTY.—Any person knowingly violating sub18 section (a) or the confidentiality terms of an order, as de19 scribed in section 5(j)(2), on conviction shall be subject

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

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

22 and, if an officer or employee of the Department of Agri23 culture or the PromoFlor Council, shall be removed from

24 office.
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1 (c) ADDITIONAL PROHIBITION.—No information ob2 tained under this Act may be made available to any agency

3 or officer of the Federal Government for any purpose

4 other than the implementation of this Act and any inves5 tigatory or enforcement actions necessary for the imple6 mentation of this Act.

7 (d) WITHHOLDING INFORMATION FROM CONGRESS

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

9 authorize the withholding of information from Congress.

10 SEC. 12. AUTHORITY FOR SECRETARY TO SUSPEND OR

11 TERMINATE ORDER.

12 Whenever the Secretary finds that an order issued

13 under this Act, or any provision of the order, obstructs

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

15 Act, the Secretary shall terminate or suspend the oper16 ation of such order or provision under such terms as the

17 Secretary determines appropriate.

18 SEC. 13. CONSTRUCTION.

19 (a) TERMINATION OR SUSPENSION NOT AN

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

21 any provision thereof, shall not be considered an order

22 under the meaning of this Act.

23 (b) PRODUCER RIGHTS.—Nothing in this Act may be

24 construed to provide for control of production or otherwise

25 limit the right of individual cut flowers and cut greens
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1 producers to produce cut flowers and cut greens. This Act

2 seeks to treat all persons producing cut flowers and cut

3 greens fairly and to implement any order established here4 under equitably in every respect.

5 (c) OTHER PROGRAMS.—Nothing in this Act may be

6 construed to preempt or supersede any other program re7 lating to cut flowers or cut greens promotion and

8 consumer information organized and operated under the

9 laws of the United States or any State.

10 SEC. 14. REGULATIONS.

11 The Secretary may issue such regulations as are nec12 essary to carry out this Act and the powers vested in the

13 Secretary by this Act, including regulations relating to the

14 assessment of late payment charges.

15 SEC. 15. AUTHORIZATION OF APPROPRIATIONS.

16 (a) IN GENERAL.—There are authorized to be appro17 priated for each fiscal year such sums as are necessary

18 to carry out this Act.

19 (b) ADMINISTRATIVE EXPENSES.—Funds appro20 priated under subsection (a) may not be used for payment

21 of the expenses or expenditures of the PromoFlor Council

22 in administering any provision of an order issued under

23 this Act.
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1 SEC. 16. SEPARABILITY.

2 If any provision of this Act or the application thereof

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

4 of the remainder of the Act and of the application of such

5 provision to other persons and circumstances shall not be

6 affected thereby.

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