graph (A)(ii)(III), the amount of the sale
shall be—
(I) the price paid by the distribu-
tion center to acquire the cut flowers
or cut greens; plus
(II) an amount determined by
multiplying the acquisition price de-
termined under subclause (I) by a
uniform percentage established by the
order to represent a wholesale han-
dler’s mark-up on a sale to a retailer.
(iii) SPECIAL
RULE
FOR
DIRECT
SALES BY IMPORTERS.—In the case of a
direct sale by an importer to a consumer,
as described in subparagraph (A)(iv), the
amount of the sale shall be—
(I) the price paid by the importer
to acquire the cut flowers or cut
greens; plus
(II) an amount determined by
multiplying the acquisition price de-
termined under subclause (I) by a
uniform percentage established by the
order to represent a wholesale han-
dler’s mark-up on a sale to a retailer.
(iv) SPECIAL
RULE
FOR
DIRECT
SALES BY PRODUCERS.—In the case of a
direct sale by a producer to a consumer, as
described in subparagraph (A)(iv), the
amount of the sale shall be an amount de-
termined by applying to the price paid by
the consumer a uniform percentage estab-
lished by the order to represent the cost of
producing the article and a wholesale han-
dler’s mark-up on a sale to a retailer.
(D) 
REFERENCE
TO
OTHER
DEFINI-
TIONS.—For purposes of this paragraph, the
term ‘‘producer’’ has the meaning given the
term ‘‘producers that are qualified handlers’’ in
section 305(a)(2)(D)(ii), and the term ‘‘im-
porter’’ has the meaning given the term ‘‘im-
porters that are qualified handlers’’ in section
305(a)(2)(D)(iii).
(5) PERSON.—The term ‘‘person’’ means any
individual, group of individuals, firm, partnership,
corporation, joint stock company, association, soci-
ety, cooperative, or other legal entity.
(6) 
PROMOFLOR
COUNCIL.—The 
term
‘‘PromoFlor Council’’ means the Fresh Cut Flowers
and Fresh Cut Greens Promotion Council estab-
lished under section 305(a).
(7) 
PROMOTION.—The 
term 
‘‘promotion’’
means any action determined by the Secretary to ad-
vance the image, desirability, or marketability of cut
flowers or cut greens, including paid advertising.
(8) RESEARCH.—The term ‘‘research’’ means
market research and studies limited to the support
of advertising, market development, and other pro-
motion efforts and consumer information efforts re-
lating to cut flowers or cut greens, including edu-
cational activities.
(9) RETAILER.—The term ‘‘retailer’’ means a
person (such as a retail florist, supermarket, mass
market retail outlet, or other end-use seller as de-
scribed in an order issued under this title) that sells
cut flowers or cut greens to consumers. The term
shall include any distribution center—
(A) owned or controlled by such person, or
owned or controlled cooperatively by a group of
such persons, if the predominant retail business
activity of such person is not floral sales; or
(B) independently owned but operated pri-
marily to provide food products to retail stores.
An independently owned distribution center covered
by subparagraph (B) that is also an importer or pro-
ducer of cut flowers or cut greens shall be subject
to the rules of construction set out in paragraph
(4)(A)(iv) and, for such purposes only, shall be
deemed to be the seller of cut flowers or cut greens
directly to the consumer.
(10) 
SECRETARY.—The 
term 
‘‘Secretary’’
means the Secretary of Agriculture.
(11) UNITED
STATES; 
STATE.—The terms
‘‘United States’’ and ‘‘State’’ include the fifty States
of the United States, the District of Columbia, and
all the territories and possessions of the United
States.
SEC. 304. ISSUANCE OF ORDERS.
(a) IN GENERAL.—To effectuate the declared policy
of section 302(b), the Secretary shall issue an order under
this title applicable to qualified handlers of cut flowers and
cut greens. Any such order shall be national in scope. Not
more than one order shall be in effect under this title at
any one time.
(b) PROCEDURES.—
(1) PROPOSAL FOR AN ORDER.—The Secretary
may propose the issuance of an order under this
title. In addition, an industry group that represents
a substantial number of the industry members who
are to be assessed under the order, or any other per-
son that will be affected by this title, may request
the issuance of, and submit a proposal for, such an
order.
(2) PUBLICATION
OF
PROPOSAL.—The Sec-
retary shall publish the proposed order and give due
notice and opportunity for public comment on the
proposed order not later than 60 days after the ear-
lier of—
(A) the date on which the Secretary re-
ceives the proposal for the order from an indus-
try group or interested person, as provided in
paragraph (1); or
(B) the date on which the Secretary deter-
mines to propose the order.
(3) ISSUANCE OF ORDER.—After notice and op-
portunity for public comment are provided, the Sec-
retary shall issue the order, taking into consider-
ation the comments received and including in the
order provisions necessary to ensure that the order
is in conformity with the requirements of this title.
The order shall be issued and become effective not
later than 180 days after publication of the proposed
order.
(c) AMENDMENTS.—From time to time, the Sec-
retary may amend an order issued under this title. The
provisions of this title applicable to the issuance of an
order shall be applicable to amendments to the order.
SEC. 305. FRESH CUT FLOWERS AND FRESH CUT GREENS
PROMOTION COUNCIL (PROMOFLOR COUN-
CIL).
(a) ESTABLISHMENT OF PROMOFLOR COUNCIL.—
(1) ESTABLISHMENT.—The order issued under
this title shall provide for the establishment of a
Fresh Cut Flowers and Fresh Cut Greens Pro-
motion Council to administer the order. The Sec-
retary shall appoint the members of the PromoFlor
Council in the manner provided in paragraphs (2)
and (3).
(2) APPOINTMENT OF MEMBERS.—
(A) DISTRIBUTION OF APPOINTMENTS.—
The order shall provide that the membership of
the PromoFlor Council shall consist of 23 mem-
bers as follows:
(i) Fourteen members selected from
among qualified wholesale handlers of do-
mestic or imported cut flowers and cut
greens.
(ii) Three members selected from
among producers that are qualified han-
dlers of cut flowers and cut greens.
(iii) Three members selected from
among importers that are qualified han-
dlers of cut flowers and cut greens.
(iv) One member selected from among
retailers of cut flowers and cut greens.
(v) 
Two 
members 
selected 
from
among producers of cut flowers and cut
greens that are not qualified handlers or
exempt handlers.
(B) APPOINTMENT FROM NOMINEES.—The
Secretary shall appoint the producer members
of the PromoFlor Council required by subpara-
graph (A)(v) from nominees submitted by pro-
ducers of cut flowers and cut greens described
in such paragraph. With respect to the other
appointments to the PromoFlor Council re-
quired by subparagraph (A), two nominees shall
be submitted for each appointment pursuant to
the nomination process provided for in para-
graph (3). If nominees are not submitted for an
appointment, the Secretary may make the ap-
pointment on a basis to be provided in the
order or other regulations of the Secretary.
(C) GEOGRAPHICAL CONSIDERATIONS.—In
making appointments of qualified wholesale
handlers to the PromoFlor Council under sub-
paragraph (A)(i), the Secretary shall take into
account the geographical distribution of cut
flowers and cut greens markets in the United
States. In making appointments of producers of
cut flowers and cut greens to the PromoFlor
Council under subparagraph (A)(v), the Sec-
retary shall ensure that one member is selected
from among producers located east of the Mis-
sissippi River and one member is selected from
among producers located west of the Mississippi
River.
(D) DEFINITIONS.—For purposes of this
subsection:
(i) 
QUALIFIED
WHOLESALE
HAN-
DLERS.—The term ‘‘qualified wholesale
handler’’ means a person in business as a
floral wholesale jobber or floral supplier
and that is subject to assessments as a
qualified handler under the order. For pur-
poses of this clause, the term ‘‘floral
wholesale jobber’’ means a person that
conducts a commission or other wholesale
business in buying and selling cut flowers
or cut greens, and the term ‘‘floral sup-
plier’’ means a person engaged in acquir-
ing cut flowers or cut greens to be manu-
factured into floral articles or otherwise
processed for resale.
(ii) PRODUCERS THAT ARE QUALIFIED
HANDLERS.—The term ‘‘producers that
are qualified handlers’’ means those per-
sons that are subject to assessments as a
qualified handler under the order and are
engaged—
(I) in the domestic production,
for sale in commerce, of cut flowers or
cut greens if the persons own or share
in the ownership and risk of loss of
the cut flowers or cut greens; or
(II) as a first processor of
noncultivated cut greens, in receiving
the cut greens from the persons that
gather them for handling.
(iii) IMPORTERS THAT ARE QUALIFIED
HANDLERS.—The term ‘‘importers that are
qualified handlers’’ means those persons—
(I) whose principal activity is the
importation of cut flowers or cut
greens into the United States (either
directly or as an agent, broker, or
consignee of any person or nation that
produces or handles cut flowers or cut
greens outside the United States for
sale in the United States); and
(II) that are subject to assess-
ments as a qualified handler under
the order.
(3) NOMINATION PROCESS.—
(A) QUALIFIED HANDLERS.—Nominations
for the appointment to the PromoFlor Council
of qualified wholesale handlers, producers that
are qualified handlers, or importers that are
qualified handlers shall be made by qualified
wholesale handlers, producers that are qualified
handlers, or importers that are qualified han-
dlers, whichever applies, through an election
process under regulations prescribed by the
Secretary;
(B) RETAILERS.—Nominations for the re-
tailer appointment under paragraph (2)(A)(iv)
shall be made by the American Floral Market-
ing Council, or successor entity.
(4) ALTERNATES.—The order shall provide for
the selection of alternate members of the PromoFlor
Council by the Secretary under procedures specified
in the order.
(5) TERMS.—The order shall provide that each
member of the PromoFlor Council shall serve a term
of three years. However, of the initial appointments,
seven members shall be appointed for a term of two
years, eight members shall be appointed for a term
of three years, and eight members shall be appointed
for a term of four years, as designated by the Sec-
retary at the time of appointment. No member of
the PromoFlor Council may serve more than two
consecutive terms of three years, except that any
member serving an initial term of four years may
serve an additional term of three years.
(6) 
COMPENSATION.—Members 
of 
the
PromoFlor Council shall serve without compensa-
tion, but shall be reimbursed for their expenses in-
curred in performing their duties as members of the
PromoFlor Council.
(7) EXECUTIVE COMMITTEE.—
(A) ESTABLISHMENT.—The order shall au-
thorize the PromoFlor Council to appoint from
among its members an executive committee of
not more than nine members. The membership
of the executive committee initially shall be
composed of four members appointed pursuant
to clause (i) of subparagraph (2)(A), two mem-
bers appointed pursuant to clause (ii) of such
subparagraph, two members appointed pursu-
ant to clause (iii) of such subparagraph, and
one member appointed pursuant to clause (iv)
of such subparagraph. Thereafter, appoint-
ments to the executive committee shall be made
so as to ensure that the committee reflects, to
the maximum extent practicable, the member-
ship composition of the PromoFlor Council as a
whole. The initial appointments to the executive
committee shall be for a term of two years.
Thereafter, appointments to the executive com-
mittee shall be for a term of one year.
(B) DELEGATION
OF
AUTHORITY.—The
PromoFlor Council may delegate to the execu-
tive committee its authority under the order to
hire and manage staff and conduct the routine
business of the PromoFlor Council within the
policies determined by the PromoFlor Council.
(b) RESPONSIBILITIES OF THE PROMOFLOR COUN-
CIL.—
(1) IN GENERAL.—The order shall define the
responsibilities of the PromoFlor Council, which
shall include the general responsibilities described in
this subsection.
(2) ADMINISTRATION.—The PromoFlor Council
shall administer the order in accordance with its
terms and provisions and may prescribe such rules
and regulations to effectuate the terms and provi-
sions of the order as the PromoFlor Council consid-
ers appropriate.
(3) STAFF.—The PromoFlor Council may em-
ploy such persons as the PromoFlor Council deter-
mines are necessary and set the compensation and
define the duties of such persons.
(4) MISCELLANEOUS.—The PromoFlor Council
may receive complaints regarding violations of the
order and shall investigate and report to the Sec-
retary regarding such complaints. The PromoFlor
Council may recommend to the Secretary amend-
ments to the order. The PromoFlor Council shall
furnish the Secretary with such information as the
Secretary may require.
(c) BUDGETS.—
(1) SUBMISSION OF BUDGETS.—The order shall
require the PromoFlor Council to prepare and sub-
mit to the Secretary on a fiscal year basis a budget
of the anticipated expenses and disbursements of the
Board to implement the order. The budget shall in-
clude projected costs of cut flowers and cut greens
promotion, consumer information, and related re-
search plans and projects.
(2) APPROVAL BY SECRETARY REQUIRED.—The
PromoFlor Council may not implement a budget
submitted under paragraph (1) before the budget is
approved by the Secretary.
(3) INVESTMENT AUTHORITY.—The order shall
provide the PromoFlor Council with the authority to
invest, pending disbursement under a plan or
project, funds collected through assessments author-
ized under this title. Income from invested funds
shall be used only for a purpose for which the in-
vested funds may be used. The investment of such
funds shall be made only in—
(A) obligations of the United States or any
agency thereof;
(B) general obligations of any State or any
political subdivision thereof;
(C) any interest-bearing account or certifi-
cate of deposit of a bank that is a member of
the Federal Reserve System; or
(D) obligations fully guaranteed as to prin-
cipal and interest by the United States.
(4) CONTROL OF ADMINISTRATIVE COSTS.—The
order shall provide that, as soon as practicable after
the date the order becomes effective and after con-
sultation with the Secretary and other appropriate
persons, the PromoFlor Council shall implement a
system of cost controls based on normally accepted
business practices to ensure that the PromoFlor
Council’s annual budgets only include amounts for
administrative expenses that cover the minimum ad-
ministrative activities and personnel needed to prop-
erly administer and enforce the order and conduct,
supervise, and evaluate plans and projects under the
order.
(d) PLANS AND PROJECTS.—
(1) PROMOTION
AND
CONSUMER
INFORMA-
TION.—The order shall provide for the establish-
ment, implementation, administration, and evalua-
tion by the PromoFlor Council of appropriate plans
and projects for advertising, sales promotion, other
promotion, and consumer information with respect
to cut flowers and cut greens. A plan or project
under this paragraph shall be directed toward in-
creasing the general demand for cut flowers or cut
greens.
(2) RESEARCH.—The order shall provide for
the establishment, implementation, administration,
and evaluation by the PromoFlor Council of plans
and projects for market development research, re-
search with respect to the sale, distribution, market-
ing, or use of cut flowers or cut greens, and other
research with respect to cut flowers or cut greens
marketing, promotion, or consumer information. The
PromoFlor Council shall provide for the dissemina-
tion of information resulting from research plans
and projects under this paragraph.
(3) DISBURSEMENT
OF
FUNDS.—The order
shall also provide authority for the disbursement by
the PromoFlor Council of necessary funds to carry
out the plans and projects under this subsection.
(4) SUBMISSION
TO
SECRETARY.—The order
shall provide that the PromoFlor Council shall sub-
mit to the Secretary for approval any proposed plan
or project for cut flowers or cut greens promotion,
consumer information, or related research under this
subsection.
(5) APPROVAL BY SECRETARY REQUIRED.—The
PromoFlor Council may not implement a plan or
project for cut flowers or cut greens promotion,
consumer information, or related research before the
plan or project is approved by the Secretary.
(6) LIMITATIONS.—A plan or project under this
subsection may not make a reference to a private
brand or trade name, point of origin, or source of
supply, except that these limitations shall not pre-
clude the PromoFlor Council from offering its plans
and projects for use by commercial parties, under
terms and conditions prescribed by the PromoFlor
Council and approved by the Secretary. A plan or
project may not make use of unfair or deceptive acts
or practices with respect to quality or value.
(e) CONTRACTS AND AGREEMENTS.—
(1) PROMOTION, CONSUMER INFORMATION, AND
RELATED RESEARCH PLANS AND PROJECTS.—To en-
sure the efficient use of funds, the order shall pro-
vide that, subject to the approval of the Secretary,
the PromoFlor Council may—
(A) enter into contracts or agreements for
the implementation of any plan or project under
subsection (d) for promotion, consumer infor-
mation, or related research with respect to cut
flowers or cut greens; and
(B) pay costs related to the plan or project
with funds received by the PromoFlor Council
under the order.
(2) 
REQUIREMENTS
OF
CONTRACTS
AND
AGREEMENTS.—The order shall provide that any
contract or agreement under paragraph (1) shall
provide that—
(A) the contracting or agreeing party shall
develop and submit to the PromoFlor Council a
plan or project together with a budget or budg-
ets that shall show estimated costs to be in-
curred under the plan or project;
(B) the plan or project shall become effec-
tive only upon the approval of the Secretary;
and
(C) the contracting or agreeing party shall
keep accurate records of all of its transactions,
account for funds received and expended, make
periodic reports to the PromoFlor Council of
activities conducted, and make such other re-
ports as the PromoFlor Council or the Sec-
retary may require.
(3) OTHER
CONTRACTS
AND
AGREEMENTS.—
The order shall provide that the PromoFlor Council
also may enter into contracts or agreements for ad-
ministrative services. Any such contract or agree-
ment shall include provisions comparable to those
provided in paragraph (2).
(f) BOOKS
AND RECORDS
OF
THE PROMOFLOR
COUNCIL.—
(1) IN GENERAL.—The order shall require the
PromoFlor Council to maintain such books and
records (which shall be available to the Secretary for
inspection and audit) as the Secretary may pre-
scribe. The PromoFlor Council shall also prepare
and submit to the Secretary such reports as the Sec-
retary may require and account for the receipt and
disbursement 
of 
all 
funds 
entrusted 
to 
the
PromoFlor Council.
(2) AUDITS.—The PromoFlor Council shall
cause its books and records to be audited by an
independent auditor at the end of each fiscal year.
A report of each such audit shall be submitted to the
Secretary.
(3) LISTS OF IMPORTERS.—The order shall re-
quire the staff of the PromoFlor Council to periodi-
cally review lists of importers of cut flowers and cut
greens to determine whether persons included in the
lists are subject to the order. At the request of the
PromoFlor Council, the United States Customs
Service shall provide to the PromoFlor Council lists
of importers of cut flowers and cut greens.
(g) PROHIBITION ON LOBBYING.—The order shall
prohibit the use of any funds received by the PromoFlor
Council in any manner for the purpose of influencing legis-
lation or government action or policy, except that funds
may be used by the PromoFlor Council for the develop-
ment and recommendation to the Secretary of amend-
ments to the order.
(h) CONSULTATIONS WITH INDUSTRY EXPERTS.—
The order shall provide that the PromoFlor Council may
seek advice from and consult with experts from the pro-
duction, import, wholesale, and retail segments of the cut
flowers and cut greens industry to assist in the develop-
ment of promotion, consumer information, and related re-
search plans and projects. For such purpose, the order
also shall authorize the appointment of special committees
composed of persons other than PromoFlor Council mem-
bers. A committee appointed pursuant to the authority
provided in this subsection may not provide advice or rec-
ommendations to an agency or officer of the Federal Gov-
ernment, but shall consult directly with the PromoFlor
Council.
SEC. 306. ASSESSMENTS.
(a) AUTHORITY TO IMPOSE ASSESSMENT.—
(1) IN GENERAL.—An order issued under this
title shall provide that each qualified handler shall
pay to the PromoFlor Council, in the manner pre-
scribed by the order, an assessment on each sale of
cut flowers or cut greens (other than a sale de-
scribed in subsection (g)) to a retailer or an exempt
handler. This assessment requirement shall also
apply to each transaction described in paragraph
(4).
(2) DETERMINATION OF QUALIFIED HANDLER
OR
EXEMPT
HANDLER
STATUS.—The order shall
contain provisions regarding the making of deter-
minations to determine status as a qualified handler
or exempt handler that include the rules and re-
quirements set out in section 303(4) and subsections
(a) and (b) of section 307.
(3) PUBLISHED LISTS OF HANDLERS.—To fa-
cilitate the payment of assessments under this sec-
tion, the PromoFlor Council shall publish lists of
qualified handlers required to pay assessments under
the order and exempt handlers.
(4) CERTAIN COVERED TRANSACTIONS.—
(A) IN GENERAL.—The order shall provide
that each non-sale transfer of cut flowers or cut
greens to a retailer from a qualified handler
that is a distribution center, as described in
section 303(4)(A)(ii)(III), and each direct sale
of cut flowers or cut greens to a consumer by
a qualified handler that is an importer or pro-
ducer, as described in section 303(4)(A)(iv),
shall be treated as a sale of cut flowers or cut
greens to a retailer subject to assessments
under this subsection.
(B) DETERMINATION
OF
SALE
AMOUNT
FOR DISTRIBUTION CENTERS.—In the case of a
non-sale transfer of cut flowers or cut greens
from a distribution center, the amount of the
sale shall be considered to be—
(i) the price paid by the distribution
center to acquire the cut flowers or cut
greens; plus
(ii) an amount determined by mul-
tiplying acquisition price determined under
clause (i) by a uniform percentage estab-
lished by the order to represent a wholesale
handler’s mark-up on a sale to a retailer.
(C) DETERMINATION
OF
SALE
AMOUNT
FOR
DIRECT
SALES
BY
IMPORTERS.—In the
case of a direct sale by an importer to a
consumer, the amount of the sale shall be con-
sidered to be—
(i) the price paid by the importer to
acquire the cut flowers or cut greens; plus
(ii) an amount determined by mul-
tiplying the acquisition price determined
under clause (i) by a uniform percentage
established by the order to represent a
wholesale handler’s mark-up on a sale to a
retailer.
(D) DETERMINATION
OF
SALE
AMOUNT
FOR
DIRECT
SALES
BY
PRODUCERS.—In the
case of a direct sale by a producer to a
consumer, the amount of the sale shall be con-
sidered to be an amount determined by apply-
ing to the price paid by the consumer a uniform
percentage established by the order to represent
the cost of producing the article and a whole-
sale handler’s mark-up on a sale to a retailer.
(E) ADJUSTMENT OF UNIFORM PERCENT-
AGE.—The PromoFlor Council may recommend
to the Secretary changes to the uniform per-
centage established by the order and used to
determine the amount of annual sales of han-
dlers under section 303(4) and sale amounts
under this paragraph. The Secretary may make
a change in the uniform percentage based on
such a recommendation only after providing an
opportunity for notice and comment regarding
the proposed change.
(b) ASSESSMENT RATES.—The order shall comply
with the following assessment requirements:
(1) INITIAL ASSESSMENT RATE.—The rate of
assessment on each sale or transfer of cut flowers or
cut greens, for the first three years the order is in
effect, shall be one-half of one percent of—
(A) the gross sales price of product sold; or
(B) in the case of transactions described in
subsection (a)(4), the amount of the transaction
calculated as provided in such subsection.
(2) CHANGES IN ASSESSMENT RATE.—
(A) AUTHORIZED AMOUNT OF CHANGE.—
Subject to subparagraph (B), after the first
three years the order is in effect, the uniform
assessment rate may be increased or decreased
annually by not more than .25 percent of—
(i) the gross sales price of product
sold; or
(ii) in the case of transactions de-
scribed in subsection (a)(4), the amount of
the transaction calculated as provided in
such subsection.
(B) LIMITATION.—The assessment rate
may not exceed one percent of gross sales price
or transaction amount.
(C) METHOD OF CHANGING ASSESSMENT
AMOUNT.—Any change in the rate of assess-
ment may be made only if adopted by the
PromoFlor Council by a two-thirds majority
vote and approved by the Secretary as nec-
essary to achieve the objectives of this title. The
Secretary may make the change only after pro-
viding an opportunity for notice and comment
regarding the proposed change, and the change
in the rate of assessment shall be announced by
the PromoFlor Council at least 30 days prior to
going into effect. A change in the rate of as-
sessment shall not be subject to a vote in a ref-
erendum under section 308.
(c) SUBMISSION OF ASSESSMENTS.—The order shall
provide that each person required to pay assessments
under this section shall remit, to the PromoFlor Council,
the assessment due from each sale by that person of cut
flowers or cut greens that is subject to an assessment
within such time period after the sale (not to exceed 60
days from the end of the month in which the sale took
place) as specified in the order.
(d) REFUNDS FROM ESCROW ACCOUNT.—
(1) ESTABLISHMENT OF ESCROW ACCOUNT.—
The order shall provide that the PromoFlor Council
shall—
(A) establish an escrow account to be used
for assessment refunds as needed; and
(B) place into the escrow account an
amount equal to 10 percent of the total amount
of assessments collected during the period be-
ginning on the date the order goes into effect,
as provided in section 304(b)(3), and ending on
the date the initial referendum on the order
provided for in section 308(a) is completed.
(2) RIGHT TO RECEIVE REFUND.—
(A) IN GENERAL.—The order shall provide
that, subject to paragraph (3) and the condi-
tions specified in subparagraph (B), any quali-
fied handler shall have the right to demand and
receive from the PromoFlor Council out of the
escrow account a one-time refund of any assess-
ments paid by or on behalf of the qualified han-
dler during the time period specified in para-
graph (1)(B), if—
(i) the qualified handler is required to
pay such assessments;
(ii) the qualified handler does not sup-
port the program established under this
title;
(iii) the qualified handler demands a
refund prior to the conduct of the referen-
dum on the order under section 308(a);
and
(iv) the order is not approved by
qualified handlers in the referendum.
(B) CONDITIONS.—The right of any quali-
fied handler to receive refunds under subpara-
graph (A) shall be subject to the following con-
ditions:
(i) The demand shall be made in ac-
cordance with regulations, on a form, and
within a time period prescribed by the
PromoFlor Council.
(ii) The refund shall be made only on
submission of proof satisfactory to the
PromoFlor Council that the qualified han-
dler paid the assessment for which refund
is demanded.
(iii) If the amount in the escrow ac-
count required under paragraph (1) is not
sufficient to refund the total amount of as-
sessments demanded by all qualified han-
dlers determined eligible for refunds and
the order is not approved in the referen-
dum on the order under section 308(a),
the PromoFlor Council shall prorate the
amount of all such refunds among all eligi-
ble qualified handlers that demand a re-
fund.
(3) PROGRAM APPROVED.—The order shall pro-
vide that, if the order is approved in the referendum
under section 308(a), there shall be no refunds made
and all funds in the escrow account shall be re-
turned to the PromoFlor Council for use by the
PromoFlor Council in accordance with the other pro-
visions of the order.
(e) USE OF ASSESSMENT FUNDS.—The order shall
provide that assessment funds (net of any refunds paid
out under the terms of the order contained in subsection
(d)) shall be used for payment of costs incurred in imple-
menting and administering the order, with provision for
a reasonable reserve, and to cover those administrative
costs incurred by the Secretary in implementing and ad-
ministering this title, except for the salaries of Govern-
ment employees incurred in conducting referenda.
(f) POSTPONEMENT OF COLLECTIONS.—
(1) AUTHORITY.—Notwithstanding any other
provision of this title, the PromoFlor Council may
grant a postponement of the payment of assessments
under this section for any qualified handler that es-
tablishes that it is financially unable to make the
payment. The granting of such a postponement shall
be considered under application and documentation
requirements and review procedures established
under rules recommended by the PromoFlor Council,
approved by the Secretary, and issued after provid-
ing public notice and an opportunity to comment on
the proposed rules.
(2) CRITERIA
AND
RESPONSIBILITY
FOR
DE-
TERMINATIONS.—To establish that it is financially
unable to pay assessments, an applicant for a post-
ponement shall demonstrate that it is insolvent and
will be unable to continue to operate if it is required
to pay assessments when they are otherwise due. As
part of making such a demonstration, the applicant
shall submit an opinion of an independent certified
pubic accountant and any other documentation re-
quired under rules prescribed under paragraph (1).
All books, records, and other documentation submit-
ted by a qualified handler under this paragraph shall
be subject to the confidentiality requirements of sec-
tion 307(d).
(3) PERIOD OF POSTPONEMENT.—The time pe-
riod of any postponement and the terms and condi-
tions of payment of assessments that are postponed
under this subsection shall be established by the
PromoFlor Council, in accordance with rules pre-
scribed under paragraph (1), so as to appropriately
reflect the proven needs of the qualified handler.
Postponements may be extended under the require-
ments and procedures established pursuant to para-
graph (1) for the grant of initial postponements.
(g) EXCLUSION
FROM ASSESSMENTS.—The order
shall exclude from assessments under the order any sale
of cut flowers or cut greens for export from the United
States.
SEC. 307. MISCELLANEOUS REQUIREMENTS OF ORDER.
(a) DETERMINATION OF ANNUAL SALES.—
(1) IN GENERAL.—For purposes of applying the
$750,000 annual sales limitation to specific persons
in order to determine status as a qualified handler
or an exempt handler under section 303(4), or to
specific facilities in order to determine status as an
eligible separate facility under section 308(b)(2), any
order issued under this title shall provide that a de-
termination of a person’s or facility’s annual sales
volume shall be based on the sales of cut flowers and
cut greens by the person or facility during the most
recently-completed calendar year.
(2) SPECIAL
RULE
FOR
NEW
BUSINESSES.—
With respect to new businesses and other operations
for which complete data on sales during all or part
of the most recently-completed calendar year are not
available to the PromoFlor Council, the determina-
tion under paragraph (1) may be made using an al-
ternative time period or other alternative procedures
specified in the order.
(3) REPORTS.—For purposes of this section,
the order may require each person that sells cut
flowers or cut greens to retailers to submit reports
to the PromoFlor Council on annual sales by the
person. A report under this subsection shall be sub-
ject to the confidentiality requirements provided in
subsection (d).
(b) RULE OF ATTRIBUTION.—
(1) IN GENERAL.—For purposes of determining
the annual sales volume of a person or a separate
facility of a person, sales attributable to a person
shall include—
(A) in those cases in which the person is
an individual, sales attributable to such per-
son’s spouse, children, grandchildren, parents,
and grandparents;
(B) in those cases in which the person is
a partnership or member of a partnership, sales
attributable to the partnership and other part-
ners of the partnership;
(C) for both individuals and partnerships,
sales attributable to any corporation or other
entity in which the person owns more than 50
percent of the stock or (if the entity is not a
corporation) that the person controls; and
(D) in those cases in which the person is
a corporation, sales attributable to any cor-
porate subsidiary or other corporation or entity
in which the corporation owns more than 50
percent of the stock or (if the entity is not a
corporation) that the corporation controls.
(2) TREATMENT OF CERTAIN STOCK AND OWN-
ERSHIP
INTERESTS.—For purposes of this sub-
section, stock or an ownership interest in an entity
that is owned by the spouse, children, grandchildren,
parents, grandparents, or partners of an individual,
or by a partnership in which a person is a partner,
or by a corporation more than 50 percent of the
stock of which is owned by a person, shall be treated
as owned by the individual or person.
(c) BOOKS, RECORDS, AND REPORTS.—So that infor-
mation is available to the Secretary and the PromoFlor
Council for the administration and enforcement of this
title, the order, or any regulation issued under this title,
the order shall provide that each qualified handler shall—
(1) maintain, and make available for inspection,
such books and records as may be required by the
order; and
(2) file reports at the time, in the manner, and
having the content prescribed by the order, to the
end that information is made available to the Sec-
retary and the PromoFlor Council as is appropriate
for the administration or enforcement of this title,
the order, or any regulation issued under this title.
(d) CONFIDENTIALITY REQUIRED.—
(1) IN
GENERAL.—Information obtained by the
PromoFlor Council from books, records, or reports re-
quired to be maintained under this section shall be kept
confidential by all officers and employees of the Depart-
ment of Agriculture and by the staff and agents of the
PromoFlor Council. Such information may be disclosed to
the public only in a suit or administrative hearing involv-
ing the order that is brought at the request of the Sec-
retary (or to which the Secretary or any officer of the
United States is a party), and then, only to the extent
the Secretary considers relevant.
(2) RULE
OF
CONSTRUCTION.—Nothing in
paragraph (1) prohibits—
(A) the issuance of general statements,
based on the reports, of the number of persons
subject to the order or statistical data collected
therefrom, which statements do not identify the
information furnished by any person; or
(B) the publication, by direction of the
Secretary, of the name of any person violating
the order, together with a statement of the par-
ticular provisions of the order violated by the
person.
(e) OTHER TERMS OF ORDER.—The order shall con-
tain such other terms and provisions, not inconsistent with
this title, as are necessary to effectuate this title, including
provision for the assessment of interest and a charge for
each late payment of assessments under this section.