IIA
103D CONGRESS
1ST SESSION
H. R. 3515
IN THE SENATE OF THE UNITED STATES
NOVEMBER 20 (legislative day, NOVEMBER 2), 1993
Received
NOVEMBER 23, 1993
Read twice and referred to the Committee on Agriculture, Nutrition, and
Forestry
AN ACT
To amend the Egg Research and Consumer Information
Act, the Watermelon Research and Promotion Act, and
the Lime Research, Promotion, and Consumer Informa-
tion Act of 1990 to revise the operation of these Acts
and to authorize the establishment of a fresh cut flowers
and fresh cut greens promotion and consumer informa-
tion program for the benefit of the floricultural industry,
and for other purposes.
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ‘‘Omnibus Agricultural
Research and Promotion Improvement Act’’.
SEC. 2. TABLE OF CONTENTS.
The table of contents for this Act is as follows:
Sec. 1. Short title.
Sec. 2. Table of contents.
TITLE I—EGG RESEARCH AND CONSUMER INFORMATION
Sec. 101. Short title.
Sec. 102. Rate of assessment.
Sec. 103. Exempted egg producers.
TITLE II—WATERMELON RESEARCH AND PROMOTION
Sec. 201. Short title.
Sec. 202. Change to majority vote in referendum procedures.
Sec. 203. Expansion of watermelon plans to entire United States.
Sec. 204. Clarification of differences between producers and handlers.
Sec. 205. Clarification of collection of assessments by the Board.
Sec. 206. Changes to assessment rate not subject to formal rulemaking.
Sec. 207. Elimination of watermelon assessment refund.
Sec. 208. Equitable treatment of watermelon plans.
Sec. 209. Separate consideration of watermelon plan amendments.
TITLE III—FRESH CUT FLOWERS AND FRESH CUT GREENS
PROMOTION AND INFORMATION
Sec. 301. Short title.
Sec. 302. Findings and declaration of policy.
Sec. 303. Definitions.
Sec. 304. Issuance of orders.
Sec. 305. Fresh Cut Flowers and Fresh Cut Greens Promotion Council
(PromoFlor Council).
Sec. 306. Assessments.
Sec. 307. Miscellaneous requirements of order.
Sec. 308. Referenda.
Sec. 309. Petition and review.
Sec. 310. Enforcement.
Sec. 311. Investigations and power to subpoena.
Sec. 312. Confidentiality.
Sec. 313. Authority for Secretary to suspend or terminate order.
Sec. 314. Construction.
Sec. 315. Regulations.
Sec. 316. Authorization of appropriations.
Sec. 317. Separability.
TITLE IV—LIME RESEARCH, PROMOTION, AND CONSUMER
INFORMATION
Sec. 401. Short title.
Sec. 402. Findings and purpose.
Sec. 403. Definition of lime.
Sec. 404. Required terms in orders.
Sec. 405. Initial referendum.
TITLE I—EGG RESEARCH AND
CONSUMER INFORMATION
SEC. 101. SHORT TITLE.
This title may be cited as the ‘‘Egg Research and
Consumer Information Improvement Act’’.
SEC. 102. RATE OF ASSESSMENT.
(a) ASSESSMENT TERMS AND CONDITIONS IN OR-
DERS.—Section 8(e) of the Egg Research and Consumer
Information Act (7 U.S.C. 2707(e)) is amended—
(1) by designating the first and second sen-
tences as paragraph (1);
(2) by designating the fifth and sixth sentences
as paragraph (3);
(3) by striking the third and fourth sentences
and inserting the following new paragraph:
‘‘(2)(A) The rate of assessment shall be prescribed
by the order, except that the rate of assessment may not
exceed 30 cents per case of commercial eggs or the equiva-
lent thereof.
‘‘(B) The Secretary may amend the order to increase
the rate of assessment (subject to the limitation in sub-
paragraph (A)) only if the increase is recommended by the
Egg Board and approved by egg producers in a referen-
dum conducted under section 9(b).
‘‘(C) The Secretary may amend the order to decrease
the rate of assessment only if the decrease is recommended
by the Egg Board. A decrease in the rate of assessment
shall take effect only after the Secretary provides public
notice and an opportunity for comment in accordance with
section 553 of title 5, United States Code. Sections 556
and 557 of such title shall not apply with respect to de-
creasing the rate of assessment.’’; and
(4) by conforming the margins of paragraphs
(1) and (3) (as so designated) to the margin of
paragraph (2).
(b) REFERENDUM REQUIREMENTS.—Section 9 of the
Egg Research and Consumer Information Act (7 U.S.C.
2708) is amended—
(1) by designating the first two sentences as
subsection (a);
(2) by designating the last sentence as sub-
section (c);
(3) by inserting after subsection (a) (as so des-
ignated) the following new subsection:
‘‘(b)(1) Whenever the Egg Board determines, based
on scientific studies, marketing analysis, or other similar
competent evidence, that an increase in assessment rate
is needed to ensure that assessments under the order are
set at an appropriate level to effectuate the declared policy
of this Act, the Egg Board may request that the Secretary
conduct a referendum, as provided in paragraph (2).
‘‘(2) When requested by the Egg Board under para-
graph (1) or (3), the Secretary shall conduct a referendum
among egg producers not exempt hereunder who, during
a representative period determined by the Secretary, have
been engaged in the production of commercial eggs, for
the purpose of ascertaining whether such producers ap-
prove the increase in the assessment rate proposed by the
Egg Board. The increase in the assessment rate shall take
effect if approved or favored by not less than two-thirds
of the producers voting in such referendum, or by a major-
ity of the producers voting in such referendum if such ma-
jority produced not less than two-thirds of all the commer-
cial eggs produced by those voting during a representative
period defined by the Secretary.
‘‘(3) With respect to the order in effect on the date
of the enactment of this subsection, the Egg Board shall
undertake to determine under paragraph (1), as soon as
practicable after such date of enactment, whether to re-
quest that the Secretary conduct a referendum under
paragraph (2). If the Egg Board makes such a request
on competent evidence, as provided in paragraph (1), the
Secretary shall conduct such referendum as soon as prac-
ticable, but not later than 120 days after receipt of the
request from the Egg Board.
‘‘(4) Notwithstanding any other provision of this Act,
whenever an increase in the assessment rate and the au-
thority for additional increases is approved by producers
in a referendum under this subsection, the Secretary shall
amend the order as appropriate to reflect such vote of pro-
ducers. The amendment to the order shall become effective
on the date it is issued.’’; and
(4) by conforming the margins of subsections
(a) and (c) (as so designated) to the margin of sub-
section (b).
SEC. 103. EXEMPTED EGG PRODUCERS.
(a) INCREASE
IN EXEMPTION AMOUNT.—Section
12(a)(1) of the Egg Research and Consumer Information
Act (7 U.S.C. 2711(a)(1)) is amended by striking ‘‘30,000
laying hens’’ and inserting ‘‘75,000 laying hens’’.
(b) ISSUANCE OF AMENDMENT TO ORDER.—To im-
plement the amendment made by subsection (a) to the
Egg Research and Consumer Information Act, the Sec-
retary of Agriculture shall issue an amendment to the egg
promotion and research order issued under such Act. The
amendment to the order shall be issued after public notice
and opportunity for comment in accordance with section
553 of title 5, United States Code. Sections 556 and 557
of such title shall not apply with respect to the amendment
to the order. The Secretary shall issue the proposed
amendment to the order not later than 30 days after the
date of the enactment of this title.
(c) EFFECTIVE DATE.—The amendment to the egg
promotion and research order required by subsection (b)
shall become effective not later than 120 days after the
date of the enactment of this Act. The amendment shall
not be subject to a referendum under the Egg Research
and Consumer Information Act.
TITLE II—WATERMELON
RESEARCH AND PROMOTION
SEC. 201. SHORT TITLE.
(a) SHORT TITLE.—This title may be cited as the
‘‘Watermelon Research and Promotion Improvement Act’’.
SEC. 202. CHANGE TO MAJORITY VOTE IN REFERENDUM
PROCEDURES.
Section 1653 of the Watermelon Research and Pro-
motion Act (7 U.S.C. 4912) is amended—
(1) by inserting ‘‘(a)’’ after ‘‘SEC. 1653.’’;
(2) by striking the third sentence; and
(3) inserting at the end the following new sub-
section:
‘‘(b) A plan issued under this subtitle shall not take
effect unless the Secretary determines that the issuance
of the plan is approved or favored by a majority of the
producers and handlers (and importers if subject to the
plan) voting in the referendum.’’.
SEC. 203. EXPANSION OF WATERMELON PLANS TO ENTIRE
UNITED STATES.
(a) DEFINITIONS.—Section 1643 of the Watermelon
Research and Promotion Act (7 U.S.C. 4902(3)) is
amended—
(1) in paragraph (3), by striking ‘‘the forty-
eight contiguous States of’’; and
(2) by adding at the end the following new
paragraph:
‘‘(10) The term ‘United States’ means each of
the several States and the District of Columbia.’’.
(b) ISSUANCE OF PLANS.—The last sentence of sec-
tion 1644 of such Act (7 U.S.C. 4903) is amended by
striking ‘‘the forty-eight contiguous States of’’.
SEC. 204. CLARIFICATION OF DIFFERENCES BETWEEN PRO-
DUCERS AND HANDLERS.
Section 1647(c) of the Watermelon Research and
Promotion Act (7 U.S.C. 4906(c)) is amended by adding
at the end the following:
‘‘(3) If a producer purchases watermelons from other
producers, in a combined total volume that is equal to 25
percent or more of the producer’s own production, the pro-
ducer shall be eligible to serve on the Board only as a
representative of handlers and not as a representative of
producers. In addition, if the combined total volume of wa-
termelons handled by a producer from the producer’s own
production and purchases from other producers’ produc-
tion is more than 50 percent of the producer’s own produc-
tion, the producer shall be eligible to serve on the Board
only as a representative of handlers and not as a rep-
resentative of producers.’’.
SEC. 205. CLARIFICATION OF COLLECTION OF ASSESS-
MENTS BY THE BOARD.
Section 1647 of the Watermelon Research and Pro-
motion Act (7 U.S.C. 4906) is amended—
(1) in subsection (f), by striking ‘‘collection of
the assessments by the Board.’’ and inserting ‘‘pay-
ment of the assessments to the Board.’’; and
(2) in paragraphs (1) and (3) of subsection (g),
by striking ‘‘collected’’ and inserting ‘‘received’’.
SEC. 206. CHANGES TO ASSESSMENT RATE NOT SUBJECT
TO FORMAL RULEMAKING.
Section 1647(f) of the Watermelon Research and
Promotion Act (7 U.S.C. 4906(f)), as amended by section
205(1), is further amended by adding at the end the fol-
lowing new sentences: ‘‘In fixing or changing the rate of
assessment pursuant to the plan, the Secretary shall com-
ply with the notice and comment procedures established
under section 553 of title 5, United States Code. Sections
556 and 557 of such title shall not apply with respect to
fixing or changing the rate of assessment.’’.
SEC. 207. ELIMINATION OF WATERMELON ASSESSMENT RE-
FUND.
Section 1647(h) of the Watermelon Research and
Promotion Act (7 U.S.C. 4906(h)) is amended—
(1) by striking ‘‘The plan’’ in the first sentence
and inserting ‘‘(1) Except as provided in paragraph
(2), the plan’’; and
(3) by adding at the end the following new
paragraphs:
‘‘(2) If approved in the referendum required by sec-
tion 1655(b) relating to the elimination of the assessment
refund under paragraph (1), the Secretary shall amend
the plan that is in effect on the day before the date of
the enactment of the Watermelon Research and Promotion
Improvement Act to eliminate such refund provision.
‘‘(3) Notwithstanding paragraph (2), if importers are
subject to the plan, the plan shall provide that importers
of less than 75,000 pounds of watermelons per year shall
be entitled to apply for a refund of the equivalent of the
rate of assessment paid by domestic producers. The Sec-
retary may adjust the weight exemption contained in this
paragraph to reflect significant changes in the average
yield per acre of watermelons in the United States for the
5-year period immediately preceding the year in which the
adjustment is made. An adjustment in the weight exemp-
tion under this paragraph may be made only upon the rec-
ommendation of the Board and after the Secretary pro-
vides an opportunity for notice and comment on the pro-
posed adjustment.’’.
SEC. 
208. 
EQUITABLE 
TREATMENT 
OF 
WATERMELON
PLANS.
(a) DEFINITIONS.—Section 1643 of the Watermelon
Research and Promotion Act (7 U.S.C. 4902), as amended
by section 203(a), is further amended—
(1) in paragraph (3), by striking the semicolon
at the end and inserting the following: ‘‘or imported
into the United States.’’;
(2) by redesignating paragraphs (6) and (7) as
paragraphs (8) and (9), respectively; and
(3) by inserting after paragraph (5) the follow-
ing new paragraphs:
‘‘(6) The term ‘importer’ means any person
who imports watermelons into the United States.
‘‘(7) The term ‘plan’ means an order issued by
the Secretary under this subtitle.’’.
(b) ISSUANCE OF PLANS.—Section 1644 of such Act
(7 U.S.C. 4903), as amended by section 203(b), is further
amended—
(1) in the first sentence, by striking ‘‘and han-
dlers’’ and inserting ‘‘, handlers, and importers’’;
(2) by striking the second sentence; and
(3) in the last sentence, by inserting ‘‘or im-
ported into the United States’’ before the period.
(c) NOTICE
AND HEARINGS.—Section 1645(a) of
such Act (7 U.S.C. 4904(a)) is amended—
(1) in the first sentence, by striking ‘‘and han-
dlers’’ and inserting ‘‘, handlers, and importers’’;
and
(2) in the last sentence, by striking ‘‘or han-
dlers’’ and inserting ‘‘, handlers, or importers’’.
(d) MEMBERSHIP OF BOARD.—Section 1647(c) of
such Act (7 U.S.C. 4906(c)), as amended by section 204,
is further amended—
(1) by inserting ‘‘(1)’’ after ‘‘(c)’’;
(2) in the second sentence, by striking ‘‘pro-
ducer and handler members’’ and inserting ‘‘other
members’’; and
(3) by adding at the end the following new
paragraph:
(2) by adding at the end the following new
paragraph:
‘‘(5) If importers are subject to the plan, an as-
sessment shall also be made on watermelons im-
ported into the United States by such importers.
The rate of assessment for importers (if subject to
the plan) shall be equal to the combined rate for
producers and handlers.’’.
(f) REFUNDS.—Section 1647(h) of such Act (7
U.S.C. 4906(h)), as amended by section 207, is further
amended—
(1) by inserting after ‘‘or handler’’ the first two
places it appears the following: ‘‘(or importer if sub-
ject to the plan)’’; and
(2) by striking ‘‘or handler’’ the last place it
appears and inserting ‘‘, handler, or importer’’.
(g) ASSESSMENT PROCEDURES.—Section 1649 of
such Act (7 U.S.C. 4908) is amended—
(1) in subsection (a)—
(A) by inserting ‘‘(1)’’ after ‘‘(a)’’; and
(B) by adding at the end the following new
paragraph:
‘‘(2) If importers are subject to the plan, each im-
porter required to pay assessments under the plan shall
be responsible for payment of the assessments to the
Board, as the Board may direct. The assessment on im-
ported watermelons shall be paid by the importer to the
Board at the time of the entry of the watermelons into
the United States. Each such importer shall maintain a
separate record specifying the total quantity of water-
melons imported into the United States that are included
under the terms of the plan, as well as those that are ex-
empt under such plan, and containing such other informa-
tion as may be prescribed by the Board. No more than
one assessment shall be made on any imported water-
melons.’’;
(2) in subsection (b), by inserting ‘‘and import-
ers’’ after ‘‘Handlers’’; and
(3) in subsection (c)(1), by inserting ‘‘or im-
porters’’ after ‘‘handlers’’.
(h) INVESTIGATIONS.—Section 1652(a) of such Act
(7 U.S.C. 4911(a)) is amended—
(1) in the first sentence, by striking ‘‘a handler
or any other person’’ and inserting ‘‘a person’’;
(2) in the fourth sentence, by inserting ‘‘(or an
importer if subject to the plan)’’ after ‘‘a handler’’;
and
(3) in the last sentence, by striking ‘‘the han-
dler or other person’’ and inserting ‘‘the person’’.
(i) REFERENDUM.—Section 1653 of such Act (7
U.S.C. 4912), as amended by section 202, is further
amended—
(1) in the first sentence—
(A) by striking ‘‘and handlers’’ both places
it appears and inserting ‘‘, handlers, and im-
porters’’; and
(B) by striking ‘‘or handling’’ and insert-
ing ‘‘, handling, or importing’’;
(2) by striking the second sentence; and
(3) in the sentence beginning ‘‘The ballots’’—
(A) by striking ‘‘or handler’’ and inserting
‘‘, handler, or importer’’; and
(B) by striking ‘‘or handled’’ and inserting
‘‘, handled, or imported’’.
(j) TERMINATION OF PLANS.—Section 1654(b) of
such Act (7 U.S.C. 4913(b)) is amended—
(1) in the first sentence—
(A) by striking ‘‘10 per centum or more’’
and inserting ‘‘at least 10 percent of the com-
bined total’’; and
(B) by striking ‘‘and handlers’’ both places
it appears and inserting ‘‘, handlers, and im-
porters’’;
(2) in the second sentence—
(A) by striking ‘‘or handle’’ and inserting
‘‘, handle, or import’’;
(B) by striking ‘‘50 per centum’’ and in-
serting ‘‘50 percent of the combined total’’; and
(C) by striking ‘‘or handled by the han-
dlers’’ and inserting ‘‘, handled by the handlers,
and imported by the importers’’; and
(3) by striking the last sentence.
(k) CONFORMING AND TECHNICAL AMENDMENTS.—
Such Act is further amended—
(1) 
in 
section 
1642(a)(5) 
(7 
U.S.C.
4901(a)(5)), by striking ‘‘and handling’’ and insert-
ing ‘‘handling, and importing’’;
(2) in the first sentence of section 1642(b) (7
U.S.C. 4901(b))—
(A) by inserting ‘‘, or imported into the
United States,’’ after ‘‘harvested in the United
States’’; and
(B) by striking ‘‘produced in the United
States’’;
(3) in section 1643 (7 U.S.C. 4902), as amend-
ed by subsection (a) and section 203—
(A) by striking ‘‘subtitle—’’ and inserting
‘‘subtitle:’’;
(B) in paragraphs (1), (2), (3), (4), and
(5), by striking ‘‘the term’’ and inserting ‘‘The
term’’;
(C) in paragraphs (1), (2), (4), and (5), by
striking the semicolon at the end and inserting
a period;
(D) in paragraph (8), as redesignated by
subsection (a)(2)—
(i) by striking ‘‘the term’’ and insert-
ing ‘‘The term’’; and
(ii) by striking ‘‘; and’’ and inserting
a period; and
(E) in paragraph (9), as redesignated by
subsection (a)(2)—
(i) by striking ‘‘the term’’ and insert-
ing ‘‘The term’’; and
(ii) by striking ‘‘1644’’ and inserting
‘‘1647’’; and
(4) in section 1647(g) (7 U.S.C. 4906(g)), as
amended by subsection (e) and section 205(2)—
(A) by striking ‘‘that—’’ and inserting
‘‘the following:’’;
(B) in paragraph (1)—
(i) by striking ‘‘(1) funds’’ and insert-
ing ‘‘(1) Funds’’; and
(ii) by striking the semicolon at the
end and inserting a period;
(C) in paragraph (2)—
(i) by striking ‘‘(2) no’’ and inserting
‘‘(2) No’’; and
(ii) by striking the semicolon at the
end and inserting a period;
(D) in paragraph (3)—
(i) by striking ‘‘(3) no’’ and inserting
‘‘(3) No’’; and
(ii) by striking ‘‘; and’’ and inserting
a period.
SEC. 209. SEPARATE CONSIDERATION OF WATERMELON
PLAN AMENDMENTS.
Section 1655 of the Watermelon Research and Pro-
motion Act (7 U.S.C. 4914) is amended—
(1) by striking ‘‘The provisions’’ and inserting
‘‘(a) Except as provided in section 1647(f), the pro-
visions’’; and
(2) by adding at the end the following new sub-
sections:
‘‘(b) The amendments described in subsection (c)
that are required to be made by the Secretary to a plan
as a result of the amendments made by the Watermelon
Research and Promotion Improvement Act shall be subject
to separate line item voting and approval in a referendum
conducted pursuant to section 1653 before the Secretary
alters the plan as in effect on the day before the date of
the enactment of such Act.
‘‘(c) The amendments referred to in subsection (b)
are those amendments required under—
‘‘(1) section 207 of the Watermelon Research
and Promotion Improvement Act relating to the
elimination of the assessment refund; and
‘‘(2) section 208 of such Act relating to subject-
ing importers to the terms and conditions of the
plan.
‘‘(d) When conducting the referendum relating to
subjecting importers to the terms and conditions of a plan,
the Secretary shall include as eligible voters in the referen-
dum producers, handlers, and importers who would be
subject to the plan if the amendments are approved.’’.
TITLE III—FRESH CUT FLOWERS
AND 
FRESH 
CUT 
GREENS
PROMOTION AND INFORMA-
TION
SEC. 301. SHORT TITLE.
This title may be cited as the ‘‘Fresh Cut Flowers
and Fresh Cut Greens Promotion and Information Act’’.
SEC. 302. FINDINGS AND DECLARATION OF POLICY.
(a) FINDINGS.—Congress finds the following:
(1) Fresh cut flowers and fresh cut greens are
an integral part of life in the United States, are en-
joyed by millions of persons every year for a mul-
titude of special purposes (especially important per-
sonal events), and contribute a natural and beautiful
element to the human environment.
(2) Cut flowers and cut greens are produced by
many individual producers throughout the United
States as well as in other countries, and are handled
and marketed by thousands of small-sized and me-
dium-sized businesses, and such production, han-
dling, and marketing constitute a key segment of the
United States horticultural industry and thus a sig-
nificant part of the overall agricultural economy of
the United States.
(3) Handlers play a vital role in the marketing
of cut flowers and cut greens in that they purchase
most of the cut flowers and cut greens marketed by
producers, prepare the cut flowers and cut greens
for retail consumption, serve as intermediary be-
tween source of product and retailer, otherwise fa-
cilitate the entry of cut flowers and cut greens into
the current of domestic commerce, and add effi-
ciencies to the market process that ensure the avail-
ability of a much greater variety of product to retail-
ers and consumers.
(4) It is widely recognized that it is in the pub-
lic interest and important to the agricultural econ-
omy of the United States to provide an adequate,
steady supply of cut flowers and cut greens at rea-
sonable prices to consumers in the United States.
(5) Cut flowers and cut greens move in inter-
state and foreign commerce, and cut flowers and cut
greens that do not move in such channels of com-
merce, but only in intrastate commerce, directly af-
fect interstate commerce in cut flowers and cut
greens.
(6) The maintenance and expansion of existing
markets and the development of new or improved
markets or uses for cut flowers and cut greens are
needed to preserve and strengthen the economic via-
bility of the domestic cut flowers and cut greens in-
dustry for the benefit of producers, handlers, retail-
ers, and the entire floral industry.
(7) 
Generic 
programs 
of 
promotion 
and
consumer information can be effective in maintain-
ing and developing markets for cut flowers and cut
greens, and have the advantage of equally enhancing
the market position for all cut flowers and cut
greens marketed.
(8) Because cut flowers and cut greens produc-
ers are primarily agriculture-oriented rather than
promotion-oriented, and because the floral marketing
industry within the United States is comprised
mainly of small-sized and medium-sized businesses,
the development and implementation of an adequate
and coordinated national program of generic pro-
motion and consumer information necessary for the
maintenance of existing markets and the develop-
ment of new markets for cut flowers and cut greens
have been prevented.
(9) There exist established State and commod-
ity-specific producer-funded programs of promotion
and research that are valuable efforts to expand
markets for domestic producers of cut flowers and
cut greens and that will be able to take advantage
of the promotion and consumer information program
authorized by this title to enhance their market de-
velopment efforts for domestic producers.
(10) An effective and coordinated method for
ensuring cooperative and collective action in provid-
ing for and financing a nationwide program of ge-
neric promotion and consumer information is needed
to ensure that the cut flowers and cut greens indus-
try will be able to provide, obtain, and implement
programs of promotion and consumer information
necessary to maintain, expand, and develop markets
for these articles.
(11) The most efficient method of financing a
nationwide program of generic promotion and
consumer information regarding cut flowers and cut
greens is to assess cut flowers and cut greens at the
point they are sold by handlers into the retail mar-
ket.
(b) POLICY AND PURPOSE.—It is declared to be the
policy of Congress that it is in the public interest, and
it is the purpose of this title, to authorize the establish-
ment pursuant to this title of an orderly procedure for
the development and financing (through an adequate as-
sessment on cut flowers and cut greens sold by handlers
to retailers and related entities in the United States) of
an effective and coordinated program of generic pro-
motion, consumer information, and related research de-
signed to strengthen the position of the cut flowers and
cut greens industry in the marketplace and to maintain,
develop, and expand markets for cut flowers and cut
greens.
SEC. 303. DEFINITIONS.
For purposes of this title:
(1) 
CONSUMER
INFORMATION.—The 
term
‘‘consumer information’’ means any action or pro-
gram to provide information to consumers and other
persons regarding—
(A) appropriate uses of cut flowers or cut
greens under varied circumstances; and
(B) the care and handling of cut flowers or
cut greens.
(2) CUT FLOWERS AND CUT GREENS.—
(A) IN GENERAL.—The term ‘‘cut flowers’’
includes all flowers cut from growing plants and
used as fresh-cut flowers, produced either under
cover or in field operations. The term ‘‘cut
greens’’ includes all cultivated or noncultivated
decorative foliage cut from growing plants and
used as fresh-cut decorative foliage, produced
either under cover or in field operations. The
term ‘‘cut greens’’ does not include Christmas
trees, and neither term includes foliage plants,
floral supplies, or flowering plants.
(B) SUBSTANTIAL PORTION.—In any case
in which a handler packages cut flowers or cut
greens with hard goods in an article, such as a
gift basket or similar presentation, for sale to
retailers, the PromoFlor Council may deter-
mine, under procedures set out in the order,
that the cut flowers or cut greens in the article
do not constitute a substantial portion of the
value of the article. Based on such a determina-
tion, the article containing the cut flowers or
cut greens shall not be treated as an article of
cut flowers or cut greens for purposes of—
(i) determining the annual sales of cut
flowers and cut greens of a handler under
paragraph (4)(C); or
(ii) imposing an assessment under
section 306.
(3) GROSS
SALES
PRICE.—The term ‘‘gross
sales price’’ means the total amount of the trans-
action in a sale of cut flowers or cut greens by a
handler.
(4) HANDLER DEFINITIONS.—
(A) QUALIFIED HANDLER.—
(i) IN GENERAL.—The term ‘‘qualified
handler’’ means a person (including a co-
operative) operating in the cut flowers or
cut greens industry that sells domestic or
imported cut flowers or cut greens to re-
tailers and exempt handlers and whose an-
nual sales of cut flowers and cut greens to
retailers 
and 
exempt 
handlers 
are
$750,000 or more.
(ii) INCLUSIONS.—The term ‘‘quali-
fied handler’’ includes the following:
(I) Bouquet manufacturers.
(II) Auction houses that clear
sales of cut flowers and cut greens to
retailers and exempt handlers through
a central clearinghouse.
(III) Any distribution center that
is owned or controlled by a retailer if
the predominant retail business activ-
ity of the retailer is floral sales. For
purposes of determining sales of cut
flowers and cut greens to retailers
from any such distribution center,
each non-sale transfer to a retailer
shall be treated as a sale in an
amount calculated as provided in sub-
paragraph (C)(ii).
(iii) EXCLUSIONS.—The term ‘‘quali-
fied handler’’ does not include a person
who merely physically transports or deliv-
ers cut flowers or cut greens.
(iv) RULES
OF
CONSTRUCTION
FOR
DIRECT TO CONSUMER SALES.—The term
‘‘qualified handler’’ includes an importer
that sells directly to consumers cut flowers
or cut greens that it has imported into the
United States and whose sales of such cut
flowers or cut greens (as calculated under
subparagraph (C)), along with sales of cut
flowers and cut greens to retailers or ex-
empt handlers, annually are $750,000 or
more. The term ‘‘qualified handler’’ also
includes a producer that sells directly to
consumers cut flowers or cut greens that it
has produced and whose sales of such cut
flowers or cut greens (as calculated under
subparagraph (C)), along with sales of cut
flowers and cut greens to retailers or ex-
empt handlers, annually are $750,000 or
more. Each direct sale to consumers by an
importer or producer described in this
clause shall be treated as a sale to a re-
tailer or exempt handler in an amount cal-
culated as provided in clause (iii) or (iv) of
subparagraph (C).
(B) EXEMPT
HANDLER.—The term ‘‘ex-
empt handler’’ means a person that would oth-
erwise be considered to be a qualified handler,
except that its annual sales of cut flowers and
cut greens to retailers and other exempt han-
dlers are less than $750,000.
(C) ANNUAL SALES DETERMINED.—
(i) IN GENERAL.—For purposes of de-
termining the amount of annual sales of
cut flowers and cut greens under subpara-
graphs (A) and (B), the amount of a sale
shall be determined on the basis of the
gross sales price of product sold.
(ii) SPECIAL RULE FOR DISTRIBUTION
CENTERS.—In the case of a non-sale trans-
fer of cut flowers or cut greens from a dis-
tribution center, as described in subpara-
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
required to be maintained under this section shall be
kept confidential by all officers and employees of the
Department 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 ad-
ministrative hearing involving the order that is
brought at the request of the Secretary (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.
SEC. 308. REFERENDA.
(a) REQUIREMENT FOR INITIAL REFERENDUM.—
(1) CONDUCT.—Not later than 36 months after
the issuance of an order under section 304(b)(3),
the Secretary shall conduct a referendum among
qualified handlers required to pay assessments under
the order to ascertain whether or not the order then
in effect shall be continued.
(2) APPROVAL OF ORDER NEEDED.—The order
shall be continued only if the Secretary determines
that the order has been approved by a simple major-
ity of all votes cast in the referendum. If the order
is not approved, the Secretary shall terminate the
order as provided in subsection (d).
(b) VOTES PERMITTED.—
(1) IN GENERAL.—Each qualified handler eligi-
ble to vote in a referendum under this section may
cast one vote for each separate facility of the person
that is an eligible separate facility, as determined
under paragraph (2).
(2) ELIGIBLE SEPARATE FACILITY.—
(A) SEPARATE FACILITY.—A handling or
marketing facility of a qualified handler shall be
considered a separate facility if it is physically
located away from other facilities of the quali-
fied handler or its business function is substan-
tially different than the functions of other fa-
cilities owned or operated by the qualified han-
dler.
(B) ELIGIBILITY.—A separate facility of a
qualified handler shall be considered to be an
eligible separate facility if the annual sales of
cut flowers and cut greens to retailers and ex-
empt handlers from the facility are $750,000 or
more.
(C) ANNUAL
SALES
DETERMINED.—Sub-
paragraphs (A) and (C) of section 303(4) shall
apply for purposes of determining the amount
of annual sales of cut flowers and cut greens
under subparagraph (B).
(c) SUSPENSION OR TERMINATION REFERENDA.—
Effective beginning three years after the date on which
an order issued under this title is approved in a referen-
dum conducted under subsection (a), the Secretary—
(1) at the Secretary’s discretion, may conduct
at any time a referendum of qualified handlers re-
quired to pay assessments under the order to ascer-
tain whether or not qualified handlers favor suspen-
sion or termination of the order; and
(2) whenever requested by the PromoFlor
Council or by a representative group comprising 30
percent or more of all qualified handlers required to
pay assessments under the order, shall conduct a
referendum of all qualified handlers required to pay
such assessments to ascertain whether or not quali-
fied handlers favor suspension or termination of the
order.
(d) SUSPENSION OR TERMINATION.—If, as a result
of the referendum conducted under subsection (a), the
Secretary determines that the order has not been approved
by a simple majority of all votes cast in the referendum,
or as a result of a referendum conducted under subsection
(c), the Secretary determines that suspension or termi-
nation of the order is favored by a simple majority of all
votes cast in the referendum, the Secretary shall—
(1) within six months after the referendum,
suspend or terminate, as appropriate, collection of
assessments under the order; and
(2) suspend or terminate, as appropriate, activi-
ties under the order in an orderly manner as soon
as practicable.
(e) MANNER
OF
CONDUCTING
REFERENDA.—
Referenda under this section shall be conducted in such
manner as is determined appropriate by the Secretary.
SEC. 309. PETITION AND REVIEW.
(a) PETITION AND HEARING.—
(1) PETITION.—A person subject to an order
issued under this title may file with the Secretary a
petition—
(A) stating that the order, any provision of
the order, or any obligation imposed in connec-
tion with the order is not in accordance with
law; and
(B) requesting a modification of the order
or an exemption from the order.
(2) HEARING.—The petitioner shall be given
the opportunity for a hearing on a petition filed
under paragraph (1), in accordance with regulations
issued by the Secretary. Any such hearing shall be
conducted in accordance with section 311(b)(2) and
be held within the United States judicial district in
which the person’s residence or principal place of
business is located.
(3) RULING.—After a hearing under paragraph
(2), the Secretary shall make a ruling on the peti-
tion, which shall be final if in accordance with law.
(b) REVIEW.—
(1) COMMENCEMENT OF ACTION.—The district
courts of the United States in any district in which
a person that is a petitioner under subsection (a) re-
sides or carries on business are hereby vested with
jurisdiction to review the Secretary’s ruling on the
person’s petition, if a complaint for that purpose is
filed within 20 days after the date of the entry of
the ruling by the Secretary.
(2) PROCESS.—Service of process in proceed-
ings under this subsection shall be conducted in ac-
cordance with the Federal Rules of Civil Procedure.
(3) REMAND.—If the court in a proceeding
under this subsection determines that the Sec-
retary’s ruling on the person’s petition is not in ac-
cordance with law, the court shall remand the mat-
ter to the Secretary with directions either—
(A) to make such ruling as the court shall
determine to be in accordance with law; or
(B) to take such further action as, in the
opinion of the court, the law requires.
(c) ENFORCEMENT
UNDER
SECTION
310.—The
pendency of proceedings instituted under this section shall
not impede, hinder, or delay the Attorney General or the
Secretary from obtaining relief under section 310.
SEC. 310. ENFORCEMENT.
(a) JURISDICTION.—The several district courts of the
United States are vested with jurisdiction specifically to
enforce, and to prevent and restrain any person from vio-
lating, this title or an order or regulation made or issued
by the Secretary under this title.
(b) REFERRAL TO ATTORNEY GENERAL.—The Sec-
retary shall refer to the Attorney General for appropriate
action all cases of a violation of this title or an order or
regulation made or issued by the Secretary under this
title, except that the Secretary is not required to refer to
the Attorney General such a violation if the Secretary be-
lieves that the administration and enforcement of this title
would be adequately served by administrative action under
subsection (c) or suitable written notice or warning to the
person who committed or is committing the violation.
(c) CIVIL PENALTIES AND ORDERS.—
(1) CIVIL PENALTIES.—A person that violates a
provision of this title, or an order or regulation is-
sued by the Secretary under this title, or who fails
or refuses to pay, collect, or remit any assessment
or fee duly required of the person under an order or
regulation issued under this title, may be assessed
by the Secretary—
(A) a civil penalty of not less than $500
nor more than $5,000 for each such violation;
and
(B) in the case of a willful failure to remit
an assessment as required by an order or regu-
lation, an additional penalty equal to the
amount of the assessment.
(2) TREATMENT
AS
SEPARATE
OFFENSES.—
Each violation described in paragraph (1) shall be
treated as a separate offense.
(3) CEASE AND DESIST ORDERS.—In addition
to or in lieu of a civil penalty under paragraph (1),
the Secretary may issue an order requiring a person
to cease and desist from continuing a violation of
this title or an order or regulation issued under this
title.
(4) NOTICE AND HEARING.—No penalty shall
be assessed or cease and desist order issued by the
Secretary under this subsection unless the Secretary
gives the person against whom the penalty is as-
sessed or the order is issued notice and opportunity
for a hearing before the Secretary with respect to
the violation. The hearing shall be conducted in ac-
cordance with section 311(b)(2) and be held within
the United States judicial district in which the per-
son’s residence or principal place of business is lo-
cated.
(5) FINALITY.—The penalty assessed or cease
and desist order issued under this subsection shall
be final and conclusive unless the person against
whom the penalty is assessed or the order is issued
files an appeal with the appropriate district court of
the United States in accordance with subsection (d).
(d) REVIEW BY DISTRICT COURT.—
(1) COMMENCEMENT OF ACTION.—Any person
against whom a violation is found and a civil penalty
assessed or cease and desist order issued under sub-
section (c) may obtain review of the penalty or order
by—
(A) filing, within the 30-day period begin-
ning on the date the penalty is assessed or
order issued, a notice of appeal in the district
court of the United States for the district in
which the person resides or carries on business,
or in the United States district court for the
District of Columbia; and
(B) simultaneously sending a copy of the
notice by certified mail to the Secretary.
(2) FILING OF RECORD.—Upon the filing of a
notice of appeal under paragraph (1), the Secretary
shall promptly file in the district court in which the
notice of appeal is filed a certified copy of the record
on which the Secretary found that the person had
committed a violation.
(3) STANDARD OF REVIEW.—A finding of the
Secretary shall be set aside under this subsection
only if the finding is found to be unsupported by
substantial evidence.
(e) FAILURE TO OBEY AN ORDER.—A person that
fails to obey a cease and desist order issued under sub-
section (c) after the order has become final and
unappealable, or after the appropriate United States dis-
trict court has entered a final judgment in favor of the
Secretary, shall be subject to a civil penalty assessed by
the Secretary of not more than $5,000 for each offense,
after opportunity for a hearing and for judicial review
under the procedures specified in subsections (c) and (d).
Each day during which the failure continues shall be con-
sidered as a separate violation of the order.
(f) FAILURE TO PAY A PENALTY.—If a person fails
to pay a civil penalty assessed under subsection (c) or (e)
after the penalty has become final and unappealable, or
after the appropriate United States district court has en-
tered final judgment in favor of the Secretary, the Sec-
retary shall refer the matter to the Attorney General for
recovery of the amount assessed in any United States dis-
trict court in which the person resides or carries on busi-
ness. In such action, the validity and appropriateness of
the civil penalty shall not be subject to review.
(g) ADDITIONAL REMEDIES.—The remedies provided
in this title shall be in addition to, and not exclusive of,
other remedies that may be available.
SEC. 311. INVESTIGATIONS AND POWER TO SUBPOENA.
(a) INVESTIGATIONS.—The Secretary may make such
investigations as the Secretary considers necessary for the
effective administration of this title, or to determine
whether any person has engaged or is engaging in any
act that constitutes a violation of this title, or any order
or regulation issued under this title.
(b) SUBPOENAS, OATHS, AND AFFIRMATIONS.—
(1) INVESTIGATIONS.—For the purpose of an
investigation under subsection (a), the Secretary
may administer oaths and affirmations, and issue
subpoenas to require the production of any records
that are relevant to the inquiry. The production of
any such records may be required from any place in
the United States.
(2) ADMINISTRATIVE HEARINGS.—For the pur-
pose of an administrative hearing held under section
309(a)(2) or 310(c)(4), the presiding officer may ad-
minister oaths and affirmations, subpoena witnesses,
compel their attendance, take evidence, and require
the production of any records that are relevant to
the inquiry. The attendance of witnesses and the