I
106TH CONGRESS
1ST SESSION
H. R. 2962
To provide for the issuance of a promotion, research, and information order
applicable to certain handlers of Hass avocados.
IN THE HOUSE OF REPRESENTATIVES
SEPTEMBER 28, 1999
Mr. CALVERT (for himself, Mr. CONDIT, Mr. PACKARD, Mr. HUNTER, Mrs.
CAPPS, Mr. CUNNINGHAM, Mrs. BONO, Mr. WAXMAN, Mr. LEWIS of Cali-
fornia, Mr. RADANOVICH, Mr. GALLEGLY, Mr. KUYKENDALL, Mr. DOO-
LITTLE, Mr. GARY MILLER of California, Mr. FILNER, Mr. BILBRAY, Mr.
MATSUI, Mrs. NAPOLITANO, Ms. SANCHEZ, Mr. DOOLEY of California,
Ms. WOOLSEY, Mr. HORN, Mr. CAMPBELL, Mr. DREIER, Mr. THOMAS,
Mr. THOMPSON of California, Mr. FARR of California, Mr. BECERRA, Mr.
MCKEON, Mr. OSE, Mr. HERGER, Mr. DIXON, Mr. LANTOS, Ms. ESHOO,
Ms. ROYBAL-ALLARD, Mr. ROGAN, Mr. SHERMAN, Mr. BERMAN, Ms.
LOFGREN, Ms. PELOSI, and Ms. LEE) introduced the following bill; which
was referred to the Committee on Agriculture
A BILL
To provide for the issuance of a promotion, research, and
information order applicable to certain handlers of Hass
avocados.
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) SHORT TITLE.—This Act may be cited as the
‘‘Hass Avocado Promotion, Research, and Information
Act of 1999’’.
(b) TABLE OF CONTENTS.—The table of contents of
this Act is as follows:
Sec. 1. Short title; table of contents.
Sec. 2. Findings and declaration of policy.
Sec. 3. Definitions.
Sec. 4. Issuance of orders.
Sec. 5. Required terms in orders.
Sec. 6. Referenda.
Sec. 7. Petition and review.
Sec. 8. Enforcement.
Sec. 9. Investigations and power to subpoena.
Sec. 10. Confidentiality.
Sec. 11. Authority for Secretary to suspend or terminate order.
Sec. 12. Construction.
Sec. 13. Regulations.
Sec. 14. Authorization of appropriations.
SEC. 2. FINDINGS AND DECLARATION OF POLICY.
(a) FINDINGS.—Congress finds the following:
(1) Hass avocados are an integral food source
in the United States that are a valuable and healthy
part of the human diet and are enjoyed by millions
of persons every year for a multitude of everyday
and special occasions.
(2) Hass avocados are a significant tree fruit
crop grown by many individual producers, but vir-
tually all domestically produced Hass avocados for
the commercial market are grown in the State of
California.
(3) Hass avocados move in interstate and for-
eign commerce, and Hass avocados that do not move
in interstate or foreign channels of commerce but
only in intrastate commerce directly affect interstate
commerce in Hass avocados.
(4) In recent years, large quantities of Hass av-
ocados have been imported into the United States
from other countries.
(5) The maintenance and expansion of markets
in existence on the date of enactment of this Act,
and the development of new or improved markets or
uses for Hass avocados are needed to preserve and
strengthen the economic viability of the domestic
Hass avocado industry for the benefit of producers
and other persons associated with the producing,
marketing, processing, and consuming of Hass avo-
cados.
(6) An effective and coordinated program of
promotion, research, and consumer information re-
garding Hass avocados is necessary for the mainte-
nance, expansion, and development of markets for
Hass avocados.
(b) PURPOSE.—It is the purpose of this Act to au-
thorize the establishment, through the exercise of the pow-
ers provided in this Act, of an orderly procedure for the
development and financing (through an adequate assess-
ment on Hass avocados sold by producers and importers
in the United States) of an effective and coordinated pro-
gram of promotion, research, and consumer information,
including funds for marketing and market research activi-
ties, that is designed to—
(1) strengthen the position of the Hass avocado
industry in the domestic marketplace; and
(2) maintain, develop, and expand markets and
uses for Hass avocados.
(c) LIMITATION.—Nothing in this Act may be con-
strued to provide for the control of production or otherwise
limit the right of any person to produce, handle, or import
Hass avocados.
SEC. 3. DEFINITIONS.
As used in this Act:
(1) BOARD.—The terms ‘‘Avocado Board’’ and
‘‘Board’’ mean the Hass Avocado Board established
under section 5.
(2) CONSUMER INFORMATION.—The term ‘‘con-
sumer information’’ means any action or program
that provides information to consumers and other
persons on the use, nutritional attributes, and other
information that will assist consumers and other
persons in making evaluations and decisions regard-
ing the purchase, preparation, and use of Hass avo-
cados.
(3) CUSTOMS.—The term ‘‘Customs’’ means
the United States Customs Service.
(4) DEPARTMENT.—The term ‘‘Department’’
means the United States Department of Agriculture.
(5) HASS AVOCADO.—
(A) IN GENERAL.—The term ‘‘Hass avo-
cado’’ includes—
(i) the fruit of any Hass variety avo-
cado tree; and
(ii) any other type of avocado fruit
that the Board determines is so similar to
the Hass variety avocado as to be indistin-
guishable to consumers.
(B) FORM OF FRUIT.—Except as provided
in subparagraph (C), the term includes avocado
fruit described in subparagraph (A) whether in
fresh, frozen, or any other processed form.
(C) EXCEPTIONS.—In any case in which a
handler further processes avocados described in
subparagraph (A), or products of such avoca-
dos, for sale to a retailer, the Board may deter-
mine that such further processed products do
not constitute a substantial value of the product
and that, based on its determination, the prod-
uct shall not be treated as a product of Hass
avocados subject to assessment under the order.
In addition, the Board may exempt certain fro-
zen avocado products from assessment under
the order.
(6) HANDLER.—
(A) 
QUALIFIED
HANDLER.—The 
term
‘‘qualified handler’’ means a person operating
in the Hass avocados marketing system that
sells domestic or imported Hass avocados for
United States domestic consumption, and who
is responsible for remitting assessments to the
Board. The term includes an importer or pro-
ducer who sells directly to consumers Hass avo-
cados that the importer or producer has im-
ported into the United States or produced, re-
spectively.
(B) EXEMPT
HANDLER.—The term ‘‘ex-
empt handler’’ means a person who would oth-
erwise be considered a qualified handler, except
that all avocados purchased by the person have
already been subject to the assessment for the
Board.
(7) IMPORTER.—The term ‘‘importer’’ means
any person who imports Hass avocados into the
United States.
(8) INDUSTRY INFORMATION.—The term ‘‘in-
dustry information’’ means information and pro-
grams that are designed to increase efficiency in
processing, enhance the development of new markets
and marketing strategies, increase marketing effi-
ciency, and activities to enhance the image of Hass
avocados and the Hass avocado industry domesti-
cally and internationally.
(9) ORDER.—The term ‘‘order’’ means the
Hass avocado promotion, research, and information
order issued under this Act.
(10) PERSON.—The term ‘‘person’’ means any
individual, group of individuals, firm, partnership,
corporation, joint stock company, association, coop-
erative, or other legal entity.
(11) PRODUCER.—The term ‘‘producer’’ means
any person who—
(A) is engaged in the domestic production
of Hass avocados for commercial use; and
(B) owns, or shares the ownership and risk
of loss, of such Hass avocados.
(12) 
PROMOTION.—The 
term 
‘‘promotion’’
means any action to advance the image, desirability,
or marketability of Hass avocados, including paid
advertising, sales promotion, and publicity, in order
to improve the competitive position and stimulate
sales of Hass avocados in the marketplace.
(13) RESEARCH.—The term ‘‘research’’ means
any type of test, study, or analysis relating to mar-
ket research, market development, and marketing ef-
forts, or relating to the use, quality, or nutritional
value of Hass avocados, other related food science
research, or research designed to advance the image,
desirability, and marketability of Hass avocados.
(14) 
SECRETARY.—The 
term 
‘‘Secretary’’
means the Secretary of Agriculture.
(15) STATE.—The term ‘‘State’’ means each of
the several States of the United States, the District
of Columbia, the Commonwealth of Puerto Rico, the
Commonwealth of the Northern Mariana Islands,
the United States Virgin Islands, Guam, American
Samoa, the Republic of the Marshall Islands, and
the Federated States of Micronesia.
(16) UNITED
STATES.—The term ‘‘United
States’’ means the United States collectively.
SEC. 4. ISSUANCE OF ORDERS.
(a) IN GENERAL.—
(1) ISSUANCE.—To effectuate the policy of this
Act specified in section 2(b), the Secretary, subject
to the procedures provided in subsection (b), shall
issue orders under this Act applicable to producers,
importers, and qualified handlers of Hass avocados.
(2) SCOPE.—Any order shall be national in
scope.
(3) ONE
ORDER.—Not more than one order
shall be in effect at any one time.
(b) PROCEDURES.—
(1) PROPOSAL FOR AN ORDER.—An existing or-
ganization of avocado producers established pursu-
ant to a State statute, or any other person who will
be affected by this Act, may request the issuance of,
and submit a proposal for an order.
(2) PUBLICATION
OF
PROPOSAL.—The Sec-
retary shall publish a proposed order and give notice
and opportunity for public comment on the proposed
order not later than 60 days after receipt by the
Secretary of a proposal for an order from an exist-
ing organization of avocado producers established
pursuant to a State statute, as provided in para-
graph (1).
(3) ISSUANCE OF ORDER.—
(A) IN GENERAL.—After notice and oppor-
tunity for public comment are provided in ac-
cordance with paragraph (2), the Secretary
shall issue the order, taking into consideration
the comments received and including in the
order such provisions as are necessary to ensure
that the order is in conformity with this Act.
(B) EFFECTIVE DATE.—The order shall be
issued and become effective only after an af-
firmative vote in a referendum as provided in
section 6, but not later than 180 days after
publication of the proposed order.
(c) AMENDMENTS.—The Secretary, from time to
time, may amend an order. The provisions of this Act ap-
plicable to an order shall be applicable to any amendment
to an order.
SEC. 5. REQUIRED TERMS IN ORDERS.
(a) IN GENERAL.—An order shall contain the terms
and provisions specified in this section.
(b) HASS AVOCADO BOARD.—
(1) ESTABLISHMENT AND MEMBERSHIP.—
(A) ESTABLISHMENT.—The order shall
provide for the establishment of a Hass Avo-
cado Board, consisting of 11 members, to ad-
minister the order.
(B) MEMBERSHIP.—
(i) APPOINTMENT.—The order shall
provide that members of the Board shall
be appointed by the Secretary from nomi-
nations submitted as provided in this sub-
section.
(ii) COMPOSITION.—The Board shall
consist of participating domestic producers
and importers.
(2) DISTRIBUTION OF APPOINTMENTS.—
(A) IN GENERAL.—The order shall provide
that the membership of the Board shall consist
of—
(i) 7 members who are domestic pro-
ducers of Hass avocados and are subject to
assessments under the order;
(ii) 2 members representing importers
that are qualified handlers of Hass avoca-
dos; and
(iii) 2 members who are domestic pro-
ducers of Hass avocados and are subject to
assessments under the order or are import-
ers that are qualified handlers, to reflect
the proportion of domestic production and
imports supplying the United States mar-
ket, which shall be based on the Sec-
retary’s determination of the average vol-
ume of domestic production proportionate
to the average volume of imports in the
United States market over the previous
three years.
(B) ADJUSTMENT IN BOARD REPRESENTA-
TION.—Three years after the assessment of
funds commences pursuant to an order, and at
the end of each three-year period thereafter, the
Avocado Board shall adjust the proportion of
producer representatives to importer represent-
atives on the Board under subparagraph
(A)(iii) on the basis of the amount of assess-
ments collected from producers and importers
over the immediately preceding three-year pe-
riod. Any adjustment under this subparagraph
shall be subject to the review and approval of
the Secretary.
(C) DEFINITION.—In this paragraph, the
term ‘‘importer that is a qualified handler’’
means an entity whose principal activity is the
importation, sale, and marketing of Hass avoca-
dos in the United States (either directly or as
an agent, broker, or consignee of any person or
nation that produces or handles Hass avocados
outside the United States for sale in the United
States), and who is subject to assessments as a
qualified handler under the order.
(3) NOMINATION
PROCESS.—The order shall
provide that—
(A) 2 nominees shall be submitted for each
appointment to the Board;
(B) nominations for each appointment of a
producer or an importer shall be made by do-
mestic producers or importers, respectively—
(i) in the case of producers, through
an election process which utilizes existing
organizations of avocado producers estab-
lished pursuant to a State statute, with ap-
proval by the Secretary; and
(ii) in the case of importers, nomina-
tions are submitted by importers under
such procedures as the Secretary deter-
mines appropriate; and
(C) in any case in which producers that
are qualified handlers or importers that are
qualified handlers fail to nominate individuals
for an appointment to the Board, the Secretary
may appoint an individual to fill the vacancy on
a basis provided in the order or other regula-
tions of the Secretary.
(4) ALTERNATES.—The order shall provide for
the selection of alternate members of the Board by
the Secretary in accordance with procedures speci-
fied in the order.
(5) TERMS.—The order shall provide that—
(A) each term of appointment to the Board
shall be for 3 years, except that, of the initial
appointments, 4 of the appointments shall be
for 2-year terms, 4 of the appointments shall be
for 3-year terms, and 3 of the appointments
shall be for 4-year terms; and
(B) no member of the Board may serve
more than 2 consecutive terms of three years,
except that any member serving an initial term
of 4 years may serve an additional term of 3
years.
(6) REPLACEMENT.—The order shall provide
that if a member or alternate of the Board who was
appointed as a domestic producer or importer that
is a qualified handler ceases to belong to the group
for which such member was appointed, such member
or alternate shall be disqualified from serving on the
Board.
(7) COMPENSATION.—The order shall provide
that members of the Board shall serve without com-
pensation, but shall be reimbursed for the reasonable
expenses of the members incurred in performing du-
ties as members of the Board.
(c) GENERAL RESPONSIBILITIES OF THE AVOCADO
BOARD.—The order shall define the general responsibil-
ities of the Avocado Board, which shall include the respon-
sibility to—
(1) administer the order in accordance with the
terms and provisions of the order;
(2) recommend to the Secretary rules and regu-
lations to effectuate the terms and provisions of the
order;
(3) employ such persons as the Board deter-
mines are necessary, and set the compensation and
define the duties of the persons;
(4)(A) develop budgets for the implementation
of the order and submit the budgets to the Secretary
for approval under subsection (d); and
(B) propose and develop (or receive and evalu-
ate), approve, and submit to the Secretary for ap-
proval under subsection (d) plans or projects for
Hass avocado promotion, industry information, con-
sumer information, or related research;
(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, except
that income from any such invested funds may
be used only for a purpose for which the in-
vested funds may be used;
(10) borrow funds necessary for the startup ex-
penses of the order; and
(11) provide the Secretary such information as
the Secretary may require.
(d) BUDGETS; PLANS AND PROJECTS.—
(1) SUBMISSION OF BUDGETS.—The order shall
require the Board to submit to the Secretary for ap-
proval budgets, on a fiscal year basis, of the antici-
pated expenses and disbursements of the Board in
the implementation of the order, including the pro-
jected costs of Hass avocado promotion, industry in-
formation, consumer information, and related re-
search plans and projects.
(2) PLANS AND PROJECTS.—
(A) PROMOTION AND CONSUMER INFORMA-
TION.—The order shall provide—
(i) for the establishment, implementa-
tion, administration, and evaluation of ap-
propriate plans and projects for adver-
tising, sales promotion, other promotion,
and consumer information with respect to
Hass avocados, and for the disbursement
of necessary funds for the purposes de-
scribed in this clause; and
(ii) that any plan or project referred
to in clause (i) shall be directed toward in-
creasing the general demand for Hass avo-
cados.
(B) INDUSTRY INFORMATION.—The order
shall provide for the establishment, implementa-
tion, administration, and evaluation of appro-
priate plans and projects that will lead to the
development of new markets, new marketing
strategies, or increased efficiency of the Hass
avocado industry, and activities to enhance the
image of the Hass avocado industry, and for
the disbursement of necessary funds for the
purposes described in this subparagraph.
(C) RESEARCH.—The order shall provide
for—
(i) the establishment, implementation,
administration, and evaluation of plans
and projects for market development re-
search, research with respect to the sale,
distribution, marketing, use, quality, or
nutritional value of Hass avocados, and
other research with respect to Hass avo-
cado marketing, promotion, or consumer
information;
(ii) the dissemination of the informa-
tion acquired through the plans and
projects; and
(iii) the disbursement of such funds as
are necessary to carry out this subpara-
graph.
(D) SUBMISSION
TO
THE
SECRETARY.—
The order shall provide that the Board shall
submit to the Secretary for approval a proposed
plan or project for Hass avocados promotion,
industry information, consumer information, or
related research, as described in subparagraphs
(A) and (B).
(3) APPROVAL
BY
SECRETARY.—A budget,
plan, or project for Hass avocados promotion, indus-
try information, consumer information, or related re-
search may not be implemented prior to approval of
the budget, plan, or project by the Secretary.
(e) CONTRACTS AND AGREEMENTS.—
(1) PROMOTION, CONSUMER INFORMATION, IN-
DUSTRY
INFORMATION
AND
RELATED
RESEARCH
PLANS AND PROJECTS.—
(A) IN GENERAL.—To ensure the efficient
use of funds, the order shall provide that the
Board, with the approval of the Secretary, shall
enter into a contract or an agreement with an
avocado organization established by State stat-
ute in a State with the majority of Hass avo-
cado production in the United States, for the
implementation of a plan or project for pro-
motion, industry information, consumer infor-
mation, or related research with respect to
Hass avocados, and for the payment of the cost
of the contract or agreement with funds re-
ceived by the Board under the order.
(B) REQUIREMENTS.—The order shall pro-
vide that any contract or agreement entered
into under this paragraph shall provide that—
(i) the contracting or agreeing party
shall develop and submit to the Board a
plan or project, together with a budget
that includes the estimated costs to be in-
curred for the plan or project;
(ii) the plan or project shall become
effective on the approval of the Secretary;
and
(iii) the contracting party or agreeing
party shall—
(I) keep accurate records of all
transactions of the party;
(II) account for funds received
and expended;
(III) make periodic reports to the
Board of activities conducted; and
(IV) make such other reports as
the Board or the Secretary shall re-
quire.
(2) OTHER CONTRACTS AND AGREEMENTS.—
The order shall provide that the Board, with the ap-
proval of the Secretary, may enter into a contract or
agreement for administrative services. Any contract
or agreement entered into under this paragraph
shall include provisions comparable to the provisions
described in paragraph (1)(B).
(f) BOOKS AND RECORDS OF BOARD.—
(1) IN GENERAL.—The order shall require the
Board to—
(A) maintain such books and records
(which shall be available to the Secretary for in-
spection and audit) as the Secretary may re-
quire;
(B) prepare and submit to the Secretary,
from time to time, such reports as the Sec-
retary may require; and
(C) account for the receipt and disburse-
ment of all the funds entrusted to the Board.
(2) AUDITS.—The Board shall cause the books
and records of the Board to be audited by an inde-
pendent auditor at the end of each fiscal year. A re-
port of each audit shall be submitted to the Sec-
retary.
(g) CONTROL
OF ADMINISTRATIVE COSTS.—The
order shall provide that the Board shall, as soon as prac-
ticable after the order becomes effective and after con-
sultation with the Secretary and other appropriate per-
sons, implement a system of cost controls based on nor-
mally accepted business practices that will ensure that the
annual budgets of the Board include only amounts for ad-
ministrative expenses that cover the minimum administra-
tive activities and personnel needed to properly administer
and enforce the order, and conduct, supervise, and evalu-
ate plans and projects under the order. The Board shall
use, to the extent possible, the resources, staffs, and facili-
ties of existing organizations, as provided in subsection
(e)(1)(A).
(h) ASSESSMENTS.—
(1) AUTHORITY.—
(A) IN GENERAL.—The order shall provide
that each qualified handler shall remit to the
Board, in the manner provided in the order, an
assessment collected from the producer, except
to the extent that the sale is excluded from as-
sessments under paragraph (6). In the case of
imports, the assessment shall be levied upon im-
ports and remitted to the Board by Customs.
(B) PUBLISHED LISTS.—To facilitate the
payment of assessments under this paragraph,
the Board shall publish lists of qualified han-
dlers required to remit assessments under the
order and exempt handlers.
(C) MAKING DETERMINATIONS.—
(i) QUALIFIED
HANDLER
STATUS.—
The order shall contain provisions regard-
ing the determination of the status of a
person as a qualified handler or exempt
handler that include the rules and require-
ments specified in section 3(j).
(ii) PRODUCER-HANDLERS.—For pur-
poses of paragraph (3), a producer-handler
shall be considered the qualified handler of
Hass avocados produced by such producer-
handler. The qualified handler shall be the
first person who packs the avocados for
sale at wholesale or retail.
(iii) IMPORTERS.—The assessment on
imported Hass avocados shall be paid by
the importer at the time of entry into the
United States and shall be remitted to the
Board. Importation occurs when Hass avo-
cados originating outside the United States
are released from custody of the United
States Customs Service and introduced
into the stream of commerce within the
United States. Importers include persons
who hold title to foreign-produced Hass av-
ocados immediately upon release by the
Customs Service, as well as any persons
who act on behalf of others, as agents or
brokers, to secure the release of Hass avo-
cados from Customs and the introduction
of the released Hass avocados into the cur-
rent of commerce.
(2) ASSESSMENT RATES.—With respect to as-
sessment rates, the order shall contain the following
terms:
(A) INITIAL
RATE.—The rate of assess-
ment on Hass avocados shall be $.025 per
pound.
(B) CHANGES IN THE RATE.—
(i) IN GENERAL.—Once the order in
is effect, the uniform assessment rate may
be increased or decreased not more than
once annually, but in no event shall the
rate of assessment be in excess of $.05 per
pound.
(ii) REQUIREMENTS.—Any change in
the 
rate 
of 
assessment 
under 
this
subparagraph—
(I) may be made only if adopted
by the Board by an affirmative vote of
at least seven members of the Board
and approved by the Secretary as nec-
essary to achieve the objectives of this
Act (after public notice and oppor-
tunity for comment in accordance
with section 553 of title 5, United
States Code, and without regard to
sections 556 and 557 of such title);
(II) shall be announced by the
Board not less than 30 days prior to
going into effect; and
(III) shall not be subject to a
vote in a referendum conducted under
section 6.
(3) COLLECTION BY QUALIFIED HANDLERS.—
Except as provided in paragraph (1)(C)(iii), the
qualified handler of Hass avocados shall—
(A) be responsible for the collection from
the producer of assessments under this sub-
section; and
(B) maintain a separate record of the
Hass avocados of each producer whose Hass av-
ocados are so handled, including the Hass avo-
cados owned by the handlers.
(4) TIMING OF SUBMITTING ASSESSMENTS.—
The order shall provide that each person required to
remit assessments under this subsection shall remit
to the Board the assessment due from each sale of
Hass avocados that is subject to an assessment with-
in such time period after the sale (not to exceed 60
days after the end of the month in which the sale
took place) as is specified in the order.
(5) CLAIMING AN EXEMPTION FROM ASSESS-
MENTS.—To claim an exemption under section 3(6)
as an exempt handler for a particular fiscal year, a
person shall submit an application to the Board—
(A) stating the basis for such exemption;
and
(B) certifying such person will not pur-
chase Hass avocados in the United States on
which an assessment has not been paid for the
current fiscal year.
(6) EXCLUSION.—An order shall exclude from
assessments under the order any sale of Hass avoca-
dos for export from the United States.
(7) USE OF ASSESSMENT FUNDS.—The order
shall provide that assessment funds shall be used for
payment of costs incurred in implementing and ad-
ministering the order, with provision for a reason-
able reserve, and to cover the administrative costs
incurred by the Secretary in implementing and ad-
ministering this Act, including any expenses in-
curred by the Secretary in conducting referenda
under this Act, subject to subsection (i).
(8) ASSESSMENT FUNDS FOR STATE ASSOCIA-
TION.—The order shall provide that a State associa-
tion shall receive an amount equal to the product ob-
tained by multiplying the aggregate amount of as-
sessments attributable to the pounds of Hass avoca-
dos produced in such State by 85 percent. A State
association shall use such funds and any proceeds
from the investment of such funds for financing—
(A) promotion, research, consumer infor-
mation, and industry information plans and
projects; and
(B) administrative expenses incurred in
connection with such plans and projects.
(i) REIMBURSEMENT OF SECRETARY EXPENSES.—
The order shall provide for reimbursing the Secretary—
(1) for expenses not to exceed $75,000 incurred
by the Secretary in connection with any referendum
conducted under section 6; and
(2) for administrative costs incurred by the Sec-
retary for supervisory work of up to 2 employee
years after an order or amendment to any order has
been issued and made effective.
(j) PROHIBITION ON BRAND ADVERTISING AND CER-
TAIN CLAIMS.—
(1) PROHIBITIONS.—Except as provided in
paragraph (2), a program or project conducted
under this Act shall not—
(A) make any reference to private brand
names;
(B) make false, misleading, or disparaging
claims on behalf of Hass avocados; or
(C) make false, misleading, or disparaging
statements with respect to the attributes or use
of any competing products.
(2) EXCEPTIONS.—Paragraph (1) does not pre-
clude the Board from offering its programs and
projects for use by commercial parties, under such
terms and conditions as the Board may prescribe as
approved by the Secretary. For the purposes of this
subsection, a reference to State of origin does not
constitute a reference to a private brand name.
(k) PROHIBITION ON USE OF FUNDS TO INFLUENCE
GOVERNMENTAL ACTION.—
(1) IN
GENERAL.—Except as otherwise pro-
vided in paragraph (2), the order shall prohibit any
funds collected by the Board under the order from
being used in any manner for the purpose of influ-
encing legislation or government action or policy.
(2) EXCEPTION.—Paragraph (1) shall not
apply to the development or recommendation of
amendments to the order.
(l) BOOKS AND RECORDS; REPORTS.—
(1) IN GENERAL.—The order shall provide that
each qualified handler, producer, and importer sub-
ject to the order shall maintain, and make available
for inspection, such books and records as are re-
quired by the order and file reports at the time, in
the manner, and having the content required by the
order, to the end that such information is made
available to the Secretary and the Board as is ap-
propriate for the administration or enforcement of
this Act, the order, or any regulation issued under
this Act.
(2) CONFIDENTIALITY REQUIREMENT.—
(A) IN
GENERAL.—Information obtained
from books, records, or reports under para-
graph (1) shall be kept confidential by all offi-
cers and employees of the Department of Agri-
culture and by the staff and agents of the
Board.
(B) SUITS
AND
HEARINGS.—Information
described in subparagraph (A) may be disclosed
to the public only—
(i) in a suit or administrative hearing
brought at the request of the Secretary, or
to which the Secretary or any officer of the
United States is a party, involving the
order; and
(ii) to the extent the Secretary con-
siders the information relevant to the suit
or hearing.
(C) GENERAL STATEMENTS AND PUBLICA-
TIONS.—Nothing in this paragraph may be con-
strued to prohibit—
(i) the issuance of general statements,
based on the reports, of the number of per-
sons subject to the order or statistical data
collected from the reports, if the state-
ments do not identify the information fur-
nished by any person; or
(ii) the publication, by direction of the
Secretary, of the name of any person who
violates the order, together with a state-
ment of the particular provisions of the
order violated by the person.
(3) LISTS OF IMPORTERS.—
(A) REVIEW.—The order shall provide that
the staff of the Board shall periodically review
lists of importers of Hass avocados to deter-
mine whether persons on the lists are subject to
the order.
(B) CUSTOMS SERVICE.—On the request of
the Secretary or the Board, the Commissioner
of the United States Customs Service shall pro-
vide to the Secretary or the Board lists of im-
porters of Hass avocados.
(m) CONSULTATIONS WITH INDUSTRY EXPERTS.—
(1) IN GENERAL.—The order shall provide that
the Board may seek advice from and consult with
experts from the production, import, wholesale, and
retail segments of the Hass avocado industry to as-
sist in the development of promotion, industry infor-
mation, consumer information, and related research
plans and projects.
(2) SPECIAL COMMITTEES.—
(A) IN GENERAL.—For the purposes de-
scribed in paragraph (1), the order shall au-
thorize the appointment of special committees
composed of persons other than Board mem-
bers.
(B) CONSULTATION.—A committee ap-
pointed under subparagraph (A)—
(i) may not provide advice or rec-
ommendations to a representative of an
agency, or an officer, of the Federal Gov-
ernment; and
(ii) shall consult directly with the
Board.
(n) OTHER TERMS OF THE ORDER.—The order shall
contain such other terms and provisions, consistent with
this Act, as are necessary to carry out this Act (including
provision for the assessment of interest and a charge for
each late payment of assessments under subsection (h)).
SEC. 6. REFERENDA.
(a) REQUIREMENTS FOR INITIAL REFERENDUM.—
(1) REFERENDUM REQUIRED.—During the 60-
day period immediately preceding the proposed effec-
tive date of an order issued under section 4(b)(3),
the Secretary shall conduct a referendum among
qualified producers and importers required to pay
assessments under the order, as provided in section
5(h)(1).
(2) APPROVAL OF ORDER NEEDED.—The order
shall become effective only if the Secretary deter-
mines that the order has been approved by a simple
majority of all votes cast in the referendum.
(b) VOTES PERMITTED.—
(1) IN GENERAL.—Each qualified producer and
importer eligible to vote in a referendum conducted
under this section shall be entitled to cast 1 vote if
they satisfy the eligibility requirements as defined in
paragraph (2).
(2) ELIGIBILITY.—For purposes of paragraph
(1), producers and importers, as these terms are de-
fined in section 3, shall be considered to be eligible
to vote if they have been producers or importers
with sales of Hass avocados during a period of at
least 1 year prior to the referendum.
(c) MANNER OF CONDUCTING REFERENDA.—
(1) IN GENERAL.—Referenda conducted pursu-
ant to this Act shall be conducted in a manner de-
termined by the Secretary.
(2) ADVANCE REGISTRATION.—A qualified pro-
ducer or importer of Hass avocados who chooses to
vote in any referendum conducted under this Act
shall register with the Secretary prior to the voting
period, after receiving notice from the Secretary con-
cerning the referendum under paragraph (4).
(3) VOTING.—A qualified producer or importer
of Hass avocados who chooses to vote in any ref-
erendum conducted under this Act shall vote in ac-
cordance with procedures established by the Sec-
retary. The ballots and other information or reports
that reveal or tend to reveal the vote of any qualified
handler shall be strictly confidential.
(4) NOTICE.—The Secretary shall notify all
qualified producers and importers at least 30 days
prior to the referendum conducted under this Act.
The notice shall explain the procedure established
under this subsection.
(d) SUSPENSION OR TERMINATION REFERENDA.—If
an order is approved in a referendum conducted under
subsection (a), effective beginning on the date that is 3
years after the date of the approval, the Secretary—
(1) at the discretion of the Secretary, may con-
duct at any time a referendum of qualified producers
and importers required to pay assessments under
the order, as provided in section 5(h)(1), subject to
the voting requirements of subsection (b), to ascer-
tain whether qualified producers and importers favor
suspension or termination of the order; and
(2) if requested by the Board or by a represent-
ative group comprising 30 percent or more of all
qualified producers and importers required to pay
assessments under the order, as provided in section
5(h)(1), subject to the voting requirements of sub-
sections (c) and (d), to ascertain whether producers
and importers favor suspension or termination of the
order.
(e) SUSPENSION OR TERMINATION.—If, as a result
of a referendum conducted under subsection (d), the Sec-
retary determines that suspension or termination of the
order is favored by a simple majority of all votes cast in
the referendum, the Secretary shall—
(1) not later than 180 days after the ref-
erendum, suspend or terminate, as appropriate, col-
lection of assessments under the order; and
(2) suspend or terminate, as appropriate, activi-
ties under the order as soon as practicable and in
an orderly manner.
SEC. 7. PETITION AND REVIEW.
(a) PETITION AND HEARING.—
(1) PETITION.—A person subject to an order
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 9(b)(2) and be
held within the United States judicial district in
which the residence or principal place of business of
the person 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.
(4) LIMITATION.—Any petition filed under this
subsection challenging an order, any provision of the
order, or any obligation imposed in connection with
the order, shall be filed within 2 years after the ef-
fective date of the order, provision, or obligation
subject to challenge in the petition.
(b) REVIEW.—
(1) COMMENCEMENT OF ACTION.—The district
courts of the United States in any district in which
a person who is a petitioner under subsection (a) re-
sides or conducts business shall have jurisdiction to
review the ruling of the Secretary on the petition of
the person, if a complaint requesting the review is
filed no later than 20 days after the date of the
entry of the ruling by the Secretary.
(2) PROCESS.—Service of process in pro-
ceedings under this subsection shall be conducted in
accordance with the Federal Rules of Civil Proce-
dure.
(3) REMAND.—If the court in a proceeding
under this subsection determines that the ruling of
the Secretary on the petition of the person is not in
accordance with law, the court shall remand the
matter to the Secretary with directions—
(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 the court, the law requires.
(c) ENFORCEMENT.—The pendency of proceedings
instituted under this section shall not impede, hinder, or
delay the Attorney General or the Secretary from obtain-
ing relief under section 8.
SEC. 8. ENFORCEMENT.
(a) JURISDICTION.—A district court of the United
States shall have jurisdiction to enforce, and to prevent
and restrain any person from violating, this Act or an
order or regulation issued by the Secretary under this Act.
(b) REFERRAL TO ATTORNEY GENERAL.—A civil ac-
tion brought under subsection (a) shall be referred to the
Attorney General for appropriate action, except that the
Secretary is not required to refer to the Attorney General
a violation of this Act, or an order or regulation issued
under this Act, if the Secretary believes that the adminis-
tration and enforcement of this Act would be adequately
served by administrative action under subsection (c) or
suitable written notice or warning to the person who com-
mitted or is committing the violation.
(c) CIVIL PENALTIES AND ORDERS.—
(1) CIVIL PENALTIES.—
(A) IN GENERAL.—A person who violates a
provision of this Act, or an order or regulation
issued by the Secretary under this Act, or who
fails or refuses to pay, collect, or remit any as-
sessment or fee required of the person under an
order or regulation issued under this Act, may
be assessed by the Secretary—
(i) a civil penalty of not less than
$500 nor more than $5,000 for each viola-
tion; and
(ii) in the case of a willful failure to
remit an assessment as required by an
order or regulation, an additional penalty
equal to the amount of the assessment.
(B) SEPARATE OFFENSES.—Each violation
shall be a separate offense.
(2) 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 Act, or an order or regulation issued under this
Act.
(3) 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. Any such hearing shall be conducted in
accordance with section 9(b)(2) and shall be held
within the United States judicial district in which
the residence or principal place of business of the
person is located.
(4) 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.—
(A) IN
GENERAL.—Any person against
whom a violation is found and a civil penalty is
assessed or a cease and desist order is issued
under subsection (c) may obtain review of the
penalty or order by, within the 30-day period
beginning on the date the penalty is assessed or
the order is issued—
(i) filing a notice of appeal in the dis-
trict court of the United States for the dis-
trict in which the person resides or con-
ducts business, or in the United States
District Court for the District of Colum-
bia; and
(ii) sending a copy of the notice by
certified mail to the Secretary.
(B) COPY
OF
RECORD.—The Secretary
shall promptly file in the court a certified copy
of the record on which the Secretary found that
the person had committed a violation.
(2) 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.—
(1) IN GENERAL.—A person who fails to obey
a cease and desist order issued under subsection (c)
after the order has become final and unappealable,
or after the appropriate United States district court
had entered a final judgment in favor of the Sec-
retary of not more than $5,000 for each offense,
after opportunity for a hearing and for judicial re-
view under the procedures specified in subsections
(c) and (d).
(2) SEPARATE VIOLATIONS.—Each day during
which the person fails to obey an order described in
paragraph (1) shall be considered as a separate vio-
lation of the order.
(f) FAILURE TO PAY A PENALTY.—
(1) IN GENERAL.—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 entered final judgment in favor of the Secretary,
the Secretary shall refer the matter to the Attorney
General for recovery of the amount assessed in any
United States district court in which the person re-
sides or conducts business.
(2) SCOPE OF REVIEW.—In an action by the
Attorney General under paragraph (1), the validity
and appropriateness of a civil penalty shall not be
subject to review.
(g) ADDITIONAL REMEDIES.—The remedies provided
in this Act shall be in addition to, and not exclusive of,
other remedies that may be available.
SEC. 9. INVESTIGATIONS AND POWER TO SUBPOENA.
(a) INVESTIGATIONS.—The Secretary may conduct
such investigations as the Secretary considers necessary
for the effective administration of this Act, or to determine
whether any person has engaged or is engaging in any
act that constitutes a violation of this Act or any order
or regulation issued under this Act.
(b) SUBPOENAS, OATHS, AND AFFIRMATIONS.—
(1) INVESTIGATIONS.—For the purpose of con-
ducting an investigation under subsection (a), the
Secretary may administer oaths and affirmations,
subpoena witnesses, compel the attendance of wit-
nesses, take evidence, and require the production of
any records that are relevant to the inquiry. The
production of the 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
7(a)(2) or 8(c)(3), the presiding officer may admin-
ister oaths and affirmations, subpoena witnesses,