ed as a sale of cut flowers or cut greens to a re-
tailer subject to assessments under this sub-
section.
(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 considered 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 es-
tablished by the order to represent a whole-
sale handler’s mark-up on a sale to a re-
tailer.
(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 considered to be an
amount determined by applying to the price
paid by the consumer a uniform percentage es-
tablished by the order to represent the cost of
producing the article and a wholesale 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 percent-
age established by the order and used to deter-
mine the amount of annual sales of handlers
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 op-
portunity 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 as-
sessment 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 assess-
ment rate may be increased or decreased annu-
ally 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 assessment
may be made only if adopted by the PromoFlor
Council by a two-thirds majority vote and ap-
proved by the Secretary as necessary to achieve
the objectives of this title. The Secretary may
make the change only after providing an oppor-
tunity 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 ef-
fect. A change in the rate of assessment shall not
be subject to a vote in a referendum under sec-
tion 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 as-
sessment 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 begin-
ning 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 conditions
specified in subparagraph (B), any qualified
handler shall have the right to demand and re-
ceive from the PromoFlor Council out of the es-
crow 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 quali-
fied 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 condi-
tions:
(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 referendum 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 returned
to the PromoFlor Council for use by the PromoFlor
Council in accordance with the other provisions of the
order.
(e) USE OF ASSESSMENT FUNDS.—The order shall pro-
vide 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 implementing
and administering the order, with provision for a reason-
able reserve, and to cover those administrative costs in-
curred by the Secretary in implementing and administer-
ing this title, except for the salaries of Government employ-
ees 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, ap-
proved by the Secretary, and issued after providing
public notice and an opportunity to comment on the
proposed rules.
(2) CRITERIA AND RESPONSIBILITY FOR DETER-
MINATIONS.—To establish that it is financially unable
to pay assessments, an applicant for a postponement
shall demonstrate that it is insolvent and will be un-
able to continue to operate if it is required to pay as-
sessments 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 required
under rules prescribed under paragraph (1). All
books, records, and other documentation submitted by
a qualified handler under this paragraph shall be
subject to the confidentiality requirements of section
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. Post-
ponements may be extended under the requirements
and procedures established pursuant to paragraph (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 determina-
tion 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 re-
cently-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 avail-
able to the PromoFlor Council, the determination
under paragraph (1) may be made using an alter-
native 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 subject 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 fa-
cility 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 person’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 en-
tity in which the person owns more than 50 per-
cent of the stock or (if the entity is not a cor-
poration) that the person controls; and
(D) in those cases in which the person is a
corporation, sales attributable to any corporate
subsidiary or other corporation or entity in
which the corporation owns more than 50 per-
cent of the stock or (if the entity is not a cor-
poration) that the corporation controls.
(2) TREATMENT OF CERTAIN STOCK AND OWNER-
SHIP INTERESTS.—For purposes of this subsection,
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 Secretary
and the PromoFlor Council as is appropriate for the
administration or enforcement of this title, the order,
or any regulation issued under this title.
(d) CONFIDENTIALITY REQUIRED.—
(1) IN GENERAL.—Information obtained by the
PromoFlor Council from books, records, or reports re-
quired to be maintained under this section shall be
kept confidential by all officers and employees of the
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 con-
siders relevant.
(2) RULE OF CONSTRUCTION.—Nothing in para-
graph (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 there-
from, which statements do not identify the infor-
mation furnished by any person; or
(B) the publication, by direction of the Sec-
retary, of the name of any person violating the
order, together with a statement of the particular
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 qualified
handler or its business function is substantially
different than the functions of other facilities
owned or operated by the qualified handler.
(B) ELIGIBILITY.—A separate facility of a
qualified handler shall be considered to be an eli-
gible separate facility if the annual sales of cut
flowers and cut greens to retailers and exempt
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.—Ef-
fective beginning three years after the date on which an
order issued under this title is approved in a referendum
conducted under subsection (a), the Secretary—
(1) at the Secretary’s discretion, may conduct at
any time a referendum of qualified handlers required
to pay assessments under the order to ascertain
whether or not qualified handlers favor suspension 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 assess-
ments under the order, shall conduct a referendum of
all qualified handlers required to pay such assess-
ments to ascertain whether or not qualified handlers
favor suspension or termination of the order.
(d) SUSPENSION OR TERMINATION.—If, as a result of
the referendum conducted under subsection (a), the Sec-
retary determines that the order has not been approved by
a simple majority of all votes cast in the referendum, or
tinues shall be considered 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 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 resides or carries on business. 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 wheth-
er any person has engaged or is engaging in any act that
constitutes a violation of this title, or any order or regula-
tion issued under this title.
(b) SUBPOENAS, OATHS, AND AFFIRMATIONS.—
(1) INVESTIGATIONS.—For the purpose of an in-
vestigation under subsection (a), the Secretary may
administer oaths and affirmations, and issue subpoe-
nas 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 produc-
tion of any such records may be required from any
place in the United States.
(c) AID OF COURTS.—
(1) IN GENERAL.—In the case of contumacy by,
or refusal to obey a subpoena issued to, any person,
the Secretary may invoke the aid of any court of the
United States within the jurisdiction of which the in-
vestigation or proceeding is carried on, or where the
person resides or carries on business, in order to en-
force a subpoena issued under subsection (b). The
court may issue an order requiring the person to com-
ply with such a subpoena. Any failure to obey the