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(3) LISTS
OF
IMPORTERS.—The order shall
provide that the staff of the PromoFlor Council peri-
odically shall review lists of importers of cut flowers
and cut greens to determine whether persons listed
therein are subject to the order; and the United
States Customs Service shall provide such lists at
the request of the PromoFlor Council.
(k) CONSULTATIONS WITH INDUSTRY EXPERTS.—
The order shall provide that the PromoFlor Council, from
time to time, may seek advice from and consult with ex-
perts from the production, import, wholesale, and retail
segments of the cut flowers and cut greens industry to
assist in the development of promotion, consumer informa-
tion, and related research plans and projects. For such
purpose, the order also shall authorize the appointment
of special committees composed of persons other than
PromoFlor Council members. No such committee may
provide advice or recommendations to an agency or officer
of the Federal Government, but shall consult directly with
the PromoFlor Council.
(1) OTHER TERMS OF THE ORDER.—The order shall
contain such other terms and provisions, not inconsistent
with this Act, as are necessary to effectuate this Act, (in-
cluding provision for the assessment of a charge for each
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late payment of assessments under subsection (h)) and as
provided in section 6.
SEC. 6. EXCLUSION; DETERMINATIONS.
(a) EXCLUSION.—Any order issued under this Act
shall exclude from assessments under the order any sale
of cut flowers or cut greens for export from the United
States.
(b) MAKING DETERMINATIONS.—
(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 3(4), or to spe-
cific facilities in order to determine status as an eli-
gible separate facility under section 7(b)(2), any
order issued under this Act shall provide that—
(A) a determination of a person’s or facili-
ty’s annual sales volume shall be based on the
sales of cut flowers and cut greens by such per-
son or facility during the most recently-com-
pleted calendar year, except as provided in sub-
paragraph (B); and
(B) 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
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PromoFlor Council, the determination may be
made using an alternative time period or other
alternative procedures specified in the order.
(2) RULE OF ATTRIBUTION.—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
per centum 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 per
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centum of the stock or (if the entity is not a
corporation) that the corporation controls.
For purposes of this paragraph, stock or an owner-
ship interest in an entity that is owned by the
spouse, children, grandchildren, parents, grand-
parents, or partners of an individual, or by a part-
nership in which a person is a partner, or by a cor-
poration more than 50 per centum of the stock of
which is owned by a person, shall be treated as
owned by the individual or person.
(3) REPORTS.—For purposes of this subsection,
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 such
person. Such reports shall be subject to the con-
fidentiality requirements provided in section 5(j)(2).
SEC. 7. REFERENDA.
(a) REQUIREMENT FOR INITIAL REFERENDUM.—
(1) 
CONDUCT.—Not 
later 
than 
thirty-six
months after the issuance of an order under section
4(b)(3), the Secretary shall conduct a referendum
among qualified handlers required to pay assess-
ments under the order, as provided in section
5(h)(1), subject to the rules on voting provided in
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subsection (b), 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 shall
be entitled to cast one vote for each separate facility
of the person that is an eligible separate facility, as
defined in 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 an eligible
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separate facility if the annual sales of cut flow-
ers and cut greens to retailers and exempt han-
dlers from such facility are $750,000 or more.
(C) ANNUAL
SALES
DETERMINED.—For
purposes of determining the amount of annual
sales of cut flowers and cut greens under sub-
paragraph (B) of this paragraph, the rules set
out in subparagraphs (A) and (C) of section
3(4) shall be applicable.
(c) SUSPENSION OR TERMINATION REFERENDA.—
Effective beginning three years after an order issued
under this Act 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 re-
quired to pay assessments under the order, as pro-
vided in section 5(h)(1), subject to the rules on vot-
ing provided in subsection (b), to ascertain whether
or not qualified handlers favor suspension or termi-
nation of the order; and
(2) whenever requested by the PromoFlor
Council or by a representative group comprising
thirty percent or more of all qualified handlers re-
quired to pay assessments under the order, as pro-
vided in section 5(h)(1), shall conduct a referendum
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of all qualified handlers required to pay assessments
under the order, as provided section 5(h)(1), subject
to the rules on voting provided in subsection (b), 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)(2), 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. 8. PETITION AND REVIEW.
(a) PETITION AND HEARING.—
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(1) PETITION.—A person subject to an order
issued under this Act 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 10(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
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jurisdiction to review the Secretary’s ruling on such
person’s petition, if a complaint for that purpose is
filed within twenty days after the date of the entry
of such 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 9.—The pend-
ency of proceedings instituted under this section shall not
impede, hinder, or delay the Attorney General or the Sec-
retary from obtaining relief under section 9.
SEC. 9. 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-
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lating, this Act or an order or regulation made or 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 person that violates a
provision of this Act, or an order or regulation is-
sued by the Secretary under this Act, 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 Act, 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-
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lation, an additional penalty equal to the
amount of such assessment.
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 any such viola-
tion of this Act, order, or regulation.
(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
such violation. Any such hearing shall be conducted
in accordance with section 10(b)(2) and be held
within the United States judicial district in which
the person’s residence or principal place of business
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).
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(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 thirty-day period be-
ginning on the date such penalty is assessed or
order issued, a notice of appeal in the district
court of the United States for the district in
which such person resides or carries on busi-
ness, 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.
The Secretary promptly shall file in such 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.—A person that
fails to obey a cease and desist order issued under sub-
section (c) after the order has become final and