I
104TH CONGRESS
1ST SESSION
H. R. 2593
To enable processors of popcorn to develop, finance, and carry out a nationally
coordinated program for popcorn promotion, research, consumer informa-
tion, and industry information, and for other purposes.
IN THE HOUSE OF REPRESENTATIVES
NOVEMBER 7, 1995
Mr. LATHAM introduced the following bill; which was referred to the
Committee on Agriculture
A BILL
To enable processors of popcorn to develop, finance, and
carry out a nationally coordinated program for popcorn
promotion, research, consumer information, and industry
information, 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 ‘‘Popcorn Promotion,
Research, and Consumer Information Act’’.
SEC. 2. FINDINGS AND DECLARATION OF POLICY.
(a) FINDINGS.—Congress finds that—
(1) popcorn is an important food that is a valu-
able part of the human diet;
(2) the production and processing of popcorn
plays a significant role in the economy of the United
States in that popcorn is processed by several pop-
corn processors, distributed through wholesale and
retail outlets, and consumed by millions of people
throughout the United States and foreign countries;
(3) popcorn must be of high quality, readily
available, handled properly, and marketed efficiently
to ensure that the benefits of popcorn are available
to the people of the United States;
(4) the maintenance and expansion of existing
markets and uses and the development of new mar-
kets and uses for popcorn are vital to the welfare of
processors and persons concerned with marketing,
using, and producing popcorn for the market, as well
as to the agricultural economy of the United States;
(5) the cooperative development, financing, and
implementation of a coordinated program of popcorn
promotion, research, consumer information, and in-
dustry information is necessary to maintain and ex-
pand markets for popcorn; and
(6) popcorn moves in interstate and foreign
commerce, and popcorn that does not move in those
channels of commerce directly burdens or affects
interstate commerce in popcorn.
(b) POLICY.—It is the policy of Congress that it is
in the public interest to authorize the establishment,
through the exercise of the powers provided in this Act,
of an orderly procedure for developing, financing (through
adequate assessments on unpopped popcorn processed do-
mestically), and carrying out an effective, continuous, and
coordinated program of promotion, research, consumer in-
formation, and industry information designed to—
(1) strengthen the position of the popcorn in-
dustry in the marketplace; and
(2) maintain and expand domestic and foreign
markets and uses for popcorn.
(c) PURPOSES.—The purposes of this Act are to—
(1) maintain and expand the markets for all
popcorn products in a manner that—
(A) is not designed to maintain or expand
any individual share of a producer or processor
of the market;
(B) does not compete with or replace indi-
vidual advertising or promotion efforts designed
to promote individual brand name or trade
name popcorn products; and
(C) authorizes and funds programs that
result in government speech promoting govern-
ment objectives; and
(2) establish a nationally coordinated program
for popcorn promotion, research, consumer informa-
tion, and industry information.
(d) STATUTORY CONSTRUCTION.—This Act treats
processors equitably. Nothing in this Act—
(1) provides for the imposition of a trade bar-
rier to the entry into the United States of imported
popcorn for the domestic market; or
(2) provides for the control of production or
otherwise limits the right of any individual processor
to produce popcorn.
SEC. 3. DEFINITIONS.
In this Act (except as otherwise specifically provided):
(1) BOARD.—The term ‘‘Board’’ means the
Popcorn Board established under section 5(b).
(2) COMMERCE.—The term ‘‘commerce’’ means
interstate, foreign, or intrastate commerce.
(3) 
CONSUMER
INFORMATION.—The 
term
‘‘consumer information’’ means information and pro-
grams that will assist consumers and other persons
in making evaluations and decisions regarding the
purchase, preparation, and use of popcorn.
(4) DEPARTMENT.—The term ‘‘Department’’
means the Department of Agriculture.
(5) INDUSTRY INFORMATION.—The term ‘‘in-
dustry information’’ means information and pro-
grams that will lead to the development of—
(A) new markets, new marketing strate-
gies, or increased efficiency for the popcorn in-
dustry; or
(B) activities to enhance the image of the
popcorn industry.
(6) 
MARKETING.—The 
term 
‘‘marketing’’
means the sale or other disposition of unpopped pop-
corn for human consumption in a channel of com-
merce, but does not include a sale or disposition to
or between processors.
(7) ORDER.—The term ‘‘order’’ means an order
issued under section 4.
(8) PERSON.—The term ‘‘person’’ means an in-
dividual, group of individuals, partnership, corpora-
tion, association, or cooperative, or any other legal
entity.
(9) POPCORN.—The term ‘‘popcorn’’ means
unpopped popcorn (Zea Mays L), commercially
grown in the United States, processed by shelling,
cleaning, or drying and introduced into a channel of
commerce.
(10) PROCESS.—The term ‘‘process’’ means to
shell, clean, dry, and prepare popcorn for the mar-
ket, but does not include packaging popcorn for the
market without also engaging in another activity de-
scribed in this paragraph.
(11) 
PROCESSOR.—The 
term 
‘‘processor’’
means a person engaged in the preparation of
unpopped popcorn for the market who owns or
shares the ownership and risk of loss of the popcorn
and who processes and distributes over 4,000,000
pounds of popcorn in the market per year.
(12) 
PROMOTION.—The 
term 
‘‘promotion’’
means an action, including paid advertising, to en-
hance the image or desirability of popcorn.
(13) RESEARCH.—The term ‘‘research’’ means
any type of study to advance the image, desirability,
marketability, 
production, 
product 
development,
quality, or nutritional value of popcorn.
(14) 
SECRETARY.—The 
term 
‘‘Secretary’’
means the Secretary of Agriculture.
(15) STATE.—The term ‘‘State’’ means each of
the 50 States and the District of Columbia.
(16) UNITED
STATES.—The term ‘‘United
States’’ means all of the States.
SEC. 4. ISSUANCE OF ORDERS.
(a) IN GENERAL.—To effectuate the policy described
in section 2(b), the Secretary, subject to subsection (b),
shall issue 1 or more orders applicable to processors. An
order shall be applicable to all popcorn production and
marketing areas in the United States. Not more than 1
order shall be in effect under this Act at any 1 time.
(b) PROCEDURE.—
(1) PROPOSAL OR REQUEST FOR ISSUANCE.—
The Secretary may propose the issuance of an order,
or an association of processors or any other person
that would be affected by an order may request the
issuance of, and submit a proposal for, an order.
(2) NOTICE AND COMMENT CONCERNING PRO-
POSED ORDER.—Not later than 30 days after the re-
ceipt of a request and proposal for an order under
paragraph (1), or at such time as the Secretary de-
termines to propose an order, the Secretary shall
publish a proposed order and give due notice and op-
portunity for public comment on the proposed order.
(3) ISSUANCE OF ORDER.—After notice and op-
portunity for public comment under paragraph (2),
the Secretary shall issue an order, taking into con-
sideration the comments received and including in
the order such provisions as are necessary to ensure
that the order conforms to this Act. The order shall
be issued and become effective not later than 150
days after the date of publication of the proposed
order.
(c) AMENDMENTS.—The Secretary, as appropriate,
may amend an order. The provisions of this Act applicable
to an order shall be applicable to any amendment to an
order, except that an amendment to an order may not re-
quire a referendum to become effective.
SEC. 5. REQUIRED TERMS IN ORDERS.
(a) IN GENERAL.—An order shall contain the terms
and conditions specified in this section.
(b) ESTABLISHMENT
AND MEMBERSHIP
OF POP-
CORN BOARD.—
(1) IN GENERAL.—The order shall provide for
the establishment of, and appointment of members
to, a Popcorn Board that shall consist of not fewer
than 4 members and not more than 9 members.
(2) NOMINATIONS.—The members of the Board
shall be processors appointed by the Secretary from
nominations submitted by processors in a manner
authorized by the Secretary, subject to paragraph
(3). Not more than 1 member may be appointed to
the Board from nominations submitted by any 1
processor.
(3) GEOGRAPHICAL DIVERSITY.—In making ap-
pointments, the Secretary shall take into account, to
the extent practicable, the geographical distribution
of popcorn production throughout the United States.
(4) TERMS.—The term of appointment of each
member of the Board shall be 3 years, except that
the members appointed to the initial Board shall
serve, proportionately, for terms of 2, 3, and 4
years, as determined by the Secretary.
(5) COMPENSATION AND EXPENSES.—A mem-
ber of the Board shall serve without compensation,
but shall be reimbursed for the expenses of the
member incurred in the performance of duties for
the Board.
(c) POWERS AND DUTIES OF BOARD.—The order
shall define the powers and duties of the Board, which
shall include the power and duty—
(1) to administer the order in accordance with
the terms and provisions of the order;
(2) to make regulations to effectuate the terms
and provisions of the order;
(3) to appoint members of the Board to serve
on an executive committee;
(4) to propose, receive, evaluate, and approve
budgets, plans, and projects of promotion, research,
consumer information, and industry information,
and to contract with appropriate persons to imple-
ment the plans or projects;
(5) to accept and receive voluntary contribu-
tions, gifts, and market promotion or similar funds;
(6) to invest, pending disbursement under a
plan or project, funds collected through assessments
authorized under subsection (f), only in—
(A) obligations of the United States or an
agency of the United States;
(B) general obligations of a State or a po-
litical subdivision of a State;
(C) an 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;
(7) to receive, investigate, and report to the
Secretary complaints of violations of the order; and
(8) to recommend to the Secretary amendments
to the order.
(d) PLANS AND BUDGETS.—
(1) IN GENERAL.—The order shall provide that
the Board shall submit to the Secretary for approval
any plan or project of promotion, research, consumer
information, or industry information.
(2) BUDGETS.—The order shall require the
Board to submit to the Secretary for approval budg-
ets on a fiscal year basis of the anticipated expenses
and disbursements of the Board in the implementa-
tion of the order, including projected costs of plans
and projects of promotion, research, consumer infor-
mation, and industry information.
(e) CONTRACTS AND AGREEMENTS.—
(1) IN GENERAL.—The order shall provide that
the Board may enter into contracts or agreements
for the implementation and carrying out of plans or
projects of promotion, research, consumer informa-
tion, or industry information, including contracts
with a processor organization, and for the payment
of the cost of the plans or projects with funds col-
lected by the Board under the order.
(2) REQUIREMENTS.—A contract or agreement
under paragraph (1) shall provide that—
(A) the contracting party shall develop and
submit to the Board a plan or project, together
with a budget that shows the estimated costs
to be incurred for the plan or project;
(B) the plan or project shall become effec-
tive on the approval of the Secretary; and
(C) the contracting party shall keep accu-
rate records of each transaction of the party,
account for funds received and expended, make
periodic reports to the Board of activities con-
ducted, and make such other reports as the
Board or the Secretary may require.
(3) PROCESSOR
ORGANIZATIONS.—The order
shall provide that the Board may contract with proc-
essor organizations for any other services. The con-
tract shall include provisions comparable to the pro-
visions required by paragraph (2).
(f) ASSESSMENTS.—
(1) PROCESSORS.—The order shall provide that
each processor marketing popcorn in the United
States or for export shall, in the manner prescribed
in the order, pay assessments and remit the assess-
ments to the Board.
(2) DIRECT
MARKETERS.—A processor that
markets popcorn produced by the processor directly
to consumers shall pay and remit the assessments on
the popcorn directly to the Board in the manner pre-
scribed in the order.
(3) RATE.—
(A) IN GENERAL.—The rate of assessment
prescribed in the order shall be a rate estab-
lished by the Board but not more than $.08 per
hundredweight of popcorn.
(B) ADJUSTMENT
OF
RATE.—The order
shall provide that the Board, with the approval
of the Secretary, may raise or lower the rate of
assessment annually up to a maximum of $.08
per hundredweight of popcorn.
(4) USE OF ASSESSMENTS.—
(A) IN
GENERAL.—Subject to subpara-
graph (B), the order shall provide that the as-
sessments collected shall be used by the
Board—
(i) to pay the expenses incurred in im-
plementing and administering the order,
with provision for a reasonable reserve;
and
(ii) to cover such administrative costs
as are incurred by the Secretary after the
order has been issued under this Act, ex-
cept that the costs incurred by the Sec-
retary that may be reimbursed by the
Board may not exceed 5 percent of the
projected annual revenues of the Board.
(B) EXPENDITURES BASED ON SOURCE OF
ASSESSMENTS.—In implementing plans and
projects of promotion, research, consumer infor-
mation, and industry information, the Board
shall expend funds on—
(i) plans and projects for domestic
popcorn (including Canadian popcorn) in
proportion to the amount of assessments
collected on popcorn marketed domestically
(including Canada); and
(ii) plans and projects for exported
popcorn in proportion to the amount of as-
sessments collected on exported popcorn.
(g) PROHIBITION ON USE OF FUNDS.—The order
shall prohibit any funds collected by the Board under the
order from being used to influence government action or
policy, other than the use of funds by the Board for the
development and recommendation to the Secretary of
amendments to the order.
(h) BOOKS AND RECORDS OF THE BOARD.—The
order shall require the Board to—
(1) maintain such books and records (which
shall be available to the Secretary for inspection and
audit) as the Secretary may prescribe;
(2) prepare and submit to the Secretary, from
time to time, such reports as the Secretary may pre-
scribe; and
(3) account for the receipt and disbursement of
all funds entrusted to the Board.
(i) BOOKS AND RECORDS OF PROCESSORS.—
(1) MAINTENANCE AND REPORTING OF INFOR-
MATION.—The order shall require that each proc-
essor of popcorn for the market shall—
(A) maintain, and make available for in-
spection, such books and records as are re-
quired by the order; and
(B) file reports at such time, in such man-
ner, and having such content as is prescribed in
the order.
(2) USE
OF
INFORMATION.—The Secretary
shall authorize the use of information regarding
processors that may be accumulated under a law or
regulation other than this Act or a regulation issued
under this Act. The information shall be made avail-
able to the Secretary as appropriate for the adminis-
tration or enforcement of this Act, the order, or any
regulation issued under this Act.
(3) CONFIDENTIALITY.—
(A) IN
GENERAL.—Subject to subpara-
graphs (B), (C), and (D), all information ob-
tained by the Secretary under paragraphs (1)
and (2) shall be kept confidential by all officers,
employees, and agents of the Board and the
Department.
(B) DISCLOSURE BY SECRETARY.—Infor-
mation referred to in subparagraph (A) may be
disclosed if—
(i) the Secretary considers the infor-
mation relevant;
(ii) the information is revealed 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; and
(iii) the information relates to the
order.
(C) DISCLOSURE TO OTHER AGENCY OF
FEDERAL GOVERNMENT.—
(i) IN GENERAL.—No information ob-
tained under the authority of this Act may
be made available to another agency or of-
ficer of the Federal Government for any
purpose other than the implementation of
this Act and any investigatory or enforce-
ment activity necessary for the implemen-
tation of this Act.
(ii) PENALTY.—A person who violates
this subparagraph shall, on conviction, be
subject to a fine of not more than $1,000
or to imprisonment for not more than 1
year, or both, and if an officer, employee,
or agent of the Board or the Department,
shall be removed from office or terminated
from employment, as applicable.
(D) GENERAL STATEMENTS.—Nothing in
this paragraph prohibits—
(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 pro-
vided by any person; or
(ii) the publication, by direction of the
Secretary, of the name of a person violat-
ing the order, together with a statement of
the particular provisions of the order vio-
lated by the person.
(j) OTHER TERMS
AND CONDITIONS.—The order
shall contain such terms and conditions, consistent with
this Act, as are necessary to effectuate this Act, including
regulations relating to the assessment of late payment
charges.
SEC. 6. REFERENDA.
(a) INITIAL REFERENDUM.—
(1) IN
GENERAL.—Within the 60-day period
immediately preceding the effective date of an order,
as provided in section 4(b)(3), the Secretary shall
conduct a referendum among processors who, during
a representative period as determined by the Sec-
retary, have been engaged in processing, for the pur-
pose of ascertaining whether the order shall go into
effect.
(2) APPROVAL OF ORDER.—The order shall be-
come effective, as provided in section 4(b), only if
the Secretary determines that the order has been ap-
proved by not less than a majority of the processors
voting in the referendum and if the majority proc-
essed more than 50 percent of the popcorn certified
as having been processed, during the representative
period, by the processors voting.
(b) ADDITIONAL REFERENDA.—
(1) IN
GENERAL.—Not earlier than 3 years
after the effective date of an order approved under
subsection (a), on the request of the Board or a rep-
resentative group of processors, as described in
paragraph (2), the Secretary may conduct an addi-
tional referendum to determine whether processors
favor the termination or suspension of the order.
(2) 
REPRESENTATIVE
GROUP
OF
PROC-
ESSORS.—An additional referendum on an order
shall be conducted if the referendum is requested by
40 percent or more of the number of processors who,
during a representative period as determined by the
Secretary, have been engaged in processing.
(3) DISAPPROVAL OF ORDER.—If the Secretary
determines, in a referendum conducted under para-
graph (1), that suspension or termination of the
order is favored by at least 2⁄3 of the processors vot-
ing in the referendum, the Secretary shall—
(A) suspend or terminate, as appropriate,
collection of assessments under the order not
later than 180 days after the date of determina-
tion; and
(B) suspend or terminate the order, as ap-
propriate, in an orderly manner as soon as
practicable after the date of determination.
(c) COSTS OF REFERENDUM.—The Secretary shall be
reimbursed from assessments collected by the Board for
any expenses incurred by the Secretary in connection with
the conduct of any referendum under this section, except
for the salaries of Government employees associated with
conducting a referendum.
(d) METHOD OF CONDUCTING REFERENDUM.—Sub-
ject to this section, a referendum conducted under this
section shall be conducted in such manner as is deter-
mined by the Secretary.
(e) CONFIDENTIALITY OF BALLOTS AND OTHER IN-
FORMATION.—
(1) IN GENERAL.—The ballots and other infor-
mation or reports that reveal or tend to reveal the
vote of any processor, or any business operation of
a processor, shall be considered to be strictly con-
fidential and shall not be disclosed.
(2) PENALTY FOR VIOLATIONS.—An officer or
employee of the Department who violates paragraph
(1) shall be subject to the penalties described in sec-
tion 5(i)(3)(C)(ii).
SEC. 7. PETITION AND REVIEW.
(a) PETITION.—
(1) IN GENERAL.—A person subject to an order
may file with the Secretary a petition—
(A) stating that the order, a provision of
the order, or an obligation imposed in connec-
tion with the order is not established in accord-
ance with law; and
(B) requesting a modification of the order
or obligation or an exemption from the order or
obligation.
(2) HEARINGS.—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.
(3) RULING.—After a hearing under paragraph
(2), the Secretary shall issue a ruling on the petition
that is the subject of the hearing, which shall be
final if the ruling is in accordance with applicable
law.
(b) REVIEW.—
(1) COMMENCEMENT OF ACTION.—The district
court of the United States for any district in which
a person who is a petitioner under subsection (a) re-
sides or carries on business shall have jurisdiction to
review a ruling on the petition, if the person files a
complaint not later than 20 days after the date of
issuance of the ruling under subsection (a)(3).
(2) PROCESS.—Service of process in a proceed-
ing under paragraph (1) may be made on the Sec-
retary by delivering a copy of the complaint to the
Secretary.
(3) REMANDS.—If the court determines, under
paragraph (1), that a ruling issued under subsection
(a)(3) is not in accordance with applicable 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 proceedings as, in
the opinion of the court, the law requires.
(c) ENFORCEMENT.—The pendency of proceedings
instituted under subsection (a) may not impede, hinder,
or delay the Secretary or the Attorney General from tak-
ing action under section 8.
SEC. 8. ENFORCEMENT.
(a) IN GENERAL.—The Secretary may issue an en-
forcement order to restrain or prevent any person from
violating an order or regulation issued under this Act and
may assess a civil penalty of not more than $1,000 for
each violation of the enforcement order, after an oppor-
tunity for an administrative hearing, if the Secretary de-
termines that the administration and enforcement of the
order and this Act would be adequately served by such
a procedure.
(b) JURISDICTION.—The district courts of the United
States are vested with jurisdiction specifically to enforce,
and to prevent and restrain any person from violating, an
order or regulation issued under this Act.
(c) REFERRAL TO ATTORNEY GENERAL.—A civil ac-
tion authorized to be brought under this section shall be
referred to the Attorney General for appropriate action.
SEC. 9. INVESTIGATIONS AND POWER TO SUBPOENA.
(a) INVESTIGATIONS.—The Secretary may make such
investigations as the Secretary considers necessary—
(1) for the effective administration of this Act;
and
(2) to determine whether any person subject to
this Act has engaged, or is about to engage, in an
act that constitutes or will constitute a violation of
this Act or of an order or regulation issued under
this Act.
(b) OATHS, AFFIRMATIONS, AND SUBPOENAS.—For
the purpose of an investigation under subsection (a), the
Secretary may administer oaths and affirmations, sub-
poena witnesses, compel the attendance of witnesses, take
evidence, and require the production of any records that
are relevant to the inquiry. The attendance of witnesses
and the production of records may be required from any
place in the United States.
(c) AID OF COURTS.—
(1) REQUEST.—In the case of contumacy by, or
refusal to obey a subpoena issued to, any person, the
Secretary may request 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 requiring
the attendance and testimony of the person and the
production of records.
(2) ENFORCEMENT ORDER OF THE COURT.—
The court may issue an enforcement order requiring
the person to appear before the Secretary to produce
records or to give testimony concerning the matter
under investigation.
(3) CONTEMPT.—A failure to obey an enforce-
ment order of the court under paragraph (2) may be
punished by the court as a contempt of the court.
(4) PROCESS.—Process in a case under this
subsection may be served in the judicial district in
which the person resides or conducts business or
wherever the person may be found.
SEC. 10. RELATION TO OTHER PROGRAMS.
Nothing in this Act preempts or supersedes any other
program relating to popcorn promotion organized and op-
erated under the laws of the United States or any State.
SEC. 11. REGULATIONS.
The Secretary may issue such regulations as are nec-
essary to carry out this Act.
SEC. 12. AUTHORIZATION OF APPROPRIATIONS.
There are authorized to be appropriated such sums
as are necessary to carry out this Act. Amounts made
available under this section may not be used to pay any
expense of the Board in administering any provision of
an order.
Æ
HR 2593 IH——2