(1) Six members who are producers (or their
representatives) and who are not exempt from an as-
sessment under section 6(b).
(2) Four members who are importers (or their
representatives) and who are not exempt from an as-
sessment under section 6(b) or are exporters (or
their representatives).
(3) One member appointed from the general
public.
(b) ADJUSTMENT OF MEMBERSHIP.—Subject to the
11-member limit, the Secretary may adjust membership
on the Board to accommodate changes in production and
import levels of kiwifruit, so long as producers comprise
not less than 51 percent of the membership of the Board.
(c) APPOINTMENT AND NOMINATION.—
(1) APPOINTMENT.—The Secretary shall ap-
point the members of the Board from nominations
submitted in accordance with this subsection.
(2) PRODUCERS.—The members referred to in
subsection (a)(1) shall be appointed from individuals
nominated by producers.
(3) IMPORTERS AND EXPORTERS.—The mem-
bers referred to in subsection (a)(2) shall be ap-
pointed from individuals nominated by importers or
exporters.
(4) PUBLIC REPRESENTATIVE.—The public rep-
resentative shall be appointed from nominations sub-
mitted by other members of the Board.
(5) FAILURE TO NOMINATE.—If producers, im-
porters, and exporters fail to nominate individuals
for appointment, the Secretary may appoint mem-
bers on a basis provided for in the order. If the
Board fails to nominate a public representative, such
member may be appointed by the Secretary without
a nomination.
(d) ALTERNATES.—The Secretary shall appoint an
alternate for each member of the Board. An alternate
shall—
(1) be appointed in the same manner as the
member for whom such individual is an alternate;
and
(2) serve on the Board if such member is ab-
sent from a meeting or is disqualified under sub-
section (f).
(e) TERMS.—Members of the Board shall be ap-
pointed for a term of three years. No member may serve
more than two consecutive three-year terms. However, of
the members first appointed—
(1) five members shall be appointed for a term
of two years; and
(2) six members shall be appointed for a term
of three years.
(f) REPLACEMENT.—If a member or alternate of the
Board who was appointed as a producer, importer, ex-
porter, or public representative member ceases to belong
to the group for which such member was appointed, such
member or alternate shall be disqualified from serving on
the Board.
(g) COMPENSATION.—Members and alternates of the
Board shall serve without pay.
(h) GENERAL POWERS AND DUTIES.—The Board
shall—
(1) administer orders issued by the Secretary
under section 4, and amendments to such orders, in
accordance with their terms and provisions and con-
sistent with this Act;
(2) prescribe rules and regulations to effectuate
the terms and provisions of such orders;
(3) meet, organize, and select from among
members of the Board a chairperson, other officers,
and committees and subcommittees, as the Board
determines appropriate;
(4) receive, investigate, and report to the Sec-
retary accounts of violations of such orders;
(5) make recommendations to the Secretary
with respect to amendments that should be made to
such orders; and
(6) employ or contract with a manager and
staff to assist in administering such orders, except
that, in order to reduce administrative costs and in-
crease efficiency, the Board shall seek, to the extent
possible, to employ or contract with personnel who
are already associated with State chartered organi-
zations involved in promoting kiwifruit.
SEC. 6. REQUIRED TERMS IN ORDER.
(a) BUDGETS AND PLANS.—An order issued under
section 4 shall provide for periodic budgets and plans as
follows:
(1) BUDGETS.—The Board shall prepare and
submit to the Secretary a budget prior to the begin-
ning of the fiscal year of the anticipated expenses
and disbursements of the Board in the administra-
tion of the order, including probable costs of re-
search, promotion, and consumer information. A
budget shall take effect upon a two-thirds vote of a
quorum of the Board and approval by the Secretary.
(2) PLANS.—Each budget shall include a plan
for research, promotion, and consumer information
regarding kiwifruit. A plan under this paragraph
shall take effect upon approval by the Secretary.
The Board may enter into contracts and agree-
ments, upon approval by the Secretary, for—
(A) the development and carrying out of
such plan; and
(B) the payment of the cost of such plan,
with funds collected pursuant to this Act.
(b) ASSESSMENTS.—Such order shall provide for the
imposition and collection of assessments with regard to the
production and importation of kiwifruit as follows:
(1) RATE.—The assessment rate shall be rec-
ommended by a two-thirds vote of a quorum of the
Board, approved by the Secretary, but shall not ex-
ceed $0.10 per seven pound tray of kiwifruit or
equivalent.
(2) COLLECTION BY FIRST HANDLERS.—Except
as provided in paragraph (4), the first handler of
kiwifruit shall—
(A) be responsible for the collection from
the producer, and payment to the Board, of as-
sessments under this subsection; and
(B) maintain a separate record of the
kiwifruit of each producer whose kiwifruit are
so handled, including the kiwifruit owned by the
handler.
(3) IMPORTERS.—The assessment on imported
kiwifruit shall be paid by the importer to the United
States Customs Service at the time of entry into the
United States and shall be remitted to the Board.
(4) EXEMPTION FROM ASSESSMENT.—The fol-
lowing persons or activities are exempt from an as-
sessment under this subsection:
(A) A producer who produces less than
500 pounds of kiwifruit per year.
(B) An importer who imports less than
10,000 pounds of kiwifruit per year.
(C) Sales of kiwifruit made directly from
the producer to a consumer for a purpose other
than resale.
(D) The production or importation of
kiwifruit for processing.
(5) CLAIM OF EXEMPTION.—To claim an ex-
emption under paragraph (4) for a particular year,
a person shall—
(A) submit an application to the Board
stating the basis for the exemption and certify-
ing that the person will not exceed any pound-
age limitation required for the exemption in
such year; or
(B) be on a list of approved processors de-
veloped by the Board.
(c) USE OF ASSESSMENTS.
(1) AUTHORIZED USES.—Such order shall pro-
vide that funds paid to the Board as assessments
under subsection (b) may be used by the Board—
(A) to pay for research, promotion, and
consumer information described in the budget
of the Board under subsection (a) and for other
expenses incurred by the Board in the adminis-
tration of an order;
(B) to pay such other expenses for the ad-
ministration, maintenance, and functioning of
the Board, including any enforcement efforts
for the collection of assessments as may be au-
thorized by the Secretary, including interest
and penalties for late payments; and
(C) to fund a reserve established under
section 7(d).
(2) REQUIRED USES.—Such order shall provide
that funds paid to the Board as assessments under
subsection (b) shall be used by the Board—
(A) to pay the expenses incurred by the
Secretary, including salaries and expenses of
Government employees, in implementing and
administering the order; and
(B) to reimburse the Secretary for any ex-
penses incurred by the Secretary in conducting
referenda under this Act.
(3) LIMITATION ON USE OF ASSESSMENTS.—
Except for the first year of operation of the Board,
expenses for the administration, maintenance, and
functioning of the Board may not exceed 30 percent
of the budget.
(d) FALSE CLAIMS.—Such order shall provide that
any promotion funded with assessments collected under
subsection (b) may not make—
(1) any false claims on behalf of kiwifruit; and
(2) any false statements with respect to the at-
tributes or use of any product that competes with
kiwifruit for sale in commerce.
(e) PROHIBITION ON USE OF FUNDS.—Such order
shall provide that funds collected by the Board under this
Act through assessments may not, in any manner, be used
for the purpose of influencing legislation or governmental
policy or action, except for making recommendations to
the Secretary as provided for in this Act.
(f) BOOKS, RECORDS, AND REPORTS.—
(1) BY THE BOARD.—Such order shall require
the Board—
(A) to maintain books and records with re-
spect to the receipt and disbursement of funds
received by the Board;
(B) to submit to the Secretary from time
to time such reports as the Secretary may re-
quire for appropriate accounting; and
(C) to submit to the Secretary at the end
of each fiscal year a complete audit report by
an independent auditor regarding the activities
of the Board during such fiscal year.
(2) BY OTHERS.—So that information and data
will be available to the Board and the Secretary that
is appropriate or necessary for the effectuation, ad-
ministration, or enforcement of this Act (or any
order or regulation issued under this Act), such
order shall require handlers and importers who are
responsible for the collection, payment, or remittance
of assessments under subsection (b)—
(A) to maintain and make available for in-
spection by the employees of the Board and the
Secretary such books and records as may be re-
quired by the order; and
(B) to file, at the times and in the manner
and content prescribed by the order, reports re-
garding the collection, payment, or remittance
of such assessments.
(g) CONFIDENTIALITY.—
(1) IN
GENERAL.—Such order shall require
that all information obtained pursuant to subsection
(f)(2) be kept confidential by all officers and employ-
ees of the Department and of the Board. Only such
information as the Secretary considers relevant shall
be disclosed to the public and only in a suit or ad-
ministrative 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
with respect to which the information was furnished
or acquired.
(2) LIMITATIONS.—Nothing in this subsection
prohibits—
(A) issuance of general statements based
on the reports of a number of handlers and im-
porters subject to an order, if the statements do
not identify the information furnished by any
person; or
(B) the publication by direction of the Sec-
retary of the name of any person violating an
order issued under section 4(a), together with a
statement of the particular provisions of the
order violated by such person.
(3) PENALTY.—Any person who willfully vio-
lates the provisions of this subsection, upon convic-
tion, shall be subject to a fine of not more than
$1,000, or to imprisonment for not more than one
year, or both, and, if a member, officer, or agent of
the board or an employee of the Department, shall
be removed from office.
(h) WITHHOLDING INFORMATION.—Nothing in this
Act shall be construed to authorize the withholding of in-
formation from Congress.
SEC. 7. PERMISSIVE TERMS IN ORDER.
(a) PERMISSIVE TERMS.—On the recommendation of
the Board, and with the approval of the Secretary, an
order issued under section 4 may include the authorities
specified in this section and such additional terms and
conditions as the Secretary considers necessary to effec-
tuate the other provisions of the order and are incidental
to, and not inconsistent with, the terms and conditions
required by this Act.
(b) 
ALTERNATIVE
PAYMENT
AND
REPORTING
SCHEDULES.—Such order may authorize the Board to
designate different handler payment and reporting sched-
ules to recognize differences in marketing practices and
procedures.
(c) WORKING GROUPS.—Such order may authorize
the Board to convene working groups drawn from produc-
ers, handlers, importers, exporters, or the general public
and utilize the expertise of such groups to assist in the
development of research and marketing programs for
kiwifruit.
(d) RESERVE FUNDS.—Such order may authorize the
Board to accumulate reserve funds from assessments col-
lected pursuant to section 6(b) to permit an effective and
continuous coordinated program of research, promotion,
and consumer information in years in which production
and assessment income may be reduced. However, any re-
serve fund so established may not exceed the amount
budgeted for operation of this Act for one year.
(e) PROMOTION
ACTIVITIES
OUTSIDE
UNITED
STATES.—Such order may authorize the Board to use,
with the approval of the Secretary, funds collected under
section 6(b) for the development and expansion of sales
in foreign markets of kiwifruit produced in the United
States.
SEC. 8. INCORPORATION OF PETITION AND REVIEW, EN-
FORCEMENT, AND INVESTIGATION PROVI-
SIONS BY REFERENCE.
The following provisions of the Lime Research, Pro-
motion, and Consumer Information Act of 1990 (subtitle
D of title XIX of Public Law 101–624) shall apply to this
Act and any order or regulation issued under this Act:
(1) Section 1957 (7 U.S.C. 6206), relating to
petitions filed by persons subject to an order issued
under this Act and review of administrative rulings
on such petitions.
(2) Section 1958 (7 U.S.C. 6207), relating to
violations of any order or regulation issued under
this Act.
(3) Section 1959 (7 U.S.C. 6208), relating to
the authority of the Secretary to make investiga-
tions, administer oaths and affirmations, and issue
subpoenas in connection with inquiries under this
Act.
SEC. 9. REFERENDA.
(a) INITIAL REFERENDUM.—
(1) REFERENDUM REQUIRED.—During the 60-
day period immediately preceding the proposed effec-
tive date of an order issued under section 4, the Sec-
retary shall conduct a referendum among kiwifruit
producers and importers who will be subject to as-
sessments under the order, to ascertain whether pro-
ducers and importers approve of the implementation
of the order.
(2) APPROVAL OF ORDER.—The order shall be-
come effective, as provided in section 4, if the Sec-
retary determines that the order has been approved
by a majority of the producers and importers voting
in the referendum and these producers and import-
ers produce and import more than 50 percent of the
total volume of kiwifruit produced and imported by
persons voting in the referendum.
(b) SUBSEQUENT REFERENDA.—The Secretary may
periodically conduct a referendum to determine if kiwifruit
producers and importers favor the continuation, termi-
nation, or suspension of any order issued under section
4 and in effect at the time of the referendum.
(c) REQUIRED REFERENDA.—The Secretary shall
hold a referendum under subsection (b)—
(1) at the end of the six-year period beginning
on the effective date of the order and at the end of
every six-year period thereafter;
(2) at the request of the Board; and
(3) if not less than 40 percent of the kiwifruit
producers and importers subject to assessments
under the order submit a petition requesting such a
referendum.
(d) VOTE.—Upon completion of a referendum under
subsection (b), the Secretary shall suspend or terminate
the order that was subject to the referendum at the end
of the marketing year if—
(1) the suspension or termination of the order
is favored by not less than a majority of the produc-
ers and importers voting in the referendum; and
(2) these producers and importers produce and
import more than 50 percent of the total volume of
kiwifruit produced and imported by persons voting
in the referendum.
(e) CONFIDENTIALITY.—The ballots and other infor-
mation or reports that reveal, or tend to reveal, the vote
of any person under this Act as well as the voting list
shall be held strictly confidential and shall not be dis-
closed.
SEC. 10. SUSPENSION AND TERMINATION OF ORDER BY
SECRETARY.
(a) UPON FINDING.—If the Secretary finds that an
order issued under section 4, or a provision of such an
order, obstructs or does not tend to effectuate the pur-
poses of this Act, the Secretary shall terminate or suspend
the operation of such order or provision.
(b) LIMITATION.—The termination or suspension of
any order, or any provision thereof, shall not be considered
an order within the meaning of this Act.
SEC. 11. AUTHORIZATION OF APPROPRIATIONS.
There are authorized to be appropriated for each fis-
cal year such funds as are necessary to carry out this Act.
SEC. 12. REGULATIONS.
The Secretary may issue such regulations as are nec-
essary to carry out this Act.
Æ
HR 1486 IH——2