I
103D CONGRESS
1ST SESSION
H. R. 1738
To authorize the establishment of a fresh cut flowers and fresh cut greens
promotion and consumer information program for the benefit of the
floricultural industry and others, and for other purposes.
IN THE HOUSE OF REPRESENTATIVES
APRIL 20, 1993
Mr. LEWIS of Florida (for himself, Mr. STENHOLM, Mr. DE LA GARZA, Mr.
PAYNE of New Jersey, Mr. HASTERT, Mr. HOUGHTON, Mr. ENGLISH of
Oklahoma, Ms. DANNER, Mr. KOPETSKI, Mr. CUNNINGHAM, Mr. PETER-
SON of Minnesota, Mr. CANADY, Mr. ALLARD, and Mr. BOEHNER) intro-
duced the following bill; which was referred to the Committee on Agri-
culture
A BILL
To authorize the establishment of a fresh cut flowers and
fresh cut greens promotion and consumer information
program for the benefit of the floricultural industry and
others, 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 ‘‘Fresh Cut Flowers
and Fresh Cut Greens Promotion and Information Act of
1993’’.
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SEC. 2. FINDINGS AND DECLARATION OF POLICY.
(a) FINDINGS.—Congress finds that—
(1) fresh cut flowers and fresh cut greens are
an integral part of life in the United States, are en-
joyed by millions of persons every year for a mul-
titude of special purposes (especially important per-
sonal events), and contribute a natural and beautiful
element to the human environment;
(2) cut flowers and cut greens are produced by
many individual producers throughout the United
States as well as in other countries, and are handled
and marketed by thousands of small-sized and me-
dium-sized businesses, and such production, han-
dling, and marketing constitute a key segment of the
United States horticultural industry and thus a sig-
nificant part of the Nation’s overall agricultural
economy;
(3) handlers play a vital role in the marketing
of cut flowers and cut greens in that they purchase
most of the cut flowers and cut greens marketed by
producers, prepare the cut flowers and cut greens
for retail consumption, serve as intermediary be-
tween source of product and retailer, otherwise fa-
cilitate the entry of cut flowers and cut greens into
the current of domestic commerce, and add effi-
ciencies to the market process that ensure the avail-
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ability of a much greater variety of product to retail-
ers and consumers;
(4) it is widely recognized that it is in the pub-
lic interest and important to the Nation’s agricul-
tural economy to provide an adequate, steady supply
of cut flowers and cut greens at reasonable prices to
the consumers of the Nation;
(5) cut flowers and cut greens move in inter-
state and foreign commerce, and cut flowers and cut
greens that do not move in such channels of com-
merce but only in intrastate commerce directly affect
interstate commerce in these articles;
(6) the maintenance and expansion of existing
markets and the development of new or improved
markets or uses for cut flowers and cut greens are
needed to preserve and strengthen the economic via-
bility of the domestic cut flowers and cut greens in-
dustry for the benefit of producers, handlers, retail-
ers, and the entire floral industry;
(7) 
generic 
programs 
of 
promotion 
and
consumer information can be effective in maintain-
ing and developing markets for cut flowers and cut
greens, and have the advantage of equally enhancing
the market position for all cut flowers and cut
greens marketed;
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(8) because cut flowers and cut greens produc-
ers are primarily agriculture-oriented rather than
promotion-oriented, and because the floral marketing
industry within the United States is comprised
mainly of small-sized and medium-sized businesses,
the development and implementation of an adequate
and coordinated national program of generic pro-
motion and consumer information necessary for the
maintenance of existing markets and the develop-
ment of new markets for cut flowers and cut greens
have been prevented;
(9) there exist established State and commod-
ity-specific producer-funded programs of promotion
and research that are valuable efforts to expand
markets for domestic producers of cut flowers and
cut greens and that will be able to take advantage
of the promotion and consumer information program
authorized by this Act to enhance their market de-
velopment efforts for domestic producers;
(10) an effective and coordinated method for
ensuring cooperative and collective action in provid-
ing for and financing a nationwide program of ge-
neric promotion and consumer information is needed
to ensure that the cut flowers and cut greens indus-
try will be able to provide, obtain, and implement
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programs of promotion and consumer information
necessary to maintain, expand, and develop markets
for these articles; and
(11) the most efficient method of financing
such a nationwide program is to assess cut flowers
and cut greens at the point they are sold by han-
dlers into the retail market.
(b) POLICY AND PURPOSE.—It is declared to be the
policy of Congress that it is in the public interest, and
it is the purpose of this Act, to authorize the establish-
ment, through the exercise of the powers provided in this
Act, of an orderly procedure for the development and fi-
nancing (through an adequate assessment on cut flowers
and cut greens sold by handlers to retailers and related
entities in the United States) of an effective and coordi-
nated program of generic promotion, consumer informa-
tion,; and related research designed to strengthen the cut
flowers and cut greens industry’s position in the market-
place and to maintain, develop, and expand markets for
cut flowers and cut greens.
SEC. 3. DEFINITIONS.
As used in this Act:
(1) 
CONSUMER
INFORMATION.—The 
term
‘‘consumer information’’ means any action or pro-
gram to provide information to consumers and other
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persons on appropriate uses under varied cir-
cumstances, and on the care and handling, of cut
flowers or cut greens.
(2) CUT FLOWERS AND CUT GREENS.—
(A) IN GENERAL.—The term ‘‘cut flowers’’
includes all flowers cut from growing plants and
used as fresh-cut flowers, produced either under
cover or in field operations; and the term ‘‘cut
greens’’ includes all cultivated or noncultivated
decorative foliage cut from growing plants and
used as fresh-cut decorative foliage (except
Christmas trees) produced either under cover or
in field operations. Neither term includes foli-
age plants, floral supplies, or flowering plants.
(B) SUBSTANTIAL PORTION.—In any case
in which a handler packages cut flowers or cut
greens with hard goods in an article, such as a
gift basket or similar presentation, for sale to
retailers, the PromoFlor Council may deter-
mine, under procedures set out in the order,
that the cut flowers or cut greens in the article
do not constitute a substantial portion of the
value of the article and that, based on such de-
termination, such article shall not be treated as
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an article of cut flowers or cut greens subject
to assessment under such order.
(3) GROSS
SALES
PRICE.—The term ‘‘gross
sales price’’ means the total amount of the trans-
action in a sale of cut flowers or cut greens from a
handler to a retailer.
(4) HANDLER DEFINITIONS.—
(A) QUALIFIED HANDLER.—
(i) IN GENERAL.—The term ‘‘qualified
handler’’ means a person (including a co-
operative) operating in the cut flowers or
cut greens marketing system that sells do-
mestic or imported cut flowers or cut
greens to retailers and exempt handlers
and whose annual sales of cut flowers and
cut greens to retailers and exempt handlers
are $750,000 or more.
(ii) INCLUSIONS AND EXCLUSIONS.—
The term ‘‘qualified handler’’ includes—
(I) bouquet manufacturers (sub-
ject to the ‘‘substantial portion’’ rule
under paragraph (2)(B));
(II) auction houses that clear
sales of cut flowers and cut greens to
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retailers and exempt handlers through
a central clearinghouse; and
(III) any distribution center that
is owned or controlled by a retailer
(aa) if the predominant retail business
activity of the retailer is floral sales or
(bb) when a majority of the cut flow-
ers and cut greens sales or transfers
from such center are to entities other
than entities owned or controlled by
the retailer. For purposes of deter-
mining sales of cut flowers and cut
greens to retailers from any such dis-
tribution center, each non-sale trans-
fer to a retailer shall be treated as a
sale in an amount calculated as pro-
vided in subparagraph (C).
The term ‘‘qualified handler’’ does not in-
clude a person who merely physically
transports or delivers cut flowers or cut
greens.
(iii) RULES OF CONSTRUCTION.—The
term ‘‘qualified handler’’ shall be deemed
to include an importer or producer that
sells cut flowers or cut greens that it has
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imported into the United States or pro-
duced, respectively, directly to consumers
and whose sales of such articles (as cal-
culated under subparagraph (C)), along
with sales of cut flowers and cut greens to
retailers or exempt handlers, annually are
$750,000 or more; and each direct sale to
consumers by any such qualified handler
shall be treated as a sale to a retailer or
exempt handler in an amount calculated as
provided in subparagraph (C). For pur-
poses of this paragraph, the term ‘‘pro-
ducer’’ has the same meaning as that pro-
vided 
for 
the 
term 
by 
section
5(b)(2)(B)(ii)(I) of this Act, and the term
‘‘importer’’ has the same meaning as that
provided 
for 
the 
term 
by 
section
5(b)(2)(B)(iii)(I) of this Act.
(B) EXEMPT
HANDLER.—The term ‘‘ex-
empt handler’’ means a person that would oth-
erwise be considered to be a qualified handler,
except that its annual sales of cut flowers and
cut greens to retailers and other exempt han-
dlers are less than $750,000.
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(C) ANNUAL
SALES
DETERMINED.—For
purposes of determining the amount of annual
sales of cut flowers and cut greens under sub-
paragraphs (A) and (B), the amount of a sale
shall be determined on the basis of the gross
sales price, as that term is defined in paragraph
(3), of product sold, except that with respect to
non-sale transfers of cut flowers or cut greens
from a distribution center, as described in sub-
paragraph (A)(ii)(III), and direct sales to con-
sumers, as described in subparagraph (A)(iii),
the amount of the sale shall be the price paid
by the distribution center, or importer, respec-
tively, to acquire the cut flowers or cut greens
plus an amount determined by multiplying such
acquisition price by a uniform percentage estab-
lished by the PromoFlor Council to represent a
wholesale handler’s mark-up on a sale to a re-
tailer (or in the case of direct sales to consum-
ers by producers, an amount determined by ap-
plying to the price paid by the consumer a uni-
form percentage established by the PromoFlor
Council to represent the cost of producing the
article and a wholesale handler’s mark-up on a
sale to a retailer).
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(5) PERSON.—The term ‘‘person’’ means any
individual, group of individuals, firm, partnership,
corporation, joint stock company, association, soci-
ety, cooperative, or other legal entity.
(6) 
PROMOLFOLOR
COUNCIL.—The 
term
‘‘PromoFlor Council’’ means the Fresh Cut Flowers
and Fresh Cut Greens Promotion Council estab-
lished under section 5(b).
(7) 
PROMOTION.—The 
term 
‘‘promotion’’
means any action determined by the Secretary to ad-
vance the image, desirability, or marketability of cut
flowers or cut greens, including paid advertising.
(8) RESEARCH.—The term ‘‘research’’ means
market research and studies limited to the support
of advertising, market development, and other pro-
motion efforts and consumer information efforts re-
lating to cut flowers or cut greens, including edu-
cational activities.
(9) RETAILER.—The term ‘‘retailer’’ means a
person, such as a retail florist, supermarket, mass
market retail outlet, or other end-use seller, as de-
scribed in an order issued under this Act, that sells
cut flowers or cut greens to consumers, and shall in-
clude any distribution center owned or controlled by
such person only if—
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(A) the predominant retail business activ-
ity of the retailer is not floral sales, and
(B) the majority of the cut flowers and cut
greens sales or transfers from such center are
to entities owned or controlled by such person.
(10) 
SECRETARY.—The 
term 
‘‘Secretary’’
means the Secretary of Agriculture.
(11) UNITED
STATES; 
STATE.—The terms
‘‘United States’’ and ‘‘State’’ include the fifty States
of the United States, the District of Columbia, and
all the territories and possessions of the United
States.
SEC. 4. ISSUANCE OF ORDERS.
(a) IN GENERAL.—To effectuate the declared policy
of section 2(b), the Secretary, subject to the procedures
provided in subsection (b), shall issue orders under this
Act applicable to qualified handlers of cut flowers and cut
greens. Any such order shall be national in scope. Not
more than one order shall be in effect under this Act at
any one time.
(b) PROCEDURES.—
(1) PROPOSAL FOR AN ORDER.—The Secretary
may propose the issuance of an order under this
Act, or an industry group that represents a substan-
tial number of the industry members who are to be
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assessed under the order, or any other person that
will be effected by this Act, may request the issuance
of, and submit a proposal for, such an order.
(2) PUBLICATION
OF
PROPOSAL.—Not later
than sixty days after the earlier of—
(A) the receipt by the Secretary of a pro-
posal for an order from an industry group or
interested person, as provided in paragraph (1)
of this subsection, or
(B) the determination of the Secretary to
propose an order, the Secretary shall publish
the 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 are given, as provided
in paragraph (2), the Secretary shall issue the order,
taking into consideration the comments received and
including in the order provisions necessary to ensure
that the order is in conformity with the require-
ments of this Act. Such order shall be issued and be-
come effective not later than one hundred fifty days
following publication of the proposed order.
(c) AMENDMENTS.—The Secretary, from time to
time, may amend any order issued under this Act. The
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provisions of this Act applicable to an order shall be appli-
cable to amendments to the order.
SEC. 5. REQUIRED TERMS IN ORDERS.
(a) IN GENERAL.—Each order issued under this Act
shall contain the terms and provisions prescribed in this
section.
(b) PROMOLFLOR COUNCIL—
(1) ESTABLISHMENT AND MEMBERSHIP.—
(A) ESTABLISHMENT.—The order shall
provide for the establishment of a Fresh Cut
Flowers and Fresh Cut Greens Promotion
Council, consisting of twenty one members, to
administer the order.
(B) MEMBERSHIP.—The order shall pro-
vide that members of the PromoFlor Council
shall be participating qualified handlers rep-
resenting qualified wholesale handlers and pro-
ducers and importers that are qualified han-
dlers, and a member that represents retailers,
appointed by the Secretary from nominations
submitted by qualified wholesale handlers, pro-
ducers and importers that are qualified han-
dlers, and retailers, as provided in paragraphs
(2) and (3).
(2) DISTRIBUTION OF APPOINTMENTS.—
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(A) IN GENERAL.—The order shall provide
that the membership of the PromoFlor Council
shall be made up of—
(i) fourteen members representing
qualified wholesale handlers of domestic or
imported cut flowers and cut greens;
(ii) three members representing pro-
ducers that are qualified handlers of cut
flowers and cut greens;
(iii) three members representing im-
porters that are qualified handlers of cut
flowers and cut greens; and
(iv) one member representing cut
flowers and cut greens retailers.
(B) MEANING OF TERMS.—For purposes
of this subsection:
(i) 
QUALIFIED
WHOLESALE
HAN-
DLERS.—The term ‘‘qualified wholesale
handler’’ means a person in business as a
floral wholesale jobber or floral supplier
and that is subject to assessments as a
qualified handler under the order. For pur-
poses of this clause, the term ‘‘floral
wholesale jobber’’ means a person that
conducts a commission or other wholesale
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business in buying and selling cut flowers
or cut greens, and the term ‘‘floral sup-
plier’’ means a person engaged in acquir-
ing cut flowers or cut greens to be manu-
factured into floral articles or otherwise
processed for resale.
(ii) PRODUCER THAT IS A QUALIFIED
HANDLER.—The term ‘‘producer that is a
qualified handler’’ means an entity that—
(I) is engaged—
(aa) in the domestic produc-
tion, for sale in commerce, of cut
flowers or cut greens and that
owns or shares in the ownership
and risk of loss of such cut flow-
ers or cut greens; or
(bb) as a first processor of
noncultivated cut greens, in re-
ceiving such cut greens from the
persons that gather them for
handling; and
(II) is subject to assessments as
a qualified handler under the order.
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(iii) IMPORTER THAT IS A QUALIFIED
HANDLER.—The term ‘‘importer that is a
qualified handler’’ means an entity—
(I) whose principal activity is the
importation of cut flowers or cut
greens into the United States (either
directly or as an agent, broker, or
consignee of any person or nation that
produces or handles cut flowers or cut
greens outside the United States for
sale in the United States); and
(II) that is subject to assess-
ments as a qualified handler under
the order.
(C) DISTRIBUTION OF QUALIFIED WHOLE-
SALE
HANDLER
APPOINTMENTS.—The order
shall provide that the qualified wholesale han-
dler appointments made by the Secretary to the
PromoFlor Council shall take into account the
geographical distribution of cut flowers and cut
greens markets in the United States.
(3) NOMINATION
PROCESS.—The order shall
provide that—
(A) two nominees be submitted for each
appointment to the PromoFlor Council;
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(B) nominations for each appointment of a
qualified wholesale handler, producer that is a
qualified handler, or importer that is a qualified
handler to the PromoFlor Council shall be
made by qualified wholesale handlers, producers
that are qualified handlers, or importers that
are qualified handlers, respectively, through an
election process under regulations prescribed by
the Secretary;
(C) nominations for the retailer appoint-
ment shall be made by the American Floral
Marketing Council, or successor entity; and
(D) in any case in which qualified whole-
sale handlers, producers that are qualified han-
dlers, importers that are qualified handlers, or
retailers fail to nominate individuals for an ap-
pointment to the PromoFlor Council, the Sec-
retary may appoint a person to fill the vacancy
on a basis provided in the order or other regu-
lations of the Secretary.
(4) ALTERNATES.—The order shall provide for
the selection of alternate members of the PromoFlor
Council by the Secretary under procedures specified
in the order.
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(5) TERMS; COMPENSATION.—The order shall
provide that—
(A) each term of appointment to the
PromoFlor Council shall be for three years, ex-
cept that, of the initial appointments, one-third
shall be for two-year terms, one-third for three-
year terms, and one-third for four-year terms;
(B) no member of the PromoFlor Council
may serve more than two consecutive terms of
three years, except that any member serving on
initial term of four years may serve an addi-
tional term of three years; and
(C) PromoFlor Council members shall
serve without compensation, but shall be reim-
bursed for their expenses incurred in perform-
ing their duties as members of the PromoFlor
Council.
(6) EXECUTIVE COMMITTEE.—
(A) ESTABLISHMENT.—The order shall au-
thorize the PromoFlor Council to appoint from
among its members an executive committee of
not more than nine members. The membership
of the executive committee initially shall be
composed of four members representing quali-
fied wholesale handlers, two members represent-
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ing producers that are qualified handlers, two
members representing importers that are quali-
fied handlers, and one member representing re-
tailers; and thereafter appointments to the exec-
utive committee shall be made so as to ensure
that the committee reflects, to the maximum
extent practicable, the membership composition
of the PromoFlor Council as a whole. The ini-
tial appointments to the executive committee
each shall be for a term of two years. There-
after, appointments to the executive committee
each shall be for a term of one year.
(B) AUTHORITY.—The PromoFlor Council
may delegate to the executive committee its au-
thority under the order to hire and manage
staff and conduct the routine business of the
PromoFlor Council within the policies deter-
mined by the PromoFlor Council.
(c) 
GENERAL
RESPONSIBILITIES
OF
THE
PROMOFLOR COUNCIL.—The order shall define the gen-
eral responsibilities of the PromoFlor Council, which shall
include the responsibilities to—
(1) administer the order in accordance with its
terms and provisions;
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(2) make rules and regulations to effectuate the
terms and provisions of the order;
(3) appoint members of the PromoFlor Council
to serve on an executive committee;
(4) employ such persons as the PromoFlor
Council determines are necessary, and set the com-
pensation and define the duties of such persons;
(5) develop budgets for the implementation of
the order and submit such budgets to the Secretary
for approval under subsection (d), and propose and
develop (or receive and evaluate), approve, and sub-
mit to the Secretary for approval under subsection
(d) plans and projects for cut flowers or cut greens
promotion, consumer information, or related re-
search;
(6) implement plans and projects for cut flow-
ers or cut greens promotion, consumer information,
or related research, as provided in subsection (d), or
contract or enter into agreements with appropriate
persons to implement such plans and projects, as
provided in subsection (e), and pay the costs of such
implementation, or contracts and agreements, with
funds received under the order;
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(7) evaluate on-going and completed plans and
projects for cut flowers or cut greens promotion,
consumer information, or related research;
(8) receive, investigate, and report to the Sec-
retary complaints of violations of the order;
(9) recommend to the Secretary amendments to
the order;
(10) invest, pending disbursement under a plan
or project, funds collected through assessments au-
thorized under this Act only in—
(A) obligations of the United States or any
agency thereof;
(B) general obligations of any State or any
political subdivision thereof;
(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.
Income from any such invested funds may only be
used for a purpose for which the invested funds may
be used; and
(11) furnish the Secretary with such informa-
tion as the Secretary may require.
(d) BUDGETS; PLANS AND PROJECTS.—
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(1) SUBMISSION OF BUDGETS.—The order shall
require the PromoFlor Council to submit to the Sec-
retary for approval budgets on a fiscal year basis of
its anticipated expenses and disbursements in the
implementation of the order, including projected
costs of cut flowers and cut greens promotion,
consumer information, and related research plans
and projects.
(2) PLANS OR 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 advertis-
ing, sales promotion, other promotion, and
consumer information with respect to cut
flowers and cut greens, and for the dis-
bursement of necessary funds for such pur-
poses;
(ii) that any such plan or project shall
be directed toward increasing the general
demand for cut flowers or cut greens and
may make no reference to a private brand
or trade name, point of origin, or source of
supply, except that these limitations shall
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lated research, as described in subparagraphs
(A) and (B).
(3) APPROVAL BY SECRETARY.—No budget, or
plan or project for cut flowers or cut greens pro-
motion, consumer information, or related research,
shall be implemented prior to its approval by the
Secretary.
(e) CONTRACTS AND AGREEMENTS.—
(1) PROMOTION, CONSUMER INFORMATION, AND
RELATED RESEARCH PLANS AND PROJECTS.—
(A) IN GENERAL.—To ensure efficient use
of funds, the order shall provide that the
PromoFlor Council, with the approval of the
Secretary, may enter into contracts or agree-
ments for the implementation of any plan or
project for promotion, consumer information, or
related research with respect to cut flowers or
cut greens, and for the payment of the cost
thereof with funds received by the PromoFlor
Council under the order.
(B) REQUIREMENTS.—The order shall pro-
vide that any such contract or agreement shall
provide that—
(i) the contracting or agreeing party
shall develop and submit to the PromoFlor
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Council a plan or project together with a
budget or budgets that shall show esti-
mated costs to be incurred for such plan or
project;
(ii) the plan or project shall become
effective on the approval of the Secretary;
and
(iii) the contracting or agreeing party
shall keep accurate records of all of its
transactions, account for funds received
and expended, make periodic reports to the
PromoFlor Council of activities conducted,
and make such other reports as the
PromoFlor Council or the Secretary may
require.
(2) OTHER
CONTRACTS
AND
AGREEMENTS.—
The order shall provide that the PromoFlor Council
also may enter into contracts or agreements for ad-
ministrative services. Any such contract or agree-
ment shall include provisions comparable to those
provided in clauses (i), (ii), or (iii) of paragraph
(1)(B).
(f) BOOKS
AND RECORDS
OF
THE PROMOFLOR
COUNCIL.—
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(1) IN GENERAL.—The order shall require the
PromoFlor Council to—
(A) maintain such books and records
(which shall be available to the Secretary for in-
spection and audit) as the Secretary may pre-
scribe;
(B) prepare and submit to the Secretary,
from time to time, such reports as the Sec-
retary may prescribe; and
(C) account for the receipt and disburse-
ment of all funds entrusted to the PromoFlor
Council.
(2) AUDITS.—The PromoFlor Council shall
cause its books and records to be audited by an
independent auditor at the end of each fiscal year.
A report of each such audit shall be submitted to the
Secretary.
(g) CONTROL
OF ADMINISTRATIVE COSTS.—The
order shall provide that the PromoFlor Council shall, as
soon as practicable after the order becomes effective and
after consultation with the Department of Agriculture and
other appropriate persons, implement a system of cost
controls based on normally accepted business practices
that will ensure that the PromoFlor Council’s annual
budgets only include amounts for administrative expenses
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that cover the minimum administrative activities and per-
sonnel needed to properly administer and enforce the
order and conduct, supervise, and evaluate plans and
projects under the order.
(h) ASSESSMENTS.—
(1) AUTHORITY.—
(A) IN GENERAL.—The order shall provide
that each qualified handler shall pay to the
PromoFlor Council, in the manner prescribed
by the order, an assessment on each sale of cut
flowers or cut greens to a retailer or an exempt
handler (including each transaction described in
subparagraph (C)(ii)), except to the extent such
sale is excluded from assessments under section
6(a).
(B) PUBLISHED LISTS.—To facilitate the
payment of assessments under this paragraph,
the PromoFlor Council shall publish lists of
qualified handlers required to pay assessments
under the order and exempt handlers.
(C) MAKING DETERMINATIONS.—
(i) QUALIFIED
HANDLER
STATUS.—
The order also shall contain provisions re-
garding the making of determinations to
determine status as a qualified handler or
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exempt handler that include the rules and
requirements set out in sections 3(4) and
6(b).
(ii) COVERED
TRANSACTIONS.—The
order shall provide that each non-sale
transfer of cut flowers or cut greens to a
retailer from a qualified handler that is a
distribution center, as described in section
3(4)(A)(ii)(III), and each direct sale of cut
flowers or cut greens to a consumer by a
qualified handler that is an importer or
producer, 
as 
described 
in 
section
3(4)(A)(iii), shall be treated as a sale of
cut flowers or cut greens to a retailer sub-
ject to assessments under this subsection,
in an amount equal to the price paid by
the distribution center or importer, respec-
tively, to acquire the cut flowers or cut
greens plus an amount determined by mul-
tiplying such acquisition price by a uni-
form 
percentage 
established 
by 
the
PromoFlor Council to represent a whole-
sale handler’s mark-up on a sale to a re-
tailer (or in the case of direct sales to con-
sumers by producers, an amount deter-
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mined by applying to the price paid by the
consumer a uniform percentage established
by the PromoFlor Council to represent the
cost of producing the article and a whole-
sale handler’s mark-up on a sale to a
retailer).
(2) ASSESSMENT RATES.—The order shall pro-
vide as follows:
(A) INITIAL
RATE.—The rate of assess-
ment 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 1 per centum of
the gross sales price of product sold or (in the
case of transactions described in paragraph
(1)(C)(ii)) of the amount of each transaction
calculated as provided in paragraph (1)(C)(ii).
(B) CHANGES
IN
THE
RATE.—After the
first three years the order is in effect, the uni-
form assessment rate may be increased or de-
creased annually by not more than .25 per cen-
tum of gross sales price of product sold or (in
the case of transactions described in paragraph
(1)(C)(ii)) of the amount of each transaction
calculated as provided in paragraph (1)(C)(ii),
except that the assessment rate may in no case
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exceed 1 per centum of gross sales price or
transaction amount. Any such change in the
rate of assessment—
(i) may be made only if adopted by
the PromoFlor Council by a two-thirds ma-
jority vote and approved by the Secretary
as necessary to achieve the objectives of
this Act;
(ii) 
shall 
be 
announced 
by 
the
PromoFlor Council at least thirty days
prior to going into effect; and
(iii) shall not be subject to a vote in
a referendum under section 7.
(3) WHEN
ASSESSMENTS
SUBMITTED.—The
order shall provide that each person required to pay
assessments under this subsection shall remit, to the
PromoFlor Council, the assessment 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 sixty days from the end
of the month in which the sale took place) as speci-
fied in the order.
(4) REFUNDS FROM ESCROW ACCOUNT.—
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(A) ESTABLISHMENT
OF
ESCROW
AC-
COUNT.—The order shall provide that the
PromoFlor Council shall—
(i) establish an escrow account to be
used for assessment refunds as needed,
and
(ii) place into such account an amount
equal to ten percent of the total amount of
assessments collected during the period be-
ginning on the date the order goes into ef-
fect, as provided in section 4(b)(3), and
ending on the date the initial referendum
on the order provided for in section 7(a) is
completed.
(B) RIGHT TO RECEIVE REFUND.—
(i) IN
GENERAL.—The order shall
provide that, subject to subparagraph (C)
and the conditions specified in clause (ii),
any qualified handler shall have the right
to demand and receive from the PromoFlor
Council out of the escrow account a one-
time refund of any assessments paid by or
on behalf of such qualified handler during
the time period specified in subparagraph
(A)(ii), if—
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(I) such qualified handler is re-
quired to pay such assessments;
(II) such qualified handler does
not support the program established
under this Act;
(III) such qualified handler de-
mands such refund prior to the con-
duct of the referendum on the order
under section 7(a); and
(IV) the order is not approved by
qualified handlers in the referendum.
(ii) CONDITIONS.—The right of any
qualified handler to receive refunds under
clause (i) shall be subject to the following
conditions:
(I) Such demand shall be made
in accordance with regulations, on a
form, and within a time period pre-
scribed by the PromoFlor Council.
(II) Such refund shall be made
only on submission of proof satisfac-
tory to the Board that such qualified
handler paid the assessment for which
refund is demanded.
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(III) If the amount in the escrow
account required under subparagraph
(A) is not sufficient to refund the
total amount of assessments de-
manded by all qualified handlers de-
termined eligible for refunds and the
order is not approved in the referen-
dum on the order under section 7(a),
the PromoFlor Council shall prorate
the amount of all such refunds among
all eligible qualified handlers that de-
mand such refund.
(C) PROGRAM APPROVED.—The order shall
provide that, if the order is approved in the ref-
erendum under section 7(a), there shall be no
refunds made and all funds in the escrow ac-
count shall be returned to the PromoFlor Coun-
cil for use by the PromoFlor Council in accord-
ance with the other provisions of the order.
(5) USE OF ASSESSMENT FUNDS.—The order
shall provide that assessment funds (net of any re-
funds paid out under the terms of the order con-
tained in paragraph (4)) shall be used for payment
of costs incurred in implementing and administering
the order, with provision for a reasonable reserve,
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and to cover those administrative costs incurred by
the Secretary in implementing and administering
this Act, except for the salaries of Government em-
ployees incurred in conducting referenda.
(i) PROHIBITION.—The order shall prohibit the use
of any funds received by the PromoFlor Council in any
manner for the purpose of influencing legislation or gov-
ernment action or policy, except that such funds may be
used by the PromoFlor Council for the development and
recommendation to the Secretary of amendments to the
order.
(j) BOOKS AND RECORDS; REPORTS.—
(1) IN GENERAL.—The order shall provide that
each qualified handler shall maintain, and make
available for inspection, such books and records as
may be required by the order and file reports at the
time, in the manner, and having the content pre-
scribed 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 Act, the order, or any regulation
issued under this Act.
(2) CONFIDENTIALITY REQUIRED.—
(A) Information obtained from books,
records, or reports under the authority provided
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in paragraph (1), or from reports required
under section 6(b)(3), shall be kept confidential
by all officers and employees of the Department
of Agriculture and by the staff and agents of
the PromoFlor Council, and only such informa-
tion so obtained as the Secretary considers rel-
evant may be disclosed to the public by them
and then only in a suit or administrative hear-
ing brought at the request of the Secretary, or
to which the Secretary or any officer of the
United States is a party, and involving the
order.
(B) Nothing in subparagraph (A) may be
construed 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 therefrom, which statements do
not identify the information furnished by
any person; or
(ii) the publication, by direction of the
Secretary, of the name of any person vio-
lating the order, together with a statement
of the particular provisions of the order
violated by such person.