S 1790 IS

To provide for the issuance of a promotion, research, and information order applicable to certain handlers of Hass avocados.

To provide for the issuance of a promotion, research, and information order applicable to certain handlers of Hass avocados.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

(a) SHORT TITLE- This Act may be cited as the `Hass Avocado Promotion, Research, and Information Act of 1999'.

(b) TABLE OF CONTENTS- The table of contents of this Act is as follows:

Sec. 1. Short title; table of contents.

Sec. 2. Findings and declaration of policy.

Sec. 3. Definitions.

Sec. 4. Issuance of orders.

Sec. 5. Required terms in orders.

Sec. 6. Referenda.

Sec. 7. Petition and review.

Sec. 8. Enforcement.

Sec. 9. Investigations and power to subpoena.

Sec. 10. Confidentiality.

Sec. 11. Authority for Secretary to suspend or terminate order.

Sec. 12. Construction.

Sec. 13. Regulations.

Sec. 14. Authorization of appropriations.

SEC. 2. FINDINGS AND DECLARATION OF POLICY.

(a) FINDINGS- Congress finds the following:

(1) Hass avocados are an integral food source in the United States that are a valuable and healthy part of the human diet and are enjoyed by millions of persons every year for a multitude of everyday and special occasions.

(2) Hass avocados are a significant tree fruit crop grown by many individual producers, but virtually all domestically produced Hass avocados for the commercial market are grown in the State of California.

(3) Hass avocados move in interstate and foreign commerce, and Hass avocados that do not move in interstate or foreign channels of commerce but only in intrastate commerce directly affect interstate commerce in Hass avocados.

(4) In recent years, large quantities of Hass avocados have been imported into the United States from other countries.

(5) The maintenance and expansion of markets in existence on the date of enactment of this Act, and the development of new or improved markets or uses for Hass avocados are needed to preserve and strengthen the economic viability of the domestic Hass avocado industry for the benefit of producers and other persons associated with the producing, marketing, processing, and consuming of Hass avocados.

(6) An effective and coordinated program of promotion, research, and consumer information regarding Hass avocados is necessary for the maintenance, expansion, and development of markets for Hass avocados.

(b) PURPOSE- It is the purpose of this Act to authorize the establishment, through the exercise of the powers provided in this Act, of an orderly procedure for the development and financing (through an adequate assessment on Hass avocados sold by producers and importers in the United States) of an effective and coordinated program of promotion, research, and consumer information, including funds for marketing and market research activities, that is designed to--

(1) strengthen the position of the Hass avocado industry in the domestic marketplace; and

(2) maintain, develop, and expand markets and uses for Hass avocados.

(c) LIMITATION- Nothing in this Act may be construed to provide for the control of production or otherwise limit the right of any person to produce, handle, or import Hass avocados.

SEC. 3. DEFINITIONS.

As used in this Act:

(1) BOARD- The terms `Avocado Board' and `Board' mean the Hass Avocado Board established under section 5.

(2) CONSUMER INFORMATION- The term `consumer information' means any action or program that provides information to consumers and other persons on the use, nutritional attributes, and other information that will assist consumers and other persons in making evaluations and decisions regarding the purchase, preparation, and use of Hass avocados.

(3) CUSTOMS- The term `Customs' means the United States Customs Service.

(4) DEPARTMENT- The term `Department' means the United States Department of Agriculture.

(5) HASS AVOCADO-

(A) IN GENERAL- The term `Hass avocado' includes--

(i) the fruit of any Hass variety avocado tree; and

(ii) any other type of avocado fruit that the Board determines is so similar to the Hass variety avocado as to be indistinguishable to consumers.

(B) FORM OF FRUIT- Except as provided in subparagraph (C), the term includes avocado fruit described in subparagraph (A) whether in fresh, frozen, or any other processed form.

(C) EXCEPTIONS- In any case in which a handler further processes avocados described in subparagraph (A), or products of such avocados, for sale to a retailer, the Board may determine that such further processed products do not constitute a substantial value of the product and that, based on its determination, the product shall not be treated as a product of Hass avocados subject to assessment under the order. In addition, the Board may exempt certain frozen avocado products from assessment under the order.

(6) HANDLER-

(A) QUALIFIED HANDLER- The term `qualified handler' means a person operating in the Hass avocados marketing system that sells domestic or imported Hass avocados for United States domestic consumption, and who is responsible for remitting assessments to the Board. The term includes an importer or producer who sells directly to consumers Hass avocados that the importer or producer has imported into the United States or produced, respectively.

(B) EXEMPT HANDLER- The term `exempt handler' means a person who would otherwise be considered a qualified handler, except that all avocados purchased by the person have already been subject to the assessment for the Board.

(7) IMPORTER- The term `importer' means any person who imports Hass avocados into the United States.

(8) INDUSTRY INFORMATION- The term `industry information' means information and programs that are designed to increase efficiency in processing, enhance the development of new markets and marketing strategies, increase marketing efficiency, and activities to enhance the image of Hass avocados and the Hass avocado industry domestically and internationally.

(9) ORDER- The term `order' means the Hass avocado promotion, research, and information order issued under this Act.

(10) PERSON- The term `person' means any individual, group of individuals, firm, partnership, corporation, joint stock company, association, cooperative, or other legal entity.

(11) PRODUCER- The term `producer' means any person who--

(A) is engaged in the domestic production of Hass avocados for commercial use; and

(B) owns, or shares the ownership and risk of loss, of such Hass avocados.

(12) PROMOTION- The term `promotion' means any action to advance the image, desirability, or marketability of Hass avocados, including paid advertising, sales promotion, and publicity, in order to improve the competitive position and stimulate sales of Hass avocados in the marketplace.

(13) RESEARCH- The term `research' means any type of test, study, or analysis relating to market research, market development, and marketing efforts, or relating to the use, quality, or nutritional value of Hass avocados, other related food science research, or research designed to advance the image, desirability, and marketability of Hass avocados.

(14) SECRETARY- The term `Secretary' means the Secretary of Agriculture.

(15) STATE- The term `State' means each of the several States of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the Commonwealth of the Northern Mariana Islands, the United States Virgin Islands, Guam, American Samoa, the Republic of the Marshall Islands, and the Federated States of Micronesia.

(16) UNITED STATES- The term `United States' means the United States collectively.

SEC. 4. ISSUANCE OF ORDERS.

(a) IN GENERAL-

(1) ISSUANCE- To effectuate the policy of this Act specified in section 2(b), the Secretary, subject to the procedures provided in subsection (b), shall issue orders under this Act applicable to producers, importers, and qualified handlers of Hass avocados.

(2) SCOPE- Any order shall be national in scope.

(3) ONE ORDER- Not more than one order shall be in effect at any one time.

(b) PROCEDURES-

(1) PROPOSAL FOR AN ORDER- An existing organization of avocado producers established pursuant to a State statute, or any other person who will be affected by this Act, may request the issuance of, and submit a proposal for an order.

(2) PUBLICATION OF PROPOSAL- The Secretary shall publish a proposed order and give notice and opportunity for public comment on the proposed order not later than 60 days after receipt by the Secretary of a proposal for an order from an existing organization of avocado producers established pursuant to a State statute, as provided in paragraph (1).

(3) ISSUANCE OF ORDER-

(A) IN GENERAL- After notice and opportunity for public comment are provided in accordance with paragraph (2), the Secretary shall issue the order, taking into consideration the comments received and including in the order such provisions as are necessary to ensure that the order is in conformity with this Act.

(B) EFFECTIVE DATE- The order shall be issued and become effective only after an affirmative vote in a referendum as provided in section 6, but not later than 180 days after publication of the proposed order.

(c) AMENDMENTS- The Secretary, from time to time, may amend an order. The provisions of this Act applicable to an order shall be applicable to any amendment to an order.

SEC. 5. REQUIRED TERMS IN ORDERS.

(a) IN GENERAL- An order shall contain the terms and provisions specified in this section.

(b) HASS AVOCADO BOARD-

(1) ESTABLISHMENT AND MEMBERSHIP-

(A) ESTABLISHMENT- The order shall provide for the establishment of a Hass Avocado Board, consisting of 11 members, to administer the order.

(B) MEMBERSHIP-

(i) APPOINTMENT- The order shall provide that members of the Board shall be appointed by the Secretary from nominations submitted as provided in this subsection.

(ii) COMPOSITION- The Board shall consist of participating domestic producers and importers.

(2) DISTRIBUTION OF APPOINTMENTS-

(A) IN GENERAL- The order shall provide that the membership of the Board shall consist of--

(i) 7 members who are domestic producers of Hass avocados and are subject to assessments under the order;

(ii) 2 members representing importers that are qualified handlers of Hass avocados; and

(iii) 2 members who are domestic producers of Hass avocados and are subject to assessments under the order or are importers that are qualified handlers, to reflect the proportion of domestic production and imports supplying the United States market, which shall be based on the Secretary's determination of the average volume of domestic production proportionate to the average volume of imports in the United States market over the previous three years.

(B) ADJUSTMENT IN BOARD REPRESENTATION- Three years after the assessment of funds commences pursuant to an order, and at the end of each three-year period thereafter, the Avocado Board shall adjust the proportion of producer representatives to importer representatives on the Board under subparagraph (A)(iii) on the basis of the amount of assessments collected from producers and importers over the immediately preceding three-year period. Any adjustment under this subparagraph shall be subject to the review and approval of the Secretary.

(C) DEFINITION- In this paragraph, the term `importer that is a qualified handler' means an entity whose principal activity is the importation, sale, and marketing of Hass avocados in the United States (either directly or as an agent, broker, or consignee of any person or nation that produces or handles Hass avocados outside the United States for sale in the United States), and who is subject to assessments as a qualified handler under the order.

(3) NOMINATION PROCESS- The order shall provide that--

(A) 2 nominees shall be submitted for each appointment to the Board;

(B) nominations for each appointment of a producer or an importer shall be made by domestic producers or importers, respectively--

(i) in the case of producers, through an election process which utilizes existing organizations of avocado producers established pursuant to a State statute, with approval by the Secretary; and

(ii) in the case of importers, nominations are submitted by importers under such procedures as the Secretary determines appropriate; and

(C) in any case in which producers that are qualified handlers or importers that are qualified handlers fail to nominate individuals for an appointment to the Board, the Secretary may appoint an individual to fill the vacancy on a basis provided in the order or other regulations of the Secretary.

(4) ALTERNATES- The order shall provide for the selection of alternate members of the Board by the Secretary in accordance with procedures specified in the order.

(5) TERMS- The order shall provide that--

(A) each term of appointment to the Board shall be for 3 years, except that, of the initial appointments, 4 of the appointments shall be for 2-year terms, 4 of the appointments shall be for 3-year terms, and 3 of the appointments shall be for 4-year terms; and

(B) no member of the Board may serve more than 2 consecutive terms of three years, except that any member serving an initial term of 4 years may serve an additional term of 3 years.

(6) REPLACEMENT- The order shall provide that if a member or alternate of the Board who was appointed as a domestic producer or importer that is a qualified handler ceases to belong to the group for which such member was appointed, such member or alternate shall be disqualified from serving on the Board.

(7) COMPENSATION- The order shall provide that members of the Board shall serve without compensation, but shall be reimbursed for the reasonable expenses of the members incurred in performing duties as members of the Board.

(c) GENERAL RESPONSIBILITIES OF THE AVOCADO BOARD- The order shall define the general responsibilities of the Avocado Board, which shall include the responsibility to--

(1) administer the order in accordance with the terms and provisions of the order;

(2) recommend to the Secretary rules and regulations to effectuate the terms and provisions of the order;

(3) employ such persons as the Board determines are necessary, and set the compensation and define the duties of the persons;

(4)(A) develop budgets for the implementation of the order and submit the budgets to the Secretary for approval under subsection (d); and

(B) propose and develop (or receive and evaluate), approve, and submit to the Secretary for approval under subsection (d) plans or projects for Hass avocado promotion, industry information, consumer information, or related research;

(5)(A) implement plans and projects for Hass avocado promotion, industry information, consumer information, or related research, as provided in subsection (d); or

(B) contract or enter into agreements with appropriate persons to implement the plans and projects, as provided in subsection (e), and pay the costs of the implementation, or contracts and agreement, with funds received under the order;

(6) evaluate on-going and completed plans and projects for Hass avocados and avocado products promotion, industry information, consumer information, or related research;

(7) receive, investigate, and report to the Secretary complaints of violations of the order;

(8) recommend to the Secretary amendments to the order;

(9) invest, pending disbursement under a plan or project, funds collected through assessments authorized under this Act only in--

(A) obligations of the United States or any agency of the United States;

(B) general obligations of any State or any political subdivision of a State;

(C) any interest-bearing account or certificate of deposit of a bank that is a member of the Federal Reserve System; or

(D) obligations fully guaranteed as to principal and interest by the United States, except that income from any such invested funds may be used only for a purpose for which the invested funds may be used;

(10) borrow funds necessary for the startup expenses of the order; and

(11) provide the Secretary such information as the Secretary may require.

(d) BUDGETS; PLANS AND PROJECTS-

(1) SUBMISSION OF BUDGETS- The order shall require the Board to submit to the Secretary for approval budgets, on a fiscal year basis, of the anticipated expenses and disbursements of the Board in the implementation of the order, including the projected costs of Hass avocado promotion, industry information, consumer information, and related research plans and projects.

(2) PLANS AND PROJECTS-

(A) PROMOTION AND CONSUMER INFORMATION- The order shall provide--

(i) for the establishment, implementation, administration, and evaluation of appropriate plans and projects for advertising, sales promotion, other promotion, and consumer information with respect to Hass avocados, and for the disbursement of necessary funds for the purposes described in this clause; and

(ii) that any plan or project referred to in clause (i) shall be directed toward increasing the general demand for Hass avocados.

(B) INDUSTRY INFORMATION- The order shall provide for the establishment, implementation, administration, and evaluation of appropriate plans and projects that will lead to the development of new markets, new marketing strategies, or increased efficiency of the Hass avocado industry, and activities to enhance the image of the Hass avocado industry, and for the disbursement of necessary funds for the purposes described in this subparagraph.

(C) RESEARCH- The order shall provide for--

(i) the establishment, implementation, administration, and evaluation of plans and projects for market development research, research with respect to the sale, distribution, marketing, use, quality, or nutritional value of Hass avocados, and other research with respect to Hass avocado marketing, promotion, or consumer information;

(ii) the dissemination of the information acquired through the plans and projects; and

(iii) the disbursement of such funds as are necessary to carry out this subparagraph.

(D) SUBMISSION TO THE SECRETARY- The order shall provide that the Board shall submit to the Secretary for approval a proposed plan or project for Hass avocados promotion, industry information, consumer information, or related research, as described in subparagraphs (A) and (B).

(3) APPROVAL BY SECRETARY- A budget, plan, or project for Hass avocados promotion, industry information, consumer information, or related research may not be implemented prior to approval of the budget, plan, or project by the Secretary.

(e) CONTRACTS AND AGREEMENTS-

(1) PROMOTION, CONSUMER INFORMATION, INDUSTRY INFORMATION AND RELATED RESEARCH PLANS AND PROJECTS-

(A) IN GENERAL- To ensure the efficient use of funds, the order shall provide that the Board, with the approval of the Secretary, shall enter into a contract or an agreement with an avocado organization established by State statute in a State with the majority of Hass avocado production in the United States, for the implementation of a plan or project for promotion, industry information, consumer information, or related research with respect to Hass avocados, and for the payment of the cost of the contract or agreement with funds received by the Board under the order.

(B) REQUIREMENTS- The order shall provide that any contract or agreement entered into under this paragraph shall provide that--

(i) the contracting or agreeing party shall develop and submit to the Board a plan or project, together with a budget that includes the estimated costs to be incurred for the plan or project;

(ii) the plan or project shall become effective on the approval of the Secretary; and

(iii) the contracting party or agreeing party shall--

(I) keep accurate records of all transactions of the party;

(II) account for funds received and expended;

(III) make periodic reports to the Board of activities conducted; and

(IV) make such other reports as the Board or the Secretary shall require.

(2) OTHER CONTRACTS AND AGREEMENTS- The order shall provide that the Board, with the approval of the Secretary, may enter into a contract or agreement for administrative services. Any contract or agreement entered into under this paragraph shall include provisions comparable to the provisions described in paragraph (1)(B).

(f) BOOKS AND RECORDS OF BOARD-

(1) IN GENERAL- The order shall require the Board to--

(A) maintain such books and records (which shall be available to the Secretary for inspection and audit) as the Secretary may require;

(B) prepare and submit to the Secretary, from time to time, such reports as the Secretary may require; and

(C) account for the receipt and disbursement of all the funds entrusted to the Board.

(2) AUDITS- The Board shall cause the books and records of the Board to be audited by an independent auditor at the end of each fiscal year. A report of each audit shall be submitted to the Secretary.

(g) CONTROL OF ADMINISTRATIVE COSTS- The order shall provide that the Board shall, as soon as practicable after the order becomes effective and after consultation with the Secretary and other appropriate persons, implement a system of cost controls based on normally accepted business practices that will ensure that the annual budgets of the Board include only amounts for administrative expenses that cover the minimum administrative activities and personnel needed to properly administer and enforce the order, and conduct, supervise, and evaluate plans and projects under the order. The Board shall use, to the extent possible, the resources, staffs, and facilities of existing organizations, as provided in subsection (e)(1)(A).

(h) ASSESSMENTS-

(1) AUTHORITY-

(A) IN GENERAL- The order shall provide that each qualified handler shall remit to the Board, in the manner provided in the order, an assessment collected from the producer, except to the extent that the sale is excluded from assessments under paragraph (6). In the case of imports, the assessment shall be levied upon imports and remitted to the Board by Customs.

(B) PUBLISHED LISTS- To facilitate the payment of assessments under this paragraph, the Board shall publish lists of qualified handlers required to remit assessments under the order and exempt handlers.

(C) MAKING DETERMINATIONS-

(i) QUALIFIED HANDLER STATUS- The order shall contain provisions regarding the determination of the status of a person as a qualified handler or exempt handler that include the rules and requirements specified in section 3(j).

(ii) PRODUCER-HANDLERS- For purposes of paragraph (3), a producer-handler shall be considered the qualified handler of Hass avocados produced by such producer-handler. The qualified handler shall be the first person who packs the avocados for sale at wholesale or retail.

(iii) IMPORTERS- The assessment on imported Hass avocados shall be paid by the importer at the time of entry into the United States and shall be remitted to the Board. Importation occurs when Hass avocados originating outside the United States are released from custody of the United States Customs Service and introduced into the stream of commerce within the United States. Importers include persons who hold title to foreign-produced Hass avocados immediately upon release by the Customs Service, as well as any persons who act on behalf of others, as agents or brokers, to secure the release of Hass avocados from Customs and the introduction of the released Hass avocados into the current of commerce.

(2) ASSESSMENT RATES- With respect to assessment rates, the order shall contain the following terms:

(A) INITIAL RATE- The rate of assessment on Hass avocados shall be $.025 per pound.

(B) CHANGES IN THE RATE-

(i) IN GENERAL- Once the order is in effect, the uniform assessment rate may be increased or decreased not more than once annually, but in no event shall the rate of assessment be in excess of $.05 per pound.

(ii) REQUIREMENTS- Any change in the rate of assessment under this subparagraph--

(I) may be made only if adopted by the Board by an affirmative vote of at least seven members of the Board and approved by the Secretary as necessary to achieve the objectives of this Act (after public notice and opportunity for comment in accordance with section 553 of title 5, United States Code, and without regard to sections 556 and 557 of such title);

(II) shall be announced by the Board not less than 30 days prior to going into effect; and

(III) shall not be subject to a vote in a referendum conducted under section 6.

(3) COLLECTION BY QUALIFIED HANDLERS- Except as provided in paragraph (1)(C)(iii), the qualified handler of Hass avocados shall--

(A) be responsible for the collection from the producer of assessments under this subsection; and

(B) maintain a separate record of the Hass avocados of each producer whose Hass avocados are so handled, including the Hass avocados owned by the handlers.

(4) TIMING OF SUBMITTING ASSESSMENTS- The order shall provide that each person required to remit assessments under this subsection shall remit to the Board the assessment due from each sale of Hass avocados that is subject to an assessment within such time period after the sale (not to exceed 60 days after the end of the month in which the sale took place) as is specified in the order.

(5) CLAIMING AN EXEMPTION FROM ASSESSMENTS- To claim an exemption under section 3(6) as an exempt handler for a particular fiscal year, a person shall submit an application to the Board--

(A) stating the basis for such exemption; and

(B) certifying such person will not purchase Hass avocados in the United States on which an assessment has not been paid for the current fiscal year.

(6) EXCLUSION- An order shall exclude from assessments under the order any sale of Hass avocados for export from the United States.

(7) USE OF ASSESSMENT FUNDS- The order shall provide that assessment funds shall be used for payment of costs incurred in implementing and administering the order, with provision for a reasonable reserve, and to cover the administrative costs incurred by the Secretary in implementing and administering this Act, including any expenses incurred by the Secretary in conducting referenda under this Act, subject to subsection (i).

(8) ASSESSMENT FUNDS FOR STATE ASSOCIATION- The order shall provide that a State association shall receive an amount equal to the product obtained by multiplying the aggregate amount of assessments attributable to the pounds of Hass avocados produced in such State by 85 percent. A State association shall use such funds and any proceeds from the investment of such funds for financing--

(A) promotion, research, consumer information, and industry information plans and projects; and

(B) administrative expenses incurred in connection with such plans and projects.

(i) REIMBURSEMENT OF SECRETARY EXPENSES- The order shall provide for reimbursing the Secretary--

(1) for expenses not to exceed $75,000 incurred by the Secretary in connection with any referendum conducted under section 6; and

(2) for administrative costs incurred by the Secretary for supervisory work of up to 2 employee years after an order or amendment to any order has been issued and made effective.

(j) PROHIBITION ON BRAND ADVERTISING AND CERTAIN CLAIMS-

(1) PROHIBITIONS- Except as provided in paragraph (2), a program or project conducted under this Act shall not--

(A) make any reference to private brand names;

(B) make false, misleading, or disparaging claims on behalf of Hass avocados; or

(C) make false, misleading, or disparaging statements with respect to the attributes or use of any competing products.

(2) EXCEPTIONS- Paragraph (1) does not preclude the Board from offering its programs and projects for use by commercial parties, under such terms and conditions as the Board may prescribe as approved by the Secretary. For the purposes of this subsection, a reference to State of origin does not constitute a reference to a private brand name.

(k) PROHIBITION ON USE OF FUNDS TO INFLUENCE GOVERNMENTAL ACTION-

(1) IN GENERAL- Except as otherwise provided in paragraph (2), the order shall prohibit any funds collected by the Board under the order from being used in any manner for the purpose of influencing legislation or government action or policy.

(2) EXCEPTION- Paragraph (1) shall not apply to the development or recommendation of amendments to the order.

(l) BOOKS AND RECORDS; REPORTS-

(1) IN GENERAL- The order shall provide that each qualified handler, producer, and importer subject to the order shall maintain, and make available for inspection, such books and records as are required by the order and file reports at the time, in the manner, and having the content required by the order, to the end that such information is made available to the Secretary and the Board as is appropriate for the administration or enforcement of this Act, the order, or any regulation issued under this Act.

(2) CONFIDENTIALITY REQUIREMENT-

(A) IN GENERAL- Information obtained from books, records, or reports under paragraph (1) shall be kept confidential by all officers and employees of the Department of Agriculture and by the staff and agents of the Board.

(B) SUITS AND HEARINGS- Information described in subparagraph (A) may be disclosed to the public only--

(i) in a suit or administrative hearing brought at the request of the Secretary, or to which the Secretary or any officer of the

(ii) to the extent the Secretary considers the information relevant to the suit or hearing.

(C) GENERAL STATEMENTS AND PUBLICATIONS- Nothing in this paragraph may be construed to prohibit--

(i) the issuance of general statements, based on the reports, of the number of persons subject to the order or statistical data collected from the reports, if the 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 who violates the order, together with a statement of the particular provisions of the order violated by the person.

(3) LISTS OF IMPORTERS-

(A) REVIEW- The order shall provide that the staff of the Board shall periodically review lists of importers of Hass avocados to determine whether persons on the lists are subject to the order.

(B) CUSTOMS SERVICE- On the request of the Secretary or the Board, the Commissioner of the United States Customs Service shall provide to the Secretary or the Board lists of importers of Hass avocados.

(m) CONSULTATIONS WITH INDUSTRY EXPERTS-

(1) IN GENERAL- The order shall provide that the Board may seek advice from and consult with experts from the production, import, wholesale, and retail segments of the Hass avocado industry to assist in the development of promotion, industry information, consumer information, and related research plans and projects.

(2) SPECIAL COMMITTEES-

(A) IN GENERAL- For the purposes described in paragraph (1), the order shall authorize the appointment of special committees composed of persons other than Board members.

(B) CONSULTATION- A committee appointed under subparagraph (A)--

(i) may not provide advice or recommendations to a representative of an agency, or an officer, of the Federal Government; and

(ii) shall consult directly with the Board.

(n) OTHER TERMS OF THE ORDER- The order shall contain such other terms and provisions, consistent with this Act, as are necessary to carry out this Act (including provision for the assessment of interest and a charge for each late payment of assessments under subsection (h)).

SEC. 6. REFERENDA.

(a) REQUIREMENTS FOR INITIAL REFERENDUM-

(1) REFERENDUM REQUIRED- During the 60-day period immediately preceding the proposed effective date of an order issued under section 4(b)(3), the Secretary shall conduct a referendum among qualified producers and importers required to pay assessments under the order, as provided in section 5(h)(1).

(2) APPROVAL OF ORDER NEEDED- The order shall become effective only if the Secretary determines that the order has been approved by a simple majority of all votes cast in the referendum.

(b) VOTES PERMITTED-

(1) IN GENERAL- Each qualified producer and importer eligible to vote in a referendum conducted under this section shall be entitled to cast 1 vote if they satisfy the eligibility requirements as defined in paragraph (2).

(2) ELIGIBILITY- For purposes of paragraph (1), producers and importers, as these terms are defined in section 3, shall be considered to be eligible to vote if they have been producers or importers with sales of Hass avocados during a period of at least 1 year prior to the referendum.

(c) MANNER OF CONDUCTING REFERENDA-

(1) IN GENERAL- Referenda conducted pursuant to this Act shall be conducted in a manner determined by the Secretary.

(2) ADVANCE REGISTRATION- A qualified producer or importer of Hass avocados who chooses to vote in any referendum conducted under this Act shall register with the Secretary prior to the voting period, after receiving notice from the Secretary concerning the referendum under paragraph (4).

(3) VOTING- A qualified producer or importer of Hass avocados who chooses to vote in any referendum conducted under this Act shall vote in accordance with procedures established by the Secretary. The ballots and other information or reports that reveal or tend to reveal the vote of any qualified handler shall be strictly confidential.

(4) NOTICE- The Secretary shall notify all qualified producers and importers at least 30 days prior to the referendum conducted under this Act. The notice shall explain the procedure established under this subsection.

(d) SUSPENSION OR TERMINATION REFERENDA- If an order is approved in a referendum conducted under subsection (a), effective beginning on the date that is 3 years after the date of the approval, the Secretary--

(1) at the discretion of the Secretary, may conduct at any time a referendum of qualified producers and importers required to pay assessments under the order, as provided in section 5(h)(1), subject to the voting requirements of subsection (b), to ascertain whether qualified producers and importers favor suspension or termination of the order; and

(2) if requested by the Board or by a representative group comprising 30 percent or more of all qualified producers and importers required to pay assessments under the order, as provided in section 5(h)(1), subject to the voting requirements of subsections (c) and (d), to ascertain whether producers and importers favor suspension or termination of the order.

(e) SUSPENSION OR TERMINATION- If, as a result of a referendum conducted under subsection (d), the Secretary determines that suspension or termination of the order is favored by a simple majority of all votes cast in the referendum, the Secretary shall--

(1) not later than 180 days after the referendum, suspend or terminate, as appropriate, collection of assessments under the order; and

(2) suspend or terminate, as appropriate, activities under the order as soon as practicable and in an orderly manner.

SEC. 7. PETITION AND REVIEW.

(a) PETITION AND HEARING-

(1) PETITION- A person subject to an order may file with the Secretary a petition--

(A) stating that the order, any provision of the order, or any obligation imposed in connection 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 9(b)(2) and be held within the United States judicial district in which the residence or principal place of business of the person is located.

(3) RULING- After a hearing under paragraph (2), the Secretary shall make a ruling on the petition, which shall be final if in accordance with law.

(4) LIMITATION- Any petition filed under this subsection challenging an order, any provision of the order, or any obligation imposed in connection with the order, shall be filed within 2 years after the effective date of the order, provision, or obligation subject to challenge in the petition.

(b) REVIEW-

(1) COMMENCEMENT OF ACTION- The district courts of the United States in any district in which a person who is a petitioner under subsection (a) resides or conducts business shall have jurisdiction to review the ruling of the Secretary on the petition of the person, if a complaint requesting the review is filed no later than 20 days after the date of the entry of the ruling by the Secretary.

(2) PROCESS- Service of process in proceedings under this subsection shall be conducted in accordance with the Federal Rules of Civil Procedure.

(3) REMAND- If the court in a proceeding under this subsection determines that the ruling of the Secretary on the petition of the person is not in accordance with 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 action as, in the opinion the court, the law requires.

(c) ENFORCEMENT- The pendency of proceedings instituted under this section shall not impede, hinder, or delay the Attorney General or the Secretary from obtaining relief under section 8.

SEC. 8. ENFORCEMENT.

(a) JURISDICTION- A district court of the United States shall have jurisdiction to enforce, and to prevent and restrain any person from violating, this Act or an order or regulation issued by the Secretary under this Act.

(b) REFERRAL TO ATTORNEY GENERAL- A civil action 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 administration 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 committed or is committing the violation.

(c) CIVIL PENALTIES AND ORDERS-

(1) CIVIL PENALTIES-

(A) IN GENERAL- A person who violates a provision of this Act, or an order or regulation issued by the Secretary under this Act, or who fails or refuses to pay, collect, or remit any assessment or fee required of the person under an order or regulation issued under this Act, may be assessed by the Secretary--

(i) a civil penalty of not less than $500 nor more than $5,000 for each violation; and

(ii) in the case of a willful failure to remit an assessment as required by an order or regulation, an additional penalty equal to the amount of the assessment.

(B) SEPARATE OFFENSES- 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 a violation of this Act, or an order or regulation issued under this Act.

(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 assessed or the order is issued notice and opportunity for a hearing before the Secretary with respect to the violation. Any such hearing shall be conducted in accordance with section 9(b)(2) and shall be held within the United States judicial district in which the residence or principal place of business of the person 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).

(d) REVIEW BY DISTRICT COURT-

(1) COMMENCEMENT OF ACTION-

(A) IN GENERAL- Any person against whom a violation is found and a civil penalty is

(i) filing a notice of appeal in the district court of the United States for the district in which the person resides or conducts business, or in the United States District Court for the District of Columbia; and

(ii) sending a copy of the notice by certified mail to the Secretary.

(B) COPY OF RECORD- The Secretary shall promptly file in the 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-

(1) IN GENERAL- A person who fails to obey a cease and desist order issued under subsection (c) after the order has become final and unappealable, or after the appropriate United States district court had entered a final judgment in favor of the Secretary of not more than $5,000 for each offense, after opportunity for a hearing and for judicial review under the procedures specified in subsections (c) and (d).

(2) SEPARATE VIOLATIONS- Each day during which the person fails to obey an order described in paragraph (1) shall be considered as a separate violation of the order.

(f) FAILURE TO PAY A PENALTY-

(1) IN GENERAL- If a person fails to pay a civil penalty assessed under subsection (c) or (e) after the penalty has become final and unappealable, or after the appropriate United States district court has entered final judgment in favor of the Secretary, the Secretary shall refer the matter to the Attorney General for recovery of the amount assessed in any United States district court in which the person resides or conducts business.

(2) SCOPE OF REVIEW- In an action by the Attorney General under paragraph (1), the validity and appropriateness of a civil penalty shall not be subject to review.

(g) ADDITIONAL REMEDIES- The remedies provided in this Act shall be in addition to, and not exclusive of, other remedies that may be available.

SEC. 9. INVESTIGATIONS AND POWER TO SUBPOENA.

(a) INVESTIGATIONS- The Secretary may conduct such investigations as the Secretary considers necessary for the effective administration of this Act, or to determine whether any person has engaged or is engaging in any act that constitutes a violation of this Act or any order or regulation issued under this Act.

(b) SUBPOENAS, OATHS, AND AFFIRMATIONS-

(1) INVESTIGATIONS- For the purpose of conducting an investigation under subsection (a), the Secretary may administer oaths and affirmations, subpoena witnesses, compel the attendance of witnesses, take evidence, and require the production of any records that are relevant to the inquiry. The production of the records may be required from any place in the United States.

(2) ADMINISTRATIVE HEARINGS- For the purpose of an administrative hearing held under section 7(a)(2) or 8(c)(3), the presiding officer may administer oaths and affirmations, subpoena 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 the records may be required from any place in the United States.

(c) AID OF COURTS-

(1) IN GENERAL- In the case of contumacy by, or refusal to obey a subpoena issued under subsection (b) to, any person, the Secretary may invoke the aid of any court of the United States within the jurisdiction of which the investigation or proceeding is conducted, or where the person resides or conducts business, in order to enforce a subpoena issued under subsection (b).

(2) ORDER- The court may issue an order requiring the person referred to in a paragraph (1) to comply with a subpoena referred to in paragraph (1).

(3) FAILURE TO OBEY- Any failure to obey the order of the court may be punished by the court as a contempt of court.

(4) PROCESS- Process in any proceeding under this subsection may be served in the United States judicial district in which the person being proceeded against resides or conducts business, or wherever the person may be found.

SEC. 10. CONFIDENTIALITY.

(a) PROHIBITION- No information regarding names of voters or how a person voted in a referendum conducted under this Act shall be made public.

(b) PENALTY- Any person who knowingly violates subsection (a) or the confidentiality terms of an order, as described in section 5(k)(2), shall be subject to a fine of not less that $1,000 nor more than $10,000 or to imprisonment for not more than 1 year, or both. If the person is an officer or employee of the Department of Agriculture or the Board, the person shall be removed from office.

(c) ADDITIONAL PROHIBITION- No information obtained under this Act may be made available to any agency or officer of the Federal Government for any purpose other than the implementation of this Act or an investigatory or enforcement action necessary for the implementation of this Act.

(d) WITHHOLDING INFORMATION FROM CONGRESS PROHIBITED- Nothing in this Act shall be construed to authorize the withholding of information from Congress.

SEC. 11. AUTHORITY FOR SECRETARY TO SUSPEND OR TERMINATE ORDER.

(a) GROUNDS FOR SUSPENSION OR TERMINATION- If the Secretary finds that an order, or any provision of the order, obstructs or does not tend to effectuate the policy of this Act specified in section 2(b), the Secretary shall terminate or suspend the operation of the order or provision under such terms as the Secretary determines are appropriate.

(b) EFFECT OF LACK OF APPROVAL OF ORDER- If, as a result of a referendum, the Secretary determines that the order is not approved, the Secretary shall, within 180 days after making the determination, suspend, or terminate, as appropriate, collection of assessments under the order, and suspend or terminate, as appropriate, activities under the order in an orderly manner as soon as possible.

SEC. 12. CONSTRUCTION.

(a) TERMINATION OR SUSPENSION NOT AN ORDER- The termination or suspension of an order, or a provision of an order, shall not be considered an order under the meaning of this Act.

(b) PRODUCER RIGHTS- This Act--

(1) may not be construed to provide for control of production or otherwise limit the right of individual Hass avocado growers to produce Hass avocados; and

(2) shall be construed to treat all persons producing Hass avocados fairly and to implement any order in an equitable manner.

(c) RELATIONSHIP BETWEEN SECRETARY AND BOARD- In carrying out the Secretary's responsibilities to oversee the collection and disbursement of assessment funds and the operation of the program within the provisions of this Act, no official or employee of the Department shall attempt to make decisions as to the best use of assessment funds or shape the program to the personal preference of the official or employee. The Secretary's responsibility is to ensure that the program operates in a manner consistent with this Act and other applicable law. The Board shall retain sole authority to structure the projects and activities within the limits established by this Act and the order issued pursuant to this Act, and the Secretary shall not substitute its judgment to modify or alter such projects and activities. The Secretary shall eliminate any unnecessary regulatory costs or requirements to the industry in carrying out the Secretary's oversight and regulatory responsibilities and shall promote the most efficient use of producer and importer assessments.

(d) OTHER PROGRAMS- Nothing in this Act may be construed to preempt or supersede any other program relating to Hass avocado promotion and consumer information organized and operated under the laws of the United States or of a State.

SEC. 13. REGULATIONS.

The Secretary may issue such regulations as are necessary to carry out this Act and the powers vested in the Secretary by this Act, including regulations relating to the assessment of late payment charges and interest.

SEC. 14. AUTHORIZATION OF APPROPRIATIONS.

(a) IN GENERAL- There are authorized to be appropriated for each fiscal year such sums as are necessary to carry out this Act.

(b) ADMINISTRATIVE EXPENSES- Funds appropriated under subsection (a) may not be used for the payment of the expenses or expenditures of the Board in administering a provision of an order.