Subtitle A--Commodity Promotion and Evaluation
Sec. 501. Commodity promotion and evaluation.
Subtitle B--Issuance of Orders for Promotion,
Research, and Information
Activities Regarding Agricultural Commodities
Sec. 511. Short title.
Sec. 512. Findings and purpose.
Sec. 513. Definitions.
Sec. 514. Issuance of orders.
Sec. 515. Required terms in orders.
Sec. 516. Permissive terms in orders.
Sec. 517. Assessments.
Sec. 518. Referenda.
Sec. 519. Petition and review of orders.
Sec. 520. Enforcement.
Sec. 521. Investigations and power to subpoena.
Sec. 522. Suspension or termination.
Sec. 523. Amendments to orders.
Sec. 524. Effect on other laws.
Sec. 525. Regulations.
Sec. 526. Authorization of appropriations.
Subtitle C--Canola and Rapeseed
Sec. 531. Short title.
Sec. 532. Findings and declaration of policy.
Sec. 533. Definitions.
Sec. 534. Issuance and amendment of orders.
Sec. 535. Required terms in orders.
Sec. 536. Assessments.
Sec. 537. Referenda.
Sec. 538. Petition and review.
Sec. 539. Enforcement.
Sec. 540. Investigations and power to subpoena.
Sec. 541. Suspension or termination.
Sec. 542. Regulations.
Sec. 543. Authorization of appropriations.
Sec. 551. Short title.
Sec. 552. Findings and purposes.
Sec. 553. Definitions.
Sec. 554. Issuance of orders.
Sec. 555. National Kiwifruit Board.
Sec. 556. Required terms in order.
Sec. 557. Permissive terms in order.
Sec. 558. Petition and review.
Sec. 559. Enforcement.
Sec. 560. Investigations and power to subpoena.
Sec. 561. Referenda.
Sec. 562. Suspension or termination.
Sec. 563. Regulations.
Sec. 564. Authorization of appropriations.
Sec. 571. Short title.
Sec. 572. Findings and declaration of policy.
Sec. 573. Definitions.
Sec. 574. Issuance of orders.
Sec. 575. Required terms in orders.
Sec. 576. Referenda.
Sec. 577. Petition and review.
Sec. 578. Enforcement.
Sec. 579. Investigations and power to subpoena.
Sec. 580. Relation to other programs.
Sec. 581. Regulations.
Sec. 582. Authorization of appropriations.
Sec. 591. Maintenance of records for honey promotion
program.
TITLE V--AGRICULTURAL PROMOTION
Subtitle A--Commodity Promotion and Evaluation
SEC. 501. <<NOTE: 7 USC 7401.>> COMMODITY PROMOTION AND EVALUATION.
(a) Commodity Promotion Law Defined.--In this section,
the term
``commodity promotion law'' means a Federal law that provides for the
establishment and operation of a promotion program regarding an
agricultural commodity that includes a combination of promotion,
research, industry information, or consumer information activities,
is
funded by mandatory assessments on producers or processors, and is
designed to maintain or expand markets and uses for the commodity (as
determined by the Secretary). The term includes--
(1) the marketing promotion provisions under section
8c(6)(I) of the Agricultural
Adjustment Act (7 U.S.C.
608c(6)(I)), reenacted with
amendments by the Agricultural
Marketing Agreement Act
of 1937;
(2) Public Law 89-502 (7 U.S.C. 2101 et seq.);
(3) title III of Public Law 91-670 (7 U.S.C. 2611 et seq.);
(4) Public Law 93-428 (7 U.S.C. 2701 et seq.);
(5) Public Law 94-294 (7 U.S.C. 2901 et seq.);
(6) subtitle B of title I of Public Law 98-180 (7 U.S.C.
4501 et seq.);
(7) Public Law 98-590 (7 U.S.C. 4601 et seq.);
(8) subtitle B of title XVI of Public Law 99-198 (7 U.S.C.
4801 et seq.);
(9) subtitle C of title XVI of Public Law 99-198 (7 U.S.C.
4901 et seq.);
(10) subtitle B of title XIX of Public Law 101-624 (7 U.S.C.
6101 et seq.);
(11) subtitle E of title XIX of Public Law 101-624 (7 U.S.C.
6301 et seq.);
(12) subtitle H of title XIX of Public Law 101-624 (7 U.S.C.
6401 et seq.);
(13) Public Law 103-190 (7 U.S.C. 6801 et seq.);
(14) Public Law 103-407 (7 U.S.C. 7101 et seq.);
(15) subtitle B;
(16) subtitle C;
(17) subtitle D; or
(18) subtitle E.
(b) Findings.--Congress finds the following:
(1) It is in the national public interest and vital to the
welfare of the agricultural
economy of the United States to
maintain and expand existing
markets and develop new markets and
uses for agricultural commodities
through industry-funded,
Government-supervised, generic
commodity promotion programs
established under commodity
promotion laws.
(2) These generic commodity promotion programs, funded by
the agricultural producers
or processors who most directly reap
the benefits of the programs
and supervised by the Secretary of
Agriculture, provide a unique
opportunity for producers and
processors to inform consumers
about their products.
(3) The central congressional purpose underlying each
commodity promotion law
has always been to maintain and expand
markets for the agricultural
commodity covered by the law,
rather than to maintain
or expand the share of those markets
held by any individual producer
or processor.
(4) The commodity promotion laws were neither designed nor
intended to prohibit or
restrict, and the promotion programs
established and funded pursuant
to these laws do not prohibit or
restrict, individual advertising
or promotion of the covered
commodities by any producer,
processor, or group of producers or
processors.
(5) It has never been the intent of Congress for the generic
commodity promotion programs
established and funded by the
commodity promotion laws
to replace the individual advertising
and promotion efforts of
producers or processors.
(6) An individual producer's or processor's own advertising
initiatives are typically
designed to increase the share of the
market held by that producer
or processor rather than to
increase or expand the overall
size of the market.
(7) In contrast, a generic commodity promotion program is
intended and designed to
maintain or increase the overall demand
for the agricultural commodity
covered by the program
and increase the size of
the market for that commodity, often by
utilizing promotion methods
and techniques that individual
producers and processors
typically are unable, or have no
incentive, to employ.
(8) The commodity promotion laws establish promotion
programs that operate as
``self-help'' mechanisms for producers
and processors to fund generic
promotions for covered
commodities which, under
the required supervision and oversight
of the Secretary of Agriculture--
(A) further specific national governmental goals, as
established by Congress; and
(B) produce nonideological and commercial
communication the purpose of which is to further the
governmental policy and objective of maintaining and
expanding the markets for the covered commodities.
(9) While some commodity promotion laws grant a producer or
processor the option of
crediting individual advertising
conducted by the producer
or processor for all or a portion of
the producer's or processor's
marketing promotion assessments,
all promotion programs established
under the commodity promotion
laws, both those programs
that permit credit for individual
advertising and those programs
that do not contain such
provisions, are very narrowly
tailored to fulfill the
congressional purposes of
the commodity promotion laws without
impairing or infringing
the legal or constitutional rights of
any individual producer
or processor.
(10) These generic commodity promotion programs are of
particular benefit to small
producers who often lack the
resources or market power
to advertise on their own and who are
otherwise often unable to
benefit from the economies of scale
available in promotion and
advertising.
(11) Periodic independent evaluation of the effectiveness of
these generic commodity
promotion programs will assist Congress
and the Secretary of Agriculture
in ensuring that the objectives
of the programs are met.
(c) Independent Evaluation of Promotion Program Effectiveness.--
Except as otherwise provided by law, each commodity board established
under the supervision and oversight of the Secretary of Agriculture
pursuant to a commodity promotion law shall, not less often than every
5
years, authorize and fund, from funds otherwise available to the board,
an independent evaluation of the effectiveness of the generic commodity
promotion programs and other programs conducted by the board pursuant
to
a commodity promotion law. <<NOTE: Public information.>> The
board shall
submit to the Secretary, and make available to the public, the results
of each periodic independent evaluation conducted under this subsection.
(d) Administrative Costs.--The Secretary shall annually
provide to
the Committee on Agriculture of the House of Representatives and the
Committee on Agriculture, Nutrition, and Forestry of the Senate
information on administrative expenses on programs established under
commodity promotion laws.
Subtitle B <<NOTE: Commodity Promotion, Research,
and Information Act of
1996.>> --Issuance of Orders for Promotion,
Research, and Information
Activities Regarding Agricultural Commodities
SEC. 511. <<NOTE: 7 USC 7401 note.>> SHORT TITLE.
This subtitle may be cited as the ``Commodity Promotion,
Research,
and Information Act of 1996''.
SEC. 512. <<NOTE: 7 USC 7411.>> FINDINGS AND PURPOSE.
(a) Findings.--Congress finds the following:
(1) The production of agricultural commodities plays a
significant role in the
economy of the United States. Thousands
of producers in the United
States are involved in the production
of agricultural commodities,
and such commodities are consumed
by millions of people throughout
the United States and foreign
countries.
(2) Agricultural commodities must be of high quality,
readily available, handled
properly, and marketed efficiently to
ensure that consumers have
an adequate supply.
(3) The maintenance and expansion of existing markets and
the development of new markets
for agricultural commodities
through generic commodity
promotion, research, and information
programs are vital to the
welfare of persons engaged in the
production, marketing, and
consumption of such commodities, as
well as to the general economy
of the United States.
(4) Generic promotion, research, and information activities
for agricultural commodities
play a unique role in advancing the
demand for such commodities,
since such activities increase the
total market for a product
to the benefit of consumers and all
producers. These generic
activities complement branded
advertising initiatives,
which are aimed at increasing the
market share of individual
competitors, and are of particular
benefit to small producers
who lack the resources or market
power to advertise on their
own. These generic activities do not
impede the branded advertising
efforts of individual firms, but
instead increase general
market demand for an agricultural
commodity using methods
that individual companies do not have
the incentive to employ.
(5) Generic promotion, research, and information activities
for agricultural commodities,
paid by the producers and others
in the industry who reap
the benefits of such activities,
provide a unique opportunity
for producers to inform consumers
about a particular agricultural
commodity.
(6) It is important to ensure that generic promotion,
research, and information
activities for agricultural
commodities be carried out
in an effective and coordinated
manner designed to strengthen
the position of the commodities in
the marketplace and to maintain
and expand their markets and
uses. Independent evaluation
of the effectiveness of the generic
promotion activities of
these programs will assist the Secretary
of Agriculture and Congress
in ensuring that these objectives
are met.
(7) The cooperative development, financing, and
implementation of a coordinated
national program of research,
promotion, and information
regarding agricultural commodities
are necessary to maintain
and expand existing markets and to
develop new markets for
these commodities.
(8) Agricultural commodities move in interstate and foreign
commerce, and agricultural
commodities and their products that
do not move in such channels
of commerce directly burden or
affect interstate commerce
in agricultural commodities and their
products.
(9) Commodity promotion programs have the ability to provide
significant conservation
benefits to producers and the public.
(b) Purpose.--The purpose of this subtitle is to
authorize the
establishment, through the exercise by the Secretary of Agriculture
of
the authority provided in this subtitle, of an orderly program for
developing, financing, and carrying out an effective, continuous, and
coordinated program of generic promotion, research, and information
regarding agricultural commodities designed to--
(1) strengthen the position of agricultural commodity
industries in the marketplace;
(2) maintain and expand existing domestic and foreign
markets and uses for agricultural
commodities;
(3) develop new markets and uses for agricultural
commodities; or
(4) assist producers in meeting their conservation
objectives.
(c) Rule of Construction.--Nothing in this subtitle
provides for the
control of production or otherwise limits the right of any person to
produce, handle, or import an agricultural commodity.
SEC. 513. <<NOTE: 7 USC 7412.>> DEFINITIONS.
In this subtitle (unless the context otherwise requires):
(1) Agricultural commodity.--The term ``agricultural
commodity'' means--
(A) agricultural, horticultural, viticultural, and
dairy products;
(B) livestock and the products of livestock;
(C) the products of poultry and bee raising;
(D) the products of forestry;
(E) other commodities raised or produced on farms,
as determined appropriate by the Secretary; and
(F) products processed or manufactured from products
specified in the preceding subparagraphs, as determined
appropriate by the Secretary.
(2) Board.--The term ``board'' means a board established
under an order issued under
section 514.
(3) Conflict of interest.--The term ``conflict of interest''
means a situation in which
a member or employee of a board has a
direct or indirect financial
interest in a person that performs
a service for, or enters
into a contract with, a board for
anything of economic value.
(4) Department.--The term ``Department'' means the
Department of Agriculture.
(5) First handler.--The term ``first handler'' means the
first person who buys or
takes possession of an agricultural
commodity from a producer
for marketing. If a producer markets
the agricultural commodity
directly to consumers, the
producer shall be considered
to be the first handler with
respect to the agricultural
commodity produced by the producer.
(6) Importer.--The term ``importer'' means any person who
imports an agricultural
commodity from outside the United States
for sale in the United States
as a principal or as an agent,
broker, or consignee of
any person.
(7) Information.--The term ``information'' means information
and programs that are designed
to increase--
(A) efficiency in processing; and
(B) the development of new markets, marketing
strategies, increased marketing efficiency, and
activities to enhance the image of agricultural
commodities on a national or international basis.
(8) Market.--The term ``market'' means to sell or to
otherwise dispose of an
agricultural commodity in interstate,
foreign, or intrastate commerce.
(9) Order.--The term ``order'' means an order issued by the
Secretary under section
514 that provides for a program of
generic promotion, research,
and information regarding
agricultural commodities
designed to--
(A) strengthen the position of agricultural
commodity industries in the marketplace;
(B) maintain and expand existing domestic and
foreign markets and uses for agricultural commodities;
(C) develop new markets and uses for agricultural
commodities; or
(D) assist producers in meeting their conservation
objectives.
(10) Person.--The term ``person'' means any individual,
group of individuals, partnership,
corporation, association,
cooperative, or any other
legal entity.
(11) Producer.--The term ``producer'' means any person who
is engaged in the production
and sale of an agricultural
commodity in the United
States and who owns, or shares the
ownership and risk of loss
of, the agricultural commodity.
(12) Promotion.--The term ``promotion'' means any action
taken by a board under an
order, including paid advertising, to
present a favorable image
of an agricultural commodity to the
public to improve the competitive
position of the agricultural
commodity in the marketplace
and to stimulate sales of the
agricultural commodity.
(13) Research.--The term ``research'' means any type of
test, study, or analysis
designed to advance the image,
desirability, use, marketability,
production, product
development, or quality
of an agricultural commodity.
(14) Secretary.--The term ``Secretary'' means the Secretary
of Agriculture.
(15) State.--The term ``State'' means any of the States, the
District of Columbia, the
Commonwealth of Puerto Rico, or any
territory or possession
of the United States.
(16) Suspend.--The term ``suspend'' means to issue a rule
under section 553 of title
5, United States Code, to temporarily
prevent the operation of
an order during a particular period of
time specified in the rule.
(17) Terminate.--The term ``terminate'' means to issue a
rule under section 553 of
title 5, United States Code, to
cancel permanently the operation
of an order beginning on a date
certain specified in the
rule.
(18) United states.--The term ``United States'' means
collectively the 50 States,
the District of Columbia, the
Commonwealth of Puerto Rico
and the territories and possessions
of the United States.
SEC. 514. <<NOTE: 7 USC 7413.>> ISSUANCE OF ORDERS.
(a) Issuance Authorized.--
(1) In general.--To effectuate the purpose of this subtitle,
the Secretary may issue,
and amend from time to time, orders
applicable to--
(A) the producers of an agricultural commodity;
(B) the first handlers of the agricultural commodity
and other persons in the marketing chain as appropriate;
and
(C) the importers of the agricultural commodity, if
imports of the agricultural commodity are subject to
assessment under section 516(f).
(2) National scope.--Each order issued under this section
shall be national in scope.
(b) Procedure for Issuance.--
(1) Development or receipt of proposed order.--A proposed
order with respect to an
agricultural commodity may be--
(A) prepared by the Secretary at any time; or
(B) submitted to the Secretary by--
(i) an association of producers of the
agricultural commodity; or
(ii) any other person that may be affected by
the issuance of an order with respect to the
agricultural commodity.
(2) <<NOTE: Federal Register, publication.>> Consideration
of proposed order.--If the
Secretary determines that a proposed
order is consistent with
and will effectuate the purpose of this
subtitle, the Secretary
shall publish the proposed order in the
Federal Register and give
due notice and opportunity for public
comment on the proposed
order.
(3) Existence of other orders.--In deciding whether a
proposal for an order is
consistent with and will effectuate the
purpose of this subtitle,
the Secretary may consider the
existence of other Federal
promotion, research, and information
programs or orders issued
or developed pursuant to any other
law.
(4) Preparation of final order.--After notice and
opportunity for public comment
under paragraph (2) regarding a
proposed order, the Secretary
shall take into consideration the
comments received in preparing
a final order. The Secretary
shall ensure that the final
order is in conformity with the
terms, conditions, and requirements
of this subtitle.
(c) Issuance and Effective Date.--If the Secretary
determines that
the final order developed with respect to an agricultural commodity
is
consistent with and will effectuate the purpose of this subtitle, the
Secretary shall issue the final order. Except in the case of an order
for which an initial referendum is conducted under section 518(a),
the
final order shall be issued and become effective not later than 270
days
after the date of publication of the proposed order that was the basis
for
the final order.
(d) Amendments.--From time to time the Secretary
may amend any
order, consistent with the requirements of section 523.
SEC. 515. <<NOTE: 7 USC 7414.>> REQUIRED TERMS IN ORDERS.
(a) In General.--Each order shall contain the terms
and conditions
specified in this section.
(b) Board.--
(1) Establishment.--Each order shall establish a board to
carry out a program of generic
promotion, research, and
information regarding the
agricultural commodity covered by the
order and intended to effectuate
the purpose of this subtitle.
(2) Board membership.--
(A) Number of members.--Each board shall consist of
the number of members considered by the Secretary, in
consultation with the agricultural commodity industry
involved, to be appropriate to administer the order. In
addition to members, the Secretary may also provide for
alternates on the board.
(B) Appointment.--The Secretary shall appoint the
members and any alternates of a board from among
producers of the agricultural commodity and first
handlers and others in the marketing chain as
appropriate. If imports of the agricultural commodity
covered by an order are subject to assessment under
section 516(f), the Secretary shall also appoint
importers as members of the board and as alternates if
alternates are included on the board. The Secretary may
appoint 1 or more members of the general public to each
board.
(C) Nominations.--The Secretary may make
appointments from nominations made pursuant to the
method set forth in the order.
(D) Geographical representation.--To ensure fair and
equitable representation of the agricultural commodity
industry covered by an order, the composition of each
board shall reflect the geographical distribution of the
production of the agricultural commodity involved in the
United States and the quantity or value of the
agricultural commodity imported into the United States.
(3) Reapportionment of board membership.--In accordance with
rules issued by the Secretary,
at least once in each 5-year
period, but not more frequently
than once in each 3-year period,
each board shall--
(A) review the geographical distribution in the
United States of the production of the agricultural
commodity covered by the order involved and the quantity
or value of the agricultural commodity imported into the
United States; and
(B) if warranted, recommend to the Secretary the
reapportionment of the board membership to reflect
changes in the geographical distribution of the
production of the agricultural commodity and the
quantity or value of the imported agricultural
commodity.
(4) Notice.--
(A) Vacancies.--Each order shall provide for notice
of board vacancies to the agricultural commodity
industry involved.
(B) Meetings.--Each board shall provide the
Secretary with prior notice of meetings of the board to
permit the Secretary, or a designated representative of
the Secretary, to attend the meetings.
(5) Term of office.--
(A) In general.--The members and any alternates of a
board shall each serve for a term of 3 years, except
that the members and any alternates initially appointed
to a board shall serve for terms of not more than 2, 3,
and 4 years, as specified by the order.
(B) Limitation on consecutive terms.--A member or
alternate may serve not more than 2 consecutive terms.
(C) Continuation of term.--Notwithstanding
subparagraph (B), each member or alternate shall
continue to serve until a successor is appointed by the
Secretary.
(D) Vacancies.--A vacancy arising before the
expiration of a term of office of an incumbent member or
alternate of a board shall be filled in a manner
provided for in the order.
(6) Compensation.--
(A) In general.--Members and any alternates of a
board shall serve without compensation.
(B) Travel expenses.--If approved by a board,
members or alternates shall be reimbursed for reasonable
travel expenses, which may include a per diem allowance
or actual subsistence incurred while away from their
homes or regular places of business in the performance
of services for the board.
(c) Powers and Duties of a Board.--Each order shall
specify the
powers and duties of the board established under the order, which shall
include the power and duty--
(1) to administer the order in accordance with its terms and
conditions and to collect
assessments;
(2) to develop and recommend to the Secretary for approval
such bylaws as may be necessary
for the functioning of the board
and such rules as may be
necessary to administer the order,
including activities authorized
to be carried out under the
order;
(3) to meet, organize, and select from among the members of
the board a chairperson,
other officers, and committees and
subcommittees, as the board
determines to be appropriate;
(4) to employ persons, other than the members, as the board
considers necessary to assist
the board in carrying out its
duties, and to determine
the compensation and specify the duties
of the persons;
(5) subject to subsection (e), to develop and carry out
generic promotion, research,
and information activities relating
to the agricultural commodity
covered by the order;
(6) to prepare and submit for the approval of the Secretary,
before the beginning of
each fiscal year, rates of assessment
under section 517 and an
annual budget of the anticipated
expenses to be incurred
in the administration of the order,
including the probable cost
of each promotion, research, and
information activity proposed
to be developed or carried out by
the board;
(7) to borrow funds necessary for the startup expenses of
the order;
(8) subject to subsection (f), to enter into contracts or
agreements to develop and
carry out generic promotion, research,
and information activities
relating to the agricultural
commodity covered by the
order;
(9) to pay the cost of the activities with assessments
collected under section
517, earnings from invested assessments,
and other funds;
(10) <<NOTE: Records.>> to keep records that accurately
reflect the actions and
transactions of the board, to keep and
report minutes of each meeting
of the board to the Secretary,
and to furnish the Secretary
with any information or records the
Secretary requests;
(11) to receive, investigate, and report to the Secretary
complaints of violations
of the order; and
(12) to recommend to the Secretary such amendments to the
order as the board considers
appropriate.
(d) Prohibited Activities.--A board may not engage
in, and shall
prohibit the employees and agents of the board from engaging in--
(1) any action that would be a conflict of interest;
(2) using funds collected by the board under the order, any
action undertaken for the
purpose of influencing any legislation
or governmental action or
policy other than recommending to the
Secretary amendments to
the order; and
(3) any advertising, including promotion, research, and
information activities authorized
to be carried out under the
order, that may be false
or misleading or disparaging to another
agricultural commodity.
(e) Activities and Budgets.--
(1) Activities.--Each order shall require the board
established under the order
to submit to the Secretary for
approval plans and projects
for promotion, research, or
information relating to
the agricultural commodity covered by
the order.
(2) Budgets.--
(A) Submission to secretary.--Each order shall
require the board established under the order to submit
to the Secretary for approval a budget of its
anticipated annual expenses and disbursements to be paid
to administer the order. The budget shall be submitted
before the beginning of a fiscal year and as frequently
as may be necessary after the beginning of the fiscal
year.
(B) Reimbursement of secretary.--Each order shall
require that the Secretary be reimbursed for all
expenses incurred by the Secretary in the
implementation, administration, and supervision of the
order, including all referenda costs incurred in
connection with the order.
(3) Incurring expenses.--A board may incur the expenses
described in paragraph (2)
and other expenses for the
administration, maintenance,
and functioning of the board as
authorized by the Secretary.
(4) Payment of expenses.--Expenses incurred under paragraph
(3) shall be paid by a board
using assessments collected under
section 517, earnings obtained
from assessments, and
other income of the board.
Any funds borrowed by the board shall
be expended only for startup
costs and capital outlays.
(5) Limitation on spending.--For fiscal years beginning 3 or
more years after the date
of the establishment of a board, the
board may not expend for
administration (except for
reimbursements to the Secretary
required under paragraph
(2)(B)), maintenance, and
functioning of the board in a fiscal
year an amount that exceeds
15 percent of the assessment and
other income received by
the board for the fiscal year.
(f) Contracts and Agreements.--
(1) In general.--Each order shall provide that, with the
approval of the Secretary,
the board established under the order
may--
(A) enter into contracts and agreements to carry out
generic promotion, research, and information activities
relating to the agricultural commodity covered by the
order, including contracts and agreements with producer
associations or other entities as considered appropriate
by the Secretary; and
(B) pay the cost of approved generic promotion,
research, and information activities using assessments
collected under section 517, earnings obtained from
assessments, and other income of the board.
(2) Requirements.--Each contract or agreement shall provide
that any person who enters
into the contract or agreement with
the board shall--
(A) develop and submit to the board a proposed
activity together with a budget that specifies the cost
to be incurred to carry out the activity;
(B) <<NOTE: Records.>> keep accurate records of all
of its transactions relating to the contract or
agreement;
(C) account for funds received and expended in
connection with the contract or agreement;
(D) make periodic reports to the board of activities
conducted under the contract or agreement; and
(E) make such other reports as the board or the
Secretary considers relevant.
(g) Records of Board.--
(1) In general.--Each order shall require the board
established under the order--
(A) to maintain such records as the Secretary may
require and to make the records available to the
Secretary for inspection and audit;
(B) to collect and submit to the Secretary, at any
time the Secretary may specify, any information the
Secretary may request; and
(C) to account for the receipt and disbursement of
all funds in the possession, or under the control, of
the board.
(2) Audits.--Each order shall require the board established
under the order to have--
(A) its records audited by an independent auditor at
the end of each fiscal year; and
(B) <<NOTE: Reports.>> a report of the audit
submitted directly to the Secretary.
(h) Periodic Evaluation.--In accordance with section
501(c), each
order shall require the board established under the order
to provide for the independent evaluation of all generic promotion,
research, and information activities undertaken under the order.
(i) Books and Records of Persons Covered by Order.--
(1) In general.--Each order shall require that producers,
first handlers and other
persons in the marketing chain as
appropriate, and importers
covered by the order shall--
(A) maintain records sufficient to ensure compliance
with the order and regulations;
(B) submit to the board established under the order
any information required by the board to carry out its
responsibilities under the order; and
(C) make the records described in subparagraph (A)
available, during normal business hours, for inspection
by employees or agents of the board or the Department,
including any records necessary to verify information
required under subparagraph (B).
(2) Time requirement.--Any record required to be maintained
under paragraph (1) shall
be maintained for such time period as
the Secretary may prescribe.
(3) Other information.--The Secretary may use, and may
authorize the board to use
under this subtitle, information
regarding persons subject
to an order that is collected by the
Department under any other
law.
(4) Confidentiality of information.--
(A) In general.--Except as otherwise provided in
this subtitle, all information obtained under paragraph
(1) or as part of a referendum under section 518 shall
be kept confidential by all officers, employees, and
agents of the Department and of the board.
(B) Disclosure.--Information referred to in
subparagraph (A) may be disclosed only if--
(i) the Secretary considers the information
relevant; and
(ii) the information is revealed in a judicial
proceeding or administrative hearing brought at
the direction or on the request of the Secretary
or to which the Secretary or any officer of the
Department is a party.
(C) Other exceptions.--This paragraph shall not
prohibit--
(i) the issuance of general statements based
on reports or on information relating to a number
of persons subject to an order 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 violating any
order and a statement of the particular provisions
of the order violated by the person.
(D) Penalty.--Any person who willfully violates this
subsection shall be subject, on conviction, to a fine of
not more than $1,000 or to imprisonment for not more
than 1 year, or both.
(5) Withholding information.--This subsection shall not
authorize the withholding
of information from Congress.
SEC. 516. <<NOTE: 7 USC 7415.>> PERMISSIVE TERMS IN ORDERS.
(a) Exemptions.--An order issued under this subtitle
may contain--
(1) authority for the Secretary to exempt from the order any
de minimis quantity of an
agricultural commodity otherwise
covered by the order; and
(2) authority for the board established under the order to
require satisfactory safeguards
against improper use of the
exemption.
(b) Different Payment and Reporting Schedules.--An
order issued
under this subtitle may contain authority for the board established
under the order to designate different payment and reporting schedules
to recognize differences in agricultural commodity industry marketing
practices and procedures used in different production and importing
areas.
(c) Activities.--An order issued under this subtitle
may contain
authority to develop and carry out research, promotion, and information
activities designed to expand, improve, or make more efficient the
marketing or use of the agricultural commodity covered by the order
in
domestic and foreign markets. Section 515(e) shall apply with respect
to
activities authorized under this subsection.
(d) Reserve Funds.--An order issued under this subtitle
may contain
authority to reserve funds from assessments collected under section
517
to permit an effective and continuous coordinated program of research,
promotion, and information in years when the yield from assessments
may
be reduced, except that the amount of funds reserved may not exceed
the
greatest aggregate amount of the anticipated disbursements specified
in
budgets approved under section 515(e) by the Secretary for any 2 fiscal
years.
(e) Credits.--
(1) Generic activities.--An order issued under this subtitle
may contain authority to
provide credits of assessments for
those individuals who contribute
to other similar generic
research, promotion, and
information programs at the State,
regional, or local level.
(2) Branded activities.--
(A) In general.--The Secretary may permit a farmer
cooperative that engages in branded activities relating
to the marketing of the products of members of the
cooperative to receive an annual credit for the
activities and related expenditures in the form of a
deduction of the total cost of the activities and
related expenditures from the amount of any assessment
that would otherwise be required to be paid by the
producer members of the cooperative under an order
issued under this subtitle.
(B) Election by cooperative.--A farmer cooperative
may elect to voluntarily waive the application of
subparagraph (A) to the cooperative.
(f) Assessment of Imports.--An order issued under
this subtitle may
contain authority for the board established under the order to assess
under section 517 an imported agricultural commodity, or products of
such an agricultural commodity, at a rate comparable to the rate
determined by the appropriate board for the domestic agricultural
commodity covered by the order.
(g) Other Authority.--An order issued under this
subtitle may
contain authority to take any other action that--
(1) is not inconsistent with the purpose of this subtitle,
any term or condition specified
in section 515, or any rule
issued to carry out this
subtitle; and
(2) is necessary to administer the order.
SEC. 517. <<NOTE: 7 USC 7416.>> ASSESSMENTS.
(a) Assessments Authorized.--While an order issued
under this
subtitle is in effect with respect to an agricultural commodity,
assessments shall be--
(1) paid by first handlers with respect to the agricultural
commodity produced and marketed
in the United States; and
(2) paid by importers with respect to the agricultural
commodity imported into
the United States, if the imported
agricultural commodity is
covered by the order pursuant to
section 516(f).
(b) Collection.--Assessments required under an order
shall be
remitted to the board established under the order at the time and in
the
manner prescribed by the order.
(c) Limitation on Assessments.--Not more than 1
assessment may be
levied on a first handler or importer under subsection (a) with respect
to any agricultural commodity.
(d) Assessment Rates.--The board shall recommend
to the Secretary 1
or more rates of assessment to be levied under subsection (a). If
approved by the Secretary, the rates shall take effect. An order may
provide that an assessment rate may not be increased unless approved
by
a referendum conducted pursuant to section 518.
(e) Late-Payment and Interest Charges.--
(1) In general.--Late-payment and interest charges may be
levied on each person subject
to an order who fails to remit an
assessment in accordance
with subsection (b).
(2) Rate.--The rate for the charges shall be specified by
the Secretary.
(f) Investment of Assessments.--Pending disbursement
of assessments
under a budget approved by the Secretary, a board may invest assessments
collected under this section in--
(1) obligations of the United States or any agency of the
United States;
(2) general obligations of any State or any political
subdivision of a State;
(3) interest-bearing accounts or certificates of deposit of
financial institutions that
are members of the Federal Reserve
System; or
(4) obligations fully guaranteed as to principal and
interest by the United States.
(g) Refund of Assessments From Escrow Account.--
(1) Escrow account.--During the period beginning on the
effective date of an order
and ending on the date the Secretary
announces the results of
a referendum that is conducted under
section 518(b)(1) with respect
to the order, the board
established under the order
shall--
(A) establish and maintain an escrow account of the
kind described in subsection (f)(3) to be used to refund
assessments; and
(B) deposit funds in the account in accordance with
paragraph (2).
(2) Amount to be deposited.--The board shall deposit in the
account an amount equal
to 10 percent of the assessments
collected during the period
referred to in paragraph (1).
(3) Right to receive refund.--Subject to paragraphs (4),
(5), and (6), persons subject
to an order shall be eligible to
demand a refund of assessments
collected during the period
referred to in paragraph
(1) if--
(A) the assessments were remitted on behalf of the
person; and
(B) the order is not approved in the referendum.
(4) Form of demand.--The demand for a refund shall be made
at such time and in such
form as specified by the order.
(5) Payment of refund.--A person entitled to a refund shall
be paid promptly after the
board receives satisfactory proof
that the assessment for
which the refund is demanded was paid on
behalf of the person who
makes the demand.
(6) Proration.--If the funds in the escrow account required
by paragraph (1) are insufficient
to pay the amount of all
refunds that persons subject
to an order otherwise would have a
right to receive under this
subsection, the board shall prorate
the amount of the funds
among all the persons.
(7) Closing of escrow account.--If the order is approved in
a referendum conducted under
section 518(b)(1)--
(A) the escrow account shall be closed; and
(B) the funds shall be available to the board for
disbursement as authorized in the order.
SEC. 518. <<NOTE: 7 USC 7417.>> REFERENDA.
(a) Initial Referendum.--
(1) Optional referendum.--For the purpose of ascertaining
whether the persons to be
covered by an order favor the order
going into effect, the order
may provide for the Secretary to
conduct an initial referendum
among persons to be subject to an
assessment under section
517 who, during a representative period
determined by the Secretary,
engaged in--
(A) the production or handling of the agricultural
commodity covered by the order; or
(B) the importation of the agricultural commodity.
(2) Procedure.--The results of the referendum shall be
determined in accordance
with subsection (e). The Secretary may
require that the agricultural
commodity industry involved post a
bond or other collateral
to cover the cost of the referendum.
(b) Required Referenda.--
(1) In general.--For the purpose of ascertaining whether the
persons covered by an order
favor the continuation, suspension,
or termination of the order,
the Secretary shall conduct a
referendum among persons
subject to assessments under section
517 who, during a representative
period determined by the
Secretary, have engaged
in--
(A) the production or handling of the agricultural
commodity covered by the order; or
(B) the importation of the agricultural commodity.
(2) Time for referendum.--The referendum shall be conducted
not later than 3 years after
assessments first begin under the
order.
(3) Exception.--This subsection shall not apply if an
initial referendum was conducted
under subsection (a).
(c) Subsequent Referenda.--The Secretary shall conduct
a subsequent
referendum--
(1) not later than 7 years after assessments first begin
under the order;
(2) at the request of the board established under the order;
or
(3) at the request of 10 percent or more of the number of
persons eligible to vote
under subsection (b)(1);
to determine if the persons favor the continuation, suspension, or
termination of the order.
(d) Other Referenda.--The Secretary may conduct
a referendum at any
time to determine whether the continuation, suspension, or termination
of the order or a provision of the order is favored by persons eligible
to vote under subsection (b)(1).
(e) Approval of Order.--An order may provide for
its approval in a
referendum--
(1) by a majority of those persons voting;
(2) by persons voting for approval who represent a majority
of the volume of the agricultural
commodity; or
(3) by a majority of those persons voting for approval who
also represent a majority
of the volume of the agricultural
commodity.
(f) Costs of Referenda.--The board established under
an order with
respect to which a referendum is conducted under this section shall
reimburse the Secretary for any expenses incurred by the Secretary
to
conduct the referendum.
(g) Manner of Conducting Referenda.--
(1) In general.--A referendum conducted under this section
shall be conducted in the
manner determined by the Secretary to
be appropriate.
(2) Advance registration.--If the Secretary determines that
an advance registration
of eligible voters in a referendum is
necessary before the voting
period in order to facilitate the
conduct of the referendum,
the Secretary may institute the
advance registration procedures
by mail, or in person through
the use of national and
local offices of the Department.
(3) Voting.--Eligible voters may vote by mail ballot in the
referendum or in person
if so prescribed by the Secretary.
(4) Notice.--Not later than 30 days before a referendum is
conducted under this section
with respect to an order, the
Secretary shall notify the
agricultural commodity industry
involved, in such manner
as determined by the Secretary, of the
period during which voting
in the referendum will occur. The
notice shall explain any
registration and voting procedures
established under this subsection.
SEC. 519. <<NOTE: 7 USC 7418.>> PETITION AND REVIEW OF ORDERS.
(a) Petition.--
(1) In general.--A person subject to an order issued under
this subtitle 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 established in accordance with law; and
(B) requesting a modification of the order or an
exemption from the order.
(2) Hearing.--The Secretary shall give the petitioner an
opportunity for a hearing
on the petition, in accordance with
regulations issued by the
Secretary.
(3) Ruling.--After the hearing, the Secretary shall make a
ruling on the petition.
The ruling shall be final, subject to
review as set forth in subsection
(b).
(4) Limitation on petition.--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) <<NOTE: Courts.>> Commencement of action.--The district
court of the United States
for any district in which a person
who is a petitioner under
subsection (a) resides or carries on
business shall have jurisdiction
to review the final ruling on
the petition of the person,
if a complaint for that purpose is
filed not later than 20
days after the date of the entry of the
final ruling by the Secretary
under subsection (a)(3).
(2) Process.--Service of process in a proceeding may be made
on the Secretary by delivering
a copy of the complaint to the
Secretary.
(3) Remands.--If the court determines that the ruling 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 determines to
be in accordance with law; or
(B) to take such further action as, in the opinion
of the court, the law requires.
(c) Effect on Enforcement Proceedings.--The pendency
of a petition
filed under subsection (a) or an action commenced under subsection
(b)
shall not operate as a stay of any action authorized by section 520
to
be taken to enforce this subtitle, including any rule, order, or penalty
in effect under this subtitle.
SEC. 520. <<NOTE: 7 USC 7419.>> ENFORCEMENT.
(a) <<NOTE: Courts.>> Jurisdiction.--The
district courts of the
United States shall have jurisdiction specifically to enforce, and
to
prevent and restrain a person from violating, an order or regulation
issued under this subtitle.
(b) Referral to Attorney General.--A civil action
authorized to be
brought under this section shall be referred to the Attorney General
for
appropriate action, except that the Secretary shall not be required
to
refer to the Attorney General a violation of this subtitle if the
Secretary believes that the administration and enforcement of this
subtitle would be adequately served by providing a suitable written
notice or warning to the person who committed the violation or by an
administrative action under this section.
(c) Civil Penalties and Orders.--
(1) Civil penalties.--A person who willfully violates an
order or regulation issued
by the Secretary under this Act
may be assessed by the Secretary
a civil penalty of not less
than $1,000 and not more
than $10,000 for each violation.
(2) Separate offense.--Each violation and each day during
which there is a failure
to comply with an order or regulation
issued by the Secretary
shall be considered to be a separate
offense.
(3) Cease-and-desist orders.--In addition to, or in lieu of,
a civil penalty, the Secretary
may issue an order requiring a
person to cease and desist
from violating the order or
regulation.
(4) Notice and hearing.--No order assessing a penalty or
cease-and-desist order may
be issued by the Secretary under this
subsection unless the Secretary
provides notice and an
opportunity for a hearing
on the record with respect to the
violation.
(5) Finality.--An order assessing a penalty or a cease-and-
desist order issued under
this subsection by the Secretary shall
be final and conclusive
unless the person against whom the order
is issued files an appeal
from the order with the United States
court of appeals, as provided
in subsection (d).
(d) Review by Court of Appeals.--
(1) In general.--A person against whom an order is issued
under subsection (c) may
obtain review of the order by--
(A) filing, not later than 30 days after the person
receives notice of the order, a notice of appeal in--
(i) the United States court of appeals for the
circuit in which the person resides or carries on
business; or
(ii) the United States Court of Appeals for
the District of Columbia Circuit; and
(B) simultaneously sending a copy of the notice of
appeal by certified mail to the Secretary.
(2) Record.--The Secretary shall file with the court a
certified copy of the record
on which the Secretary has
determined that the person
has committed a violation.
(3) Standard of review.--A finding of the Secretary under
this section shall be set
aside only if the finding is found to
be unsupported by substantial
evidence on the record.
(e) Failure To Obey Cease-and-Desist Orders.--A person
who fails to
obey a valid cease-and-desist order issued by the Secretary under this
section, after an opportunity for a hearing, shall be subject to a
civil
penalty assessed by the Secretary of not less than $1,000 and not more
than $10,000 for each offense. Each day during which the failure
continues shall be considered to be a separate violation of the cease-
and-desist order.
(f) Failure To Pay Penalties.--If a person fails
to pay a civil
penalty imposed under this section by the Secretary, the Secretary
shall
refer the matter to the Attorney General for recovery of the amount
assessed in the district court of the United States for any district
in
which the person resides or carries on business. In the action, the
validity and appropriateness of the order imposing the civil penalty
shall not be subject to review.
(g) Additional Remedies.--The remedies provided
in this section
shall be in addition to, and not exclusive of, other remedies that
may
be available.
SEC. 521. <<NOTE: 7 USC 7420.>> INVESTIGATIONS AND POWER TO SUBPOENA.
(a) Investigations.--The Secretary may make such
investigations as
the Secretary considers necessary--
(1) for the effective administration of this subtitle; or
(2) to determine whether any person subject to this subtitle
has engaged, or is about
to engage, in any action that
constitutes or will constitute
a violation of this subtitle or
any order or regulation
issued under this subtitle.
(b) Subpoenas, Oaths, and Affirmations.--For the
purpose of any
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
or
documents that are relevant to the inquiry. The attendance of witnesses
and the production of records or documents may be required from any
place in the United States.
(c) Aid of Courts.--In the case of contumacy by,
or refusal to obey
a subpoena issued 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 carried on, or where the person resides
or carries on business, in order to require the attendance and testimony
of the person or the production of records or documents. The court
may
issue an order requiring the person to appear before the Secretary
to
produce records or documents or to give testimony regarding the matter
under investigation.
(d) Contempt.--Any failure to obey the order of
the court may be
punished by the court as a contempt of the court.
(e) Process.--Process in any case under this section
may be served
in the judicial district in which the person resides or carries on
business or wherever the person may be found.
SEC. 522. <<NOTE: 7 USC 7421.>> SUSPENSION OR TERMINATION.
(a) Mandatory Suspension or Termination.--The Secretary
shall
suspend or terminate an order or a provision of an order if the
Secretary finds that an order or a provision of an order obstructs
or
does not tend to effectuate the purpose of this subtitle, or if the
Secretary determines that the order or a provision of an order is not
favored by persons voting in a referendum conducted under section 518.
(b) Implementation of Suspension or Termination.--If,
as a result of
a referendum conducted under section 518, the Secretary determines
that
an order is not approved, the Secretary shall--
(1) not later than 180 days after making the determination,
suspend or terminate, as
the case may be, collection of
assessments under the order;
and
(2) as soon as practicable, suspend or terminate, as the
case may be, activities
under the order in an orderly manner.
SEC. 523. <<NOTE: 7 USC 7422.>> AMENDMENTS TO ORDERS.
The provisions of this subtitle applicable to an
order shall be
applicable to any amendment to an order, except that section 518 shall
not apply to an amendment.
SEC. 524. <<NOTE: 7 USC 7423.>> EFFECT ON OTHER LAWS.
This subtitle shall not affect or preempt any other
Federal or State
law authorizing promotion or research relating to an agricultural
commodity.
SEC. 525. <<NOTE: 7 USC 7424.>> REGULATIONS.
The Secretary may issue such regulations as may be
necessary to
carry out this subtitle and the power vested in the Secretary under
this
subtitle.
SEC. 526. <<NOTE: 7 USC 7425.>> AUTHORIZATION OF APPROPRIATIONS.
(a) In General.--There are authorized to be appropriated
such sums
as may be necessary to carry out this subtitle.
(b) Limitation on Expenditures for Administrative
Expenses.--Funds
appropriated to carry out this subtitle may not be expended for the
payment of expenses incurred by a board to administer an order.
Subtitle C-- <<NOTE: Canola
and Rapeseed Research, Promotion, and
Consumer Information Act.>> Canola and Rapeseed
SEC. 531. <<NOTE: 7 USC 7401 note.>> SHORT TITLE.
This subtitle may be cited as the ``Canola and Rapeseed
Research,
Promotion, and Consumer Information Act''.
SEC. 532. <<NOTE: 7 USC 7441.>> FINDINGS AND DECLARATION OF POLICY.
(a) Findings.--Congress finds that--
(1) canola and rapeseed products are an important and
nutritious part of the human
diet;
(2) the production of canola and rapeseed products plays a
significant role in the
economy of the United States in that--
(A) canola and rapeseed products are produced by
thousands of canola and rapeseed producers and processed
by numerous processing entities; and
(B) canola and rapeseed products produced in the
United States are consumed by people throughout the
United States and foreign countries;
(3) canola, rapeseed, and canola and rapeseed products
should be readily available
and marketed efficiently to ensure
that consumers have an adequate
supply of canola and rapeseed
products at a reasonable
price;
(4) the maintenance and expansion of existing markets and
development of new markets
for canola, rapeseed, and canola and
rapeseed products are vital
to the welfare of canola and
rapeseed producers and processors
and those persons concerned
with marketing canola, rapeseed,
and canola and rapeseed
products, as well as to
the general economy of the United
States, and are necessary
to ensure the ready availability and
efficient marketing of canola,
rapeseed, and canola and rapeseed
products;
(5) there exist established State and national organizations
conducting canola and rapeseed
research, promotion, and consumer
education programs that
are valuable to the efforts of promoting
the consumption of canola,
rapeseed, and canola and rapeseed
products;
(6) the cooperative development, financing, and
implementation of a coordinated
national program of canola and
rapeseed research, promotion,
consumer information, and industry
information is necessary
to maintain and expand existing markets
and develop new markets
for canola, rapeseed, and canola and
rapeseed products; and
(7) canola, rapeseed, and canola and rapeseed products move
in interstate and foreign
commerce, and canola, rapeseed,
and canola and rapeseed
products that do not move in interstate
or foreign commerce directly
burden or affect interstate
commerce in canola, rapeseed,
and canola and rapeseed products.
(b) Policy.--It is the policy of this subtitle to
establish an
orderly procedure for developing, financing through assessments on
domestically produced canola and rapeseed, and implementing a program
of
research, promotion, consumer information, and industry information
designed to strengthen the position in the marketplace of the canola
and
rapeseed industry, to maintain and expand existing domestic and foreign
markets and uses for canola, rapeseed, and canola and rapeseed products,
and to develop new markets and uses for canola, rapeseed, and canola
and
rapeseed products.
(c) Construction.--Nothing in this subtitle provides
for the control
of production or otherwise limits the right of individual producers
to
produce canola, rapeseed, or canola or rapeseed products.
SEC. 533. <<NOTE: 7 USC 7442.>> DEFINITIONS.
In this subtitle (unless the context otherwise requires):
(1) Board.--The term ``Board'' means the National Canola and
Rapeseed Board established
under section 535(b).
(2) Canola; rapeseed.--The terms ``canola'' and ``rapeseed''
mean any brassica plant
grown in the United States for the
production of an oilseed,
the oil of which is used for a food or
nonfood use.
(3) Canola or rapeseed product.--The term ``canola or
rapeseed product'' means
a product produced, in whole or in
part, from canola or rapeseed.
(4) Commerce.--The term ``commerce'' includes interstate,
foreign, and intrastate
commerce.
(5) Conflict of interest.--The term ``conflict of interest''
means a situation in which
a member of the Board has a direct or
indirect financial interest
in a corporation, partnership, sole
proprietorship, joint venture,
or other business entity dealing
directly or indirectly with
the Board.
(6) Consumer information.--The term ``consumer information''
means information that will
assist consumers and other persons
in making evaluations and
decisions regarding the purchase,
preparation, and use of
canola, rapeseed, or canola or rapeseed
products.
(7) Department.--The term ``Department'' means the
Department of Agriculture.
(8) First purchaser.--The term ``first purchaser'' means--
(A) except as provided in subparagraph (B), a person
who buys or otherwise acquires canola, rapeseed, or
canola or rapeseed products produced by a producer; or
(B) the Commodity Credit Corporation, in a case in
which canola or rapeseed is forfeited to the Commodity
Credit Corporation as collateral for a loan issued under
a price support loan program administered by the
Commodity Credit Corporation.
(9) Industry information.--The term ``industry information''
means information or a program
that will lead to the development
of new markets, new marketing
strategies, or increased
efficiency for the canola
and rapeseed industry, or an activity
to enhance the image of
the canola or rapeseed industry.
(10) Industry member.--The term ``industry member'' means a
member of the canola and
rapeseed industry who represents--
(A) manufacturers of canola or rapeseed products; or
(B) persons who commercially buy or sell canola or
rapeseed.
(11) Marketing.--The term ``marketing'' means the sale or
other disposition of canola,
rapeseed, or canola or rapeseed
products in a channel of
commerce.
(12) Order.--The term ``order'' means an order issued under
section 534.
(13) Person.--The term ``person'' means an individual,
partnership, corporation,
association, cooperative, or any other
legal entity.
(14) Producer.--The term ``producer'' means a person engaged
in the growing of canola
or rapeseed in the United States who
owns, or who shares the
ownership and risk of loss of, the
canola or rapeseed.
(15) Promotion.--The term ``promotion'' means an action,
including paid advertising,
technical assistance, or a trade
servicing activity, to enhance
the image or desirability of
canola, rapeseed, or canola
or rapeseed products in domestic and
foreign markets, or an activity
designed to communicate to
consumers, processors, wholesalers,
retailers, government
officials, or other persons
information relating to the positive
attributes of canola, rapeseed,
or canola or rapeseed products
or the benefits of use or
distribution of canola, rapeseed, or
canola or rapeseed products.
(16) Research.--The term ``research'' means any type of
test, study, or analysis
to advance the image, desirability,
marketability, production,
product development, quality, or
functional or nutritional
value of canola, rapeseed, or canola
or rapeseed products, including
research activity designed to
identify and analyze barriers
to export sales of canola or
rapeseed produced in the
United States.
(17) Secretary.--The term ``Secretary'' means the Secretary
of Agriculture.
(18) State.--The term ``State'' means any of the 50 States,
the District of Columbia
and the Commonwealth of Puerto Rico.
(19) United states.--The term ``United States'' means
collectively the 50 States,
the District of Columbia, and the
Commonwealth of Puerto Rico.
SEC. 534. <<NOTE: 7 USC 7443.>> ISSUANCE AND AMENDMENT OF ORDERS.
(a) In General.--Subject to subsection (b), the Secretary
shall
issue 1 or more orders under this subtitle applicable to producers
and
first purchasers of canola, rapeseed, or canola or rapeseed products.
The order shall be national in scope. Not more than 1 order shall be
in
effect under this subtitle at any 1 time.
(b) Procedure.--
(1) Proposal or request for issuance.--The Secretary may
propose the issuance of
an order under this subtitle, or an
association of canola and
rapeseed producers or any other person
that would be affected by
an order issued pursuant to this
subtitle may request the
issuance of, and submit a proposal for,
an order.
(2) <<NOTE: Publication.>> Notice and comment concerning
proposed order.--Not later
than 60 days after the receipt of a
request and proposal for
an order pursuant to paragraph (1), or
whenever the Secretary determines
to propose an order, the
Secretary shall publish
a proposed order and give due notice and
opportunity for public comment
on the proposed order.
(3) Issuance of order.--After notice and opportunity for
public comment are given
as provided in paragraph (2), the
Secretary shall issue an
order, taking into consideration the
comments received and including
in the order provisions
necessary to ensure that
the order is in conformity with the
requirements of this subtitle.
<<NOTE: Effective date.>> The
order shall be issued and
become effective not later than 180
days following publication
of the proposed order.
(c) Amendments.--The Secretary may amend an order
issued under this
section.
SEC. 535. <<NOTE: 7 USC 7444.>> REQUIRED TERMS IN ORDERS.
(a) In General.--An order issued under this subtitle
shall contain
the terms and conditions specified in this section.
(b) Establishment and Membership of the National
Canola and Rapeseed
Board.--
(1) In general.--The order shall provide for the
establishment of, and appointment
of members to, a National
Canola and Rapeseed Board
to administer the order.
(2) Service to entire industry.--The Board shall carry out
programs and projects that
will provide maximum benefit to the
canola and rapeseed industry
in all parts of the United States
and only promote canola,
rapeseed, or canola or rapeseed
products.
(3) Board membership.--The Board shall consist of 15
members, including--
(A) 11 members who are producers, including--
(i) 1 member from each of the 6 geographic
regions comprised of States where canola or
rapeseed is produced, as determined by the
Secretary; and
(ii) 5 members from the geographic regions
referred to in clause (i), allocated according to
the production in each region; and
(B) 4 members who are industry members, including at
least--
(i) 1 member who represents manufacturers of
canola or rapeseed end products; and
(ii) 1 member who represents persons who
commercially buy or sell canola or rapeseed.
(4) Limitation on state residence.--There shall be no more
than 4 producer members
of the Board from any 1 State.
(5) Modifying board membership.--In accordance with
regulations approved by
the Secretary, at least once each 3
years and not more than
once each 2 years, the Board shall
review the geographic distribution
of canola and rapeseed
production throughout the
United States and, if warranted,
recommend to the Secretary
that the Secretary--
(A) reapportion regions in order to reflect the
geographic distribution of canola and rapeseed
production; and
(B) reapportion the seats on the Board to reflect
the production in each region.
(6) Certification of organizations.--
(A) In general.--For the purposes of section 536,
the eligibility of any State organization to represent
producers shall be certified by the Secretary.
(B) Criteria.--The Secretary shall certify any State
organization that the Secretary determines has a history
of stability and permanency and meets at least 1 of the
following criteria:
(i) Majority representation.--The total paid
membership of the organization--
(I) is comprised of at least a
majority of canola or rapeseed
producers; or
(II) represents at least a majority
of the canola or rapeseed producers in
the State.
(ii) Substantial number of producers
represented.--The organization represents a
substantial number of producers that produce a
substantial quantity of canola or rapeseed in the
State.
(iii) Purpose.--The organization is a general
farm or agricultural organization that has as a
stated objective the promotion and development of
the United States canola or rapeseed industry and
the economic welfare of United States canola or
rapeseed producers.
(C) Report.--The Secretary shall make a
certification under this paragraph on the basis of a
factual report submitted by the State organization.
(7) Terms of office.--
(A) In general.--A member of the Board shall serve
for a term of 3 years, except that the members appointed
to the initial Board shall serve, proportionately, for
terms of 1, 2, and 3 years, as determined by the
Secretary.
(B) Limitation on terms.--No individual may serve
more than 2 consecutive 3-year terms as a member.
(C) Termination of terms.--Notwithstanding
subparagraph (B), each member shall continue to serve
until a successor is appointed by the Secretary.
(8) Compensation.--A member of the Board shall serve without
compensation, but shall
be reimbursed for necessary and
reasonable expenses incurred
in the performance of duties for
and approved by the Board.
(c) Powers and Duties of the Board.--The order shall
define the
powers and duties of the Board, which shall include the power and duty--
(1) to administer the order in accordance with the terms and
conditions of the order;
(2) to issue regulations to effectuate the terms and
conditions of the order;
(3) to meet, organize, and select from among members of the
Board a chairperson, other
officers, and committees and
subcommittees, as the Board
determines appropriate;
(4) to establish working committees of persons other than
Board members;
(5) to employ such persons, other than Board members, as the
Board considers necessary,
and to determine the compensation and
define the duties of the
persons;
(6) to prepare and submit for the approval of the Secretary,
when appropriate or necessary,
a recommended rate of assessment
under section 536, and a
fiscal period budget of the anticipated
expenses in the administration
of the order, including the
probable costs of all programs
and projects;
(7) to develop programs and projects, subject to subsection
(d);
(8) to enter into contracts or agreements, subject to
subsection (e), to develop
and carry out programs or projects of
research, promotion, industry
information, and consumer
information;
(9) to carry out research, promotion, industry information,
and consumer information
projects, and to pay the costs of the
projects with assessments
collected under section 536;
(10) to keep minutes, books, and records that reflect the
actions and transactions
of the Board, and promptly report
minutes of each Board meeting
to the Secretary;
(11) to appoint and convene, from time to time, working
committees comprised of
producers, industry members, and the
public to assist in the
development of research, promotion,
industry information, and
consumer information programs for
canola, rapeseed, and canola
and rapeseed products;
(12) to invest, pending disbursement under a program or
project, funds collected
through assessments authorized under
section 536, or funds earned
from investments, only in--
(A) obligations of the United States or an agency of
the United States;
(B) general obligations of a State or a political
subdivision of a State;
(C) an 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;
(13) to receive, investigate, and report to the Secretary
complaints of violations
of the order;
(14) to furnish the Secretary with such information as the
Secretary may request;
(15) to recommend to the Secretary amendments to the order;
(16) to develop and recommend to the Secretary for approval
such regulations as may
be necessary for the development and
execution of programs or
projects, or as may otherwise be
necessary, to carry out
the order; and
(17) to provide the Secretary with advance notice of
meetings.
(d) Programs and Budgets.--
(1) Submission to secretary.--The order shall provide that
the Board shall submit to
the Secretary for approval any program
or project of research,
promotion, consumer information, or
industry information. No
program or project shall be implemented
prior to approval by the
Secretary.
(2) Budgets.--The order shall require the Board, prior to
the beginning of each fiscal
year, or as may be necessary after
the beginning of a fiscal
year, to submit to the Secretary for
approval budgets of anticipated
expenses and disbursements in
the implementation of the
order, including projected costs
of research, promotion,
consumer information, and industry
information programs and
projects.
(3) Incurring expenses.--The Board may incur such expenses
for programs or projects
of research, promotion, consumer
information, or industry
information, and other expenses for the
administration, maintenance,
and functioning of the Board as may
be authorized by the Secretary,
including any implementation,
administrative, and referendum
costs incurred by the Department.
(4) Paying expenses.--The funds to cover the expenses
referred to in paragraph
(3) shall be paid by the Board from
assessments collected under
section 536 or funds borrowed
pursuant to paragraph (5).
(5) Authority to borrow.--To meet the expenses referred to
in paragraph (3), the Board
shall have the authority to borrow
funds, as approved by the
Secretary, for capital outlays and
startup costs.
(e) Contracts and Agreements.--
(1) In general.--To ensure efficient use of funds, the order
shall provide that the Board
may enter into a contract or
agreement for the implementation
and carrying out of a program
or project of canola, rapeseed,
or canola or rapeseed products
research, promotion, consumer
information, or industry
information, including a
contract with a producer organization,
and for the payment of the
costs with funds received by the
Board under the order.
(2) Requirements.--A contract or agreement under paragraph
(1) shall provide that--
(A) the contracting party shall develop and submit
to the Board a program or project together with a budget
that shall show the estimated costs to be incurred for
the program or project;
(B) <<NOTE: Effective date.>> the program or
project shall become effective on the approval of the
Secretary; and
(C) <<NOTE: Records. Reports.>> the contracting
party shall keep accurate records of all transactions,
account for funds received and expended, make periodic
reports to the Board of activities conducted, and make
such other reports as the Board or the Secretary may
require.
(3) Producer organizations.--The order shall provide that
the Board may contract with
a producer organization for any
services required in addition
to the services described in
paragraph (1). The contract
shall include provisions comparable
to the provisions required
by paragraph (2).
(f) Books and Records of the 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 prescribe;
(B) <<NOTE: Reports.>> prepare and submit to the
Secretary, from time to time, such reports as the
Secretary may prescribe; and
(C) account for the receipt and disbursement of all
funds entrusted to the Board.
(2) <<NOTE: Reports.>> 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, and a report of the
audit to be submitted to
the Secretary.
(g) Prohibition.--
(1) In general.--Subject to paragraph (2), the Board shall
not engage in any action
to, nor shall any funds received by the
Board under this subtitle
be used to--
(A) influence legislation or governmental action;
(B) engage in an action that would be a conflict of
interest;
(C) engage in advertising that is false or
misleading; or
(D) engage in promotion that would disparage other
commodities.
(2) Action permitted.--Paragraph (1) does not preclude--
(A) the development and recommendation of amendments
to the order;
(B) the communication to appropriate government
officials of information relating to the conduct,
implementation, or results of promotion, research,
consumer information, or industry information activities
under the order; or
(C) any action designed to market canola or rapeseed
products directly to a foreign government or political
subdivision of a foreign government.
(h) Books and Records.--
(1) In general.--The order shall require that each producer,
first purchaser, or industry
member shall--
(A) maintain and submit to the Board any reports
considered necessary by the Secretary to ensure
compliance with this subtitle; and
(B) make available during normal business hours, for
inspection by employees of the Board or Secretary, such
books and records as are necessary to carry out this
subtitle, including such records as are necessary to
verify any required reports.
(2) Confidentiality.--
(A) In general.--Except as otherwise provided in
this subtitle, all information obtained from books,
records, or reports required to be maintained under
paragraph (1) shall be kept confidential, and shall not
be disclosed to the public by any person.
(B) Disclosure.--Information referred to in
subparagraph (A) may be disclosed to the public if--
(i) the Secretary considers the information
relevant;
(ii) the information is revealed in a suit or
administrative hearing brought at the direction or
on the request of the Secretary or to which the
Secretary or any officer of the Department is a
party; and
(iii) the information relates to this
subtitle.
(C) Misconduct.--A knowing disclosure of
confidential information in violation of subparagraph
(A) by an officer or employee of the Board or
Department, except as required by other law or allowed
under subparagraph (B) or (D), shall be considered a
violation of this subtitle.
(D) General statements.--Nothing in this paragraph
prohibits--
(i) the issuance of general statements based
on the reports of a number of persons subject to
an 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 a person violating the
order, together with a statement of the particular
provisions of the order violated by the person.
(3) Availability of information for law enforcement.--
Information obtained under
this subtitle may be made available
to another agency of the
Federal Government for a civil or
criminal law enforcement
activity if the activity is authorized
by law and if the head of
the agency has made a written request
to the Secretary specifying
the particular information desired
and the law enforcement
activity for which the information is
sought.
(4) Penalty.--Any person knowingly violating this
subsection, on conviction,
shall be subject to a fine of not
more than $1,000 or to imprisonment
for not more than 1 year, or
both, and if an officer
or employee of the Board or the
Department, shall be removed
from office or terminated from
employment, as applicable.
(5) Withholding of information.--Nothing in this subtitle
authorizes the withholding
of information from Congress.
(i) Use of Assessments.--The order shall provide
that the
assessments collected under section 536 shall be used for payment of
the
expenses in implementing and administering this subtitle, with provision
for a reasonable reserve, and to cover administrative costs incurred
by
the Secretary in implementing and administering this subtitle.
(j) Other Terms and Conditions.--The order shall
contain such other
terms and conditions, not inconsistent with this subtitle, as are
determined necessary by the Secretary to effectuate this subtitle.
SEC. 536. <<NOTE: 7 USC 7445.>> ASSESSMENTS.
(a) In General.--
(1) First purchasers.--During the effective period of an
order issued pursuant to
this subtitle, assessments shall be--
(A) levied on all canola or rapeseed produced in the
United States and marketed; and
(B) deducted from the payment made to a producer for
all canola or rapeseed sold to a first purchaser.
(2) Direct processing.--The order shall provide that any
person processing canola
or rapeseed of that person's own
production and marketing
the canola or rapeseed, or canola or
rapeseed products, shall
remit to the Board or a State
organization certified to
represent producers under section
535(b)(6), in the manner
prescribed by the order, an assessment
established at a rate equivalent
to the rate provided for under
subsection (d).
(b) Limitation on Assessments.--No more than 1 assessment
may be
assessed under subsection (a) on any canola or rapeseed produced (as
remitted by a first purchaser).
(c) Remitting of Assessments.--
(1) In general.--Assessments required under subsection (a)
shall be remitted to the
Board by a first purchaser. The Board
shall use State organizations
certified to represent
producers under section
535(b)(6) to collect the assessments. If
an appropriate certified
State organization does not exist to
collect an assessment, the
assessment shall be collected by the
Board. There shall be only
1 certified State organization in
each State.
(2) Times to remit assessment.--Each first purchaser shall
remit the assessment to
the Board as provided for in the order.
(d) Assessment Rate.--
(1) Initial rate.--The initial assessment rate shall be 4
cents per hundredweight
of canola or rapeseed produced and
marketed.
(2) Increase.--The assessment rate may be increased on
recommendation by the Board
to a rate not exceeding 10 cents per
hundredweight of canola
or rapeseed produced and marketed in a
State, unless--
(A) after the initial referendum is held under
section 537(a), the Board recommends an increase above
10 cents per hundredweight; and
(B) the increase is approved in a referendum under
section 537(b).
(3) Credit.--A producer who demonstrates to the Board that
the producer is participating
in a program of a State
organization certified to
represent producers under section
535(b)(6) shall receive
credit, in determining the assessment
due from the producer, for
contributions to the program of up to
2 cents per hundredweight
of canola or rapeseed marketed.
(e) Late Payment Charge.--
(1) In general.--There shall be a late payment charge
imposed on any person who
fails to remit, on or before the date
provided for in the order,
to the Board the total amount for
which the person is liable.
(2) Amount of charge.--The amount of the late payment charge
imposed under paragraph
(1) shall be prescribed by the Board
with the approval of the
Secretary.
(f) Refund of Assessments From Escrow Account.--
(1) Establishment of escrow account.--During the period
beginning on the date on
which an order is first issued under
section 534(b)(3) and ending
on the date on which a referendum
is conducted under section
537(a), the Board shall--
(A) establish and maintain an escrow account to be
used for assessment refunds; and
(B) place funds in the account in accordance with
paragraph (2).
(2) Placement of funds in account.--The Board shall place in
the account, from assessments
collected during the period
referred to in paragraph
(1), an amount equal to the product
obtained by multiplying
the total amount of assessments
collected during the period
by 10 percent.
(3) Right to receive refund.--The Board shall refund to a
producer the assessments
paid by or on behalf of the producer
if--
(A) the producer is required to pay the assessment;
(B) the producer does not support the program
established under this subtitle; and
(C) the producer demands the refund prior to the
conduct of the referendum under section 537(a).
(4) Form of demand.--The demand shall be made in accordance
with such regulations, in
such form, and within such time period
as prescribed by the Board.
(5) Making of refund.--The refund shall be made on
submission of proof satisfactory
to the Board that the producer
paid the assessment for
which the refund is demanded.
(6) Proration.--If--
(A) the amount in the escrow account required by
paragraph (1) is not sufficient to refund the total
amount of assessments demanded by eligible producers;
and
(B) the order is not approved pursuant to the
referendum conducted under section 537(a);
the Board shall prorate
the amount of the refunds among all
eligible producers who demand
a refund.
(7) Program approved.--If the plan is approved pursuant to
the referendum conducted
under section 537(a), all funds in the
escrow account shall be
returned to the Board for use by the
Board in accordance with
this subtitle.
SEC. 537. <<NOTE: 7 USC 7446.>> REFERENDA.
(a) Initial Referendum.--
(1) Requirement.--During the period ending 30 months after
the date on which an order
is first issued under section
534(b)(3), the Secretary
shall conduct a referendum among
producers who, during a
representative period as determined by
the Secretary, have been
engaged in the production of canola or
rapeseed for the purpose
of ascertaining whether the order then
in effect shall be continued.
(2) Advance notice.--The Secretary shall, to the extent
practicable, provide broad
public notice in advance of any
referendum. The notice shall
be provided, without advertising
expenses, by means of newspapers,
county newsletters, the
electronic media, and press
releases, through the use of notices
posted in State and county
Cooperative State Research,
Education, and Extension
Service offices and county Consolidated
Farm Service Agency offices,
and by other appropriate means
specified in the order.
The notice shall contain information on
when the referendum will
be held, registration and voting
requirements, rules regarding
absentee voting, and other
pertinent information.
(3) Approval of order.--The order shall be continued only if
the Secretary determines
that the order has been approved by not
less than a majority of
the producers voting in the referendum.
(4) <<NOTE: Termination date.>> Disapproval of order.--If
continuation of the order
is not approved by a majority of the
producers voting in the
referendum, the Secretary shall
terminate collection of
assessments under the order within 180
days after the referendum
and shall terminate the order in an
orderly manner as soon as
practicable.
(b) Additional Referenda.--
(1) In general.--
(A) Requirement.--After the initial referendum on an
order, the Secretary shall conduct additional referenda,
as described in subparagraph (C), if requested by a rep
resentative group of producers, as described in
subparagraph (B).
(B) Representative group of producers.--An
additional referendum on an order shall be conducted if
requested by 10 percent or more of the producers who,
during a representative period as determined by the
Secretary, have been engaged in the production of canola
or rapeseed.
(C) Eligible producers.--Each additional referendum
shall be conducted among all producers who, during a
representative period as determined by the Secretary,
have been engaged in the production of canola or
rapeseed to determine whether the producers favor the
termination or suspension of the order.
(2) <<NOTE: Termination date.>> Disapproval of order.--If
the Secretary determines,
in a referendum conducted under
paragraph (1), that suspension
or termination of the order is
favored by a majority of
the producers voting in the referendum,
the Secretary shall suspend
or terminate, as appropriate,
collection of assessments
under the order within 180 days after
the determination, and shall
suspend or terminate the order, as
appropriate, in an orderly
manner as soon as practicable after
the determination.
(3) Opportunity to request additional referenda.--
(A) In general.--Beginning on the date that is 5
years after the conduct of a referendum under this
subtitle, and every 5 years thereafter, the Secretary
shall provide canola and rapeseed producers an
opportunity to request an additional referendum.
(B) Method of making request.--
(i) In-person requests.--To carry out
subparagraph (A), the Secretary shall establish a
procedure under which a producer may make a
request for a reconfirmation referendum in person
at a county Cooperative State Research, Education,
and Extension Service office or a county
Consolidated Farm Service Agency office during a
period established by the Secretary, or as
provided in clause (ii).
(ii) Mail-in requests.--In lieu of making a
request in person, a producer may make a request
by mail. To facilitate the submission of requests
by mail, the Secretary may make mail-in request
forms available to producers.
(C) <<NOTE: Federal Register, publication.>>
Notifications.--The Secretary shall publish a notice in
the Federal Register, and the Board shall provide
written notification to producers, not later than 60
days prior to the end of the period established under
subparagraph (B)(i) for an in-person request, of the
opportunity of producers to request an additional
referendum. The notification shall explain the right of
producers to an additional referendum, the procedure for
a referendum, the purpose of a referendum, and the date
and method by which producers may act to request an
additional referendum under this paragraph. The
Secretary shall take such other action as the Secretary
determines is necessary to ensure that producers are
made aware of the opportunity to request an additional
referendum.
(D) Action by secretary.--As soon as practicable
following the submission of a request for an additional
referendum, the Secretary shall determine whether a
sufficient number of producers have requested the
referendum, and take such steps as are necessary to
conduct the referendum, as required under paragraph (1).
(E) Time limit.--An additional referendum requested
under the procedures provided in this paragraph shall be
conducted not later than 1 year after the Secretary
determines that a representative group of producers, as
described in paragraph (1)(B), have requested the
conduct of the referendum.
(c) Procedures.--
(1) Reimbursement of secretary.--The Secretary shall be
reimbursed from assessments
collected by the Board for any
expenses incurred by the
Secretary in connection with the
conduct of an activity required
under this section.
(2) Date.--Each referendum shall be conducted for a
reasonable period of time
not to exceed 3 days, established by
the Secretary, under a procedure
under which producers intending
to vote in the referendum
shall certify that the producers were
engaged in the production
of canola, rapeseed, or canola or
rapeseed products during
the representative period and, at the
same time, shall be provided
an opportunity to vote in the
referendum.
(3) Place.--Referenda under this section shall be conducted
at locations determined
by the Secretary. On request, absentee
mail ballots shall be furnished
by the Secretary in a manner
prescribed by the Secretary.
SEC. 538. <<NOTE: 7 USC 7447.>> PETITION AND REVIEW.
(a) Petition.--
(1) In general.--A person subject to an order issued under
this subtitle may file with
the Secretary a petition--
(A) stating that the order, a provision of the
order, or an obligation imposed in connection with the
order is not established in accordance with law; and
(B) requesting a modification of the order or an
exemption from the order.
(2) Hearings.--The petitioner shall be given the opportunity
for a hearing on a petition
filed under paragraph (1), in
accordance with regulations
issued by the Secretary.
(3) Ruling.--After a hearing under paragraph (2), the
Secretary shall issue a
ruling on the petition that is the
subject of the hearing,
which shall be final if the ruling is in
accordance with applicable
law.
(4) Limitation on petition.--Any petition filed under this
subtitle challenging an
order, or any obligation imposed in
connection with an order,
shall be filed not later than 2 years
after the effective date
of the order or imposition of the
obligation.
(b) Review.--
(1) <<NOTE: Courts.>> Commencement of action.--The district
court of the United States
for any district in which the person
who is a petitioner under
subsection (a) resides or carries on
business shall have jurisdiction
to review a ruling on the
petition, if a complaint
is filed by the person not later than
20 days after the date of
the entry of a ruling by the Secretary
under subsection (a)(3).
(2) Process.--Service of process in a proceeding under
paragraph (1) shall be conducted
in accordance with the Federal
Rules of Civil Procedure.
(3) Remands.--If the court determines, under paragraph (1),
that a ruling issued under
subsection (a)(3) is not in
accordance with applicable
law, the court shall remand the
matter to the Secretary
with directions either--
(A) to make such ruling as the court shall determine
to be in accordance with law; or
(B) to take such further proceedings as, in the
opinion of the court, the law requires.
(4) Enforcement.--The pendency of proceedings instituted
under subsection (a) shall
not impede, hinder, or delay the
Attorney General or the
Secretary from taking any action under
section 539.
SEC. 539. <<NOTE: Courts. 7 USC 7448.>> ENFORCEMENT.
(a) Jurisdiction.--The district courts of the United
States are
vested with jurisdiction specifically to enforce, and to prevent and
restrain any person from violating, an order or regulation made or
issued under this subtitle.
(b) Referral to Attorney General.--A civil action
authorized to be
commenced under this section shall be referred to the Attorney General
for appropriate action, except that the Secretary shall not be required
to refer to the Attorney General a violation of this subtitle if the
Secretary believes that the administration and enforcement of this
subtitle would be adequately served by providing a suitable written
notice or warning to the person committing the violation or by
administrative action under subsection (c).
(c) Civil Penalties and Orders.--
(1) Civil penalties.--
(A) In general.--Any person who willfully violates
any provision of an order or regulation issued by the
Secretary under this subtitle, or who fails or refuses
to pay, collect, or remit an assessment or fee required
of the person under an order or regulation, may be
assessed--
(i) a civil penalty by the Secretary of not
more than $1,000 for each violation; and
(ii) in the case of a willful failure to pay,
collect, or remit an assessment as required by an
order or regulation, an additional penalty equal
to the amount of the assessment.
(B) Separate offense.--Each violation under
subparagraph (A) 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.
(3) Notice and hearing.--No penalty shall be assessed, or
cease-and-desist order issued,
by the Secretary under this
subsection unless the person
against whom the penalty is
assessed or the cease-and-desist
order is issued is given notice
and opportunity for a hearing
before the Secretary with respect
to the violation.
(4) Finality.--The order of the Secretary assessing a
penalty or imposing a cease-and-desist
order under this
subsection shall be final
and conclusive unless the affected
person files an appeal of
the order in the appropriate district
court of the United States
in accordance with subsection (d).
(d) Review by District Court.--
(1) Commencement of action.--Any person who has been
determined to be in violation
of this subtitle, or against whom
a civil penalty has been
assessed or a cease-and-desist order
issued under subsection
(c), may obtain review of the penalty or
cease-and-desist order by--
(A) filing, within the 30-day period beginning on
the date the penalty is assessed or cease-and-desist
order issued, a notice of appeal in--
(i) the district court of the United States
for the district in which the person resides or
carries on business; or
(ii) the United States District Court for the
District of Columbia; and
(B) simultaneously sending a copy of the notice by
certified mail to the Secretary.
(2) Record.--The Secretary shall file promptly, in the
appropriate court referred
to in paragraph (1), a certified copy
of the record on which the
Secretary determined that the person
committed the violation.
(3) Standard of review.--A finding of the Secretary under
this section shall be set
aside only if the finding is found to
be unsupported by substantial
evidence.
(e) Failure To Obey Cease-and-Desist Orders.--Any
person who fails
to obey a cease-and-desist order issued under this section after the
cease-and-desist order has become final and unappealable, or after
the
appropriate United States district court has entered a final judgment
in
favor of the Secretary, shall be subject to a civil penalty assessed
by
the Secretary, after opportunity for a hearing and for judicial review
under the procedures specified in subsections (c) and (d), of not more
than $5,000 for each offense. Each day during which the failure
continues shall be considered as a separate violation of the cease-and-
desist order.
(f) Failure To Pay Penalties.--If a person fails
to pay an
assessment of a civil penalty under this section after the assessment
has become a final and unappealable order, 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 the district court of the United
States for any district in which the person resides or carries on
business. In an action for recovery, the validity and appropriateness
of
the final order imposing the civil penalty shall not be subject to
review.
(g) Additional Remedies.--The remedies provided
in this subtitle
shall be in addition to, and not exclusive of, other remedies that
may
be available.
SEC. 540. <<NOTE: 7 USC 7449.>> INVESTIGATIONS AND POWER TO SUBPOENA.
(a) Investigations.--The Secretary may make such
investigations as
the Secretary considers necessary--
(1) for the effective administration of this subtitle; and
(2) to determine whether any person has engaged or is
engaging in an act that
constitutes a violation of this
subtitle, or an order, rule,
or regulation issued under this
subtitle.
(b) Subpoenas, Oaths, and Affirmations.--
(1) In general.--For the purpose of an investigation under
subsection (a), the Secretary
may administer oaths and
affirmations, subpoena witnesses,
take evidence, and issue
subpoenas to require the
production of any records that are
relevant to the inquiry.
The attendance of witnesses and the
production of records may
be required from any place in the
United States.
(2) Administrative hearings.--For the purpose of an
administrative hearing held
under section 538 or 539, the
presiding officer is authorized
to administer oaths and
affirmations, subpoena and
compel the attendance of witnesses,
take evidence, and require
the production of any records that
are relevant to the inquiry.
The attendance of witnesses and the
production of records may
be required from any place in the
United States.
(c) Aid of Courts.--In the case of contumacy by,
or refusal to obey
a subpoena issued 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 carried on, or where the person resides
or carries on business, in order to enforce a subpoena issued by the
Secretary under subsection (b). The court may issue an order requiring
the person to comply with the subpoena.
(d) Contempt.--A failure to obey an order of the
court under this
section may be punished by the court as contempt of the court.
(e) Process.--Process may be served on a person
in the judicial
district in which the person resides or carries on business or wherever
the person may be found.
(f) Hearing Site.--The site of a hearing held under
section 538 or
539 shall be in the judicial district where the person affected by
the
hearing resides or has a principal place of business.
SEC. 541. <<NOTE: 7 USC 7450.>> SUSPENSION OR TERMINATION.
The Secretary shall, whenever the Secretary finds
that an order or a
provision of an order obstructs or does not tend to effectuate the
declared policy of this subtitle, suspend or terminate the operation
of
the order or provision. The suspension or termination of an order shall
not be considered an order within the meaning of this subtitle.
SEC. 542. <<NOTE: 7 USC 7451.>> REGULATIONS.
The Secretary may issue such regulations as are necessary
to carry
out this subtitle.
SEC. 543. <<NOTE: 7 USC 7452.>> 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 subtitle.
(b) Administrative Expenses.--Funds appropriated
under subsection
(a) shall not be available for payment of the expenses or expenditures
of the Board in administering a provision of an order issued under
this
subtitle.
Subtitle
D <<NOTE: National Kiwifruit Research, Promotion, and Consumer
Information Act.>> --Kiwifruit
SEC. 551. <<NOTE: 7 USC 7401 note.>> SHORT TITLE.
This subtitle may be cited as the ``National Kiwifruit
Research,
Promotion, and Consumer Information Act''.
SEC. 552. <<NOTE: 7 USC 7461.>> FINDINGS AND PURPOSES.
(a) Findings.--Congress finds that--
(1) domestically produced kiwifruit are grown by many
individual producers;
(2) virtually all domestically produced kiwifruit are grown
in the State of California,
although there is potential for
production in many other
areas of the United States;
(3) kiwifruit move in interstate and foreign commerce, and
kiwifruit that do not move
in channels of commerce directly
burden or affect interstate
commerce;
(4) in recent years, large quantities of kiwifruit have been
imported into the United
States;
(5) the maintenance and expansion of existing domestic and
foreign markets for kiwifruit,
and the development of additional
and improved markets for
kiwifruit, are vital to the welfare of
kiwifruit producers and
other persons concerned with producing,
marketing, and processing
kiwifruit;
(6) a coordinated program of research, promotion, and
consumer information regarding
kiwifruit is necessary for the
maintenance and development
of the markets; and
(7) kiwifruit producers, handlers, and importers are unable
to implement and finance
such a program without cooperative
action.
(b) Purposes.--The purposes of this subtitle are--
(1) to authorize the establishment of an orderly procedure
for the development and
financing (through an assessment) of an
effective and coordinated
program of research, promotion, and
consumer information regarding
kiwifruit;
(2) to use the program to strengthen the position of the
kiwifruit industry in domestic
and foreign markets and maintain,
develop, and expand markets
for kiwifruit; and
(3) to treat domestically produced kiwifruit and imported
kiwifruit equitably.
SEC. 553. <<NOTE: 7 USC 7462.>> DEFINITIONS.
In this subtitle (unless the context otherwise requires):
(1) Board.--The term ``Board'' means the National Kiwifruit
Board established under
section 555.
(2) Consumer information.--The term ``consumer information''
means any action taken to
provide information to, and broaden
the understanding of, the
general public regarding the
consumption, use, nutritional
attributes, and care of kiwifruit.
(3) Exporter.--The term ``exporter'' means any person from
outside the United States
who exports kiwifruit into the United
States.
(4) Handler.--The term ``handler'' means any person,
excluding a common carrier,
engaged in the business of buying
and selling, packing, marketing,
or distributing kiwifruit as
specified in the order.
(5) Importer.--The term ``importer'' means any person who
imports kiwifruit into the
United States.
(6) Kiwifruit.--The term ``kiwifruit'' means all varieties
of fresh kiwifruit grown
in or imported into the United States.
(7) Marketing.--The term ``marketing'' means the sale or
other disposition of kiwifruit
into interstate, foreign, or
intrastate commerce by buying,
marketing, distribution, or
otherwise placing kiwifruit
into commerce.
(8) Order.--The term ``order'' means a kiwifruit research,
promotion, and consumer
information order issued by the
Secretary under section
554.
(9) Person.--The term ``person'' means any individual, group
of individuals, partnership,
corporation, association,
cooperative, or other legal
entity.
(10) Processing.--The term ``processing'' means canning,
fermenting, distilling,
extracting, preserving, grinding,
crushing, or in any manner
changing the form of kiwifruit for
the purpose of preparing
the kiwifruit for market or marketing
the kiwifruit.
(11) Producer.--The term ``producer'' means any person who
grows kiwifruit in the United
States for sale in commerce.
(12) Promotion.--The term ``promotion'' means any action
taken under this subtitle
(including paid advertising) to
present a favorable image
of kiwifruit to the general public for
the purpose of improving
the competitive position of kiwifruit
and stimulating the sale
of kiwifruit.
(13) Research.--The term ``research'' means any type of
research relating to the
use, nutritional value, and marketing
of kiwifruit conducted for
the purpose of advancing the image,
desirability, marketability,
or quality of kiwifruit.
(14) Secretary.--The term ``Secretary'' means the Secretary
of Agriculture.
(15) United states.--The term ``United States'' means the 50
States of the United States,
the District of Columbia, and the
Commonwealth of Puerto Rico.
SEC. 554. <<NOTE: 7 USC 7463.>> ISSUANCE OF ORDERS.
(a) Issuance.--To effectuate the purposes of this
subtitle specified
in section 552(b), the Secretary shall issue an order applicable to
producers, handlers, and importers of kiwifruit. Any such order shall
be
national in scope. Not more than 1 order shall be in effect under this
subtitle at any 1 time.
(b) Procedure.--
(1) Proposal for issuance of order.--Any person that will be
affected by this subtitle
may request the issuance of, and
submit a proposal for, an
order under this subtitle.
(2) <<NOTE: Publication.>> Proposed order.--Not later than
90 days after the receipt
of a request and proposal for an
order, the Secretary shall
publish a proposed order and give due
notice and opportunity for
public comment on the proposed order.
(3) Issuance of order.--After notice and opportunity for
public comment are provided
under paragraph (2), the Secretary
shall issue an order, taking
into consideration the comments
received and including in
the order provisions necessary to
ensure that the order is
in conformity with this subtitle.
(c) Amendments.--The Secretary may amend any order
issued under this
section. The provisions of this subtitle applicable to an order shall
be
applicable to an amendment to an order.
SEC. 555. <<NOTE: 7 USC 7464.>> NATIONAL KIWIFRUIT BOARD.
(a) Membership.--An order issued by the Secretary
under section 554
shall provide for the establishment of a National Kiwifruit Board that
consists of the following 11 members:
(1) 6 members who are producers (or representatives of
producers) and who are not
exempt from an assessment under
section 556(b).
(2) 4 members who are importers (or representatives of
importers) and who are not
exempt from an assessment under
section 556(b) or are exporters
(or representatives of
exporters).
(3) 1 member appointed from the general public.
(b) Adjustment of Membership.--
(1) In general.--Subject to the 11-member limit and to
paragraph (2), the Secretary
may adjust membership on the Board
to accommodate changes in
production and import levels of
kiwifruit.
(2) Number of producer members.--Producers shall comprise
not less than 51 percent
of the membership of the Board.
(c) Appointment and Nomination.--
(1) Appointment.--The Secretary shall appoint 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 members referred to in
subsection (a)(2) shall
be appointed from individuals nominated
by importers or exporters.
(4) Public representative.--The public representative shall
be appointed from nominations
submitted by other members of the
Board.
(5) Failure to nominate.--If producers, importers, and
exporters fail to nominate
individuals for appointment, the
Secretary may appoint members
and alternates on a basis provided
for in the order. If the
Board fails to nominate a public
representative, the 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
the individual is an alternate;
and
(2) serve on the Board if the member is absent from a
meeting or is disqualified
under subsection (f).
(e) Terms.--A member of the Board shall be appointed
for a term of 3
years. No member may serve more than 2 consecutive 3-year terms, except
that of the members first appointed--
(1) 5 members shall be appointed for a term of 2 years; and
(2) 6 members shall be appointed for a term of 3 years.
(f) Disqualification.--If a member or alternate of
the Board who was
appointed as a producer, importer, exporter, or public representative
member ceases to belong to the group for which
the member was appointed, the member or alternate shall be disqualified
from serving on the Board.
(g) Compensation.--A member or alternate of the
Board shall serve
without pay.
(h) General Powers and Duties.--The Board shall--
(1) administer an order issued by the Secretary under
section 554, and an amendment
to the order, in accordance with
the order and amendment
and this subtitle;
(2) <<NOTE: Regulations.>> prescribe rules and regulations
to carry out the order;
(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 Secretary
accounts of violations of
the order;
(5) make recommendations to the Secretary with respect to an
amendment that should be
made to the order; and
(6) employ or contract with a manager and staff to assist in
administering the order,
except that, to reduce administrative
costs and increase efficiency,
the Board shall seek, to the
extent practicable, to employ
or contract with personnel who are
already associated with
organizations involved in promoting
kiwifruit that are chartered
by a State, the District of
Columbia, or the Commonwealth
of Puerto Rico.
SEC. 556. <<NOTE: 7 USC 7465.>> REQUIRED TERMS IN ORDER.
(a) Budgets and Plans.--
(1) In general.--An order issued under section 554 shall
provide for periodic budgets
and plans in accordance with this
subsection.
(2) Budgets.--The Board shall prepare and submit to the
Secretary a budget prior
to the beginning of the fiscal year of
the anticipated expenses
and disbursements of the Board in the
administration of the order,
including probable costs of
research, promotion, and
consumer information. A budget shall
become effective on a \2/3\-vote
of a quorum of the Board and
approval by the Secretary.
(3) Plans.--Each budget shall include a plan for research,
promotion, and consumer
information regarding kiwifruit. A plan
under this paragraph shall
become effective on approval by the
Secretary. The Board may
enter into contracts and agreements, on
approval by the Secretary,
for--
(A) the development and carrying out of the plan;
and
(B) the payment of the cost of the plan, with funds
collected pursuant to this subtitle.
(b) Assessments.--
(1) In general.--The order shall provide for the imposition
and collection of assessments
with regard to the production and
importation of kiwifruit
in accordance with this subsection.
(2) Rate.--The assessment rate shall be the rate that is
recommended by a \2/3\-vote
of a quorum of the Board and
approved by the Secretary,
except that the rate shall not exceed
$0.10 per 7-pound tray of
kiwifruit or an equivalent rate.
(3) Collection by first handlers.--Except as provided in
paragraph (5), the first
handler of kiwifruit shall--
(A) be responsible for the collection from the
producer, and payment to the Board, of assessments
required 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.
(4) 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.
(5) Exemption from assessment.--The following persons or
activities are exempt from
an assessment 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) A sale 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.
(6) Claim of exemption.--To claim an exemption under
paragraph (5) for a particular
year, a person shall--
(A) submit an application to the Board stating the
basis for the exemption and certifying that the quantity
of kiwifruit produced, imported, or sold by the person
will not exceed any poundage limitation required for the
exemption in the year; or
(B) be on a list of approved processors developed by
the Board.
(c) Use of Assessments.--
(1) Authorized uses.--The order shall provide 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 administration of an order;
(B) to pay such other expenses for the
administration, maintenance, and functioning of the
Board (including any enforcement efforts for the
collection of assessments) as may be authorized by the
Secretary, including interest and penalties for late
payments; and
(C) to fund a reserve established under section
557(d).
(2) Required uses.--The 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 Federal Government
employees, in implementing and administering the order;
and
(B) to reimburse the Secretary for any expenses
incurred by the Secretary in conducting referenda under
this subtitle.
(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
for a year.
(d) False Claims.--The 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 attributes or
use of any product that
competes with kiwifruit for sale in
commerce.
(e) Prohibition on Use of Funds.--The order shall
provide that funds
collected by the Board under this subtitle 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 under this subtitle.
(f) Books, Records, and Reports.--
(1) Board.--The order shall require the Board--
(A) to maintain books and records with respect 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 require 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 the
fiscal year.
(2) Others.--To make information and data available to the
Board and the Secretary
that is appropriate or necessary for the
effectuation, administration,
or enforcement of this subtitle
(or any order or regulation
issued under this subtitle), the
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 inspection by
the employees and agents of the Board and the Secretary
such books and records as may be required by the order;
and
(B) to file, at the times and in the manner and
content prescribed by the order, reports regarding the
collection, payment, or remittance of the assessments.
(g) Confidentiality.--
(1) In general.--The order shall require that all
information obtained pursuant
to subsection (f)(2) be kept
confidential by all officers,
employees, and agents of the
Department of Agriculture
and of the Board. Only such
information as the Secretary
considers relevant shall be
disclosed to the public
and only in a suit or administrative
hearing, brought at the
request of the Secretary or to which the
Secretary or any officer
of the United States is a party,
involving the order with
respect to which the information was
furnished or acquired.
(2) Limitations.--Nothing in this subsection prohibits--
(A) the issuance of general statements based on the
reports of a number of handlers and importers subject to
an order, if the statements do not identify the
information furnished by any person; or
(B) the publication, by direction of the Secretary,
of the name of any person violating an order issued
under section 554(a), together with a statement of the
particular provisions of the order violated by the
person.
(3) Penalty.--Any person who willfully violates this
subsection, on conviction,
shall be subject to a fine of not
more than $1,000 or to imprisonment
for not more than 1 year, or
both, and, if the person
is a member, officer, or agent of the
Board or an employee of
the Department of Agriculture, shall be
removed from office.
(h) Withholding of Information.--Nothing in this
subtitle authorizes
the withholding of information from Congress.
SEC. 557. <<NOTE: 7 USC 7466.>> 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 554 may
include the terms and conditions specified in this section and such
additional terms and conditions as the Secretary considers necessary
to
effectuate the other provisions of the order and are incidental to,
and
not inconsistent with, this subtitle.
(b) Alternative Payment and Reporting Schedules.--The
order may
authorize the Board to designate different handler payment and reporting
schedules to recognize differences in marketing practices and
procedures.
(c) Working Groups.--The order may authorize the
Board to convene
working groups drawn from producers, handlers, importers, exporters,
or
the general public and utilize the expertise of the groups to assist
in
the development of research and marketing programs for kiwifruit.
(d) Reserve Funds.--The order may authorize the
Board to accumulate
reserve funds from assessments collected pursuant to section 556(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, except that any reserve fund may
not
exceed the amount budgeted for operation of this subtitle for 1 year.
(e) Promotion Activities Outside United States.--The
order may
authorize the Board to use, with the approval of the Secretary, funds
collected under section 556(b) and funds from other sources for the
development and expansion of sales in foreign markets of kiwifruit
produced in the United States.
SEC. 558. <<NOTE: 7 USC 7467.>> PETITION AND REVIEW.
(a) Petition.--
(1) In general.--A person subject to an order may file with
the Secretary a petition--
(A) stating that the order, a provision of the
order, or an obligation imposed in 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) Hearings.--A person submitting a petition under
paragraph (1) shall be given
an opportunity for a hearing on the
petition, in accordance
with regulations issued by the
Secretary.
(3) Ruling.--After the hearing, the Secretary shall issue a
ruling on the petition which
shall be final if the petition is
in accordance with law.
(4) Limitation on petition.--Any petition filed under this
subtitle challenging an
order, or any obligation imposed in
connection with an order,
shall be filed not later than 2 years
after the effective date
of the order or imposition of the
obligation.
(b) <<NOTE: Courts.>> Review.--
(1) Commencement of action.--The district court of the
United States for any district
in which the person who is a
petitioner under subsection
(a) resides or carries on business
is vested with jurisdiction
to review the ruling on the petition
of the person, if a complaint
for that purpose is filed not
later than 20 days after
the date of the entry of a ruling by
the Secretary under subsection
(a).
(2) Process.--Service of process in the proceedings shall be
conducted in accordance
with the Federal Rules of Civil
Procedure.
(3) Remands.--If the court determines that the ruling 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
of the court, the law requires.
(4) Enforcement.--The pendency of a proceeding instituted
pursuant to subsection (a)
shall not impede, hinder, or delay
the Attorney General or
the Secretary from obtaining relief
pursuant to section 559.
SEC. 559. <<NOTE: Courts. 7 USC 7468.>> ENFORCEMENT.
(a) Jurisdiction.--A district court of the United
States shall have
jurisdiction specifically to enforce, and to prevent and restrain any
person from violating, any order or regulation made or issued by the
Secretary under this subtitle.
(b) Referral to Attorney General.--A civil action
authorized to be
brought under this section 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 subtitle, or any order
or
regulation issued under this subtitle, if the Secretary believes that
the administration and enforcement of this subtitle would be adequately
served by administrative action under subsection (c) or suitable written
notice or warning to the person committing the violation.
(c) Civil Penalties and Orders.--
(1) Civil penalties.--Any person who willfully violates any
provision of any order or
regulation issued by the Secretary
under this subtitle, or
who fails or refuses to pay, collect, or
remit any assessment or
fee duly required of the person under
the order or regulation,
may be assessed a civil penalty by the
Secretary of not less than
$500 nor more than $5,000 for each
such violation. Each violation
shall be a separate offense.
(2) Cease-and-desist orders.--In addition to or in lieu of
the civil penalty, the Secretary
may issue an order requiring
the person to cease and
desist from continuing the violation.
(3) Notice and hearing.--No order assessing a civil penalty
or cease-and-desist order
may be issued by the Secretary under
this subsection unless the
Secretary gives the person
against whom the order is
issued notice and opportunity for a
hearing on the record before
the Secretary with respect to the
violation.
(4) Finality.--The order of the Secretary assessing a
penalty or imposing a cease-and-desist
order shall be final and
conclusive unless the person
against whom the order is issued
files an appeal of the order
in the appropriate district court
of the United States, in
accordance with subsection (d).
(d) Review by United States District Court.--
(1) Commencement of action.--Any person against whom a
violation is found and a
civil penalty assessed or cease-and-
desist order issued under
subsection (c) may obtain review of
the penalty or cease-and-desist
order in the district court of
the United States for the
district in which the person resides
or carries on business,
or the United States District Court for
the District of Columbia,
by--
(A) filing a notice of appeal in the court not later
than 30 days after the date on which the penalty is
assessed or cease-and-desist order issued; and
(B) simultaneously sending a copy of the notice by
certified mail to the Secretary.
(2) Record.--The Secretary shall promptly file in the court
a certified copy of the
record on which the Secretary found that
the person committed the
violation.
(3) Standard of review.--A finding of the Secretary shall be
set aside only if the finding
is found to be unsupported by
substantial evidence.
(e) Failure To Obey Cease-and-Desist Orders.--Any
person who fails
to obey a cease-and-desist order issued by the Secretary after the
cease-and-desist order has become final and unappealable, or after
the
appropriate United States district court has entered a final judgment
in
favor of the Secretary, shall be subject to a civil penalty assessed
by
the Secretary, after opportunity for a hearing and for judicial review
under the procedures specified in subsections (c) and (d), of not more
than $500 for each offense. Each day during which the failure continues
shall be considered a separate violation of the cease-and-desist order.
(f) Failure To Pay Penalties.--If a person fails
to pay an
assessment of a civil penalty after the assessment has become a final
and unappealable order issued by the Secretary, 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 the district court of the United
States for any district in which the person resides or carries on
business. In an action for recovery, the validity and appropriateness
of
the final order imposing the civil penalty shall not be subject to
review.
SEC. 560. <<NOTE: 7 USC 7469.>> INVESTIGATIONS AND POWER TO SUBPOENA.
(a) In General.--The Secretary may make such investigations
as the
Secretary considers necessary--
(1) for the effective carrying out of the responsibilities
of the Secretary under this
subtitle; or
(2) to determine whether a person subject to this subtitle
has engaged or is engaging
in any act that constitutes a
violation of this subtitle,
or any order, rule, or regulation
issued under this subtitle.
(b) Power to Subpoena.--
(1) Investigations.--For the purpose of an investigation
made under subsection (a),
the Secretary may administer oaths
and affirmations and may
issue subpoenas to require the
production of any records
that are relevant to the inquiry. The
production of any such records
may be required from any place in
the United States.
(2) Administrative hearings.--For the purpose of an
administrative hearing held
under section 558 or 559, the
presiding officer is authorized
to 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 any such records may be required
from any place in the United
States.
(c) Aid of Courts.--In the case of contumacy by,
or refusal to obey
a subpoena 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 carried on, or where the person resides or carries
on
business, to enforce a subpoena issued by the Secretary under subsection
(b). The court may issue an order requiring the person to comply with
the subpoena.
(d) Contempt.--Any failure to obey the order of
the court may be
punished by the court as a contempt of the court.
(e) Process.--Process in any such case may be served
in the judicial
district in which the person resides or carries on business or wherever
the person may be found.
(f) Hearing Site.--The site of any hearing held
under section 558 or
559 shall be in the judicial district where the person affected by
the
hearing resides or has a principal place of business.
SEC. 561. <<NOTE: 7 USC 7470.>> REFERENDA.
(a) Initial Referendum.--
(1) Referendum required.--During the 60-day period
immediately preceding the
proposed effective date of an order
issued under section 554,
the Secretary shall conduct a
referendum among kiwifruit
producers and importers who will be
subject to assessments under
the order, to ascertain whether
producers and importers
approve the implementation of the order.
(2) Approval of order.--The order shall become effective, as
provided in section 554,
if the Secretary determines that--
(A) the order has been approved by a majority of the
producers and importers voting in the referendum; and
(B) the producers and importers favoring approval
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, termination, or suspension of any order issued under
section 554 that is 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 6-year period beginning on the
effective date of the order
and at the end of each subsequent 6-
year period;
(2) at the request of the Board; or
(3) if not less than 30 percent of the kiwifruit producers
and importers subject to
assessments under the order submit a
petition requesting the
referendum.
(d) Vote.--On 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 producers and importers voting
in the referendum; and
(2) the 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 information
or reports
that reveal, or tend to reveal, the vote of any person under this
subtitle and the voting list shall be held strictly confidential and
shall not be disclosed.
SEC. 562. <<NOTE: 7 USC 7471.>> SUSPENSION OR TERMINATION.
(a) In General.--If the Secretary finds that an order
issued under
section 554, or a provision of the order, obstructs or does not tend
to
effectuate the purposes of this subtitle, the Secretary shall suspend
or
terminate the operation of the order or provision.
(b) Limitation.--The suspension or termination of
any order, or any
provision of an order, shall not be considered an order under this
subtitle.
SEC. 563. <<NOTE: 7 USC 7472.>> REGULATIONS.
The Secretary may issue such regulations as are necessary
to carry
out this subtitle.
SEC. 564. <<NOTE: 7 USC 7473.>> AUTHORIZATION OF APPROPRIATIONS.
There are authorized to be appropriated for each
fiscal year such
sums as are necessary to carry out this subtitle.
Subtitle
<<NOTE: Popcorn Promotion, Research, and Consumer Information
Act.>> E--Popcorn
SEC. 571. <<NOTE: 7 USC 7401 note.>> SHORT TITLE.
This subtitle may be cited as the ``Popcorn Promotion,
Research, and
Consumer Information Act''.
SEC. 572. <<NOTE: 7 USC 7481.>> FINDINGS AND DECLARATION OF POLICY.
(a) Findings.--Congress finds that--
(1) popcorn is an important food that is a valuable part of
the human diet;
(2) the production and processing of popcorn plays a
significant role in the
economy of the United States in that
popcorn is processed by
several popcorn processors, distributed
through wholesale and retail
outlets, and consumed by millions
of people throughout the
United States and foreign countries;
(3) popcorn must be of high quality, readily available,
handled properly, and marketed
efficiently to ensure that the
benefits of popcorn are
available to the people of the United
States;
(4) the maintenance and expansion of existing markets and
uses and the development
of new markets and uses for popcorn are
vital to the welfare of
processors and persons concerned with
marketing, using, and producing
popcorn for the market, as well
as to the agricultural economy
of the United States;
(5) the cooperative development, financing, and
implementation of a coordinated
program of popcorn promotion,
research, consumer information,
and industry information is
necessary to maintain and
expand markets for popcorn; and
(6) popcorn moves in interstate and foreign commerce, and
popcorn that does not move
in those channels of commerce
directly burdens or affects
interstate commerce in popcorn.
(b) Policy.--It is the policy of Congress that it
is in the public
interest to authorize the establishment, through the exercise of the
powers provided in this subtitle, of an orderly procedure for
developing, financing (through adequate assessments on unpopped popcorn
processed domestically), and carrying out an effective, continuous,
and
coordinated program of promotion, research, consumer information, and
industry information designed to--
(1) strengthen the position of the popcorn industry in the
marketplace; and
(2) maintain and expand domestic and foreign markets and
uses for popcorn.
(c) Purposes.--The purposes of this subtitle are
to--
(1) maintain and expand the markets for all popcorn products
in a manner that--
(A) is not designed to maintain or expand any
individual share of a producer or processor of the
market;
(B) does not compete with or replace individual
advertising or promotion efforts designed to promote
individual brand name or trade name popcorn products;
and
(C) authorizes and funds programs that result in
government speech promoting government objectives; and
(2) establish a nationally coordinated program for popcorn
promotion, research, consumer
information, and industry
information.
(d) Statutory Construction.--This subtitle treats
processors
equitably. Nothing in this subtitle--
(1) provides for the imposition of a trade barrier to the
entry into the United States
of imported popcorn for the
domestic market; or
(2) provides for the control of production or otherwise
limits the right of any
individual processor to produce popcorn.
SEC. 573. <<NOTE: 7 USC 7482.>> DEFINITIONS.
In this subtitle (unless the context otherwise requires):
(1) Board.--The term ``Board'' means the Popcorn Board
established under section
575(b).
(2) Commerce.--The term ``commerce'' means interstate,
foreign, or intrastate commerce.
(3) Consumer information.--The term ``consumer information''
means information and programs
that will assist consumers and
other persons in making
evaluations and decisions regarding the
purchase, preparation, and
use of popcorn.
(4) Department.--The term ``Department'' means the
Department of Agriculture.
(5) Industry information.--The term ``industry information''
means information or a program
that will lead to the development
of--
(A) new markets, new marketing strategies, or
increased efficiency for the popcorn industry; or
(B) activities to enhance the image of the popcorn
industry.
(6) Marketing.--The term ``marketing'' means the sale or
other disposition of unpopped
popcorn for human consumption in a
channel of commerce, but
does not include a sale or disposition
to or between processors.
(7) Order.--The term ``order'' means an order issued under
section 574.
(8) Person.--The term ``person'' means an individual, group
of individuals, partnership,
corporation, association, or
cooperative, or any other
legal entity.
(9) Popcorn.--The term ``popcorn'' means unpopped popcorn
(Zea Mays L) that is--
(A) commercially grown;
(B) processed in the United States by shelling,
cleaning, or drying; and
(C) introduced into a channel of commerce.
(10) Process.--The term ``process'' means to shell, clean,
dry, and prepare popcorn
for the market, but does not include
packaging popcorn for the
market without also engaging in
another activity described
in this paragraph.
(11) Processor.--The term ``processor'' means a person
engaged in the preparation
of unpopped popcorn for the market
who owns or shares the ownership
and risk of loss of the popcorn
and who processes and distributes
over 4,000,000 pounds of
popcorn in the market per
year.
(12) Promotion.--The term ``promotion'' means an action,
including paid advertising,
to enhance the image or desirability
of popcorn.
(13) Research.--The term ``research'' means any type of
study to advance the image,
desirability, marketability,
production, product development,
quality, or nutritional value
of popcorn.
(14) Secretary.--The term ``Secretary'' means the Secretary
of Agriculture.
(15) State.--The term ``State'' means each of the 50 States
and the District of Columbia.
(16) United states.--The term ``United States'' means all of
the States.
SEC. 574. <<NOTE: 7 USC 7483.>> ISSUANCE OF ORDERS.
(a) In General.--To effectuate the policy described
in section
572(b), the Secretary, subject to subsection (b), shall issue 1 or
more
orders applicable to processors. An order shall be applicable to all
popcorn production and marketing areas in the United States. Not more
than 1 order shall be in effect under this subtitle at any 1 time.
(b) Procedure.--
(1) Proposal or request for issuance.--The Secretary may
propose the issuance of
an order, or an association of
processors or any other
person that would be affected by an
order may request the issuance
of, and submit a proposal for, an
order.
(2) <<NOTE: Publication.>> Notice and comment concerning
proposed order.--Not later
than 60 days after the receipt of a
request and proposal for
an order under paragraph (1), or at
such time as the Secretary
determines to propose an order, the
Secretary shall publish
a proposed order and give due notice and
opportunity for public comment
on the proposed order.
(3) Issuance of order.--After notice and opportunity for
public comment under paragraph
(2), the Secretary shall issue an
order, taking into consideration
the comments received and
including in the order such
provisions as are necessary to
ensure that the order conforms
to this subtitle. The order shall
be issued and become effective
not later than 150 days after the
date of publication of the
proposed order.
(c) Amendments.--The Secretary, as appropriate, may
amend an order.
The provisions of this subtitle applicable to an order shall be
applicable to any amendment to an order, except that an amendment to
an
order may not require a referendum to become effective.
SEC. 575. <<NOTE: 7 USC 7484.>> REQUIRED TERMS IN ORDERS.
(a) In General.--An order shall contain the terms
and conditions
specified in this section.
(b) Establishment and Membership of Popcorn Board.--
(1) In general.--The order shall provide for the
establishment of, and appointment
of members to, a Popcorn Board
that shall consist of not
fewer than 4 members and not more than
9 members.
(2) Nominations.--The members of the Board shall be
processors appointed by
the Secretary from nominations submitted
by processors in a manner
authorized by the Secretary, subject
to paragraph (3). Not more
than 1 member may be appointed to the
Board from nominations submitted
by any 1 processor.
(3) Geographical diversity.--In making appointments, the
Secretary shall take into
account, to the extent practicable,
the geographical distribution
of popcorn production throughout
the United States.
(4) Terms.--The term of appointment of each member of the
Board shall be 3 years,
except that the members appointed to the
initial Board shall serve,
proportionately, for terms of 2, 3,
and 4 years, as determined
by the Secretary.
(5) Compensation and expenses.--A member of the Board shall
serve without compensation,
but shall be reimbursed for the
expenses of the member incurred
in the performance of duties for
the Board.
(c) Powers and Duties of Board.--The order shall
define the powers
and duties of the Board, which shall include the power and duty--
(1) to administer the order in accordance with the terms and
provisions of the order;
(2) to issue regulations to effectuate the terms and
provisions of the order;
(3) to appoint members of the Board to serve on an executive
committee;
(4) to propose, receive, evaluate, and approve budgets,
plans, and projects of promotion,
research, consumer
information, and industry
information, and to contract with
appropriate persons to implement
the plans or projects;
(5) to accept and receive voluntary contributions, gifts,
and market promotion or
similar funds;
(6) to invest, pending disbursement under a plan or project,
funds collected through
assessments authorized under subsection
(f), only in--
(A) obligations of the United States or an agency of
the United States;
(B) general obligations of a State or a political
subdivision of a State;
(C) an 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;
(7) to receive, investigate, and report to the Secretary
complaints of violations
of the order; and
(8) to recommend to the Secretary amendments to the order.
(d) Plans and Budgets.--
(1) In general.--The order shall provide that the Board
shall submit to the Secretary
for approval any plan or project
of promotion, research,
consumer information, or industry
information.
(2) Budgets.--The order shall require the Board to submit to
the Secretary for approval
budgets on a fiscal year basis of the
anticipated expenses and
disbursements of the Board in the
implementation of the order,
including projected costs of plans
and projects of promotion,
research, consumer information, and
industry information.
(e) Contracts and Agreements.--
(1) In general.--The order shall provide that the Board may
enter into contracts or
agreements for the implementation and
carrying out of plans or
projects of promotion, research,
consumer information, or
industry information, including
contracts with a processor
organization, and for the payment of
the cost of the plans or
projects with funds collected by the
Board under the order.
(2) Requirements.--A contract or agreement under paragraph
(1) shall provide that--
(A) the contracting party shall develop and submit
to the Board a plan or project, together with a budget
that shows the estimated costs to be incurred for the
plan or project;
(B) <<NOTE: Effective date.>> the plan or project
shall become effective on the approval of the Secretary;
and
(C) <<NOTE: Records. Reports.>> the contracting
party shall keep accurate records of each transaction of
the party, account for funds received and expended, make
periodic reports to the Board of activities conducted,
and make such other reports as the Board or the
Secretary may require.
(3) Processor organizations.--The order shall provide that
the Board may contract with
processor organizations for any
services required in addition
to the services described in
paragraph (1). The contract
shall include provisions comparable
to the provisions required
by paragraph (2).
(f) Assessments.--
(1) Processors.--The order shall provide that each processor
marketing popcorn in the
United States or for export shall, in
the manner prescribed in
the order, pay assessments and remit
the assessments to the Board.
(2) Direct marketers.--A processor that markets popcorn
produced by the processor
directly to consumers shall pay and
remit the assessments on
the popcorn directly to the Board in
the manner prescribed in
the order.
(3) Rate.--
(A) In general.--The rate of assessment prescribed
in the order shall be a rate established by the Board
but not more than $.08 per hundredweight of popcorn.
(B) Adjustment of rate.--The order shall provide
that the Board, with the approval of the Secretary, may
raise or lower the rate of assessment annually up to a
maximum of $.08 per hundredweight of popcorn.
(4) Use of assessments.--
(A) In general.--Subject to subparagraphs (B) and
(C) and subsection (c)(5), the order shall provide that
the assessments collected shall be used by the Board--
(i) to pay expenses incurred in implementing
and administering the order, with provision for a
reasonable reserve; and
(ii) to cover such administrative costs as are
incurred by the Secretary, except that the
administrative costs incurred by the Secretary
(other than any legal expenses incurred to defend
and enforce the order) that may be reimbursed by
the Board may not exceed 15 percent of the
projected annual revenues of the Board.
(B) Expenditures based on source of assessments.--In
implementing plans and projects of promotion, research,
consumer information, and industry information, the
Board shall expend funds on--
(i) plans and projects for popcorn marketed in
the United States or Canada in proportion to the
amount of assessments collected on domestically
marketed popcorn; and
(ii) plans and projects for exported popcorn
in proportion to the amount of assessments
collected on exported popcorn.
(C) Notification.--If the administrative costs
incurred by the Secretary that are reimbursed by the
Board exceed 10 percent of the projected annual revenues
of the Board, the Secretary shall notify as soon as
practicable the Committee on Agriculture of the House of
Representatives and the Committee on Agriculture,
Nutrition, and Forestry of the Senate.
(g) Prohibition on Use of Funds.--The order shall
prohibit any funds
collected by the Board under the order from being used to influence
government action or policy, other than the use of funds by the Board
for the development and recommendation to the Secretary of amendments
to
the order.
(h) Books and Records of the Board.--The order shall
require the
Board to--
(1) maintain such books and records (which shall be
available to the Secretary
for inspection and audit) as the
Secretary may prescribe;
(2) <<NOTE: Reports.>> prepare and submit to the Secretary,
from time to time, such
reports as the Secretary may prescribe;
and
(3) account for the receipt and disbursement of all funds
entrusted to the Board.
(i) Books and Records of Processors.--
(1) Maintenance and reporting of information.--The order
shall require that each
processor of popcorn for the market
shall--
(A) maintain, and make available for inspection,
such books and records as are required by the order; and
(B) <<NOTE: Reports.>> file reports at such time,
in such manner, and having such content as is prescribed
in the order.
(2) Use of information.--The Secretary shall authorize the
use of information regarding
processors that may be accumulated
under a law or regulation
other than this subtitle or a
regulation issued under
this subtitle. The information shall be
made available to the Secretary
as appropriate for the
administration or enforcement
of this subtitle, the order, or
any regulation issued under
this subtitle.
(3) Confidentiality.--
(A) In general.--Subject to subparagraphs (B), (C),
and (D), all information obtained by the Secretary under
paragraphs (1) and (2) shall be kept confidential by all
officers, employees, and agents of the Board and the
Department.
(B) Disclosure by secretary.--Information referred
to in subparagraph (A) may be disclosed if--
(i) the Secretary considers the information
relevant;
(ii) the information is revealed in a suit or
administrative hearing brought at the request of
the Secretary, or to which the Secretary or any
officer of the United States is a party; and
(iii) the information relates to the order.
(C) Disclosure to other agency of federal
government.--
(i) In general.--No information obtained under
the authority of this subtitle may be made
available to another agency or officer of the
Federal Government for any purpose other than the
implementation of this subtitle and any
investigatory or enforcement activity necessary
for the implementation of this subtitle.
(ii) Penalty.--A person who knowingly violates
this subparagraph shall, on conviction, be subject
to a fine of not more than $1,000 or to
imprisonment for not more than 1 year, or both,
and if an officer, employee, or agent of the Board
or the Department, shall be removed from office or
terminated from employment, as applicable.
(D) General statements.--Nothing in this paragraph
prohibits--
(i) the issuance of general statements based
on the reports of a number of persons subject to
an order or statistical data collected from the
reports, if the statements do not identify the
information provided by any person; or
(ii) the publication, by direction of the
Secretary, of the name of a person violating the
order, together with a statement of the particular
provisions of the order violated by the person.
(j) Other Terms and Conditions.--The order shall
contain such other
terms and conditions, consistent with this subtitle, as are necessary
to
effectuate this subtitle, including regulations relating to the
assessment of late payment charges.
SEC. 576. <<NOTE: 7 USC 7485.>> REFERENDA.
(a) Initial Referendum.--
(1) In general.--Within the 60-day period immediately
preceding the effective
date of an order, as provided in section
574(b)(3), the Secretary
shall conduct a referendum among
processors who, during a
representative period as determined by
the Secretary, have been
engaged in processing, for the purpose
of ascertaining whether
the order shall go into effect.
(2) Approval of order.--The order shall become effective, as
provided in section 574(b),
only if the Secretary determines
that the order has been
approved by not less than a majority of
the processors voting in
the referendum and if the majority
processed more than 50 percent
of the popcorn certified as
having been processed, during
the representative period, by the
processors voting.
(b) Additional Referenda.--
(1) In general.--Not earlier than 3 years after the
effective date of an order
approved under subsection (a), on the
request of the Board or
a representative group of processors, as
described in paragraph (2),
the Secretary may conduct additional
referenda to determine whether
processors favor the suspension
or termination of the order.
(2) Representative group of processors.--An additional
referendum on an order shall
be conducted if the referendum is
requested by 30 percent
or more of the number of processors who,
during a representative
period as determined by the Secretary,
have been engaged in processing.
(3) <<NOTE: Termination date.>> Disapproval of order.--If
the Secretary determines,
in a referendum conducted under
paragraph (1), that suspension
or termination of the order is
favored by at least \2/3\
of the processors voting in the
referendum, the Secretary
shall--
(A) suspend or terminate, as appropriate, collection
of assessments under the order not later than 180 days
after the date of determination; and
(B) suspend or terminate the order, as appropriate,
in an orderly manner as soon as practicable after the
date of determination.
(c) Costs of Referendum.--The Secretary shall be
reimbursed from
assessments collected by the Board for any expenses incurred by the
Secretary in connection with the conduct of any referendum under this
section.
(d) Method of Conducting Referendum.--Subject to
this section, a
referendum conducted under this section shall be conducted in such
manner as is determined by the Secretary.
(e) Confidentiality of Ballots and Other Information.--
(1) In general.--The ballots and other information or
reports that reveal or tend
to reveal the vote of any processor,
or any business operation
of a processor, shall be considered to
be strictly confidential
and shall not be disclosed.
(2) Penalty for violations.--An officer or employee of the
Department who knowingly
violates paragraph (1) shall be subject
to the penalties described
in section 575(i)(3)(C)(ii).
SEC. 577. <<NOTE: 7 USC 7486.>> PETITION AND REVIEW.
(a) Petition.--
(1) In general.--A person subject to an order may file with
the Secretary a petition--
(A) stating that the order, a provision of the
order, or an obligation imposed in connection with the
order is not established in accordance with law; and
(B) requesting a modification of the order or
obligation or an exemption from the order or obligation.
(2) Statute of limitations.--A petition under paragraph (1)
concerning an obligation
may be filed not later than 2 years
after the date of imposition
of the obligation.
(3) Hearings.--The petitioner shall be given the opportunity
for a hearing on a petition
filed under paragraph (1), in
accordance with regulations
issued by the Secretary.
(4) Ruling.--After a hearing under paragraph (3), the
Secretary shall issue a
ruling on the petition that is the
subject of the hearing,
which shall be final if the ruling is in
accordance with applicable
law.
(b) <<NOTE: Courts.>> Review.--
(1) Commencement of action.--The district court of the
United States for any district
in which a person who is a
petitioner under subsection
(a) resides or carries on business
shall have jurisdiction
to review a ruling on the petition, if
the person files a complaint
not later than 20 days after the
date of issuance of the
ruling under subsection (a)(4).
(2) Process.--Service of process in a proceeding under
paragraph (1) may be made
on the Secretary by delivering a copy
of the complaint to the
Secretary.
(3) Remands.--If the court determines, under paragraph (1),
that a ruling issued under
subsection (a)(4) is not in
accordance with applicable
law, the court shall remand the
matter to the Secretary
with directions--
(A) to make such ruling as the court shall determine
to be in accordance with law; or
(B) to take such further proceedings as, in the
opinion of the court, the law requires.
(c) Enforcement.--The pendency of proceedings instituted
under
subsection (a) may not impede, hinder, or delay the Secretary or the
Attorney General from taking action under section 578.
SEC. 578. <<NOTE: 7 USC 7487.>> ENFORCEMENT.
(a) In General.--The Secretary may issue an enforcement
order to
restrain or prevent any person from violating an order or regulation
issued under this subtitle and may assess a civil penalty of not more
than $1,000 for each violation of the enforcement order, after an
opportunity for an administrative hearing, if the Secretary determines
that the administration and enforcement of the order and this subtitle
would be adequately served by such a procedure.
(b) <<NOTE: Courts.>> Jurisdiction.--The
district courts of the
United States are vested with jurisdiction specifically to enforce,
and
to prevent and restrain any person from violating, an order or
regulation issued under this subtitle.
(c) Referral to Attorney General.--A civil action
authorized to be
brought under this section shall be referred to the Attorney General
for
appropriate action.
SEC. 579. <<NOTE: 7 USC 7488.>> INVESTIGATIONS AND POWER TO SUBPOENA.
(a) Investigations.--The Secretary may make such
investigations as
the Secretary considers necessary--
(1) for the effective administration of this subtitle; and
(2) to determine whether any person subject to this subtitle
has engaged, or is about
to engage, in an act that constitutes
or will constitute a violation
of this subtitle or of an order
or regulation issued under
this subtitle.
(b) Oaths, Affirmations, and Subpoenas.--For the
purpose of 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 attendance of witnesses and the
production of records may be required from any place in the United
States.
(c) Aid of Courts.--
(1) Request.--In the case of contumacy by, or refusal to
obey a subpoena issued to,
any person, the Secretary may request
the aid of any court of
the United States within the
jurisdiction of which the
investigation or proceeding is carried
on, or where the person
resides or carries on business, in
requiring the attendance
and testimony of the person and the
production of records.
(2) Enforcement order of the court.--The court may issue an
enforcement order requiring
the person to appear before the
Secretary to produce records
or to give testimony concerning the
matter under investigation.
(3) Contempt.--A failure to obey an enforcement order of the
court under paragraph (2)
may be punished by the court as a
contempt of the court.
(4) Process.--Process in a case under this subsection may be
served in the judicial district
in which the person resides or
carries on business or wherever
the person may be found.
SEC. 580. <<NOTE: 7 USC 7489.>> RELATION TO OTHER PROGRAMS.
Nothing in this subtitle preempts or supersedes any
other program
relating to popcorn promotion organized and operated under the laws
of
the United States or any State.
SEC. 581. <<NOTE: 7 USC 7490.>> REGULATIONS.
The Secretary may issue such regulations as are necessary
to carry
out this subtitle.
SEC. 582. <<NOTE: 7 USC 7491.>> AUTHORIZATION OF APPROPRIATIONS.
There are authorized to be appropriated such sums
as are necessary
to carry out this subtitle. Amounts made available under
this section or otherwise made available to the Department, and amounts
made available under any other marketing or promotion order, may not
be
used to pay any administrative expense of the Board.
SEC. 591. MAINTENANCE OF RECORDS FOR HONEY PROMOTION PROGRAM.
Section 9(f) of the Honey Research, Promotion, and
Consumer
Information Act (7 U.S.C. 4608(f)) is amended by inserting
``producers,'' after ``importers,''.