US (United States) Code. Title 16. Chapter 60: Fish and seafood promotion

Codificación normativa de EEUU (Estados Unidos) Legislación Federal estadounidense # Conservation

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16 USC CHAPTER 60 - FISH AND SEAFOOD PROMOTION 01/06/03

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TITLE 16 - CONSERVATION

CHAPTER 60 - FISH AND SEAFOOD PROMOTION

.

-HEAD-

CHAPTER 60 - FISH AND SEAFOOD PROMOTION

-MISC1-

Sec.

4001. Congressional findings.

4002. Congressional statement of purpose.

4003. Definitions.

4004. Establishment of National Council.

(a) Establishment.

(b) Composition.

(c) Regional representation.

(d) Voting members.

(e) Term of office.

(f) Chairman.

(g) First meeting.

(h) Compensation of members.

4005. Functions and duties of National Council.

(a) Functions and duties.

(b) Annual plan.

(c) Prohibition on certain references.

(d) Executive director.

(e) Funding of referendum.

(f) Agreements.

(g) Termination of National Council.

4006. Duties of Secretary with regard to National Council.

(a) Duties of Secretary.

(b) Withdrawal of funds.

4007. Voluntary payments.

4008. Establishment of Fisheries Promotional Fund.

(a) Establishment of Fund.

(b) Deposits.

(c) Deposits and investments.

(d) Authorization.

4009. Establishment of seafood marketing councils.

(a) Application.

(b) Form of application.

(c) Contents of charter.

(d) Review of charter.

(e) Conduct of referendum.

(f) Nominations.

(g) Nature of a council.

4010. Functions and powers of councils.

(a) Activities of a council.

(b) Authority of a council.

(c) Quality standards.

(d) Amendment of a charter.

4011. Functions and powers of Secretary.

(a) Duties of the Secretary.

(b) Assistance.

4012. Assessments.

(a) Authority.

(b) Method of imposition.

(c) Prohibition on assessment.

(d) Voluntary payments.

(e) Deposit of funds.

(f) Information.

4013. Petitions.

(a) Filing of petition.

(b) Form of petition.

4014. Refunds.

4015. Termination of a council.

(a) Petition for termination.

(b) Payment of remaining funds.

4016. Enforcement.

(a) Authority.

(b) Recovery of costs.

4017. Investigations.

(a) Authority to make investigations.

(b) Oaths and affirmations.

(c) Court orders.

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16 USC Sec. 4001 01/06/03

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TITLE 16 - CONSERVATION

CHAPTER 60 - FISH AND SEAFOOD PROMOTION

-HEAD-

Sec. 4001. Congressional findings

-STATUTE-

The Congress finds that -

(1) the commercial fishing industry of the United States

significantly contributes to the national economy, and could make

a greater contribution if fish resources within the United States

Exclusive Economic Zone were more fully utilized;

(2) the commercial fisheries of the United States provide

significant employment in coastal areas and in processing and

distribution centers;

(3) fish contribute an important nutritional component to the

American diet;

(4) increased consumption of seafood in the United States could

significantly lower the risk of many cardiovascular diseases;

(5) Federally supported development programs for commercial

fisheries are unable to meet present and future marketing needs;

(6) many fish species are underutilized by the United States

fishing industry because of underdeveloped markets; and

(7) the United States fishing industry has the potential to

expand greatly its contribution to interstate and foreign

commerce, favorably affecting the balance of trade.

-SOURCE-

(Pub. L. 99-659, title II, Sec. 202, Nov. 14, 1986, 100 Stat.

3715.)

-MISC1-

SHORT TITLE

Section 201 of title II of Pub. L. 99-659 provided that: ''This

title (enacting this chapter and amending section 713c-3 of Title

15, Commerce and Trade) may be cited as the 'Fish and Seafood

Promotion Act of 1986'.''

REPORT TO CONGRESS ON FISH AND SEAFOOD PROMOTION

Section 219 of title II of Pub. L. 99-659 provided that: ''The

Secretary shall, not later than March 1, 1989, submit to the

Congress a report on the effectiveness of the implementation of

this title (enacting this chapter and amending section 713c-3 of

Title 15, Commerce and Trade) in achieving the purposes of this

title.''

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16 USC Sec. 4002 01/06/03

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TITLE 16 - CONSERVATION

CHAPTER 60 - FISH AND SEAFOOD PROMOTION

-HEAD-

Sec. 4002. Congressional statement of purpose

-STATUTE-

The purpose of this chapter is to -

(1) strengthen the competitive position of the United States

commercial fishing industry in the domestic and international

marketplace;

(2) encourage the development and utilization of all species of

fish available for harvest by the United States fishing industry;

(3) encourage the utilization of domestically-produced fish

through enhancement of markets, promotion, and public relations;

(4) help the United States fishing industry develop methods to

improve quality and efficiency in the marketplace;

(5) educate and inform consumers on the use of fish;

(6) develop better coordination of fisheries marketing and

promotion activities with commercial fisheries research and

development programs; and

(7) educate and inform the public about the nutritional value

of fish in the diet.

-SOURCE-

(Pub. L. 99-659, title II, Sec. 203, Nov. 14, 1986, 100 Stat.

3716.)

-REFTEXT-

REFERENCES IN TEXT

This chapter, referred to in text, was in the original ''this

title'', meaning title II of Pub. L. 99-659, Nov. 14, 1986, 100

Stat. 3715, which is classified principally to this chapter. For

complete classification of title II to the Code, see Short Title

note set out under section 4001 of this title and Tables.

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16 USC Sec. 4003 01/06/03

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TITLE 16 - CONSERVATION

CHAPTER 60 - FISH AND SEAFOOD PROMOTION

-HEAD-

Sec. 4003. Definitions

-STATUTE-

As used in this chapter, the term -

(1) ''consumer education'' means actions undertaken to inform

consumers on matters related to the consumption of fish and fish

products;

(2) ''council'' means a seafood promotional council established

under section 4009 of this title;

(3) ''fish'' means finfish, mollusks, crustaceans, and all

other forms of aquatic animal life used for human consumption;

the term does not include marine mammals and seabirds;

(4) ''Fund'' means the Fisheries Promotional Fund established

in section 4008 of this title;

(5) ''harvester'' means any individual who is in the business

of catching or growing fish for purposes of sale;

(6) ''importer'' means any person in the business of importing

fish or fish products into the United States from another country

for commercial purposes or who acts as an agent, broker, or

consignee for any person or nation that produces, processes or

markets fish or fish products outside of the United States for

sale or other commercial purpose in the United States;

(7) ''marketer'' means any person who is in the business of

selling fish or fish products in the wholesale, retail, or

restaurant trade, but whose primary business function is not the

processing or packaging of fish or fish products in preparation

for sale;

(8) ''marketing and promotion'' means an activity aimed at

encouraging the consumption of fish or fish products or expanding

or maintaining commercial markets for fish or fish products;

(9) ''member'' means any person serving on the National Council

or on any council;

(10) ''National Council'' means the National Fish and Seafood

Promotional Council established in section 4004 of this title;

(11) ''person'' means any individual, group of individuals,

partnership, corporation, association, cooperative, or any

private entity organized or existing under the laws of the United

States or any State, commonwealth, territory or possession of the

United States;

(12) ''processor'' means any person who is in the business of

preparing or packaging fish or fish products (including fish of

the processor's own harvesting) for sale;

(13) ''receiver'' means any person who owns fish processing

vessels and any person in the business of acquiring fish directly

from harvesters;

(14) ''research'' means any type of research designed to

advance the image, desirability, usage, marketability, production

or quality of fish and fish products;

(15) ''sector'' means -

(A) the sector consisting of harvesters;

(B) the sector consisting of importers;

(C) the sector consisting of marketers;

(D) the sector consisting of processors;

(E) the sector consisting of receivers; or

(F) the consumer sector consisting of persons professionally

engaged in the dissemination of information pertaining to the

nutritional benefits and preparation of fish and fish products;

(16) ''Secretary'' means the Secretary of Commerce, or the

Secretary's designee; and

(17) ''United States'' means the several States, the District

of Columbia, Puerto Rico, the Virgin Islands, Guam, American

Samoa, the Northern Mariana Islands and any other territory,

possession, or commonwealth of the United States.

-SOURCE-

(Pub. L. 99-659, title II, Sec. 204, Nov. 14, 1986, 100 Stat.

3716.)

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in title 31 section 3903.

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16 USC Sec. 4004 01/06/03

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TITLE 16 - CONSERVATION

CHAPTER 60 - FISH AND SEAFOOD PROMOTION

-HEAD-

Sec. 4004. Establishment of National Council

-STATUTE-

(a) Establishment

There is established the National Fish and Seafood Promotional

Council.

(b) Composition

(1) The National Council shall be composed of the Secretary, who

shall be a nonvoting member, and fifteen voting members appointed

by the Secretary.

(2) Nominations for appointees shall be submitted in a manner

prescribed by the Secretary.

(c) Regional representation

The National Council shall be comprised of regional

representation from the Northeast, Southeast, Pacific, and Alaska

regions. The Northeast region shall consist of the States of

Maine, New Hampshire, Massachusetts, Rhode Island, Connecticut, New

York, New Jersey, Delaware, Pennsylvania, Maryland and Virginia.

The Southeast region shall consist of the States of North Carolina,

South Carolina, Georgia, Florida, Alabama, Mississippi, Louisiana

and Texas, the Commonwealth of Puerto Rico, and the territory of

the Virgin Islands. The Pacific region shall consist of the States

of Idaho, Washington, Oregon, California, and Hawaii, the

territories of Guam and American Samoa, and the Commonwealth of the

Northern Mariana Islands. The Alaska region shall consist of the

State of Alaska.

(d) Voting members

(1) The voting members of the National Council shall be -

(A) three members who reside in or do substantial fishing

industry business in the Northeast region;

(B) three members who reside in or do substantial fishing

industry business in the Southeast region;

(C) three members who reside in or do substantial fishing

industry business in the Pacific region;

(D) three members who reside in or do substantial fishing

industry business in the Alaska region;

(E) two members-at-large with demonstrated expertise in

fresh-water and inland commercial fisheries, at least one of whom

is not a resident of the States of the Alaska, Pacific,

Southeast, and Northeast regions; and

(F) one member-at-large who is either a person professionally

engaged in the dissemination of information pertaining to the

nutritional benefits and preparation of fish and fish products or

a person who is a member of an organized labor union and has

expertise in the United States fisheries.

(2) Of the members appointed pursuant to each of paragraphs

(1)(A) through (D) of this subsection, one shall be a harvester,

one shall be a processor or a receiver, and one shall be a

marketer.

(e) Term of office

Members of the National Council shall be appointed for a term of

4 years. A vacancy in the National Council shall not affect its

ability to function. The Secretary shall appoint a new member

within sixty days to fill a vacancy in an unexpired term. Any

member may remain on the National Council beyond that member's term

until a successor is appointed.

(f) Chairman

The National Council shall annually elect a Chairman by a

majority of those voting, if a quorum is present. Ten members of

the National Council shall constitute a quorum, but a lesser number

may hold hearings.

(g) First meeting

The National Council shall first meet within one hundred and

eighty days after November 14, 1986.

(h) Compensation of members

Members of the National Council shall serve without compensation,

but shall be reimbursed in accordance with section 5703 of title 5

for reasonable travel costs and expenses incurred in performing

their duties as members of the National Council.

-SOURCE-

(Pub. L. 99-659, title II, Sec. 205, Nov. 14, 1986, 100 Stat. 3717;

Pub. L. 100-350, Sec. 3, June 27, 1988, 102 Stat. 660.)

-MISC1-

AMENDMENTS

1988 - Subsec. (d)(1)(E). Pub. L. 100-350 which directed the

substitution of '', at least one of whom is not a resident of the

States of the Alaska, Pacific, Southeast, and Northeast regions''

for ''and who are not residents of the States of the Alaska,

Pacific, Southeast, or Northeast regions'' was executed by

substituting that phrase for ''and who are not residents of the

states of the Alaska, Pacific, Southeast, or Northeast regions''.

CONTINUITY OF NATIONAL COUNCIL MEMBERSHIP

Pub. L. 101-627, title VII, Sec. 704(a), (b), Nov. 28, 1990, 104

Stat. 4464, provided that:

''(a) Uninterrupted Service. - Individuals serving on September

30, 1990, as members of the National Fish and Seafood Promotional

Council shall be deemed to continue as members in uninterrupted

service since the date of their initial appointment.

''(b) Filling of Vacancies. - Notwithstanding section 206(e) of

the Fish and Seafood Promotion Act of 1986 (16 U.S.C. 4005(e)), any

vacancy on the National Fish and Seafood Promotion Act (Promotional

Council) not filled as of September 30, 1990, shall be filled

within 60 days after the date of enactment of this Act (Nov. 28,

1990).''

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in section 4003 of this title.

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16 USC Sec. 4005 01/06/03

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TITLE 16 - CONSERVATION

CHAPTER 60 - FISH AND SEAFOOD PROMOTION

-HEAD-

Sec. 4005. Functions and duties of National Council

-STATUTE-

(a) Functions and duties

The National Council shall -

(1) prepare and submit to the Secretary, for the Secretary's

review and approval, an annual marketing and promotion plan which

contains descriptions of consumer education, research, and other

marketing and promotion activities of the National Council for

the following year, including plans to coordinate the activities

of councils established under section 4009 of this title;

(2) prepare and submit to the Secretary, for the Secretary's

review and approval, an annual budget of the anticipated expenses

and disbursements of the National Council, including probable

costs of consumer education, research, and other marketing and

promotion plans or projects, and referenda under section 4009 of

this title;

(3) maintain accounting records of the receipt and disbursement

of all funds entrusted to the National Council, subject to the

Secretary's right to review or inspect such records;

(4) maintain such books and records as the Secretary determines

appropriate; and

(5) prepare and submit to the Secretary from time to time such

reports or proposals as the Secretary or the National Council

determines appropriate for furthering the purposes and policies

of this chapter.

(b) Annual plan

Each annual marketing and promotion plan shall be directed to -

(1) increasing the general demand for fish and fish products;

(2) encouraging, expanding, or improving the marketing and

promotion and utilization of fish and fish products; and

(3) improving the dissemination of data collected by consumer

education, research, and other marketing promotion activities.

(c) Prohibition on certain references

Consumer education and other marketing and promotion activities

of the National Council shall contain no reference to a private

brand or trade name and shall avoid use of deceptive acts or

practices in behalf of fish or fish products or with respect to the

quality, value, or use of any competing product or group of

products. In addition, the National Council may not promote the

consumption or purchase of a single or group of similar fish

species (such as members of the same genera); except that the

Council may use illustrations of a single or group of similar fish

species in the course of promoting the generic consumption of fish

and fish products.

(d) Executive director

The National Council may employ and determine the salary of an

executive director, but such salary shall not exceed Senior

Executive Service Level 6. The executive director shall have

demonstrated expertise in the marketing and promotion of food

products and may, without regard to the provisions of title 5, with

the approval of the National Council, select and employ additional

staff as necessary.

(e) Funding of referendum

The National Council may enter into agreements with applicants

proposing to establish a council under section 4009 of this title

for the purposes of funding a referendum establishing the council.

The National Council may enter into agreements with the councils

established under section 4009 of this title for the purpose of

funding a referendum to establish quality standards, or a

referendum to terminate any such council.

(f) Agreements

The National Council may enter into agreements to develop and

carry out activities authorized under this chapter.

(g) Termination of National Council

The National Council shall cease to exist on December 31, 1991.

-SOURCE-

(Pub. L. 99-659, title II, Sec. 206, Nov. 14, 1986, 100 Stat. 3718;

Pub. L. 101-627, title VII, Sec. 701, Nov. 28, 1990, 104 Stat.

4463.)

-REFTEXT-

REFERENCES IN TEXT

Senior Executive Service, referred to in subsec. (d), see section

5382 of Title 5, Government Organization and Employees.

-MISC2-

AMENDMENTS

1990 - Subsec. (g). Pub. L. 101-627 substituted ''December 31,

1991'' for ''October 1, 1990''.

CONTINUITY OF COUNCIL FUNCTIONS, CONTRACTS, AND PERSONNEL

Section 705 of Pub. L. 101-627 provided that: ''All current

functions, contracts in force, and existing personnel of the

National Fish and Seafood Promotional Council as of September 30,

1990, are reauthorized and extended, and shall continue as if

uninterrupted, notwithstanding section 206(g) of the Fish and

Seafood Promotion Act of 1986 (16 U.S.C. 4005(g)) as in effect on

September 30, 1990.''

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16 USC Sec. 4006 01/06/03

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TITLE 16 - CONSERVATION

CHAPTER 60 - FISH AND SEAFOOD PROMOTION

-HEAD-

Sec. 4006. Duties of Secretary with regard to National Council

-STATUTE-

(a) Duties of Secretary

The Secretary shall -

(1) within sixty days after its submission by the National

Council, review the annual marketing and promotion plan and

budget and, if the Secretary determines that such plan and budget

are in accordance with the purposes and policies of this chapter,

approve such plan and budget;

(2) administer the Fund and, in accordance with subsection (b)

of this section, withdraw from the Fund such sums as are

necessary to carry out the National Council's approved marketing

and promotion plan and budget;

(3) promulgate regulations necessary to carry out the purposes

and policies of this chapter;

(4) provide such administrative assistance as the National

Council may require for purposes of its initial organization and

operation; and

(5) make all initial appointments to the National Council

within ninety days after November 14, 1986.

(b) Withdrawal of funds

The Secretary shall make withdrawals of sums from the Fund under

this section at the request of the National Council, unless the

Secretary determines that the purposes for which such sums are

requested are not reasonably likely to further the purposes and

policies of this chapter.

-SOURCE-

(Pub. L. 99-659, title II, Sec. 207, Nov. 14, 1986, 100 Stat. 3719;

Pub. L. 101-627, title VII, Sec. 704(c), Nov. 28, 1990, 104 Stat.

4464.)

-MISC1-

AMENDMENTS

1990 - Subsec. (a)(5). Pub. L. 101-627 inserted ''initial''

before ''appointments''.

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16 USC Sec. 4007 01/06/03

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TITLE 16 - CONSERVATION

CHAPTER 60 - FISH AND SEAFOOD PROMOTION

-HEAD-

Sec. 4007. Voluntary payments

-STATUTE-

Any person may make voluntary payments to assist the National

Council to carry out its annual marketing and promotion plan and

annual budget. The Secretary shall deposit such payments into the

Fund.

-SOURCE-

(Pub. L. 99-659, title II, Sec. 208, Nov. 14, 1986, 100 Stat.

3720.)

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in section 4008 of this title.

-CITE-

16 USC Sec. 4008 01/06/03

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TITLE 16 - CONSERVATION

CHAPTER 60 - FISH AND SEAFOOD PROMOTION

-HEAD-

Sec. 4008. Establishment of Fisheries Promotional Fund

-STATUTE-

(a) Establishment of Fund

There is established in the Treasury of the United States a

Fisheries Promotional Fund. The Fund shall be available, to the

extent provided for in appropriation Acts, for the purpose of

making payments to carry out the annual marketing and promotion

plan and annual budget of the National Council under this chapter.

(b) Deposits

There shall be deposited in the Fund -

(1) the moneys transferred to the Fund under section

713c-3(b)(2) of title 15;

(2) payments made voluntarily pursuant to section 4007 of this

title; and

(3) receipts from investments made under subsection (c) of this

section.

(c) Deposits and investments

Sums in the Fund that are not currently needed for the purposes

of the Fund shall be kept on deposit in appropriate

interest-bearing accounts that shall be established by the

Secretary of the Treasury, or invested in obligations of, or

guaranteed by, the United States. Any revenue accruing from such

deposits and investments shall be deposited in the Fund.

(d) Authorization

There are authorized to be appropriated from the Fund, for the

purposes of carrying out the annual marketing and promotion plan

and annual budget of the National Council under this chapter, such

sums as are deposited in the Fund under subsection (b) of this

section in each fiscal year beginning in fiscal year 1987 through

fiscal year 1991.

-SOURCE-

(Pub. L. 99-659, title II, Sec. 209, Nov. 14, 1986, 100 Stat. 3720;

Pub. L. 101-627, title VII, Sec. 702, Nov. 28, 1990, 104 Stat.

4463.)

-COD-

CODIFICATION

Section is comprised of section 209 of Pub. L. 99-659. Subsec.

(e) of section 209 of Pub. L. 99-659 amended section 713c-3 of

Title 15, Commerce and Trade.

-MISC3-

AMENDMENTS

1990 - Subsec. (d). Pub. L. 101-627 substituted ''1991'' for

''1990''.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in section 4003 of this title; title

15 section 713c-3.

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16 USC Sec. 4009 01/06/03

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TITLE 16 - CONSERVATION

CHAPTER 60 - FISH AND SEAFOOD PROMOTION

-HEAD-

Sec. 4009. Establishment of seafood marketing councils

-STATUTE-

(a) Application

An application for a charter for a seafood marketing council for

one or more species of fish and fish products of that species may

be filed by persons who meet the requirements specified in

accordance with subsection (b)(6) of this section.

(b) Form of application

An application for a charter for a council shall be made by

filing with the Secretary the text of a proposed charter in such

form as shall be prescribed by regulation by the Secretary. The

text of a proposed charter must contain such information as the

Secretary considers necessary or appropriate for carrying out the

provisions of this chapter, including -

(1) the name of the council and a provision proclaiming its

establishment;

(2) a declaration of the purposes and objectives of the

council;

(3) a description of the species of fish and fish products for

which the council will implement marketing and promotion plans

under section 4010 of this title;

(4) the identification of each sector and the number and terms

of representatives of each sector that will be represented as

voting members of the council;

(5) the identification of those sectors (including the sector

consisting of harvesters, the sector consisting of receivers,

and, if subject to assessment, the sector consisting of

importers) subject to a referendum to establish a council under

subsection (e) of this section;

(6) a specification for each sector described under paragraph

(5) of this subsection of the minimum requirements, as measured

by income, volume, or other relevant factors, that a person

engaging in business in the sector must meet in order to

participate in a referendum;

(7)(A) a description of the procedures for determining

assessment rates under section 4012 of this title;

(B) the proposed rate or rates that will be imposed by the

council on receivers and, if subject to assessment, importers

during its first year of operation;

(C) the maximum amount an assessment rate for any period may be

raised above the rate applicable for the immediately preceding

period; and

(D) the maximum rate or rates that can be imposed by a council

on receivers or importers during the operation of the council;

(8) a provision setting forth the definition of a quorum for

making decisions on council business and the procedures for

selecting a chairman of the council;

(9) a provision setting forth the voting procedures by which

votes may be cast by proxy; and

(10) such other provisions relating to administration of the

council as the Secretary considers necessary.

The text of a proposed charter shall be accompanied by a document

identifying, to the extent practicable by address of place of

business, the persons (hereinafter referred to as ''sector

participants'') that are considered by the applicants to meet the

requirements specified in paragraph (6) of this subsection. The

text of a proposed charter shall include provisions setting forth

procedures for providing refunds to those sector participants

subject to assessment under section 4012 of this title, and may

also include provisions which establish a maximum limit on the

amount that any one sector participant may be required to pay under

an assessment for any period.

(c) Contents of charter

The Secretary may not approve a proposed charter filed under

subsection (a) of this section unless such charter provides that -

(1) the council will have voting members representing the

harvesting, receiving and, if subject to assessment, importing

sectors; and

(2) the members of the council shall serve without

compensation, but shall be reimbursed for their reasonable

expenses incurred in performing their duties as members of the

council.

(d) Review of charter

(1) Within 180 days of the receipt of an application to establish

a council, the Secretary shall -

(A) identify, to the extent practicable, those sector

participants that meet the requirements for eligibility to

participate in the referendum under subsection (e) of this

section;

(B) determine, to the extent practicable, if the charter is

accompanied by a petition comprised of the signatures or

corporate certifications, as the case may be, of no less than

three sector participants in each sector identified in accordance

with subsection (b)(5) of this section who collectively accounted

for, in the twelve-month period immediately preceding the month

in which the application was filed, not less than 10 percent of

the value of the fish or fish products described in accordance

with subsection (b)(3) of this section that were handled by each

such sector during that period; and

(C) determine if the proposed charter is consistent with the

provisions of this chapter and any other applicable law.

(2) If any negative determination is made under paragraph (1) of

this subsection regarding a proposed charter, the Secretary shall

advise in writing the sector participants who made the application

of the reasons for such determination. A corrected application may

be submitted thereafter to the Secretary for approval.

(e) Conduct of referendum

(1) Upon making affirmative determinations under subsection

(d)(1) of this section regarding a proposed charter, the Secretary,

within 90 days after the date of the last of such determinations,

shall conduct a referendum on the adoption of the proposed charter

among all sector participants identified in accordance with

subsection (d)(1)(A) of this section. The Secretary shall by order

establish the council and approve the proposed charter, if the

referendum votes which are cast in favor of the proposed charter

constitute a majority of the sector participants voting in each

sector and the majority collectively accounts for, in the

twelve-month period immediately preceding the month in which the

proposed charter was filed under subsection (a) of this section, at

least sixty-six percent of the value of the fish and fish products

described in accordance with subsection (b)(3) of this section that

were handled by that sector during such period.

(2) Not less than thirty days prior to holding a referendum under

this subsection, the Secretary shall -

(A) publish (by such means as will result in wide publicity in

regions affected by the proposed charter) the text of the

proposed charter and a list of those sector participants eligible

to vote in the referendum; and

(B) provide for public comment, including the opportunity for a

public meeting.

(3)(A) The Secretary shall pay all costs of a referendum which

establishes a council under this subsection. Within two years

after a council is established the council shall reimburse the

Secretary for any expenses incurred for the conduct of the

referendum from assessments collected by the council. Prior to the

holding of a referendum under this subsection, the Secretary shall

require the applicants to post a bond or other security acceptable

to the Secretary, in an amount which the Secretary determines to be

sufficient to pay any expenses incurred for the conduct of the

referendum, and shall immediately recover such amount if a

referendum fails to result in the establishment of a council.

(B) As used in this paragraph, the term ''expenses incurred for

the conduct of the referendum'' does not include salaries of

Government employees or other administrative overhead, but is

limited to those additional direct costs incurred in connection

with conduct of the referendum.

(f) Nominations

(1) Within thirty days after a council is established under

subsection (e) of this section, the Secretary shall solicit from

the sectors represented on the council nominations for members of

the council. If the harvesters and receivers represented on the

council are engaged in business in two or more regions of the

United States, the nominations made under this paragraph, and the

appointments to the council made under paragraph (3) of this

subsection, must, to the extent practicable, result in equitable

representation for the constituent regions.

(2) No person is eligible for nomination or appointment as a

member of a council unless such person is knowledgeable and

experienced with regard to the activities of, and is or has been

actively engaged in the business of, the sector which such person

will represent on the council.

(3) The Secretary shall, within sixty days after the end of the

thirty-day period referred to in paragraph (1) of this subsection,

appoint the members of the council from among the nominees.

(4) A vacancy on a council shall be filled, within sixty days

after the vacancy occurs, in the same manner in which the original

appointment was made. A member appointed to fill a vacancy

occurring before the expiration of the term for which the member's

predecessor was appointed shall be appointed only for the remainder

of such term.

(5) The Secretary shall remove any member of a council if the

council concerned first recommends, by not less than two-thirds of

its members, removal for cause. Such a recommendation of a council

must be in writing and accompanied by a statement of the reasons

upon which the recommendation is based.

(g) Nature of a council

A council is not an instrumentality of the United States

Government.

-SOURCE-

(Pub. L. 99-659, title II, Sec. 210, Nov. 14, 1986, 100 Stat.

3721.)

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 4003, 4005, 4010, 4011,

4012, 4015 of this title.

-CITE-

16 USC Sec. 4010 01/06/03

-EXPCITE-

TITLE 16 - CONSERVATION

CHAPTER 60 - FISH AND SEAFOOD PROMOTION

-HEAD-

Sec. 4010. Functions and powers of councils

-STATUTE-

(a) Activities of a council

(1) Each council shall -

(A) Adopt (FOOTNOTE 1) a seal which shall be judicially

noticed;

(FOOTNOTE 1) So in original. Probably should not be

capitalized.

(B) implement all terms of its charter;

(C) prepare and submit to the Secretary, for review and

approval under section 4011(a)(1) of this title, a marketing and

promotion plan and amendments to such plan which contain

descriptions of the projected consumer education, research, and

other marketing and promotion activities of the council;

(D) implement and administer an approved marketing and

promotion plan and amendments to such plan;

(E) determine the assessments to be made under section 4012 of

this title and administer the collection of such assessments to

finance council expenses described in paragraph (2) of this

subsection;

(F) receive, investigate and report to the Secretary accounts

of violations of rules or orders relating to assessments

collected under section 4012 of this title, or quality standard

requirements established under subsection (c) of this section;

(G) prepare and submit to the Secretary, for review and

approval under section 4011(a)(1) of this title, a budget (on a

fiscal year basis) of the anticipated expenses and disbursements

of the council, including -

(i) all administrative and contractual expenses;

(ii) the probable costs of consumer education, research, and

other marketing and promotion plans or projects;

(iii) the costs of the collection of assessments; and

(iv) the expense of repayment of the costs of each referendum

conducted in regard to the council;

(H) maintain books and records, prepare and submit to the

Secretary such reports from time to time as may be necessary for

appropriate accounting with respect to the receipt and

disbursement of funds entrusted to it, and cause a complete audit

report to be submitted to the Secretary at the end of each fiscal

year;

(I) reimburse the Secretary for the expenses incurred for the

conduct of the referendum to establish the council or any

subsequent referendum to terminate the council that fails; and

(J) prepare and submit to the Secretary from time to time such

reports or proposals as the council determines appropriate to

further the purposes of this chapter.

(2) Funds collected by a council under section 4012 of this title

shall be used by the council for -

(A) research, consumer education, and other marketing and

promotion activities regarding the quality and marketing of fish

and fish products;

(B) other expenses, as described in subsection (a)(1)(G) of

this section;

(C) such other expenses for the administration, maintenance,

and functioning of the council as may be authorized by the

Secretary;

(D) any reserve fund established under subsection (b)(5) of

this section and any administrative expenses incurred by the

Secretary specified as reimbursable under this chapter.

(3) Marketing and promotion plans and amendments to such plans

prepared by a council under subsection (a)(1)(C) of this section

shall be designed to increase the general demand for fish and fish

products described in accordance with section 4009(b)(3) of this

title by encouraging, expanding, and improving the marketing,

promotion and utilization of such fish and fish products, in

domestic or foreign markets, or both, through consumer education,

research, and other marketing and promotion activities.

(4) Consumer education and other marketing and promotion

activities carried out by a council under a marketing and promotion

plan and amendments to such plan may not contain references to any

private brand or trade name and shall avoid the use of deceptive

acts or practices in promoting fish or fish products or with

respect to the quality, value, or use of any competing product or

group of products.

(b) Authority of a council

A council may -

(1) sue and be sued;

(2) enter into contracts;

(3) employ and determine the salary of an executive director

who may, with the approval of the council, employ and determine

the salary of such additional staff as may be necessary;

(4) collaborate with other councils and with the National

Council in establishing and implementing a national marketing and

promotion plan for one or more species of fish or fish products;

and

(5) establish a reserve fund from monies collected and received

under section 4012 of this title to permit an effective and

sustained program of research, consumer education, and other

marketing and promotion activities regarding the quality and

marketing of fish and fish products in years when production and

assessment income may be reduced, but the total reserve fund may

not exceed the amount budgeted for the current fiscal year of

operation.

(c) Quality standards

(1) A council may develop and submit to the Secretary for

approval, or upon the request of a council the Secretary shall

develop, quality standards for a fish or fish product described in

accordance with section 4009(b)(3) of this title. Any quality

standard developed under this paragraph shall be consistent with

the purposes of this chapter.

(2) A quality standard developed under paragraph (1) of this

subsection may be adopted by a council by a majority of the members

of the council if first approved, in a referendum conducted by the

council, by a majority of the sector participants of the sector

concerned voting and the majority collectively accounted for, in

the twelve-month period immediately preceding the month in which

the referendum is held, not less than sixty-six percent of the

value of the fish or fish products described in accordance with

section 4009(b)(3) of this title that were handled by that sector

during such period.

(3) With respect to a quality standard adopted under paragraph

(2) of this subsection, the council shall develop and file with the

Secretary an official identification in the form of a symbol,

stamp, label, or seal that will be used to indicate that a fish or

fish product meets the quality standard at the time the official

identification is affixed to the fish or fish product, or is

affixed to or printed on the packaging material of the fish or fish

product.

(4) The Secretary shall establish by regulation procedures for

the use of an official identification filed with the Secretary

under paragraph (3) of this subsection. Misuse of an official

identification established under this section shall constitute a

violation of this chapter.

(5) Prior to issuing final regulations under paragraph (4) of

this subsection, the Secretary shall -

(A) publish the proposed regulations by such means as will

result in wide publicity in affected regions; and

(B) provide for public comment and the opportunity for a public

hearing.

(6) A council may receive, investigate and report to the

Secretary accounts of violations of regulations issued under

paragraph (4) of this subsection.

(7) Any regulation issued under paragraph (4) of this subsection

shall be repealed immediately by the Secretary upon the termination

under section 4015 of this title of the council that developed the

official identification to which the regulations apply.

(8) The procedures applicable to the adoption and the taking

effect of a quality standard developed under this subsection also

apply to a subsequent amendment or the termination of such

standard.

(d) Amendment of a charter

A council may submit to the Secretary amendments to the text of

the council's charter. Any proposed amendments to a charter shall

be approved or disapproved in the same manner as the original

charter was approved under section 4009(d) and (e) of this title,

with the exception of section 4009(d)(1)(B) of this title.

-SOURCE-

(Pub. L. 99-659, title II, Sec. 211, Nov. 14, 1986, 100 Stat.

3724.)

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 4009, 4011, 4012 of this

title.

-CITE-

16 USC Sec. 4011 01/06/03

-EXPCITE-

TITLE 16 - CONSERVATION

CHAPTER 60 - FISH AND SEAFOOD PROMOTION

-HEAD-

Sec. 4011. Functions and powers of Secretary

-STATUTE-

(a) Duties of the Secretary

In addition to the duties prescribed under section 4009 of this

title, the Secretary shall -

(1) review, for consistency with the provisions of this chapter

and other applicable law, and approve or disapprove, marketing

and promotion plans and budgets within sixty days after their

submission by a council;

(2) immediately notify a council in writing of the disapproval

of a marketing and promotion plan or budget, together with

reasons for such disapproval;

(3) issue orders and amendments to such orders that are

necessary to implement quality standards under section 4010(c) of

this title;

(4) promulgate regulations necessary to carry out the purposes

of this chapter;

(5) enforce the provisions of this chapter, as provided under

section 4016 of this title; and

(6) make all appointments to councils in accordance with

section 4009(f) of this title.

(b) Assistance

The Secretary may provide, on a reimbursable or other basis, such

administrative or technical assistance as a council may request for

purposes of the initial organization and subsequent operation of

the council.

-SOURCE-

(Pub. L. 99-659, title II, Sec. 212, Nov. 14, 1986, 100 Stat.

3726.)

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 4010, 4013 of this title.

-CITE-

16 USC Sec. 4012 01/06/03

-EXPCITE-

TITLE 16 - CONSERVATION

CHAPTER 60 - FISH AND SEAFOOD PROMOTION

-HEAD-

Sec. 4012. Assessments

-STATUTE-

(a) Authority

A council shall impose and administer the collection of the

assessments that are necessary to pay for all expenses incurred by

the council in carrying out its functions under this chapter.

(b) Method of imposition

(1) Assessments shall be imposed on sector participants in the

receiving sector or the importing sector, or both, as specified in

an approved council charter.

(2) An assessment on sector participants in the receiving sector

shall be -

(A) except for an owner of a fish processing vessel, in the

form of a percentage of the value of the fish described in

accordance with section 4009(b)(3) of this title when purchased

by such participants from fish harvesters; and

(B) for an owner of a fish processing vessel, in the form of a

percentage of the value of the fish described in accordance with

section 4009(b)(3) of this title and harvested by such a vessel

that is no less than the value of such fish, if such fish had

been purchased by a receiver other than an owner of such a

vessel.

(3) An assessment on sector participants in the importing sector

shall be in the form of a percentage of the value, as determined

for the purposes of the customs laws, of the fish or fish products

described in accordance with section 4009(b)(3) of this title when

entered, or withdrawn from warehouse for consumption, in the

customs territory of the United States by such sector participants.

(c) Prohibition on assessment

A council may not impose an assessment on any person that was not

eligible to vote in the referendum establishing the council under

section 4009(e) of this title by reason of failure to meet the

requirements specified under section 4009(b)(6) of this title,

unless such person, after the date on which such referendum is

held, meets the requirements of section 4009(b)(6) of this title.

(d) Voluntary payments

Any person may make voluntary payments or in-kind contributions

to a council for purposes of assisting the council in carrying out

its functions.

(e) Deposit of funds

All funds collected or received by a council under this section

shall be deposited by the council in an appropriate account in the

name of the council specified in its charter. Funds eligible to be

collected or received by a council shall be limited to those

authorized under this section.

(f) Information

(1) Sector participants shall make available to the Secretary

such information and data as is necessary for the effectuation,

administration or enforcement of this chapter or any order or

regulation issued pursuant to this chapter. Except as provided in

paragraphs (2) and (3) of this subsection, any information obtained

in carrying out this subsection shall be kept confidential by all

officers and employees of the Department of Commerce, independent

accountants and other persons who have access to such information.

(2) If the Secretary or an employee of the United States

Government is a party to a suit or administrative action involving

an assessment, order, or regulation issued under this chapter, the

Secretary may disclose information obtained under paragraph (1) of

this subsection to the extent allowed by the judicial or

administrative officer presiding over such suit or action.

(3) This subsection shall not prohibit -

(A) the issuance of general or statistical statements based

upon reports of a number of persons subject to the provisions of

this chapter which 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 a requirement relating to an assessment

imposed under subsection (a) of this section or to quality

standards implemented by the Secretary under section 4010(c) of

this title, and a statement of the particular provisions of the

requirement violated by such person.

(4) Any individual who is required to keep information

confidential under this subsection and who knowingly violates this

subsection shall, upon conviction, be -

(A) subject to a fine of not more than $1,000 or to

imprisonment for not more than one year, or both; and

(B) removed from office if an officer or employee of a council

or the Department of Commerce.

-SOURCE-

(Pub. L. 99-659, title II, Sec. 213, Nov. 14, 1986, 100 Stat.

3727.)

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 4009, 4010, 4013, 4015 of

this title.

-CITE-

16 USC Sec. 4013 01/06/03

-EXPCITE-

TITLE 16 - CONSERVATION

CHAPTER 60 - FISH AND SEAFOOD PROMOTION

-HEAD-

Sec. 4013. Petitions

-STATUTE-

(a) Filing of petition

Any person subject to assessment under section 4012 of this title

may file a written petition with the Secretary alleging that -

(1) the assessment,

(2) the plan approved under section 4011(a)(1) of this title on

which the assessment is based, or

(3) any obligation imposed under the plan,

is not in accordance with law and requesting the Secretary to

modify or take other appropriate action regarding the assessment or

plan.

(b) Form of petition

Any such petition shall be in writing and filed within the period

prescribed by the Secretary. A person who files a petition under

this section shall be given an opportunity for a hearing regarding

the petition in accordance with regulations issued by the

Secretary. After such a hearing, or if no hearing is requested,

after consideration of all documentation and other evidence, the

Secretary shall make a ruling upon such petition.

-SOURCE-

(Pub. L. 99-659, title II, Sec. 214, Nov. 14, 1986, 100 Stat.

3728.)

-CITE-

16 USC Sec. 4014 01/06/03

-EXPCITE-

TITLE 16 - CONSERVATION

CHAPTER 60 - FISH AND SEAFOOD PROMOTION

-HEAD-

Sec. 4014. Refunds

-STATUTE-

Notwithstanding any other provision of this chapter, any person

who pays an assessment under this chapter may demand and shall

promptly receive from the council a refund of such assessment. A

demand for refund must be made in accordance with the procedures,

and within such time, as shall be prescribed by the council and

approved by the Secretary. Procedures to provide such a refund

shall be established before any such assessment may be collected.

Such procedures shall allow any person to request a refund for not

less than ninety days from such collection, and provide that any

such refund shall be made within sixty days after demand for such

refund is made.

-SOURCE-

(Pub. L. 99-659, title II, Sec. 215, Nov. 14, 1986, 100 Stat.

3728.)

-CITE-

16 USC Sec. 4015 01/06/03

-EXPCITE-

TITLE 16 - CONSERVATION

CHAPTER 60 - FISH AND SEAFOOD PROMOTION

-HEAD-

Sec. 4015. Termination of a council

-STATUTE-

(a) Petition for termination

(1) A petition to terminate a council may be filed with the

Secretary by no less than three sector participants in any one

sector. Any petition filed under this subsection shall be

accompanied by a written document explaining the reasons for such

petition.

(2) If the Secretary determines that a petition filed under

paragraph (1) of this subsection is accompanied by the signatures,

or corporate certifications, as the case may be, of no less than

three sector participants in a sector referred to in paragraph (1)

of this subsection who collectively accounted for, in the

twelve-month period immediately preceding the month in which such

petition was filed, not less than 20 percent of the value of the

fish or fish products described in accordance with section

4009(b)(3) of this title that were handled by that sector during

such period, the Secretary, within 90 days after such

determination, shall conduct a referendum for termination of the

council among all sector participants in that sector.

(3) Not less than 30 days prior to holding a referendum under

this subsection, the Secretary shall publish a notice of such

referendum, including the document explaining the reasons for the

petition filed under paragraph (1) of this subsection and any other

relevant information the Secretary considers appropriate.

(4) If the referendum votes which are cast in favor of

terminating the council constitute a majority of the sector

participants voting and the majority, in the period referred to in

paragraph (2) of this subsection, collectively accounted for not

less than sixty-six percent of the value of such fish and fish

products that were handled during such period by a sector referred

to in paragraph (1) of this subsection, the Secretary shall by

order terminate the council effective as of a date by which the

affairs of the council may be concluded on an orderly basis.

(5) The Secretary initially shall pay all costs of a referendum

conducted under this subsection. Prior to conducting such a

referendum, the Secretary shall require petitioners to post a bond

or other security acceptable to the Secretary in an amount which

the Secretary determines to be sufficient to pay any expenses

incurred for the conduct of such referendum.

(6)(A) If a referendum conducted under this subsection fails to

result in the termination of the council, the Secretary shall

immediately recover the amount of the bond posted by petitioners

under paragraph (5) of this subsection.

(B) If a referendum conducted under this subsection results in

the termination of the council, the Secretary shall recover the

expenses incurred for the conduct of the referendum from the

account established by the council under section 4012(e) of this

title. If the amount remaining in such account is insufficient for

the Secretary to recover all expenses incurred for the conduct of

the referendum, the Secretary shall recover the balance of such

expenses from the petitioners that posted a bond under paragraph

(5) of this subsection.

(b) Payment of remaining funds

If a council is terminated under subsection (a) of this section,

the Secretary, after recovering all expenses incurred for the

conduct of the referendum under subsection (a) of this section,

shall take such action as is necessary and practicable to ensure

that moneys remaining in the account established by the council

under section 4012(e) of this title are paid on a prorated basis to

the sector participants from whom those moneys were collected under

section 4012 of this title.

-SOURCE-

(Pub. L. 99-659, title II, Sec. 216, Nov. 14, 1986, 100 Stat.

3728.)

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in section 4010 of this title.

-CITE-

16 USC Sec. 4016 01/06/03

-EXPCITE-

TITLE 16 - CONSERVATION

CHAPTER 60 - FISH AND SEAFOOD PROMOTION

-HEAD-

Sec. 4016. Enforcement

-STATUTE-

(a) Authority

(1) The district courts of the United States shall have

jurisdiction specifically to enforce and to prevent and restrain

any person from violating any assessment, order or regulation made

or issued under this chapter.

(2)(A) If a council has reason to believe that a person subject

to an assessment, order or regulation made or issued under this

chapter is violating such assessment, order or regulation, it may

refer the matter to the Secretary.

(B) Except as provided in subparagraphs (C) or (D) of this

paragraph, any civil action authorized to be brought under this

subsection, when referred by a council under subparagraph (A) of

this paragraph, shall be referred to the Attorney General for

appropriate action.

(C) If the Secretary believes that the administration and

enforcement of the provisions of this chapter would be adequately

served by taking administrative action under subsection (b) of this

section or by providing written notice or warning to any person

committing a violation of this chapter, the Secretary is not

required to refer such violation to the Attorney General.

(D) Whenever a matter has been referred by a council under

subparagraph (A) of this paragraph and the Secretary or the

Attorney General fails within 60 days of such referral to take

appropriate action, the council may, upon filing notice with the

Secretary or Attorney General, as appropriate, and other interested

parties, bring an action in its own name.

(b) Recovery of costs

(1)(A) When a council brings an action under subsection (a)(2) of

this section, the council may recover costs of litigation and,

where the action is brought to collect an unpaid assessment,

interest from the date the amount became due and payable.

(B) Any person who violates any provision of an order (including

a cease and desist order previously issued under this paragraph) or

regulation issued by the Secretary under this chapter, or who fails

or refuses to pay, collect, or remit any assessment required under

this chapter, 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. In addition to, or in

lieu of, a civil penalty under this subparagraph, the Secretary may

issue an order requiring such person to cease and desist from

continuing such violation.

(C) No penalty shall be assessed, or cease and desist order

issued, under this paragraph unless the affected person is given

notice and opportunity for a hearing before the Secretary with

respect to such violation.

(D) Any order of the Secretary under this paragraph assessing a

penalty or imposing a cease and desist order shall be final and

conclusive, unless the affected person files an appeal from the

Secretary's order with the appropriate United States court of

appeals.

(2)(A) Any person against whom a violation is found under

paragraph (1) of this subsection may obtain review of such action

in the United States court of appeals for the circuit in which such

person resides or has his place of business, or in the United

States Court of Appeals for the District of Columbia Circuit, by

filing a notice of appeal in such court within thirty days after

the date of such order and by simultaneously sending a copy of such

notice by certified mail to the Secretary.

(B) The Secretary shall promptly file in the court a certified

copy of the record upon which such violation was found.

(C) The findings of the Secretary shall be set aside only if

found to be unsupported by substantial evidence or not in

accordance with law.

(3)(A) If any person fails to pay a civil penalty under this

subsection after it has become final, the Secretary shall refer the

matter to the Attorney General.

(B) The Attorney General shall institute appropriate action to

recover the amount assessed under this subsection in a district

court of the United States.

(C) If, within sixty days after such referral, the Attorney

General fails to institute such appropriate action, the council to

whose programs the assessment, order or regulation relates may

institute an action in its own name.

-SOURCE-

(Pub. L. 99-659, title II, Sec. 217, Nov. 14, 1986, 100 Stat.

3730.)

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in section 4011 of this title.

-CITE-

16 USC Sec. 4017 01/06/03

-EXPCITE-

TITLE 16 - CONSERVATION

CHAPTER 60 - FISH AND SEAFOOD PROMOTION

-HEAD-

Sec. 4017. Investigations

-STATUTE-

(a) Authority to make investigations

The Secretary may make such investigations as the Secretary

determines necessary to -

(1) carry out the Secretary's responsibilities under this

chapter; and

(2) determine whether any person has engaged in any act or

practice which constitutes a violation of the provisions of this

chapter.

(b) Oaths and affirmations

For the purpose of investigations under subsection (a) of this

section, the Secretary may administer oaths and affirmations,

subpoena witnesses, compel their attendance, take evidence, and

require the production of any books, papers, and documents which

are relevant to the inquiry. The attendance of such witnesses and

the production of any such records may be required from any place

in the United States.

(c) Court orders

In case of contumacy or refusal to obey a subpoena issued under

this section by any person, the Secretary may invoke the aid of any

court of the United States within the jurisdiction of which such

investigation or proceeding is carried on, or where such person

resides or has his business, to require the attendance and

testimony of witnesses and the production of books, papers, and

documents. Such court may issue an order requiring such person to

appear before the Secretary to produce records or to give testimony

relating to the matter under investigation.

-SOURCE-

(Pub. L. 99-659, title II, Sec. 218, Nov. 14, 1986, 100 Stat.

3731.)

-CITE-