US (United States) Code. Title 7. Chapter 97: Fresh cut flowers and greens promotion and information

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

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-CITE-

7 USC CHAPTER 97 - FRESH CUT FLOWERS AND FRESH CUT

GREENS PROMOTION AND INFORMATION 01/06/03

-EXPCITE-

TITLE 7 - AGRICULTURE

CHAPTER 97 - FRESH CUT FLOWERS AND FRESH CUT GREENS PROMOTION AND

INFORMATION

.

-HEAD-

CHAPTER 97 - FRESH CUT FLOWERS AND FRESH CUT GREENS PROMOTION AND

INFORMATION

-MISC1-

Sec.

6801. Findings and declaration of policy.

(a) Findings.

(b) Policy and purpose.

6802. Definitions.

6803. Issuance of orders.

(a) In general.

(b) Procedures.

(c) Amendments.

6804. Required terms in orders.

(a) In general.

(b) PromoFlor Council.

(c) General responsibilities of PromoFlor Council.

(d) Budgets; plans and projects.

(e) Contracts and agreements.

(f) Books and records of PromoFlor Council.

(g) Control of administrative costs.

(h) Assessments.

(i) Prohibition.

(j) Books and records; reports.

(k) Consultations with industry experts.

(l) Other terms of order.

6805. Exclusion; determinations.

(a) Exclusion.

(b) Making determinations.

6806. Referenda.

(a) Requirement for initial referendum.

(b) Votes permitted.

(c) Suspension or termination referenda.

(d) Suspension or termination.

(e) Manner of conducting referenda.

6807. Petition and review.

(a) Petition and hearing.

(b) Review.

(c) Enforcement.

6808. Enforcement.

(a) Jurisdiction.

(b) Referral to Attorney General.

(c) Civil penalties and orders.

(d) Review by district court.

(e) Failure to obey order.

(f) Failure to pay penalty.

(g) Additional remedies.

6809. Investigations and power to subpoena.

(a) Investigations.

(b) Subpoenas, oaths, and affirmations.

(c) Aid of courts.

6810. Confidentiality.

(a) Prohibition.

(b) Penalty.

(c) Additional prohibition.

(d) Withholding information from Congress prohibited.

6811. Authority for Secretary to suspend or terminate order.

6812. Construction.

(a) Termination or suspension not an order.

(b) Producer rights.

(c) Other programs.

6813. Regulations.

6814. Authorization of appropriations.

(a) In general.

(b) Administrative expenses.

-SECREF-

CHAPTER REFERRED TO IN OTHER SECTIONS

This chapter is referred to in section 7401 of this title.

-CITE-

7 USC Sec. 6801 01/06/03

-EXPCITE-

TITLE 7 - AGRICULTURE

CHAPTER 97 - FRESH CUT FLOWERS AND FRESH CUT GREENS PROMOTION AND

INFORMATION

-HEAD-

Sec. 6801. Findings and declaration of policy

-STATUTE-

(a) Findings

Congress finds that -

(1) fresh cut flowers and fresh cut greens are an integral part

of life in the United States, are enjoyed by millions of persons

every year for a multitude of special purposes (especially

important personal events), and contribute a natural and

beautiful element to the human environment;

(2)(A) cut flowers and cut greens are produced by many

individual producers throughout the United States as well as in

other countries, and are handled and marketed by thousands of

small-sized and medium-sized businesses; and

(B) the production, handling, and marketing of cut flowers and

cut greens constitute a key segment of the United States

horticultural industry and thus a significant part of the overall

agricultural economy of the United States;

(3) handlers play a vital role in the marketing of cut flowers

and cut greens in that handlers -

(A) purchase most of the cut flowers and cut greens marketed

by producers;

(B) prepare the cut flowers and cut greens for retail

consumption;

(C) serve as an intermediary between the source of the

product and the retailer;

(D) otherwise facilitate the entry of cut flowers and cut

greens into the current of domestic commerce; and

(E) add efficiencies to the market process that ensure the

availability of a much greater variety of the product to

retailers and consumers;

(4) it is widely recognized that it is in the public interest

and important to the agricultural economy of the United States to

provide an adequate, steady supply of cut flowers and cut greens

at reasonable prices to the consumers of the United States;

(5)(A) cut flowers and cut greens move in interstate and

foreign commerce; and

(B) cut flowers and cut greens that do not move in interstate

or foreign channels of commerce but only in intrastate commerce

directly affect interstate commerce in cut flowers and cut

greens;

(6) the maintenance and expansion of markets in existence on

December 14, 1993, and the development of new or improved markets

or uses for cut flowers and cut greens, are needed to preserve

and strengthen the economic viability of the domestic cut flowers

and cut greens industry for the benefit of producers, handlers,

retailers, and the entire floral industry;

(7) generic programs of promotion and consumer information can

be effective in maintaining and developing markets for cut

flowers and cut greens, and have the advantage of equally

enhancing the market position for all cut flowers and cut greens;

(8) because cut flowers and cut greens producers are primarily

agriculture-oriented rather than promotion-oriented, and because

the floral marketing industry within the United States is

comprised mainly of small-sized and medium-sized businesses, the

development and implementation of an adequate and coordinated

national program of generic promotion and consumer information

necessary for the maintenance of markets in existence on December

14, 1993, and the development of new markets for cut flowers and

cut greens have been prevented;

(9) there exist established State and commodity-specific

producer-funded programs of promotion and research that are

valuable efforts to expand markets for domestic producers of cut

flowers and cut greens and that will benefit from the promotion

and consumer information program authorized by this chapter in

that the program will enhance the market development efforts of

the programs for domestic producers;

(10) an effective and coordinated method for ensuring

cooperative and collective action in providing for and financing

a nationwide program of generic promotion and consumer

information is needed to ensure that the cut flowers and cut

greens industry will be able to provide, obtain, and implement

programs of promotion and consumer information necessary to

maintain, expand, and develop markets for cut flowers and cut

greens; and

(11) the most efficient method of financing such a nationwide

program is to assess cut flowers and cut greens at the point at

which the flowers and greens are sold by handlers into the retail

market.

(b) Policy and purpose

It is the policy of Congress that it is in the public interest,

and it is the purpose of this chapter, to authorize the

establishment, through the exercise of the powers provided in this

chapter, of an orderly procedure for the development and financing

(through an adequate assessment on cut flowers and cut greens sold

by handlers to retailers and related entities in the United States)

of an effective and coordinated program of generic promotion,

consumer information, and related research designed to strengthen

the position of the cut flowers and cut greens industry in the

marketplace and to maintain, develop, and expand markets for cut

flowers and cut greens.

-SOURCE-

(Pub. L. 103-190, Sec. 2, Dec. 14, 1993, 107 Stat. 2266.)

-MISC1-

SHORT TITLE

Section 1(a) of Pub. L. 103-190 provided that: ''This Act

(enacting this chapter) may be cited as the 'Fresh Cut Flowers and

Fresh Cut Greens Promotion and Information Act of 1993'.''

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 6803, 6811 of this title.

-CITE-

7 USC Sec. 6802 01/06/03

-EXPCITE-

TITLE 7 - AGRICULTURE

CHAPTER 97 - FRESH CUT FLOWERS AND FRESH CUT GREENS PROMOTION AND

INFORMATION

-HEAD-

Sec. 6802. Definitions

-STATUTE-

As used in this chapter:

(1) Consumer information

The term ''consumer information'' means any action or program

that provides information to consumers and other persons on

appropriate uses under varied circumstances, and on the care and

handling, of cut flowers or cut greens.

(2) Cut flowers and cut greens

(A) In general

(i) Cut flowers

The term ''cut flowers'' includes all flowers cut from

growing plants that are used as fresh-cut flowers and that

are produced under cover or in field operations.

(ii) Cut greens

The term ''cut greens'' includes all cultivated or

noncultivated decorative foliage cut from growing plants that

are used as fresh-cut decorative foliage (except Christmas

trees) and that are produced under cover or in field

operations.

(iii) Exclusions

The terms ''cut flowers'' and ''cut greens'' do not include

a foliage plant, floral supply, or flowering plant.

(B) Substantial portion

In any case in which a handler packages cut flowers or cut

greens with hard goods in an article (such as a gift basket or

similar presentation) for sale to a retailer, the PromoFlor

Council may determine, under procedures specified in the order,

that the cut flowers or cut greens in the article do not

constitute a substantial portion of the value of the article

and that, based on the determination, the article shall not be

treated as an article of cut flowers or cut greens subject to

assessment under the order.

(3) Gross sales price

The term ''gross sales price'' means the total amount of the

transaction in a sale of cut flowers or cut greens from a handler

to a retailer or exempt handler.

(4) Handler

(A) Qualified handler

(i) In general

The term ''qualified handler'' means a person (including a

cooperative) operating in the cut flowers or cut greens

marketing system -

(I) that sells domestic or imported cut flowers or cut

greens to retailers and exempt handlers; and

(II) whose annual sales of cut flowers and cut greens to

retailers and exempt handlers are $750,000 or more.

(ii) Inclusions and exclusions

(I) In general

The term ''qualified handler'' includes -

(aa) bouquet manufacturers (subject to paragraph

(2)(B));

(bb) an auction house that clears the sale of cut

flowers and cut greens to retailers and exempt handlers

through a central clearinghouse; and

(cc) a distribution center that is owned or controlled

by a retailer if the predominant retail business activity

of the retailer is floral sales.

(II) Transfers

For the purpose of determining sales of cut flowers and

cut greens to a retailer from a distribution center

described in subclause (I)(cc), each non-sale transfer to a

retailer shall be treated as a sale in an amount calculated

as provided in subparagraph (C).

(III) Transportation or delivery

The term ''qualified handler'' does not include a person

who only physically transports or delivers cut flowers or

cut greens.

(iii) Construction

(I) In general

The term ''qualified handler'' includes an importer or

producer that sells cut flowers or cut greens that the

importer or producer has imported into the United States or

produced, respectively, directly to consumers and whose

sales of the cut flowers and cut greens (as calculated

under subparagraph (C)), together with sales of cut flowers

and cut greens to retailers or exempt handlers, annually

are $750,000 or more.

(II) Sales

Each direct sale to a consumer by a qualified handler

described in subclause (I) shall be treated as a sale to a

retailer or exempt handler in an amount calculated as

provided in subparagraph (C).

(III) Definitions

As used in this paragraph:

(aa) Importer

The term ''importer'' has the meaning provided in

section 6804(b)(2)(B)(i)(I) of this title.

(bb) Producer

The term ''producer'' has the meaning provided in

section 6804(b)(2)(B)(ii)(I) of this title.

(B) Exempt handler

The term ''exempt handler'' means a person who would

otherwise be considered to be a qualified handler, except that

the annual sales by the person of cut flowers and cut greens to

retailers and other exempt handlers are less than $750,000.

(C) Annual sales determined

(i) In general

Except as provided in clause (ii), for the purpose of

determining the amount of annual sales of cut flowers and cut

greens under subparagraphs (A) and (B), the amount of a sale

shall be determined on the basis of the gross sales price of

the cut flowers and cut greens sold.

(ii) Transfers

(I) Non-sale transfers and direct sales by importers

Subject to subclause (III), in the case of a non-sale

transfer of cut flowers or cut greens from a distribution

center (as described in subparagraph (A)(ii)(II)), or a

direct sale to a consumer by an importer (as described in

subparagraph (A)(iii)), the amount of the sale shall be

equal to the sum of -

(aa) the price paid by the distribution center or

importer, respectively, to acquire the cut flowers or cut

greens; and

(bb) an amount determined by multiplying the

acquisition price referred to in item (aa) by a uniform

percentage established by an order to represent the

mark-up of a wholesale handler on a sale to a retailer.

(II) Direct sales by producers

Subject to subclause (III), in the case of a direct sale

to a consumer by a producer (as described in subparagraph

(A)(iii)), the amount of the sale shall be equal to an

amount determined by multiplying the price paid by the

consumer by a uniform percentage established by an order to

represent the cost of producing the article and the mark-up

of a wholesale handler on a sale to a retailer.

(III) Changes in uniform percentages

Any change in a uniform percentage referred to in

subclause (I) or (II) may become effective after -

(aa) recommendation by the PromoFlor Council; and

(bb) approval by the Secretary after public notice and

opportunity for comment in accordance with section 553 of

title 5 and without regard to sections 556 and 557 of

such title.

(5) Order

The term ''order'' means an order issued under this chapter

(other than sections 6808, 6809, and 6811 of this title).

(6) Person

The term ''person'' means any individual, group of individuals,

firm, partnership, corporation, joint stock company, association,

society, cooperative, or other legal entity.

(7) PromoFlor Council

The term ''PromoFlor Council'' means the Fresh Cut Flowers and

Fresh Cut Greens Promotion Council established under section

6804(b) of this title.

(8) Promotion

The term ''promotion'' means any action determined by the

Secretary to advance the image, desirability, or marketability of

cut flowers or cut greens, including paid advertising.

(9) Research

The term ''research'' means market research and studies limited

to the support of advertising, market development, and other

promotion efforts and consumer information efforts relating to

cut flowers or cut greens, including educational activities.

(10) Retailer

(A) In general

The term ''retailer'' means a person (such as a retail

florist, supermarket, mass market retail outlet, or other

end-use seller), as described in an order, that sells cut

flowers or cut greens to consumers, and a distribution center

described in subparagraph (B)(i).

(B) Distribution centers

(i) In general

The term ''retailer'' includes a distribution center that

is -

(I) owned or controlled by a person described in

subparagraph (A), or owned or controlled cooperatively by a

group of the persons, if the predominant retail business

activity of the person is not floral sales; or

(II) independently owned but operated primarily to

provide food products to retail stores.

(ii) Importers and producers

An independently owned distribution center described in

clause (i)(II) that also is an importer or producer of cut

flowers or cut greens shall be subject to the rules of

construction specified in paragraph (4)(A)(iii) and, for the

purpose of the rules of construction, be considered to be the

seller of the articles directly to the consumer.

(11) Secretary

The term ''Secretary'' means the Secretary of Agriculture.

(12) State

The term ''State'' means each of the several States of the

United States, the District of Columbia, the Commonwealth of

Puerto Rico, the Commonwealth of the Northern Mariana Islands,

the United States Virgin Islands, Guam, American Samoa, the

Republic of the Marshall Islands, the Federated States of

Micronesia, and the Republic of Palau (until such time as the

Compact of Free Association is ratified).

(13) United States

The term ''United States'' means the States collectively.

-SOURCE-

(Pub. L. 103-190, Sec. 3, Dec. 14, 1993, 107 Stat. 2268.)

-REFTEXT-

REFERENCES IN TEXT

For ratification of Compact of Free Association with the Republic

of Palau, referred to in par. (12), see Proc. No. 6726, Sept. 27,

1994, 59 F.R. 49777, set out as a note under section 1931 of Title

48, Territories and Insular Possessions.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 6804, 6805, 6806 of this

title.

-CITE-

7 USC Sec. 6803 01/06/03

-EXPCITE-

TITLE 7 - AGRICULTURE

CHAPTER 97 - FRESH CUT FLOWERS AND FRESH CUT GREENS PROMOTION AND

INFORMATION

-HEAD-

Sec. 6803. Issuance of orders

-STATUTE-

(a) In general

(1) Issuance

To effectuate the policy of this chapter specified in section

6801(b) of this title, the Secretary, subject to the procedures

provided in subsection (b) of this section, shall issue orders

under this chapter applicable to qualified handlers of cut

flowers and cut greens.

(2) Scope

Any order shall be national in scope.

(3) One order

Not more than 1 order shall be in effect at any 1 time.

(b) Procedures

(1) Proposal for an order

(A) Secretary

The Secretary may propose the issuance of an order.

(B) Other persons

An industry group that represents a substantial number of the

industry members who are to be assessed under the order, or any

other person who will be affected by this chapter, may request

the issuance of, and submit a proposal for, an order.

(2) Publication of proposal

The Secretary shall publish a proposed order and give notice

and opportunity for public comment on the proposed order not

later than 60 days after the earlier of -

(A) the date on which the Secretary proposes an order, as

provided in paragraph (1)(A); and

(B) the date of the receipt by the Secretary of a proposal

for an order, as provided in paragraph (1)(B).

(3) Issuance of order

(A) In general

After notice and opportunity for public comment are provided

in accordance with paragraph (2), the Secretary shall issue the

order, taking into consideration the comments received and

including in the order such provisions as are necessary to

ensure that the order is in conformity with this chapter.

(B) Effective date

The order shall be issued and become effective not later than

180 days after publication of the proposed order.

(c) Amendments

The Secretary, from time to time, may amend an order. The

provisions of this chapter applicable to an order shall be

applicable to any amendment to an order.

-SOURCE-

(Pub. L. 103-190, Sec. 4, Dec. 14, 1993, 107 Stat. 2271.)

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 6804, 6806 of this title.

-CITE-

7 USC Sec. 6804 01/06/03

-EXPCITE-

TITLE 7 - AGRICULTURE

CHAPTER 97 - FRESH CUT FLOWERS AND FRESH CUT GREENS PROMOTION AND

INFORMATION

-HEAD-

Sec. 6804. Required terms in orders

-STATUTE-

(a) In general

An order shall contain the terms and provisions specified in this

section.

(b) PromoFlor Council

(1) Establishment and membership

(A) Establishment

The order shall provide for the establishment of a Fresh Cut

Flowers and Fresh Cut Greens Promotion Council, consisting of

25 members, to administer the order.

(B) Membership

(i) Appointment

The order shall provide that members of the PromoFlor

Council shall be appointed by the Secretary from nominations

submitted as provided in paragraphs (2) and (3).

(ii) Composition

The PromoFlor Council shall consist of -

(I) participating qualified handlers representing

qualified wholesale handlers and producers and importers

that are qualified handlers;

(II) representatives of traditional retailers; and

(III) representatives of persons who produce fresh cut

flowers and fresh cut greens.

(2) Distribution of appointments

(A) In general

The order shall provide that the membership of the PromoFlor

Council shall consist of -

(i) 14 members representing qualified wholesale handlers of

domestic or imported cut flowers and cut greens;

(ii) 3 members representing producers that are qualified

handlers of cut flowers and cut greens;

(iii) 3 members representing importers that are qualified

handlers of cut flowers and cut greens;

(iv) 3 members representing traditional cut flowers and cut

greens retailers; and

(v) 2 members representing persons who produce fresh cut

flowers and fresh cut greens, of whom -

(I) 1 member shall represent persons who produce the

flowers or greens in locations that are east of the

Mississippi River; and

(II) 1 member shall represent persons who produce the

flowers or greens in locations that are west of the

Mississippi River.

(B) Definitions

As used in this subsection:

(i) Importer that is a qualified handler

The term ''importer that is a qualified handler'' means an

entity -

(I) whose principal activity is the importation of cut

flowers or cut greens into the United States (either

directly or as an agent, broker, or consignee of any person

or nation that produces or handles cut flowers or cut

greens outside the United States for sale in the United

States); and

(II) that is subject to assessments as a qualified

handler under the order.

(ii) Producer that is a qualified handler

The term ''producer that is a qualified handler'' means an

entity that -

(I) is engaged -

(aa) in the domestic production, for sale in commerce,

of cut flowers or cut greens and that owns or shares in

the ownership and risk of loss of the cut flowers or cut

greens; or

(bb) as a first processor of noncultivated cut greens,

in receiving the cut greens from a person who gathers the

cut greens for handling; and

(II) is subject to assessments as a qualified handler

under the order.

(iii) Qualified wholesale handler

(I) In general

The term ''qualified wholesale handler'' means a person

in business as a floral wholesale jobber or floral supplier

that is subject to assessments as a qualified handler under

the order.

(II) Definitions

As used in this clause:

(aa) Floral supplier

The term ''floral supplier'' means a person engaged in

acquiring cut flowers or cut greens to be manufactured

into floral articles or otherwise processed for resale.

(bb) Floral wholesale jobber

The term ''floral wholesale jobber'' means a person who

conducts a commission or other wholesale business in

buying and selling cut flowers or cut greens.

(C) Distribution of qualified wholesale handler appointments

The order shall provide that the appointments of qualified

wholesale handlers to the PromoFlor Council made by the

Secretary shall take into account the geographical distribution

of cut flowers and cut greens markets in the United States.

(3) Nomination process

The order shall provide that -

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

PromoFlor Council;

(B) nominations for each appointment of a qualified wholesale

handler, producer that is a qualified handler, or importer that

is a qualified handler to the PromoFlor Council shall be made

by qualified wholesale handlers, producers that are qualified

handlers, or importers that are qualified handlers,

respectively, through an election process, in accordance with

regulations issued by the Secretary;

(C) nominations for -

(i) 1 of the retailer appointments shall be made by the

American Floral Marketing Council or a successor entity; and

(ii) 2 of the retailer appointments shall be made by

traditional retail florist organizations, in accordance with

regulations issued by the Secretary;

(D) nominations for each appointment of a representative of

persons who produce fresh cut flowers and fresh cut greens

shall be made by the persons through an election process, in

accordance with regulations issued by the Secretary; and

(E) in any case in which qualified wholesale handlers,

producers that are qualified handlers, importers that are

qualified handlers, persons who produce fresh cut flowers and

fresh cut greens, or retailers fail to nominate individuals for

an appointment to the PromoFlor Council, the Secretary may

appoint an individual to fill the vacancy on a basis provided

in the order or other regulations of the Secretary.

(4) Alternates

The order shall provide for the selection of alternate members

of the PromoFlor Council by the Secretary in accordance with

procedures specified in the order.

(5) Terms; compensation

The order shall provide that -

(A) each term of appointment to the PromoFlor Council shall

be for 3 years, except that, of the initial appointments, 9 of

the appointments shall be for 2-year terms, 8 of the

appointments shall be for 3-year terms, and 8 of the

appointments shall be for 4-year terms;

(B) no member of the PromoFlor Council may serve more than 2

consecutive terms of 3 years, except that any member serving an

initial term of 4 years may serve an additional term of 3

years; and

(C) members of the PromoFlor Council shall serve without

compensation, but shall be reimbursed for the expenses of the

members incurred in performing duties as members of the

PromoFlor Council.

(6) Executive committee

(A) Establishment

(i) In general

The order shall authorize the PromoFlor Council to appoint,

from among the members of the Council, an executive committee

of not more than 9 members.

(ii) Initial membership

The membership of the executive committee initially shall

be composed of -

(I) 4 members representing qualified wholesale handlers;

(II) 2 members representing producers that are qualified

handlers;

(III) 2 members representing importers that are qualified

handlers; and

(IV) 1 member representing traditional retailers.

(iii) Subsequent membership

After the initial appointments, each appointment to the

executive committee shall be made so as to ensure that the

committee reflects, to the maximum extent practicable, the

membership composition of the PromoFlor Council as a whole.

(iv) Terms

Each initial appointment to the executive committee shall

be for a term of 2 years. After the initial appointments,

each appointment to the executive committee shall be for a

term of 1 year.

(B) Authority

The PromoFlor Council may delegate to the executive committee

the authority of the PromoFlor Council under the order to hire

and manage staff and conduct the routine business of the

PromoFlor Council consistent with such policies as are

determined by the PromoFlor Council.

(c) General responsibilities of PromoFlor Council

The order shall define the general responsibilities of the

PromoFlor Council, which shall include the responsibility to -

(1) administer the order in accordance with the terms and

provisions of the order;

(2) make rules and regulations to effectuate the terms and

provisions of the order;

(3) appoint members of the PromoFlor Council to serve on an

executive committee;

(4) employ such persons as the PromoFlor Council determines are

necessary, and set the compensation and define the duties of the

persons;

(5)(A) develop budgets for the implementation of the order and

submit the budgets to the Secretary for approval under subsection

(d) of this section; and

(B) propose and develop (or receive and evaluate), approve, and

submit to the Secretary for approval under subsection (d) of this

section plans and projects for cut flowers or cut greens

promotion, consumer information, or related research;

(6)(A) implement plans and projects for cut flowers or cut

greens promotion, consumer information, or related research, as

provided in subsection (d) of this section; or

(B) contract or enter into agreements with appropriate persons

to implement the plans and projects, as provided in subsection

(e) of this section, and pay the costs of the implementation, or

contracts and agreements, with funds received under the order;

(7) evaluate on-going and completed plans and projects for cut

flowers or cut greens promotion, consumer information, or related

research;

(8) receive, investigate, and report to the Secretary

complaints of violations of the order;

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

(10) invest, pending disbursement under a plan or project,

funds collected through assessments authorized under this chapter

only in -

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

United States;

(B) general obligations of any State or any political

subdivision of a State;

(C) any interest-bearing account or certificate of deposit of

a bank that is a member of the Federal Reserve System; or

(D) obligations fully guaranteed as to principal and interest

by the United States,

except that income from any such invested funds may be used only

for a purpose for which the invested funds may be used; and

(11) provide the Secretary such information as the Secretary

may require.

(d) Budgets; plans and projects

(1) Submission of budgets

The order shall require the PromoFlor Council to submit to the

Secretary for approval budgets, on a fiscal year basis, of the

anticipated expenses and disbursements of the Council in the

implementation of the order, including the projected costs of cut

flowers and cut greens promotion, consumer information, and

related research plans and projects.

(2) Plans and projects

(A) Promotion and consumer information

The order shall provide -

(i) for the establishment, implementation, administration,

and evaluation of appropriate plans and projects for

advertising, sales promotion, other promotion, and consumer

information with respect to cut flowers and cut greens, and

for the disbursement of necessary funds for the purposes

described in this clause;

(ii) that any plan or project referred to in clause (i)

shall be directed toward increasing the general demand for

cut flowers or cut greens and may not make reference to a

private brand or trade name, point of origin, or source of

supply, except that this clause shall not preclude the

PromoFlor Council from offering the plans and projects of the

Council for use by commercial parties, under terms and

conditions prescribed by the PromoFlor Council and approved

by the Secretary; and

(iii) that no plan or project may make use of unfair or

deceptive acts or practices with respect to quality or value.

(B) Research

The order shall provide for -

(i) the establishment, implementation, administration, and

evaluation of plans and projects for -

(I) market development research;

(II) research with respect to the sale, distribution,

marketing, or use of cut flowers or cut greens; and

(III) other research with respect to cut flowers or cut

greens marketing, promotion, or consumer information;

(ii) the dissemination of the information acquired through

the plans and projects; and

(iii) the disbursement of such funds as are necessary to

carry out this subparagraph.

(C) Submission to Secretary

The order shall provide that the PromoFlor Council shall

submit to the Secretary for approval a proposed plan or project

for cut flowers or cut greens promotion, consumer information,

or related research, as described in subparagraphs (A) and (B).

(3) Approval by Secretary

A budget, or plan or project for cut flowers or cut greens

promotion, consumer information, or related research may not be

implemented prior to approval of the budget, plan, or project by

the Secretary.

(e) Contracts and agreements

(1) Promotion, consumer information, and related research plans

and projects

(A) In general

To ensure efficient use of funds, the order shall provide

that the PromoFlor Council, with the approval of the Secretary,

may enter into a contract or an agreement for the

implementation of a plan or project for promotion, consumer

information, or related research with respect to cut flowers or

cut greens, and for the payment of the cost of the contract or

agreement with funds received by the PromoFlor Council under

the order.

(B) Requirements

The order shall provide that any contract or agreement

entered into under this paragraph shall provide that -

(i) the contracting or agreeing party shall develop and

submit to the PromoFlor Council a plan or project, together

with a budget that includes the estimated costs to be

incurred for the plan or project;

(ii) the plan or project shall become effective on the

approval of the Secretary; and

(iii) the contracting or agreeing party shall -

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

the party;

(II) account for funds received and expended;

(III) make periodic reports to the PromoFlor Council of

activities conducted; and

(IV) make such other reports as the PromoFlor Council or

the Secretary may require.

(2) Other contracts and agreements

The order shall provide that the PromoFlor Council may enter

into a contract or agreement for administrative services. Any

contract or agreement entered into under this paragraph shall

include provisions comparable to the provisions described in

paragraph (1)(B).

(f) Books and records of PromoFlor Council

(1) In general

The order shall require the PromoFlor Council to -

(A) maintain such books and records (which shall be available

to the Secretary for inspection and audit) as the Secretary may

require;

(B) prepare and submit to the Secretary, from time to time,

such reports as the Secretary may require; and

(C) account for the receipt and disbursement of all funds

entrusted to the PromoFlor Council.

(2) Audits

The PromoFlor Council shall cause the books and records of the

Council to be audited by an independent auditor at the end of

each fiscal year. A report of each audit shall be submitted to

the Secretary.

(g) Control of administrative costs

The order shall provide that the PromoFlor Council shall, as soon

as practicable after the order becomes effective and after

consultation with the Secretary and other appropriate persons,

implement a system of cost controls based on normally accepted

business practices that will ensure that the annual budgets of the

PromoFlor Council include only amounts for administrative expenses

that cover the minimum administrative activities and personnel

needed to properly administer and enforce the order, and conduct,

supervise, and evaluate plans and projects under the order.

(h) Assessments

(1) Authority

(A) In general

The order shall provide that each qualified handler shall pay

to the PromoFlor Council, in the manner provided in the order,

an assessment on each sale of cut flowers or cut greens to a

retailer or an exempt handler (including each transaction

described in subparagraph (C)(ii)), except to the extent that

the sale is excluded from assessments under section 6805(a) of

this title.

(B) Published lists

To facilitate the payment of assessments under this

paragraph, the PromoFlor Council shall publish lists of

qualified handlers required to pay assessments under the order

and exempt handlers.

(C) Making determinations

(i) Qualified handler status

The order shall contain provisions regarding the

determination of the status of a person as a qualified

handler or exempt handler that include the rules and

requirements specified in sections 6802(4) and 6805(b) of

this title.

(ii) Certain covered transactions

(I) In general

The order shall provide that each non-sale transfer of

cut flowers or cut greens to a retailer from a qualified

handler that is a distribution center (as described in

section 6802(4)(A)(ii)(II) of this title), and each direct

sale of cut flowers or cut greens to a consumer by a

qualified handler that is an importer or a producer (as

described in section 6802(4)(A)(iii) of this title), shall

be treated as a sale of cut flowers or cut greens to a

retailer subject to assessments under this subsection.

(II) Amount of sale in the case of non-sale transfers and

direct sales by importers

Subject to subclause (IV), in the case of a non-sale

transfer of cut flowers or cut greens from a distribution

center, or a direct sale to a consumer by an importer, the

amount of the sale shall be equal to the sum of -

(aa) the price paid by the distribution center or

importer, respectively, to acquire the cut flowers or cut

greens; and

(bb) an amount determined by multiplying the

acquisition price referred to in item (aa) by a uniform

percentage established by the order to represent the

mark-up of a wholesale handler on a sale to a retailer.

(III) Direct sales by producers

Subject to subclause (IV), in the case of a direct sale

to a consumer by a producer, the amount of the sale shall

be equal to an amount determined by multiplying the price

paid by the consumer by a uniform percentage established by

the order to represent the cost of producing the article

and the mark-up of a wholesale handler on a sale to a

retailer.

(IV) Changes in uniform percentages

Any change in a uniform percentage referred to in

subclause (II) or (III) may become effective after -

(aa) recommendation by the PromoFlor Council; and

(bb) approval by the Secretary after public notice and

opportunity for comment in accordance with section 553 of

title 5 and without regard to sections 556 and 557 of

such title.

(2) Assessment rates

With respect to assessment rates, the order shall contain the

following terms:

(A) Initial rate

During the first 3 years the order is in effect, the rate of

assessment on each sale or transfer of cut flowers or cut

greens shall be 1/2 of 1 percent of -

(i) the gross sales price of the cut flowers or cut greens

sold; or

(ii) in the case of transactions described in paragraph

(1)(C)(ii), the amount of each transaction calculated as

provided in paragraph (1)(C)(ii).

(B) Changes in the rate

(i) In general

After the first 3 years the order is in effect, the uniform

assessment rate may be increased or decreased annually by not

more than .25 percent of -

(I) the gross sales price of a product sold; or

(II) in the case of transactions described in paragraph

(1)(C)(ii), the amount of each transaction calculated as

provided in paragraph (1)(C)(ii),

except that the assessment rate may in no case exceed 1

percent of the gross sales price or 1 percent of the

transaction amount.

(ii) Requirements

Any change in the rate of assessment under this

subparagraph -

(I) may be made only if adopted by the PromoFlor Council

by at least a 2/3 majority vote and approved by the

Secretary as necessary to achieve the objectives of this

chapter (after public notice and opportunity for comment in

accordance with section 553 of title 5 and without regard

to sections 556 and 557 of such title);

(II) shall be announced by the PromoFlor Council not less

than 30 days prior to going into effect; and

(III) shall not be subject to a vote in a referendum

conducted under section 6806 of this title.

(3) Timing of submitting assessments

The order shall provide that each person required to pay

assessments under this subsection shall remit, to the PromoFlor

Council, the assessment due from each sale by the person of cut

flowers or cut greens that is subject to an assessment within

such time period after the sale (not to exceed 60 days after the

end of the month in which the sale took place) as is specified in

the order.

(4) Refunds from escrow account

(A) Establishment of escrow account

The order shall provide that the PromoFlor Council shall -

(i) establish an escrow account to be used for assessment

refunds, as needed; and

(ii) place into the account an amount equal to 10 percent

of the total amount of assessments collected during the

period beginning on the date the order becomes effective, as

provided in section 6803(b)(3)(B) of this title, and ending

on the date the initial referendum on the order under section

6806(a) of this title is completed.

(B) Right to receive refund

(i) In general

The order shall provide that, subject to subparagraph (C)

and the conditions specified in clause (ii), any qualified

handler shall have the right to demand and receive from the

PromoFlor Council out of the escrow account a one-time refund

of any assessments paid by or on behalf of the qualified

handler during the time period specified in subparagraph

(A)(ii), if -

(I) the qualified handler is required to pay the

assessments;

(II) the qualified handler does not support the program

established under this chapter;

(III) the qualified handler demands the refund prior to

the conduct of the referendum on the order under section

6806(a) of this title; and

(IV) the order is not approved by qualified handlers in

the referendum.

(ii) Conditions

The right of a qualified handler to receive a refund under

clause (i) shall be subject to the following conditions:

(I) The demand shall be made in accordance with

regulations, on a form, and within a time period specified

by the PromoFlor Council.

(II) The refund shall be made only on submission of proof

satisfactory to the PromoFlor Council that the qualified

handler paid the assessment for which the refund is

demanded.

(III) If the amount in the escrow account required under

subparagraph (A) is not sufficient to refund the total

amount of assessments demanded by all qualified handlers

determined eligible for refunds and the order is not

approved in the referendum on the order under section

6806(a) of this title, the PromoFlor Council shall prorate

the amount of all such refunds among all eligible qualified

handlers that demand the refund.

(C) Program approved

The order shall provide that, if the order is approved in the

referendum conducted under section 6806(a) of this title, there

shall be no refunds made, and all funds in the escrow account

shall be returned to the PromoFlor Council for use by the

PromoFlor Council in accordance with the other provisions of

the order.

(5) Use of assessment funds

The order shall provide that assessment funds (less any refunds

expended under the terms of the order required under paragraph

(4)) shall be used for payment of costs incurred in implementing

and administering the order, with provision for a reasonable

reserve, and to cover the administrative costs incurred by the

Secretary in implementing and administering this chapter.

(6) Postponement of collections

(A) Authority

(i) In general

Subject to the other provisions of this paragraph and

notwithstanding any other provision of this chapter, the

PromoFlor Council may grant a postponement of the payment of

an assessment under this subsection for any qualified handler

that establishes that the handler is financially unable to

make the payment.

(ii) Requirements and procedures

A handler described in clause (i) shall establish that the

handler is financially unable to make the payment in

accordance with application and documentation requirements

and review procedures established under rules recommended by

the PromoFlor Council, approved by the Secretary, and issued

after public notice and opportunity for comment in accordance

with section 553 of title 5 and without regard to sections

556 and 557 of such title.

(B) Criteria and responsibility for determinations

The PromoFlor Council may grant a postponement under

subparagraph (A) only if the handler demonstrates by the

submission of an opinion of an independent certified public

accountant, and by submission of other documentation required

under the rules established under subparagraph (A)(ii), that

the handler is insolvent or will be unable to continue to

operate if the handler is required to pay the assessment when

otherwise due.

(C) Period of postponement

(i) In general

The time period of a postponement and the terms and

conditions of the payment of each assessment that is

postponed under this paragraph shall be established by the

PromoFlor Council, in accordance with rules established under

the procedures specified in subparagraph (A)(ii), so as to

appropriately reflect the demonstrated needs of the qualified

handler.

(ii) Extensions

A postponement may be extended under rules established

under the procedures specified in subparagraph (A)(ii) for

the grant of initial postponements.

(i) Prohibition

The order shall prohibit the use of any funds received by the

PromoFlor Council in any manner for the purpose of influencing

legislation or government action or policy, except that the funds

may be used by the PromoFlor Council for the development and

recommendation to the Secretary of amendments to the order.

(j) Books and records; reports

(1) In general

The order shall provide that each qualified handler shall

maintain, and make available for inspection, such books and

records as are required by the order and file reports at the

time, in the manner, and having the content required by the

order, to the end that such information is made available to the

Secretary and the PromoFlor Council as is appropriate for the

administration or enforcement of this chapter, the order, or any

regulation issued under this chapter.

(2) Confidentiality requirement

(A) In general

Information obtained from books, records, or reports under

paragraph (1) or subsection (h)(6) of this section, or from

reports required under section 6805(b)(3) of this title, shall

be kept confidential by all officers and employees of the

Department of Agriculture and by the staff and agents of the

PromoFlor Council.

(B) Suits and hearings

Information described in subparagraph (A) may be disclosed to

the public only -

(i) in a suit or administrative hearing brought at the

request of the Secretary, or to which the Secretary or any

officer of the United States is a party, involving the order;

and

(ii) to the extent the Secretary considers the information

relevant to the suit or hearing.

(C) General statements and publications

Nothing in this paragraph may be construed to prohibit -

(i) the issuance of general statements, based on the

reports, of the number of persons subject to the order or

statistical data collected from the reports, if the

statements do not identify the information furnished by any

person; or

(ii) the publication, by direction of the Secretary, of the

name of any person who violates the order, together with a

statement of the particular provisions of the order violated

by the person.

(3) Lists of importers

(A) Review

The order shall provide that the staff of the PromoFlor

Council shall periodically review lists of importers of cut

flowers and cut greens to determine whether persons on the

lists are subject to the order.

(B) Customs service

On the request of the PromoFlor Council, the Commissioner of

the United States Customs Service shall provide to the

PromoFlor Council lists of importers of cut flowers and cut

greens.

(k) Consultations with industry experts

(1) In general

The order shall provide that the PromoFlor Council, from time

to time, may seek advice from and consult with experts from the

production, import, wholesale, and retail segments of the cut

flowers and cut greens industry to assist in the development of

promotion, consumer information, and related research plans and

projects.

(2) Special committees

(A) In general

For the purposes described in paragraph (1), the order shall

authorize the appointment of special committees composed of

persons other than PromoFlor Council members.

(B) Consultation

A committee appointed under subparagraph (A) -

(i) may not provide advice or recommendations to a

representative of an agency, or an officer, of the Federal

Government; and

(ii) shall consult directly with the PromoFlor Council.

(l) Other terms of order

The order shall contain such other terms and provisions,

consistent with this chapter, as are necessary to carry out this

chapter (including provision for the assessment of interest and a

charge for each late payment of assessments under subsection (h) of

this section and for carrying out section 6805 of this title).

-SOURCE-

(Pub. L. 103-190, Sec. 5, Dec. 14, 1993, 107 Stat. 2272.)

-TRANS-

TRANSFER OF FUNCTIONS

For transfer of functions, personnel, assets, and liabilities of

the United States Customs Service of the Department of the

Treasury, including functions of the Secretary of the Treasury

relating thereto, to the Secretary of Homeland Security, and for

treatment of related references, see sections 203(1), 551(d),

552(d), and 557 of Title 6, Domestic Security, and the Department

of Homeland Security Reorganization Plan of November 25, 2002, as

modified, set out as a note under section 542 of Title 6.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 6802, 6806, 6810 of this

title.

-CITE-

7 USC Sec. 6805 01/06/03

-EXPCITE-

TITLE 7 - AGRICULTURE

CHAPTER 97 - FRESH CUT FLOWERS AND FRESH CUT GREENS PROMOTION AND

INFORMATION

-HEAD-

Sec. 6805. Exclusion; determinations

-STATUTE-

(a) Exclusion

An order shall exclude from assessments under the order any sale

of cut flowers or cut greens for export from the United States.

(b) Making determinations

(1) In general

For the purpose of applying the $750,000 annual sales

limitation to a specific person in order to determine the status

of the person as a qualified handler or an exempt handler under

section 6802(4) of this title, or to a specific facility in order

to determine the status of the facility as an eligible separate

facility under section 6806(b)(2) of this title, an order issued

under this chapter shall provide that -

(A) a determination of the annual sales volume of a person or

facility shall be based on the sales of cut flowers and cut

greens by the person or facility during the most

recently-completed calendar year, except as provided in

subparagraph (B); and

(B) in the case of a new business or other operation for

which complete data on sales during all or part of the most

recently-completed calendar year are not available to the

PromoFlor Council, the determination may be made using an

alternative time period or other alternative procedure

specified in the order.

(2) Rule of attribution

(A) In general

For the purpose of determining the annual sales volume of a

person or a separate facility of a person, sales attributable

to a person shall include -

(i) in the case of an individual, sales attributable to the

spouse, children, grandchildren, parents, and grandparents of

the person;

(ii) in the case of a partnership or member of a

partnership, sales attributable to the partnership and other

partners of the partnership;

(iii) in the case of an individual or a partnership, sales

attributable to any corporation or other entity in which the

individual or partnership owns more than 50 percent of the

stock or (if the entity is not a corporation) that the

individual or partnership controls; and

(iv) in the case of a corporation, sales attributable to

any corporate subsidiary or other corporation or entity in

which the corporation owns more than 50 percent of the stock

or (if the entity is not a corporation) that the corporation

controls.

(B) Stock and ownership interest

For the purpose of this paragraph, stock or an ownership

interest in an entity that is owned by the spouse, children,

grandchildren, parents, grandparents, or partners of an

individual, or by a partnership in which a person is a partner,

or by a corporation more than 50 percent of the stock of which

is owned by a person, shall be treated as owned by the

individual or person.

(3) Reports

For the purpose of this subsection, the order may require a

person who sells cut flowers or cut greens to retailers to submit

reports to the PromoFlor Council on annual sales by the person.

-SOURCE-

(Pub. L. 103-190, Sec. 6, Dec. 14, 1993, 107 Stat. 2283.)

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in section 6804 of this title.

-CITE-

7 USC Sec. 6806 01/06/03

-EXPCITE-

TITLE 7 - AGRICULTURE

CHAPTER 97 - FRESH CUT FLOWERS AND FRESH CUT GREENS PROMOTION AND

INFORMATION

-HEAD-

Sec. 6806. Referenda

-STATUTE-

(a) Requirement for initial referendum

(1) In general

Not later than 3 years after the issuance of an order under

section 6803(b)(3) of this title, the Secretary shall conduct a

referendum among qualified handlers required to pay assessments

under the order, as provided in section 6804(h)(1) of this title,

subject to the voting requirements of subsection (b) of this

section, to ascertain whether the order then in effect shall be

continued.

(2) Approval of order needed

The order shall be continued only if the Secretary determines

that the order has been approved by a simple majority of all

votes cast in the referendum. If the order is not approved, the

Secretary shall terminate the order as provided in subsection (d)

of this section.

(b) Votes permitted

(1) In general

Each qualified handler eligible to vote in a referendum

conducted under this section shall be entitled to cast 1 vote for

each separate facility of the person that is an eligible separate

facility, as defined in paragraph (2).

(2) Eligible separate facility

For the purpose of paragraph (1):

(A) Separate facility

A handling or marketing facility of a qualified handler shall

be considered to be a separate facility if the facility is

physically located away from other facilities of the qualified

handler or the business function of the facility is

substantially different from the functions of other facilities

owned or operated by the qualified handler.

(B) Eligibility

A separate facility of a qualified handler shall be

considered to be an eligible separate facility if the annual

sales of cut flowers and cut greens to retailers and exempt

handlers from the facility are $750,000 or more.

(C) Annual sales determined

For the purpose of determining the amount of annual sales of

cut flowers and cut greens under subparagraph (B),

subparagraphs (A) and (C) of section 6802(4) of this title

shall apply.

(c) Suspension or termination referenda

If an order is approved in a referendum conducted under

subsection (a) of this section, effective beginning on the date

that is 3 years after the date of the approval, the Secretary -

(1) at the discretion of the Secretary, may conduct at any time

a referendum of qualified handlers required to pay assessments

under the order, as provided in section 6804(h)(1) of this title,

subject to the voting requirements of subsection (b) of this

section, to ascertain whether qualified handlers favor suspension

or termination of the order; and

(2) if requested by the PromoFlor Council or by a

representative group comprising 30 percent or more of all

qualified handlers required to pay assessments under the order,

as provided in section 6804(h)(1) of this title, shall conduct a

referendum of all qualified handlers required to pay assessments

under the order, as provided in section 6804(h)(1) of this title,

subject to the voting requirements of subsection (b) of this

section, to ascertain whether qualified handlers favor suspension

or termination of the order.

(d) Suspension or termination

If, as a result of the referendum conducted under subsection (a)

of this section, the Secretary determines that the order has not

been approved by a simple majority of all votes cast in the

referendum, or as a result of a referendum conducted under

subsection (c) of this section, the Secretary determines that

suspension or termination of the order is favored by a simple

majority of all votes cast in the referendum, the Secretary shall -

(1) not later than 180 days after the referendum, suspend or

terminate, as appropriate, collection of assessments under the

order; and

(2) suspend or terminate, as appropriate, activities under the

order as soon as practicable and in an orderly manner.

(e) Manner of conducting referenda

Referenda under this section shall be conducted in such manner as

is determined appropriate by the Secretary.

-SOURCE-

(Pub. L. 103-190, Sec. 7, Dec. 14, 1993, 107 Stat. 2284.)

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 6804, 6805 of this title.

-CITE-

7 USC Sec. 6807 01/06/03

-EXPCITE-

TITLE 7 - AGRICULTURE

CHAPTER 97 - FRESH CUT FLOWERS AND FRESH CUT GREENS PROMOTION AND

INFORMATION

-HEAD-

Sec. 6807. Petition and review

-STATUTE-

(a) Petition and hearing

(1) Petition

A person subject to an order may file with the Secretary a

petition -

(A) stating that the order, any provision of the order, or

any obligation imposed in connection with the order is not in

accordance with law; and

(B) requesting a modification of the order or an exemption

from the order.

(2) Hearing

The petitioner shall be given the opportunity for a hearing on

a petition filed under paragraph (1), in accordance with

regulations issued by the Secretary. Any such hearing shall be

conducted in accordance with section 6809(b)(2) of this title and

be held within the United States judicial district in which the

residence or principal place of business of the person is

located.

(3) Ruling

After a hearing under paragraph (2), the Secretary shall make a

ruling on the petition, which shall be final if in accordance

with law.

(b) Review

(1) Commencement of action

The district courts of the United States in any district in

which a person who is a petitioner under subsection (a) of this

section resides or conducts business shall have jurisdiction to

review the ruling of the Secretary on the petition of the person,

if a complaint requesting the review is filed not later than 20

days after the date of the entry of the ruling by the Secretary.

(2) Process

Service of process in proceedings under this subsection shall

be conducted in accordance with the Federal Rules of Civil

Procedure.

(3) Remand

If the court in a proceeding under this subsection determines

that the ruling of the Secretary on the petition of the person is

not in accordance with law, the court shall remand the matter to

the Secretary with directions -

(A) to make such ruling as the court shall determine to be in

accordance with law; or

(B) to take such further action as, in the opinion of the

court, the law requires.

(c) Enforcement

The pendency of proceedings instituted under this section shall

not impede, hinder, or delay the Attorney General or the Secretary

from obtaining relief under section 6808 of this title.

-SOURCE-

(Pub. L. 103-190, Sec. 8, Dec. 14, 1993, 107 Stat. 2285.)

-REFTEXT-

REFERENCES IN TEXT

The Federal Rules of Civil Procedure, referred to in subsec.

(b)(2), are set out in the Appendix to Title 28, Judiciary and

Judicial Procedure.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in section 6809 of this title.

-CITE-

7 USC Sec. 6808 01/06/03

-EXPCITE-

TITLE 7 - AGRICULTURE

CHAPTER 97 - FRESH CUT FLOWERS AND FRESH CUT GREENS PROMOTION AND

INFORMATION

-HEAD-

Sec. 6808. Enforcement

-STATUTE-

(a) Jurisdiction

A district court of the United States shall have jurisdiction to

enforce, and to prevent and restrain any person from violating,

this chapter or an order or regulation issued by the Secretary

under this chapter.

(b) Referral to Attorney General

A civil action brought under subsection (a) of 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 chapter, or an order or regulation issued under

this chapter, if the Secretary believes that the administration and

enforcement of this chapter would be adequately served by

administrative action under subsection (c) of this section or

suitable written notice or warning to the person who committed or

is committing the violation.

(c) Civil penalties and orders

(1) Civil penalties

(A) In general

A person who violates a provision of this chapter, or an

order or regulation issued by the Secretary under this chapter,

or who fails or refuses to pay, collect, or remit any

assessment or fee required of the person under an order or

regulation issued under this chapter, may be assessed by the

Secretary -

(i) a civil penalty of not less than $500 nor more than

$5,000 for each violation; and

(ii) in the case of a willful failure to remit an

assessment as required by an order or regulation, an

additional penalty equal to the amount of the assessment.

(B) Separate offenses

Each violation shall be a separate offense.

(2) Cease and desist orders

In addition to or in lieu of a civil penalty under paragraph

(1), the Secretary may issue an order requiring a person to cease

and desist from continuing a violation of this chapter, or an

order or regulation issued under this chapter.

(3) Notice and hearing

No penalty shall be assessed or cease and desist order issued

by the Secretary under this subsection unless the Secretary gives

the person against whom the penalty is assessed or the order is

issued notice and opportunity for a hearing before the Secretary

with respect to the violation. Any such hearing shall be

conducted in accordance with section 6809(b)(2) of this title and

shall be held within the United States judicial district in which

the residence or principal place of business of the person is

located.

(4) Finality

The penalty assessed or cease and desist order issued under

this subsection shall be final and conclusive unless the person

against whom the penalty is assessed or the order is issued files

an appeal with the appropriate district court of the United

States in accordance with subsection (d) of this section.

(d) Review by district court

(1) Commencement of action

(A) In general

Any person against whom a violation is found and a civil

penalty is assessed or a cease and desist order is issued under

subsection (c) of this section may obtain review of the penalty

or order by, within the 30-day period beginning on the date the

penalty is assessed or order issued -

(i) filing a notice of appeal in the district court of the

United States for the district in which the person resides or

conducts business, or in the United States District Court for

the District of Columbia; and

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

Secretary.

(B) Copy of record

The Secretary shall promptly file in the court a certified

copy of the record on which the Secretary found that the person

had committed a violation.

(2) Standard of review

A finding of the Secretary shall be set aside under this

subsection only if the finding is found to be unsupported by

substantial evidence.

(e) Failure to obey order

(1) In general

A person who fails to obey a cease and desist order issued

under subsection (c) of this section after the 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 of not more than $5,000 for each offense, after

opportunity for a hearing and for judicial review under the

procedures specified in subsections (c) and (d) of this section.

(2) Separate violations

Each day during which the person fails to obey an order

described in paragraph (1) shall be considered as a separate

violation of the order.

(f) Failure to pay penalty

(1) In general

If a person fails to pay a civil penalty assessed under

subsection (c) or (e) of this section after the penalty has

become final and unappealable, or after the appropriate United

States district court has entered final judgment in favor of the

Secretary, the Secretary shall refer the matter to the Attorney

General for recovery of the amount assessed in any United States

district court in which the person resides or conducts business.

(2) Scope of review

In an action by the Attorney General under paragraph (1), the

validity and appropriateness of the civil penalty shall not be

subject to review.

(g) Additional remedies

The remedies provided in this chapter shall be in addition to,

and not exclusive of, other remedies that may be available.

-SOURCE-

(Pub. L. 103-190, Sec. 9, Dec. 14, 1993, 107 Stat. 2286.)

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 6802, 6807, 6809 of this

title.

-CITE-

7 USC Sec. 6809 01/06/03

-EXPCITE-

TITLE 7 - AGRICULTURE

CHAPTER 97 - FRESH CUT FLOWERS AND FRESH CUT GREENS PROMOTION AND

INFORMATION

-HEAD-

Sec. 6809. Investigations and power to subpoena

-STATUTE-

(a) Investigations

The Secretary may make such investigations as the Secretary

considers necessary for the effective administration of this

chapter, or to determine whether any person has engaged or is

engaging in any act that constitutes a violation of this chapter or

any order or regulation issued under this chapter.

(b) Subpoenas, oaths, and affirmations

(1) Investigations

For the purpose of making an investigation under subsection (a)

of this section, the Secretary may administer oaths and

affirmations, and issue subpoenas to require the production of

any records that are relevant to the inquiry. The production of

the records may be required from any place in the United States.

(2) Administrative hearings

For the purpose of an administrative hearing held under section

6807(a)(2) or 6808(c)(3) of this title, the presiding officer may

administer oaths and affirmations, subpoena witnesses, compel the

attendance of witnesses, take evidence, and require the

production of any records that are relevant to the inquiry. The

attendance of witnesses and the production of the records may be

required from any place in the United States.

(c) Aid of courts

(1) In general

In the case of contumacy by, or refusal to obey a subpoena

issued under subsection (b) of this section to, any person, the

Secretary may invoke the aid of any court of the United States

within the jurisdiction of which the investigation or proceeding

is conducted, or where the person resides or conducts business,

in order to enforce a subpoena issued under subsection (b) of

this section.

(2) Order

The court may issue an order requiring the person referred to

in paragraph (1) to comply with a subpoena referred to in

paragraph (1).

(3) Failure to obey

Any failure to obey the order of the court may be punished by

the court as a contempt of court.

(4) Process

Process in any proceeding under this subsection may be served

in the United States judicial district in which the person being

proceeded against resides or conducts business or wherever the

person may be found.

-SOURCE-

(Pub. L. 103-190, Sec. 10, Dec. 14, 1993, 107 Stat. 2288.)

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 6802, 6807, 6808 of this

title.

-CITE-

7 USC Sec. 6810 01/06/03

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TITLE 7 - AGRICULTURE

CHAPTER 97 - FRESH CUT FLOWERS AND FRESH CUT GREENS PROMOTION AND

INFORMATION

-HEAD-

Sec. 6810. Confidentiality

-STATUTE-

(a) Prohibition

No information on how a person voted in a referendum conducted

under this chapter shall be made public.

(b) Penalty

Any person who knowingly violates subsection (a) of this section

or the confidentiality terms of an order, as described in section

6804(j)(2) of this title, shall be subject to a fine of not less

than $1,000 nor more than $10,000 or to imprisonment for not more

than 1 year, or both. If the person is an officer or employee of

the Department of Agriculture or the PromoFlor Council, the person

shall be removed from office.

(c) Additional prohibition

No information obtained under this chapter may be made available

to any agency or officer of the Federal Government for any purpose

other than the implementation of this chapter or an investigatory

or enforcement action necessary for the implementation of this

chapter.

(d) Withholding information from Congress prohibited

Nothing in this chapter shall be construed to authorize the

withholding of information from Congress.

-SOURCE-

(Pub. L. 103-190, Sec. 11, Dec. 14, 1993, 107 Stat. 2288.)

-CITE-

7 USC Sec. 6811 01/06/03

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TITLE 7 - AGRICULTURE

CHAPTER 97 - FRESH CUT FLOWERS AND FRESH CUT GREENS PROMOTION AND

INFORMATION

-HEAD-

Sec. 6811. Authority for Secretary to suspend or terminate order

-STATUTE-

If the Secretary finds that an order, or any provision of the

order, obstructs or does not tend to effectuate the policy of this

chapter specified in section 6801(b) of this title, the Secretary

shall terminate or suspend the operation of the order or provision

under such terms as the Secretary determines are appropriate.

-SOURCE-

(Pub. L. 103-190, Sec. 12, Dec. 14, 1993, 107 Stat. 2289.)

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in section 6802 of this title.

-CITE-

7 USC Sec. 6812 01/06/03

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TITLE 7 - AGRICULTURE

CHAPTER 97 - FRESH CUT FLOWERS AND FRESH CUT GREENS PROMOTION AND

INFORMATION

-HEAD-

Sec. 6812. Construction

-STATUTE-

(a) Termination or suspension not an order

The termination or suspension of an order, or a provision of an

order, shall not be considered an order under the meaning of this

chapter.

(b) Producer rights

This chapter -

(1) may not be construed to provide for control of production

or otherwise limit the right of individual cut flowers and cut

greens producers to produce cut flowers and cut greens; and

(2) shall be construed to treat all persons producing cut

flowers and cut greens fairly and to implement any order in an

equitable manner.

(c) Other programs

Nothing in this chapter may be construed to preempt or supersede

any other program relating to cut flowers or cut greens promotion

and consumer information organized and operated under the laws of

the United States or a State.

-SOURCE-

(Pub. L. 103-190, Sec. 13, Dec. 14, 1993, 107 Stat. 2289.)

-CITE-

7 USC Sec. 6813 01/06/03

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TITLE 7 - AGRICULTURE

CHAPTER 97 - FRESH CUT FLOWERS AND FRESH CUT GREENS PROMOTION AND

INFORMATION

-HEAD-

Sec. 6813. Regulations

-STATUTE-

The Secretary may issue such regulations as are necessary to

carry out this chapter and the powers vested in the Secretary by

this chapter, including regulations relating to the assessment of

late payment charges and interest.

-SOURCE-

(Pub. L. 103-190, Sec. 14, Dec. 14, 1993, 107 Stat. 2289.)

-CITE-

7 USC Sec. 6814 01/06/03

-EXPCITE-

TITLE 7 - AGRICULTURE

CHAPTER 97 - FRESH CUT FLOWERS AND FRESH CUT GREENS PROMOTION AND

INFORMATION

-HEAD-

Sec. 6814. Authorization of appropriations

-STATUTE-

(a) In general

There are authorized to be appropriated for each fiscal year such

sums as are necessary to carry out this chapter.

(b) Administrative expenses

Funds appropriated under subsection (a) of this section may not

be used for the payment of the expenses or expenditures of the

PromoFlor Council in administering a provision of an order.

-SOURCE-

(Pub. L. 103-190, Sec. 15, Dec. 14, 1993, 107 Stat. 2289.)

-CITE-