-CITE-

7 USC CHAPTER 93 - PROCESSOR-FUNDED MILK PROMOTION

PROGRAM 01/06/03

-EXPCITE-

TITLE 7 - AGRICULTURE

CHAPTER 93 - PROCESSOR-FUNDED MILK PROMOTION PROGRAM

.

-HEAD-

CHAPTER 93 - PROCESSOR-FUNDED MILK PROMOTION PROGRAM

-MISC1-

Sec.

6401. Findings and declaration of policy.

(a) Findings.

(b) Policy.

6402. Definitions.

6403. Authority to issue orders.

(a) In general.

(b) Scope.

(c) One order.

6404. Notice and comment.

6405. Findings and issuance of orders.

(a) In general.

(b) Effective date.

6406. Regulations.

6407. Required terms in orders.

(a) In general.

(b) National Processor Advertising and Promotion

Board.

(c) Powers and duties of Board.

(d) Plans and budgets.

(e) Prohibition on branded advertising.

(f) Contracts and agreements.

(g) Investment of funds.

(h) Books and records of Board.

(i) Books and records of processors.

(j) Prohibition on use of funds to influence

governmental action.

(k) Coordination.

(l) Exemptions.

(m) Report.

(n) Other terms and conditions.

6408. Permissive terms.

(a) In general.

(b) Advertising.

(c) Research and development.

(d) Reserve funds.

(e) Other terms.

6409. Assessments.

(a) In general.

(b) No effect on producer prices.

(c) Remitting assessments.

(d) Limitation on assessments.

(e) Producer-handlers.

(f) Processor assessment rate.

6410. Petition and review.

(a) Petition.

(b) Review.

6411. Enforcement.

(a) Jurisdiction.

(b) Referral to Attorney General.

(c) Civil penalties and orders.

(d) Review by district court.

(e) Failure to obey orders.

(f) Failure to pay penalties.

(g) Additional remedies.

6412. Investigations and power to subpoena.

(a) Investigations.

(b) Subpoenas, oaths, and affirmations.

(c) Aid of courts.

(d) Contempt.

(e) Process.

(f) Hearing site.

6413. Requirement of initial referendum.

(a) In general.

(b) Implementation.

(c) Costs of referendum.

(d) Manner.

6414. Suspension or termination of orders.

(a) Suspension or termination by Secretary.

(b) Other referenda.

6415. Amendments.

(a) Amendments to order.

(b) Amendment to assessment rates.

6416. Independent evaluation of programs.

(a) Review and evaluation.

(b) Report to Congress.

6417. 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.

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7 USC Sec. 6401 01/06/03

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TITLE 7 - AGRICULTURE

CHAPTER 93 - PROCESSOR-FUNDED MILK PROMOTION PROGRAM

-HEAD-

Sec. 6401. Findings and declaration of policy

-STATUTE-

(a) Findings

Congress finds that -

(1) fluid milk products are basic foods and are a primary

source of required nutrients such as calcium, and otherwise are a

valuable part of the human diet;

(2) fluid milk products must be readily available and marketed

efficiently to ensure that the people of the United States

receive adequate nourishment;

(3) the dairy industry plays a significant role in the economy

of the United States, in that milk is produced by thousands of

milk producers and dairy products (including fluid milk products)

are consumed every day by millions of people in the United

States;

(4) the processing of milk into fluid milk products and the

marketing of such products are important to the dairy industry

because the fluid milk segment of the dairy market contributes

substantially to ensuring that the prices paid to milk producers

for raw milk are stable and adequate to maintain the overall

strength of the dairy industry;

(5) the maintenance and expansion of markets for fluid milk

products are vital to the Nation's fluid milk processors and milk

producers, as well as to the general economy of the United

States;

(6) the congressional purpose underlying this chapter is to

maintain and expand markets for fluid milk products, not to

maintain or expand any processor's share of those markets and

that the chapter does not prohibit or restrict individual

advertising or promotion of fluid milk products since the

programs created and funded by this chapter are not extended to

replace individual advertising and promotion efforts;

(7) the cooperative development, financing, and implementation

of a coordinated program of advertising and promotion of fluid

milk products is necessary to maintain and expand markets for

fluid milk products;

(8) it is appropriate to finance the cooperative program

described in paragraph (6) (FOOTNOTE 1) with self-help

assessments paid by the fluid milk processors; and

(FOOTNOTE 1) So in original. Probably should be paragraph

''(7)''.

(9) fluid milk products move in interstate and foreign

commerce, and fluid milk products that do not move in such

channels of commerce directly burden or affect interstate

commerce in fluid milk products.

(b) Policy

It is declared to be the policy of Congress that it is in the

public interest to authorize the establishment, through the

exercise of powers provided in this chapter, of an orderly

procedure for developing, financing, through adequate assessments

on fluid milk products produced in the United States and carrying

out an effective, continuous, and coordinated program of promotion,

research, and consumer information designed to strengthen the

position of the dairy industry in the marketplace and maintain and

expand domestic and foreign markets and uses for fluid milk

products, the purpose of which is not to compete with or replace

individual advertising or promotion efforts designed to promote

individual brand name or trade name fluid milk products, but rather

to maintain and expand the markets for all fluid milk products,

with the goal and purpose of this chapter being a national

governmental goal that authorizes and funds programs that result in

government speech promoting government objectives.

-SOURCE-

(Pub. L. 101-624, title XIX, Sec. 1999B, Nov. 28, 1990, 104 Stat.

3914; Pub. L. 104-127, title I, Sec. 146(a), (b), Apr. 4, 1996, 110

Stat. 918.)

-MISC1-

AMENDMENTS

1996 - Subsec. (a)(6) to (9). Pub. L. 104-127, Sec. 146(a), added

par. (6) and redesignated former pars. (6) to (8) as (7) to (9),

respectively.

Subsec. (b). Pub. L. 104-127, Sec. 146(b), amended heading and

text of subsec. (b) generally. Text read as follows: ''It is

declared to be the policy of Congress that it is in the public

interest to authorize the establishment, through the exercise of

the powers provided in this chapter, of an orderly procedure for

developing, financing (through adequate assessments on fluid milk

products produced in the United States) and carrying out an

effective and coordinated program of advertising designed to

strengthen the position of the dairy industry in the marketplace

and to maintain and expand markets and uses for fluid milk products

produced in the United States. Nothing in this chapter shall be

construed to provide for the control of production or otherwise

limit the right of individual milk producers to produce milk.''

SHORT TITLE OF 1993 AMENDMENT

Pub. L. 103-72, Sec. 1, Aug. 11, 1993, 107 Stat. 717, provided

that: ''This Act (amending sections 6402 and 6409 of this title)

may be cited as the 'Fluid Milk Promotion Amendments Act of

1993'.''

SHORT TITLE

Section 1999A of Pub. L. 101-624 provided that: ''This subtitle

(subtitle H (Sec. 1999A - 1999R) of title XIX of Pub. L. 101-624,

enacting this chapter) may be cited as the 'Fluid Milk Promotion

Act of 1990'.''

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in section 6403 of this title.

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7 USC Sec. 6402 01/06/03

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TITLE 7 - AGRICULTURE

CHAPTER 93 - PROCESSOR-FUNDED MILK PROMOTION PROGRAM

-HEAD-

Sec. 6402. Definitions

-STATUTE-

As used in this chapter:

(1) Advertising

The term ''advertising'' means any advertising or promotion

program involving only fluid milk products and directed toward

increasing the general demand for fluid milk products.

(2) Board

The term ''Board'' means the National Processor Advertising and

Promotion Board established under section 6407(b) of this title.

(3) Fluid milk product

The term ''fluid milk product'' has the meaning given the term

in -

(A) section 1000.15 of title 7, Code of Federal Regulations,

subject to such amendments as may be made by the Secretary; or

(B) any successor regulation.

(4) Fluid milk processor

The term ''fluid milk processor'' means any person who

processes and markets commercially more than 3,000,000 pounds of

fluid milk products in consumer-type packages per month

(excluding products delivered directly to the place of residence

of a consumer).

(5) Department

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

(6) Research

The term ''research'' means market research to support

advertising and promotion efforts, including educational

activities, research directed to product characteristics, product

development, including new products or improved technology in

production, manufacturing or processing of milk and the products

of milk.

(7) Secretary

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

(8) United States

The term ''United States'', except as used in sections 6410

through 6412 of this title, means the 48 contiguous States in the

continental United States and the District of Columbia.

-SOURCE-

(Pub. L. 101-624, title XIX, Sec. 1999C, Nov. 28, 1990, 104 Stat.

3915; Pub. L. 103-72, Sec. 2(a), Aug. 11, 1993, 107 Stat. 717; Pub.

L. 104-127, title I, Sec. 146(c), Apr. 4, 1996, 110 Stat. 918; Pub.

L. 107-171, title I, Sec. 1506(a), (b), May 13, 2002, 116 Stat.

210.)

-MISC1-

AMENDMENTS

2002 - Par. (3). Pub. L. 107-171, Sec. 1506(a), added par. (3)

and struck out heading and text of former par. (3). Text read as

follows: ''The term 'fluid milk product' -

''(A) means any of the following products in fluid or frozen

form: milk, skim milk, lowfat milk, milk drinks, buttermilk,

filled milk, and milkshake and ice milk mixes containing less

than 20 percent total solids, including any such products that

are flavored, cultured, modified with added nonfat milk solids,

concentrated (if in a consumer-type package), or reconstituted;

and

''(B) does not include evaporated or condensed milk (plain or

sweetened), evaporated or condensed skim milk (plain or

sweetened), formulas specially prepared for infant feeding or

dietary use that are packaged in hermetically sealed glass or

all-metal containers, any product that contains by weight less

than 6.5 percent nonfat milk solids, and whey.''

Par. (4). Pub. L. 107-171, Sec. 1506(b), substituted ''3,000,000

pounds of fluid milk products in consumer-type packages per month

(excluding products delivered directly to the place of residence of

a consumer)'' for ''500,000 pounds of fluid milk products in

consumer-type packages per month''.

1996 - Par. (6). Pub. L. 104-127 amended heading and text of par.

(6) generally. Text read as follows: ''The term 'research' -

''(A) means market research limited to the support of

advertising and promotion efforts, including educational

activities; and

''(B) does not include research directed to product

characteristics such as nutrients; product development including

new products; or improved technology in production, manufacturing

or processing; or any other efforts not directly applicable to

measuring or increasing the effectiveness of advertising

activities in expanding sales of fluid milk products.''

1993 - Par. (4). Pub. L. 103-72 amended par. (4) generally.

Prior to amendment, par. (4) read as follows: ''The term 'fluid

milk processor' means any person who processes and markets

commercially fluid milk products in consumer-type packages.''

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7 USC Sec. 6403 01/06/03

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TITLE 7 - AGRICULTURE

CHAPTER 93 - PROCESSOR-FUNDED MILK PROMOTION PROGRAM

-HEAD-

Sec. 6403. Authority to issue orders

-STATUTE-

(a) In general

To effectuate the declared policy under section 6401(b) of this

title, the Secretary shall issue and from time to time may amend,

orders applicable to all fluid milk processors, authorizing -

(1) the collection of assessments on fluid milk products

subject to this chapter; and

(2) the use of the assessments to provide research and

advertising in a manner prescribed by this chapter.

(b) Scope

Any order issued under this chapter shall be national in scope.

(c) One order

Not more than one order shall be in effect under this chapter at

any one time.

-SOURCE-

(Pub. L. 101-624, title XIX, Sec. 1999D, Nov. 28, 1990, 104 Stat.

3916.)

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7 USC Sec. 6404 01/06/03

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CHAPTER 93 - PROCESSOR-FUNDED MILK PROMOTION PROGRAM

-HEAD-

Sec. 6404. Notice and comment

-STATUTE-

Not later than 60 days after the Secretary receives a request for

the issuance of an order under this chapter, and a specific

proposal for an order from individual fluid milk processors that

marketed during a representative period, as determined by the

Secretary, not less than 30 percent of the volume of fluid milk

products marketed by all processors, the Secretary shall publish

the proposed order and give due notice and opportunity for public

comment on the proposed order.

-SOURCE-

(Pub. L. 101-624, title XIX, Sec. 1999E, Nov. 28, 1990, 104 Stat.

3916.)

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in section 6405 of this title.

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7 USC Sec. 6405 01/06/03

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TITLE 7 - AGRICULTURE

CHAPTER 93 - PROCESSOR-FUNDED MILK PROMOTION PROGRAM

-HEAD-

Sec. 6405. Findings and issuance of orders

-STATUTE-

(a) In general

After notice and opportunity for public comment are given, as

provided in section 6404 of this title, the Secretary shall issue

an order, taking into consideration the comments received and

including in the order provisions necessary to ensure that the

order is in conformity with the requirements and the declared

policy of this chapter.

(b) Effective date

Such order shall be issued and, if approved by fluid milk

processors as provided in section 6413 of this title, shall become

effective not later than 180 days following publication of the

proposed order.

-SOURCE-

(Pub. L. 101-624, title XIX, Sec. 1999F, Nov. 28, 1990, 104 Stat.

3916.)

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in section 6413 of this title.

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7 USC Sec. 6406 01/06/03

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TITLE 7 - AGRICULTURE

CHAPTER 93 - PROCESSOR-FUNDED MILK PROMOTION PROGRAM

-HEAD-

Sec. 6406. Regulations

-STATUTE-

The Secretary may issue such regulations as may be necessary to

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

this chapter.

-SOURCE-

(Pub. L. 101-624, title XIX, Sec. 1999G, Nov. 28, 1990, 104 Stat.

3916.)

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7 USC Sec. 6407 01/06/03

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TITLE 7 - AGRICULTURE

CHAPTER 93 - PROCESSOR-FUNDED MILK PROMOTION PROGRAM

-HEAD-

Sec. 6407. Required terms in orders

-STATUTE-

(a) In general

Each order issued under this chapter shall contain the terms and

conditions prescribed in this section.

(b) National Processor Advertising and Promotion Board

(1) Establishment

The order shall establish a National Processor Advertising and

Promotion Board to administer the order.

(2) Service to entire industry

In administering the order, the Board shall carry out programs

and projects that will provide maximum benefit to the fluid milk

industry and promote only fluid milk products. The Board shall,

to the extent practicable, ensure that advertising coverage in

each region is proportionate to the funds collected from each

region.

(3) Regions

The Secretary shall establish not less than 12 nor more than 15

regions in order to ensure appropriate geographic representation

on the Board.

(4) Board membership

The Board shall consist of one member appointed by the

Secretary, from among fluid milk processors, to represent each of

the regions established under paragraph (3), with the membership

representing, to the extent practicable, differing sizes of

operations. The Secretary shall appoint five additional at-large

members to the Board, of which at least three shall be fluid milk

processors and at least one shall be from the general public.

(5) Terms of office

The members of the Board shall serve for terms of 3 years,

except that the members appointed to the initial Board shall

serve, proportionately, for terms of 1, 2, and 3 years, as

determined by the Secretary. No member shall serve for more than

2 consecutive terms, except that the members that are selected to

serve for the initial term of 1 or 2 years shall be eligible to

be reappointed for a 3-year term.

(6) Compensation

Each member of the Board shall serve without compensation, but

shall be reimbursed for necessary and reasonable expenses

incurred in the performance of duties of the Board.

(c) Powers and duties of Board

The order shall define the powers and duties of the Board, which

shall include the power and duty -

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

conditions of the order;

(2) to make rules to effectuate the terms and conditions of the

order;

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

complaints of violations of the order;

(4) to develop and recommend such rules, regulations, and

amendments to the order to the Secretary for approval as may be

necessary for the development and execution of programs or

projects to carry out the order;

(5) to employ such persons as the Board considers necessary and

determine the compensation and define the duties of the persons;

(6) to prepare and submit for the approval of the Secretary,

prior to the beginning of each fiscal year, a fiscal year budget

of the anticipated expenses in the administration of the order,

including the probable costs of all programs and projects;

(7) to develop programs and projects, subject to subsection (d)

of this section;

(8) to enter into contracts or agreements, with the approval of

the Secretary, to develop and carry out programs or projects of

research and advertising;

(9) to carry out advertising or research, and pay the costs of

the projects with funds collected pursuant to section 6409 of

this title;

(10) to keep minutes, books, and records that reflect all of

the acts and transactions of the Board, and promptly report

minutes of each Board meeting to the Secretary;

(11) to furnish the Secretary with such other information as

the Secretary may require; and

(12) to invest funds collected by the Board pursuant to

subsection (g) of this section.

(d) Plans and budgets

(1) Budgets

The order shall require the Board, prior to the beginning of

each fiscal year, or as may be necessary after the beginning of

the fiscal year, to develop budgets of the anticipated expenses

and disbursements of the Board in the implementation of the

order, including projected costs of research and advertising.

The budget shall be submitted to the Secretary and be effective

on the approval of the Secretary.

(2) Incurring expenses

The Board may incur such expenses for research or advertising

of fluid milk products, and other expenses for the

administration, maintenance, and functioning of the Board, as may

be authorized by the Secretary. The expenses shall include any

implementation, administrative, and referendum costs incurred by

the Department.

(3) Paying expenses

The funds to cover the expenses referred to in paragraph (2)

shall be paid from assessments collected under section 6409 of

this title.

(4) Limitation on spending

Effective 1 year after the date of the establishment of the

Board, the Board shall not spend in excess of 5 percent of the

assessments collected for the administration of the Board.

(e) Prohibition on branded advertising

A program or project conducted under this chapter shall not make

any reference to private brand names or use false or unwarranted

claims on behalf of fluid milk products, or false or unwarranted

statements with respect to the attributes or use of any competing

products, except that this subsection shall not preclude the Board

from offering its programs and projects for use by commercial

parties, under such terms and conditions as the Board may prescribe

as approved by the Secretary.

(f) Contracts and agreements

(1) In general

To ensure efficient use of funds collected under this chapter,

the order shall provide that the Board may enter into contracts

or agreements for the implementation and carrying out of programs

or projects for fluid milk products research and advertising and

for the payment of the costs of the programs or projects with

funds received by the Board under the order.

(2) Requirements

Any such contract or agreement shall provide that -

(A) the contracting party shall develop and submit to the

Board a program or project, together with a budget or budgets

that shall disclose estimated costs to be incurred for such

program or project;

(B) the program or project shall become effective on the

approval of the Secretary; and

(C) the contracting party shall keep accurate records of all

of the transactions of the contracting party, account for funds

received and expended, make periodic reports to the Board of

activities conducted, and make such other reports as the Board

or the Secretary may require.

(g) Investment of funds

(1) In general

The order shall provide that the Board, with the approval of

the Secretary, may invest assessment funds collected by the Board

under the order, pending disbursement of the funds, only in -

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

(B) general obligations of any State or any political

subdivision thereof;

(C) any interest-bearing account or 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.

(2) Income

Income from any such investment may be used for any purpose for

which the invested funds may be used.

(h) Books and records of Board

(1) In general

The order shall require the Board to -

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

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

prescribe;

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

such reports as the Secretary may prescribe; and

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

entrusted to the Board.

(2) Audits

The Board shall cause the books and records of the Board to be

audited by an independent auditor at the end of each fiscal

year. A report of each such audit shall be submitted to the

Secretary.

(i) Books and records of processors

(1) In general

The order shall require that each fluid milk processor subject

to this chapter maintain and make available for inspection such

books and records as may be required by the order and file

reports at the time, in the manner, and having the content

prescribed by the order.

(2) Use of information

Information obtained under paragraph (1) shall be made

available to the Secretary as is appropriate for the

effectuation, administration, or enforcement of this chapter, or

any order or regulation issued under this chapter.

(3) Confidentiality

(A) In general

Except as provided in subparagraphs (B) and (C), commercial

or financial information that is obtained under paragraph (1)

or (2) and that is privileged or confidential shall be kept

confidential by all officers and employees of the Department

and agents of the Board, and only such information so obtained

as the Secretary considers relevant may be disclosed to the

public by them and then only in a suit or administrative

hearing brought at the request of the Secretary, or to which

the Secretary or any officer of the United States is a party,

and involving the order.

(B) Availability of information

Except as otherwise provided in this chapter, information

obtained under this chapter may be made available to another

agency of the Federal Government for a civil or criminal law

enforcement activity if the activity is authorized by law and

if the head of the agency has made a written request to the

Secretary specifying the particular information desired and the

law enforcement activity for which the information is sought.

(C) Other exceptions

Nothing in subparagraph (A) may be construed to prohibit -

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

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

statistical data collected from the persons, which statements

do not identify the information furnished by any person; or

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

name of any person violating any order, together with a

statement of the particular provisions of the order violated

by the person.

(4) Penalty

Any person violating this subsection, on conviction, shall be

subject to a fine of not more than $1,000 or to imprisonment for

not more than 1 year, or both, and if such person is an agent of

the Board or an officer or employee of the Department, shall be

removed from office.

(5) Withholding information

Nothing in this subsection shall authorize the Secretary to

withhold information from a duly authorized committee or

subcommittee of Congress.

(6) Time requirement

The records required under paragraph (1) shall be maintained

for 2 years beyond the fiscal year of the applicability of the

records.

(j) Prohibition on use of funds to influence governmental action

(1) In general

Except as otherwise provided in paragraph (2), the order shall

prohibit any funds collected by the Board under the order from

being used in any manner for the purpose of influencing

legislation or government action or policy.

(2) Exception

Paragraph (1) shall not apply to the development or

recommendation of amendments to the order.

(k) Coordination

The order shall require the Board to take reasonable steps to

coordinate the collection of assessments, and advertising and

research activities of the Board with the National Dairy Promotion

and Research Board established under section 4504(b) of this title.

(l) Exemptions

The order shall exempt fluid milk products exported from the

United States from assessments under the order.

(m) Report

The Secretary shall provide annually for an independent

evaluation of the effectiveness of the fluid milk promotion program

carried out under this chapter during the previous fiscal year, in

conjunction with the evaluation of the National Dairy Promotion and

Research Board established under section 4504(b) of this title.

(n) Other terms and conditions

The order also shall contain such terms and conditions, not

inconsistent with this chapter, as are necessary to effectuate this

chapter, including regulations relating to the assessment of late

payment charges.

-SOURCE-

(Pub. L. 101-624, title XIX, Sec. 1999H, Nov. 28, 1990, 104 Stat.

3916.)

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in section 6402 of this title.

-CITE-

7 USC Sec. 6408 01/06/03

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TITLE 7 - AGRICULTURE

CHAPTER 93 - PROCESSOR-FUNDED MILK PROMOTION PROGRAM

-HEAD-

Sec. 6408. Permissive terms

-STATUTE-

(a) In general

Each order issued under this chapter may contain one or more of

the terms and conditions described in this section.

(b) Advertising

The order may provide for the establishment, issuance,

effectuation, and administration of appropriate programs or

projects for the advertising of fluid milk products and the use of

funds collected under this chapter for such programs or projects.

(c) Research and development

The order may provide for establishing and carrying out research

projects and studies to support the advertising efforts for fluid

milk products, and the use of funds collected under the order for

such projects and studies.

(d) Reserve funds

The order may provide authority to accumulate reserve funds from

assessments collected pursuant to the order, to permit an effective

and continuous coordinated program of research and advertising in

years when the assessment income may be reduced, except that the

total reserve fund may not exceed 25 percent of the amount budgeted

for the operation in the current fiscal year of the order.

(e) Other terms

The order may contain such other terms and conditions incidental

to and not inconsistent with the terms and conditions specified in

this chapter as are necessary to effectuate the other provisions of

the order.

-SOURCE-

(Pub. L. 101-624, title XIX, Sec. 1999I, Nov. 28, 1990, 104 Stat.

3920.)

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7 USC Sec. 6409 01/06/03

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TITLE 7 - AGRICULTURE

CHAPTER 93 - PROCESSOR-FUNDED MILK PROMOTION PROGRAM

-HEAD-

Sec. 6409. Assessments

-STATUTE-

(a) In general

The order shall provide that each fluid milk processor shall pay

an assessment on each unit of fluid milk product that such person

processes and markets commercially in consumer-type packages in the

United States.

(b) No effect on producer prices

Such assessments shall not -

(1) reduce the prices paid under the Federal milk marketing

orders issued under section 608c of this title;

(2) otherwise be deducted from the amounts that handlers must

pay to producers for fluid milk products sold to a processor; or

(3) otherwise be deducted from the price of milk paid to a

producer by a handler, as determined by the Secretary.

(c) Remitting assessments

(1) In general

Assessments required under subsection (a) of this section shall

be remitted by the fluid milk processor directly to the Board in

accordance with the order and regulations issued by the

Secretary.

(2) Time to remit assessment

Each processor who is responsible for the remittance of an

assessment under paragraph (1) shall remit the assessment to the

Board not later than the last day of the month following the

month that the milk being assessed was marketed.

(3) Verification

Remittances shall be verified by market administrators and

State regulatory officials, and local and State Agricultural

Stabilization and Conservation Service offices, as provided by

the Secretary.

(d) Limitation on assessments

Not more than one assessment may be assessed under this section

for the purposes of this chapter on a processor for any unit of

fluid milk product.

(e) Producer-handlers

Producer-handlers that are required to pay the assessment imposed

under section 4504(g) of this title, and that are fluid milk

processors, shall also be responsible for the additional assessment

imposed by this section.

(f) Processor assessment rate

Except as provided in section 6415(b) of this title, the rate of

assessment prescribed by the order shall be 20 cents per

hundredweight of fluid milk products marketed.

-SOURCE-

(Pub. L. 101-624, title XIX, Sec. 1999J, Nov. 28, 1990, 104 Stat.

3921; Pub. L. 103-72, Sec. 2(b), Aug. 11, 1993, 107 Stat. 717.)

-MISC1-

AMENDMENTS

1993 - Subsec. (e). Pub. L. 103-72 inserted '', and that are

fluid milk processors,'' after ''section 4504(g) of this title''.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in section 6407 of this title.

-CITE-

7 USC Sec. 6410 01/06/03

-EXPCITE-

TITLE 7 - AGRICULTURE

CHAPTER 93 - PROCESSOR-FUNDED MILK PROMOTION PROGRAM

-HEAD-

Sec. 6410. Petition and review

-STATUTE-

(a) Petition

(1) In general

A person subject to an order issued under this chapter may file

with the Secretary a petition -

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

any obligation imposed in connection with the order is not

established in accordance with law; and

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

from the order.

(2) Hearings

The petitioner shall be given the opportunity for a hearing on

the petition, in accordance with regulations issued by the

Secretary.

(3) Ruling

After the hearing, the Secretary shall make a ruling on the

petition, 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 the person who is a petitioner under subsection (a) of this

section resides or carries on business are hereby vested with

jurisdiction to review the ruling on such person's petition, if a

complaint for that purpose is filed within 20 days after the date

of the entry of a ruling by the Secretary under subsection (a) of

this section.

(2) Process

Service of process in such proceedings shall be conducted in

accordance with the Federal Rules of Civil Procedure.

(3) Remands

If the court determines that such ruling is not in accordance

with law, the court shall remand the matter to the Secretary with

directions either -

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

accordance with law; or

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

the court, the law requires.

-SOURCE-

(Pub. L. 101-624, title XIX, Sec. 1999K, Nov. 28, 1990, 104 Stat.

3921.)

-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 sections 6402, 6412 of this title.

-CITE-

7 USC Sec. 6411 01/06/03

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TITLE 7 - AGRICULTURE

CHAPTER 93 - PROCESSOR-FUNDED MILK PROMOTION PROGRAM

-HEAD-

Sec. 6411. Enforcement

-STATUTE-

(a) Jurisdiction

The several district courts of the United States are vested with

jurisdiction specifically to enforce, and to prevent and restrain

any person from violating, any order or regulation made or issued

under this chapter.

(b) Referral to Attorney General

A civil action authorized to be brought under this section shall

be referred to the Attorney General for appropriate action, except

that the Secretary is not required to refer to the Attorney General

a violation of this chapter, or any order or regulation issued

under this chapter, if the Secretary believes that the

administration and enforcement of this chapter would be adequately

served by providing a suitable written notice or warning to the

person who committed such violation or by administrative action

under subsection (c) of this section.

(c) Civil penalties and orders

(1) Civil penalties

Any person who violates any provision of any order or

regulation issued by the Secretary under this chapter, or who

fails or refuses to pay, collect, or remit any assessment or fee

duly required of the person under the order or regulations, may

be assessed -

(A) a civil penalty by the Secretary of not less than $500

nor more than $5,000 for each such violation; or

(B) in the case of a willful failure or refusal to pay,

collect, or remit any assessment or fee duly required of the

person under this chapter or a regulation issued under this

chapter, a civil penalty by the Secretary of not less than

$10,000 nor more than $100,000 for each such violation.

Each violation shall be a separate offense.

(2) Cease-and-desist orders

In addition to, or in lieu of, a civil penalty, the Secretary

may issue an order requiring the person to cease and desist from

continuing such violation.

(3) Notice and hearing

No penalty shall be assessed or cease-and-desist order issued

by the Secretary unless the person against whom the penalty is

assessed or the order issued is given notice and opportunity for

a hearing before the Secretary with respect to such violation.

(4) Finality

The order of the Secretary assessing a penalty or imposing a

cease-and-desist order shall be final and conclusive unless the

affected person files an appeal from the Secretary's order 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

Any person against whom a violation is found and a civil

penalty assessed or cease-and-desist order issued under

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

or order by -

(A) filing, within the 30-day period beginning on the date

the penalty is assessed or order issued, a notice of appeal in

-

(i) the district court of the United States for the

district in which the person resides or carries on business;

or

(ii) the United States District Court for the District of

Columbia; and

(B) simultaneously sending a copy of the notice by certified

mail to the Secretary.

(2) Record

The Secretary shall file promptly in such court a certified

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

had committed a violation.

(3) Standard of review

A finding of the Secretary shall be set aside only if the

finding is found to be unsupported by substantial evidence.

(e) Failure to obey orders

Any person who fails to obey a cease-and-desist order 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, after opportunity for a hearing and for judicial

review under the procedures specified in subsections (c) and (d) of

this section, of not more than $5,000 for each offense. Each day

during which the failure continues shall be considered as a

separate violation of such order.

(f) Failure to pay penalties

If any person fails to pay an assessment of a civil penalty after

it has become a final and unappealable order, or after the

appropriate United States district court has entered final judgment

in favor of the Secretary, the Secretary shall refer the matter to

the Attorney General for recovery of the amount assessed in the

district court in which the person resides or conducts business.

In the action, the validity and appropriateness of the final order

imposing the civil penalty shall not be subject to review.

(g) Additional remedies

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

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

-SOURCE-

(Pub. L. 101-624, title XIX, Sec. 1999L, Nov. 28, 1990, 104 Stat.

3922; Pub. L. 102-237, title VIII, Sec. 809, Dec. 13, 1991, 105

Stat. 1883.)

-MISC1-

AMENDMENTS

1991 - Subsec. (b). Pub. L. 102-237 substituted ''this section''

for ''this subsection'' after ''brought under''.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 6402, 6412 of this title.

-CITE-

7 USC Sec. 6412 01/06/03

-EXPCITE-

TITLE 7 - AGRICULTURE

CHAPTER 93 - PROCESSOR-FUNDED MILK PROMOTION PROGRAM

-HEAD-

Sec. 6412. Investigations and power to subpoena

-STATUTE-

(a) Investigations

The Secretary may make such investigations as the Secretary

considers necessary -

(1) for the effective administration of this chapter; or

(2) to determine whether any person has engaged or is engaging

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

order, rule, or regulation issued under this chapter.

(b) Subpoenas, oaths, and affirmations

(1) In general

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

this section, the Secretary may administer oaths and

affirmations, and issue a subpoena to require the production of

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

any such records may be required from any place in the United

States.

(2) Administrative hearings

For the purpose of an administrative hearing held under section

6410 or 6411 of this title, the presiding officer is authorized

to administer oaths and affirmations, subpoena witnesses, compel

their attendance, take evidence, and require the production of

any records that are relevant to the inquiry. Such attendance of

witnesses and the production of any such records may be required

from any place in the United States.

(c) Aid of courts

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

to, 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 carries on business, in order to enforce a subpoena

issued by the Secretary under subsection (b) of this section. The

court may issue an order requiring such person to comply with such

a subpoena.

(d) Contempt

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

such court as a contempt thereof.

(e) Process

Process in any such case may be served in the judicial district

in which such person resides or conducts business or wherever such

person may be found.

(f) Hearing site

The site of any hearings held under section 6410 or 6411 of this

title shall be within the judicial district where such person

resides or has a principal place of business.

-SOURCE-

(Pub. L. 101-624, title XIX, Sec. 1999M, Nov. 28, 1990, 104 Stat.

3924.)

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in section 6402 of this title.

-CITE-

7 USC Sec. 6413 01/06/03

-EXPCITE-

TITLE 7 - AGRICULTURE

CHAPTER 93 - PROCESSOR-FUNDED MILK PROMOTION PROGRAM

-HEAD-

Sec. 6413. Requirement of initial referendum

-STATUTE-

(a) In general

Within the 60-day period immediately preceding the effective date

of an order issued under section 6405(a) of this title, the

Secretary shall conduct a referendum among fluid milk processors to

ascertain whether the order shall go into effect.

(b) Implementation

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

of this section, the Secretary determines that implementation of

the order is favored -

(1) by at least 50 percent of fluid milk processors voting in

the referendum; and

(2) by fluid milk processors voting in the referendum that

marketed during the representative period, as determined by the

Secretary, 60 percent or more of the volume of fluid milk

products marketed by fluid milk processors voting in the

referendum;

the order shall become effective as provided in section 6405(b) of

this title.

(c) Costs of referendum

The Secretary shall be reimbursed from any assessments collected

by the Board for any expenses incurred by the Department in

connection with the conduct of any referendum under this chapter.

(d) Manner

(1) In general

Referenda conducted pursuant to this chapter shall be conducted

in a manner determined by the Secretary.

(2) Advance registration

A fluid milk processor who chooses to vote in any referendum

conducted under this chapter shall register with the Secretary

prior to the voting period, after receiving notice from the

Secretary concerning the referendum under paragraph (4).

(3) Voting

A fluid milk processor who votes in any referendum conducted

under this chapter shall vote in accordance with procedures

established by the Secretary. The ballots and other information

or reports that reveal or tend to reveal the vote of any

processor shall be held strictly confidential.

(4) Notice

The Secretary shall notify all processors at least 30 days

prior to a referendum conducted under this chapter. The notice

shall explain the procedure established under this subsection.

-SOURCE-

(Pub. L. 101-624, title XIX, Sec. 1999N, Nov. 28, 1990, 104 Stat.

3924; Pub. L. 104-127, title I, Sec. 146(d)(1), Apr. 4, 1996, 110

Stat. 919.)

-MISC1-

AMENDMENTS

1996 - Subsec. (b)(2). Pub. L. 104-127 substituted ''fluid milk

processors voting in the referendum;'' for ''all processors;''.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 6405, 6414, 6415 of this

title.

-CITE-

7 USC Sec. 6414 01/06/03

-EXPCITE-

TITLE 7 - AGRICULTURE

CHAPTER 93 - PROCESSOR-FUNDED MILK PROMOTION PROGRAM

-HEAD-

Sec. 6414. Suspension or termination of orders

-STATUTE-

(a) Suspension or termination by Secretary

The Secretary shall, whenever the Secretary finds that the order

or any provision of the order obstructs or does not tend to

effectuate the declared policy of this chapter, terminate or

suspend the operation of the order or provision.

(b) Other referenda

(1) In general

The Secretary may conduct at any time a referendum of persons

who, during a representative period as determined by the

Secretary, have been fluid milk processors on whether to suspend

or terminate the order, and shall hold such a referendum on

request of the Board or any group of such processors that among

them marketed during a representative period, as determined by

the Secretary, 10 percent or more of the volume of fluid milk

products marketed by fluid milk processors voting in the

preceding referendum.

(2) Suspension or termination

If the Secretary determines that the suspension or termination

is favored -

(A) by at least 50 percent of fluid milk processors voting in

the referendum; and

(B) by fluid milk processors voting in the referendum that

marketed during a representative period, as determined by the

Secretary, 40 percent or more of the volume of fluid milk

products marketed by fluid milk processors voting in the

referendum;

the Secretary shall, within 6 months after making the

determination, suspend or terminate, as appropriate, collection

of assessments under the order, and suspend or terminate, as

appropriate, activities under the order in an orderly manner as

soon as practicable.

(3) Costs; manner

Subsections (c) and (d) of section 6413 of this title shall

apply to a referendum conducted under this subsection.

-SOURCE-

(Pub. L. 101-624, title XIX, Sec. 1999O, Nov. 28, 1990, 104 Stat.

3925; Pub. L. 104-127, title I, Sec. 146(d)(2), (e), Apr. 4, 1996,

110 Stat. 919; Pub. L. 107-171, title I, Sec. 1506(c), May 13,

2002, 116 Stat. 210.)

-MISC1-

AMENDMENTS

2002 - Pub. L. 107-171 redesignated subsecs. (b) and (c) as (a)

and (b), respectively, and struck out heading and text of former

subsec. (a). Text read as follows: ''Any order effective under this

chapter shall be terminated December 31, 2002. The Secretary shall

-

''(1) terminate the collection of assessments under the order

upon such date; and

''(2) terminate activities under the order in an orderly manner

as soon as practicable after such date.''

1996 - Subsec. (a). Pub. L. 104-127, Sec. 146(e), substituted

''2002'' for ''1996'' in introductory provisions.

Subsec. (c)(1). Pub. L. 104-127, Sec. 146(d)(2)(A), substituted

''fluid milk processors voting in the preceding referendum'' for

''all processors''.

Subsec. (c)(2)(B). Pub. L. 104-127, Sec. 146(d)(2)(B),

substituted ''fluid milk processors voting in the referendum;'' for

''all processors;''.

-CITE-

7 USC Sec. 6415 01/06/03

-EXPCITE-

TITLE 7 - AGRICULTURE

CHAPTER 93 - PROCESSOR-FUNDED MILK PROMOTION PROGRAM

-HEAD-

Sec. 6415. Amendments

-STATUTE-

(a) Amendments to order

Subject to subsection (b) of this section, the Secretary may

issue such amendments to an order as may be necessary to carry out

this chapter.

(b) Amendment to assessment rates

(1) In general

The Secretary may conduct at any time a referendum of persons

who, during a representative period as determined by the

Secretary, have been fluid milk processors on adjusting the

assessment rate under the order issued under this chapter then in

effect, and shall hold such a referendum on request of the Board

or any group of such processors that among them marketed during a

representative period, as determined by the Secretary, 10 percent

or more of the volume of fluid milk products marketed by all

processors.

(2) Adjustment to assessment rate

The Secretary shall adjust the assessment rate under the order

whenever the Secretary determines that the adjustment is favored

-

(A) by at least 50 percent of fluid milk processors voting in

the referendum; and

(B) by fluid milk processors that marketed during a

representative period, as determined by the Secretary, 60

percent or more of the volume of fluid milk products marketed

by all processors;

In no event shall the rate of assessment prescribed by the order

exceed 20 cents per hundredweight.

(3) Effective date

The adjusted assessment rate shall be effective on a date, as

determined by the Secretary, after the results of the referendum

are known, but not later than 30 days after the referendum.

(4) Costs; manner

Subsections (c) and (d) of section 6413 of this title shall

apply to a referendum conducted under this subsection.

-SOURCE-

(Pub. L. 101-624, title XIX, Sec. 1999P, Nov. 28, 1990, 104 Stat.

3926.)

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in section 6409 of this title.

-CITE-

7 USC Sec. 6416 01/06/03

-EXPCITE-

TITLE 7 - AGRICULTURE

CHAPTER 93 - PROCESSOR-FUNDED MILK PROMOTION PROGRAM

-HEAD-

Sec. 6416. Independent evaluation of programs

-STATUTE-

(a) Review and evaluation

The Comptroller General of the United States shall review and

evaluate the order to -

(1) determine the effectiveness of the promotion program

conducted under this chapter on fluid milk sales;

(2) determine if the assessments for the program have been

passed back to milk producers by fluid milk processors; and

(3) make recommendations for future funding and assessment

levels for the program.

(b) Report to Congress

The Comptroller General shall submit a report to the Committee on

Agriculture of the House of Representatives and the Committee on

Agriculture, Nutrition, and Forestry of the Senate on the

valuations made under this section no later than January 1, 1995.

-SOURCE-

(Pub. L. 101-624, title XIX, Sec. 1999Q, Nov. 28, 1990, 104 Stat.

3926.)

-CITE-

7 USC Sec. 6417 01/06/03

-EXPCITE-

TITLE 7 - AGRICULTURE

CHAPTER 93 - PROCESSOR-FUNDED MILK PROMOTION PROGRAM

-HEAD-

Sec. 6417. Authorization of appropriations

-STATUTE-

(a) In general

There are authorized to be appropriated for each fiscal year such

funds as are necessary to carry out this chapter.

(b) Administrative expenses

The funds so appropriated shall not be available for payment of

the expenses or expenditures of the Board in administering any

provision of any order issued under this chapter.

-SOURCE-

(Pub. L. 101-624, title XIX, Sec. 1999R, Nov. 28, 1990, 104 Stat.

3926.)

-CITE-