[Congressional Bills 103th Congress]
[From the U.S. Government Publishing Office]
[H.R. 1738 Introduced in House (IH)]
103d CONGRESS
1st Session
H. R. 1738
To authorize the establishment of a fresh cut flowers and fresh cut
greens promotion and consumer information program for the benefit of
the floricultural industry and others, and for other purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
April 20, 1993
Mr. Lewis of Florida (for himself, Mr. Stenholm, Mr. de la Garza, Mr.
Payne of New Jersey, Mr. Hastert, Mr. Houghton, Mr. English of
Oklahoma, Ms. Danner, Mr. Kopetski, Mr. Cunningham, Mr. Peterson of
Minnesota, Mr. Canady, Mr. Allard, and Mr. Boehner) introduced the
following bill; which was referred to the Committee on Agriculture
_______________________________________________________________________
A BILL
To authorize the establishment of a fresh cut flowers and fresh cut
greens promotion and consumer information program for the benefit of
the floricultural industry and others, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Fresh Cut Flowers and Fresh Cut
Greens Promotion and Information Act of 1993''.
SEC. 2. FINDINGS AND DECLARATION OF POLICY.
(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) 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 such production,
handling, and marketing constitute a key segment of the United
States horticultural industry and thus a significant part of
the Nation's overall agricultural economy;
(3) handlers play a vital role in the marketing of cut
flowers and cut greens in that they purchase most of the cut
flowers and cut greens marketed by producers, prepare the cut
flowers and cut greens for retail consumption, serve as
intermediary between source of product and retailer, otherwise
facilitate the entry of cut flowers and cut greens into the
current of domestic commerce, and add efficiencies to the
market process that ensure the availability of a much greater
variety of product to retailers and consumers;
(4) it is widely recognized that it is in the public
interest and important to the Nation's agricultural economy to
provide an adequate, steady supply of cut flowers and cut
greens at reasonable prices to the consumers of the Nation;
(5) cut flowers and cut greens move in interstate and
foreign commerce, and cut flowers and cut greens that do not
move in such channels of commerce but only in intrastate
commerce directly affect interstate commerce in these articles;
(6) the maintenance and expansion of existing markets 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 marketed;
(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 existing
markets 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 be able to take
advantage of the promotion and consumer information program
authorized by this Act to enhance their market development
efforts 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 these
articles; and
(11) the most efficient method of financing such a
nationwide program is to assess cut flowers and cut greens at
the point they are sold by handlers into the retail market.
(b) Policy and Purpose.--It is declared to be the policy of
Congress that it is in the public interest, and it is the purpose of
this Act, to authorize the establishment, through the exercise of the
powers provided in this Act, of an orderly procedure for the
development and financing (through an adequate assessment on 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 cut flowers and cut greens industry's
position in the marketplace and to maintain, develop, and expand
markets for cut flowers and cut greens.
SEC. 3. DEFINITIONS.
As used in this Act:
(1) Consumer information.--The term ``consumer
information'' means any action or program to provide
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.--The term ``cut flowers'' includes
all flowers cut from growing plants and used as fresh-
cut flowers, produced either under cover or in field
operations; and the term ``cut greens'' includes all
cultivated or noncultivated decorative foliage cut from
growing plants and used as fresh-cut decorative foliage
(except Christmas trees) produced either under cover or
in field operations. Neither term includes foliage
plants, floral supplies, or flowering plants.
(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 retailers, the PromoFlor
Council may determine, under procedures set out 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 such
determination, such article shall not be treated as an
article of cut flowers or cut greens subject to
assessment under such 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.
(4) Handler definitions.--
(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 that sells domestic
or imported cut flowers or cut greens to
retailers and exempt handlers and whose annual
sales of cut flowers and cut greens to
retailers and exempt handlers are $750,000 or
more.
(ii) Inclusions and exclusions.--The term
``qualified handler'' includes--
(I) bouquet manufacturers (subject
to the ``substantial portion'' rule
under paragraph (2)(B));
(II) auction houses that clear
sales of cut flowers and cut greens to
retailers and exempt handlers through a
central clearinghouse; and
(III) any distribution center that
is owned or controlled by a retailer
(aa) if the predominant retail business
activity of the retailer is floral
sales or (bb) when a majority of the
cut flowers and cut greens sales or
transfers from such center are to
entities other than entities owned or
controlled by the retailer. For
purposes of determining sales of cut
flowers and cut greens to retailers
from any such distribution center, each
non-sale transfer to a retailer shall
be treated as a sale in an amount
calculated as provided in subparagraph
(C).
The term ``qualified handler'' does not include
a person who merely physically transports or
delivers cut flowers or cut greens.
(iii) Rules of construction.--The term
``qualified handler'' shall be deemed to
include an importer or producer that sells cut
flowers or cut greens that it has imported into
the United States or produced, respectively,
directly to consumers and whose sales of such
articles (as calculated under subparagraph
(C)), along with sales of cut flowers and cut
greens to retailers or exempt handlers,
annually are $750,000 or more; and each direct
sale to consumers by any such qualified handler
shall be treated as a sale to a retailer or
exempt handler in an amount calculated as
provided in subparagraph (C). For purposes of
this paragraph, the term ``producer'' has the
same meaning as that provided for the term by
section 5(b)(2)(B)(ii)(I) of this Act, and the
term ``importer'' has the same meaning as that
provided for the term by section
5(b)(2)(B)(iii)(I) of this Act.
(B) Exempt handler.--The term ``exempt handler''
means a person that would otherwise be considered to be
a qualified handler, except that its annual sales of
cut flowers and cut greens to retailers and other
exempt handlers are less than $750,000.
(C) Annual sales determined.--For purposes 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, as that term is defined in
paragraph (3), of product sold, except that with
respect to non-sale transfers of cut flowers or cut
greens from a distribution center, as described in
subparagraph (A)(ii)(III), and direct sales to
consumers, as described in subparagraph (A)(iii), the
amount of the sale shall be the price paid by the
distribution center, or importer, respectively, to
acquire the cut flowers or cut greens plus an amount
determined by multiplying such acquisition price by a
uniform percentage established by the PromoFlor Council
to represent a wholesale handler's mark-up on a sale to
a retailer (or in the case of direct sales to consumers
by producers, an amount determined by applying to the
price paid by the consumer a uniform percentage
established by the PromoFlor Council to represent the
cost of producing the article and a wholesale handler's
mark-up on a sale to a retailer).
(5) Person.--The term ``person'' means any individual,
group of individuals, firm, partnership, corporation, joint
stock company, association, society, cooperative, or other
legal entity.
(6) Promolfolor council.--The term ``PromoFlor Council''
means the Fresh Cut Flowers and Fresh Cut Greens Promotion
Council established under section 5(b).
(7) 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.
(8) 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.
(9) Retailer.--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 issued under
this Act, that sells cut flowers or cut greens to consumers,
and shall include any distribution center owned or controlled
by such person only if--
(A) the predominant retail business activity of the
retailer is not floral sales, and
(B) the majority of the cut flowers and cut greens
sales or transfers from such center are to entities
owned or controlled by such person.
(10) Secretary.--The term ``Secretary'' means the Secretary
of Agriculture.
(11) United states; state.--The terms ``United States'' and
``State'' include the fifty States of the United States, the
District of Columbia, and all the territories and possessions
of the United States.
SEC. 4. ISSUANCE OF ORDERS.
(a) In General.--To effectuate the declared policy of section 2(b),
the Secretary, subject to the procedures provided in subsection (b),
shall issue orders under this Act applicable to qualified handlers of
cut flowers and cut greens. Any such order shall be national in scope.
Not more than one order shall be in effect under this Act at any one
time.
(b) Procedures.--
(1) Proposal for an order.--The Secretary may propose the
issuance of an order under this Act, or an industry group that
represents a substantial number of the industry members who are
to be assessed under the order, or any other person that will
be effected by this Act, may request the issuance of, and
submit a proposal for, such an order.
(2) Publication of proposal.--Not later than sixty days
after the earlier of--
(A) the receipt by the Secretary of a proposal for
an order from an industry group or interested person,
as provided in paragraph (1) of this subsection, or
(B) the determination of the Secretary to propose
an order, the Secretary shall publish the proposed
order and give due notice and opportunity for public
comment on the proposed order.
(3) Issuance of order.--After notice and opportunity for
public comment are given, as provided in paragraph (2), the
Secretary shall issue the order, taking into consideration the
comments received and including in the order provisions
necessary to ensure that the order is in conformity with the
requirements of this Act. Such order shall be issued and become
effective not later than one hundred fifty days following
publication of the proposed order.
(c) Amendments.--The Secretary, from time to time, may amend any
order issued under this Act. The provisions of this Act applicable to
an order shall be applicable to amendments to the order.
SEC. 5. REQUIRED TERMS IN ORDERS.
(a) In General.--Each order issued under this Act shall contain the
terms and provisions prescribed in this section.
(b) Promolflor 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 twenty one
members, to administer the order.
(B) Membership.--The order shall provide that
members of the PromoFlor Council shall be participating
qualified handlers representing qualified wholesale
handlers and producers and importers that are qualified
handlers, and a member that represents retailers,
appointed by the Secretary from nominations submitted
by qualified wholesale handlers, producers and
importers that are qualified handlers, and retailers,
as provided in paragraphs (2) and (3).
(2) Distribution of appointments.--
(A) In general.--The order shall provide that the
membership of the PromoFlor Council shall be made up
of--
(i) fourteen members representing qualified
wholesale handlers of domestic or imported cut
flowers and cut greens;
(ii) three members representing producers
that are qualified handlers of cut flowers and
cut greens;
(iii) three members representing importers
that are qualified handlers of cut flowers and
cut greens; and
(iv) one member representing cut flowers
and cut greens retailers.
(B) Meaning of terms.--For purposes of this
subsection:
(i) Qualified wholesale handlers.--The term
``qualified wholesale handler'' means a person
in business as a floral wholesale jobber or
floral supplier and that is subject to
assessments as a qualified handler under the
order. For purposes of this clause, the term
``floral wholesale jobber'' means a person that
conducts a commission or other wholesale
business in buying and selling cut flowers or
cut greens, and 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.
(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 such cut flowers or cut
greens; or
(bb) as a first processor
of noncultivated cut greens, in
receiving such cut greens from
the persons that gather them
for handling; and
(II) is subject to assessments as a
qualified handler under the order.
(iii) 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.
(C) Distribution of qualified wholesale handler
appointments.--The order shall provide that the
qualified wholesale handler appointments made by the
Secretary to the PromoFlor Council 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) two nominees 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 under regulations
prescribed by the Secretary;
(C) nominations for the retailer appointment shall
be made by the American Floral Marketing Council, or
successor entity; and
(D) in any case in which qualified wholesale
handlers, producers that are qualified handlers,
importers that are qualified handlers, or retailers
fail to nominate individuals for an appointment to the
PromoFlor Council, the Secretary may appoint a person
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
under 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 three years, except that, of the
initial appointments, one-third shall be for two-year
terms, one-third for three-year terms, and one-third
for four-year terms;
(B) no member of the PromoFlor Council may serve
more than two consecutive terms of three years, except
that any member serving on initial term of four years
may serve an additional term of three years; and
(C) PromoFlor Council members shall serve without
compensation, but shall be reimbursed for their
expenses incurred in performing their duties as members
of the PromoFlor Council.
(6) Executive committee.--
(A) Establishment.--The order shall authorize the
PromoFlor Council to appoint from among its members an
executive committee of not more than nine members. The
membership of the executive committee initially shall
be composed of four members representing qualified
wholesale handlers, two members representing producers
that are qualified handlers, two members representing
importers that are qualified handlers, and one member
representing retailers; and thereafter appointments 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. The initial appointments
to the executive committee each shall be for a term of
two years. Thereafter, appointments to the executive
committee each shall be for a term of one year.
(B) Authority.--The PromoFlor Council may delegate
to the executive committee its authority under the
order to hire and manage staff and conduct the routine
business of the PromoFlor Council within the policies
determined by the PromoFlor Council.
(c) General Responsibilities of the Promoflor Council.--The order
shall define the general responsibilities of the PromoFlor Council,
which shall include the responsibilities to--
(1) administer the order in accordance with its terms and
provisions;
(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 such persons;
(5) develop budgets for the implementation of the order and
submit such budgets to the Secretary for approval under
subsection (d), and propose and develop (or receive and
evaluate), approve, and submit to the Secretary for approval
under subsection (d) plans and projects for cut flowers or cut
greens promotion, consumer information, or related research;
(6) implement plans and projects for cut flowers or cut
greens promotion, consumer information, or related research, as
provided in subsection (d), or contract or enter into
agreements with appropriate persons to implement such plans and
projects, as provided in subsection (e), and pay the costs of
such 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 Act
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.
Income from any such invested funds may only be used for a
purpose for which the invested funds may be used; and
(11) furnish the Secretary with 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 its anticipated expenses and
disbursements in the implementation of the order, including
projected costs of cut flowers and cut greens promotion,
consumer information, and related research plans and projects.
(2) Plans or 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 such purposes;
(ii) that any such plan or project shall be
directed toward increasing the general demand
for cut flowers or cut greens and may make no
reference to a private brand or trade name,
point of origin, or source of supply, except
that these limitations shall not preclude the
PromoFlor Council from offering its plans and
projects for use by commercial parties, under
terms and conditions prescribed by the
PromoFlor Council and approved by the
Secretary; and
(iii) that no such 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 the
establishment, implementation, administration, and
evaluation of plans and projects for market development
research, research with respect to the sale,
distribution, marketing, or use of cut flowers or cut
greens, and other research with respect to cut flowers
or cut greens marketing, promotion, or consumer
information; for the dissemination of the information
gained by such activities; and for the disbursement of
necessary funds for such purposes.
(C) Submission to secretary.--The order shall
provide that the PromoFlor Council shall submit to the
Secretary for approval any 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.--No budget, or plan or project
for cut flowers or cut greens promotion, consumer information,
or related research, shall be implemented prior to its approval
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
contracts or agreements for the implementation of any
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 thereof with
funds received by the PromoFlor Council under the
order.
(B) Requirements.--The order shall provide that any
such contract or agreement 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 or
budgets that shall show estimated costs to be
incurred for such 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 keep accurate records of all of its
transactions, account for funds received and
expended, make periodic reports to the
PromoFlor Council of activities conducted, and
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 also may enter into
contracts or agreements for administrative services. Any such
contract or agreement shall include provisions comparable to
those provided in clauses (i), (ii), or (iii) of paragraph
(1)(B).
(f) Books and Records of the 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 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 PromoFlor Council.
(2) Audits.--The PromoFlor Council shall cause its books
and records 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.
(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 Department of
Agriculture and other appropriate persons, implement a system of cost
controls based on normally accepted business practices that will ensure
that the PromoFlor Council's annual budgets only include 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 prescribed by 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 such
sale is excluded from assessments under section 6(a).
(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
also shall contain provisions regarding the
making of determinations to determine status as
a qualified handler or exempt handler that
include the rules and requirements set out in
sections 3(4) and 6(b).
(ii) Covered transactions.--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
3(4)(A)(ii)(III), and each direct sale of cut
flowers or cut greens to a consumer by a
qualified handler that is an importer or
producer, as described in section 3(4)(A)(iii),
shall be treated as a sale of cut flowers or
cut greens to a retailer subject to assessments
under this subsection, in an amount equal to
the price paid by the distribution center or
importer, respectively, to acquire the cut
flowers or cut greens plus an amount determined
by multiplying such acquisition price by a
uniform percentage established by the PromoFlor
Council to represent a wholesale handler's
mark-up on a sale to a retailer (or in the case
of direct sales to consumers by producers, an
amount determined by applying to the price paid
by the consumer a uniform percentage
established by the PromoFlor Council to
represent the cost of producing the article and
a wholesale handler's mark-up on a sale to a
retailer).
(2) Assessment rates.--The order shall provide as follows:
(A) Initial rate.--The rate of assessment on each
sale or transfer of cut flowers or cut greens, for the
first three years the order is in effect, shall be one-
half of 1 per centum of the gross sales price of
product sold or (in the case of transactions described
in paragraph (1)(C)(ii)) of the amount of each
transaction calculated as provided in paragraph
(1)(C)(ii).
(B) Changes in the rate.--After the first three
years the order is in effect, the uniform assessment
rate may be increased or decreased annually by not more
than .25 per centum of gross sales price of product
sold or (in the case of transactions described in
paragraph (1)(C)(ii)) of the amount of each transaction
calculated as provided in paragraph (1)(C)(ii), except
that the assessment rate may in no case exceed 1 per
centum of gross sales price or transaction amount. Any
such change in the rate of assessment--
(i) may be made only if adopted by the
PromoFlor Council by a two-thirds majority vote
and approved by the Secretary as necessary to
achieve the objectives of this Act;
(ii) shall be announced by the PromoFlor
Council at least thirty days prior to going
into effect; and
(iii) shall not be subject to a vote in a
referendum under section 7.
(3) When assessments submitted.--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 that person of cut flowers or
cut greens that is subject to an assessment within such time
period after the sale (not to exceed sixty days from the end of
the month in which the sale took place) as 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 such account an amount
equal to ten percent of the total amount of
assessments collected during the period
beginning on the date the order goes into
effect, as provided in section 4(b)(3), and
ending on the date the initial referendum on
the order provided for in section 7(a) 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 such
qualified handler during the time period
specified in subparagraph (A)(ii), if--
(I) such qualified handler is
required to pay such assessments;
(II) such qualified handler does
not support the program established
under this Act;
(III) such qualified handler
demands such refund prior to the
conduct of the referendum on the order
under section 7(a); and
(IV) the order is not approved by
qualified handlers in the referendum.
(ii) Conditions.--The right of any
qualified handler to receive refunds under
clause (i) shall be subject to the following
conditions:
(I) Such demand shall be made in
accordance with regulations, on a form,
and within a time period prescribed by
the PromoFlor Council.
(II) Such refund shall be made only
on submission of proof satisfactory to
the Board that such qualified handler
paid the assessment for which 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 7(a), the PromoFlor
Council shall prorate the amount of all
such refunds among all eligible
qualified handlers that demand such
refund.
(C) Program approved.--The order shall provide
that, if the order is approved in the referendum under
section 7(a), 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 (net of any refunds paid out under the terms
of the order contained in 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
those administrative costs incurred by the Secretary in
implementing and administering this Act, except for the
salaries of Government employees incurred in conducting
referenda.
(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
such 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 may be required by the
order and file reports at the time, in the manner, and having
the content prescribed by the order, to the end that
information is made available to the Secretary and the
PromoFlor Council as is appropriate for the administration or
enforcement of this Act, the order, or any regulation issued
under this Act.
(2) Confidentiality required.--
(A) Information obtained from books, records, or
reports under the authority provided in paragraph (1),
or from reports required under section 6(b)(3), shall
be kept confidential by all officers and employees of
the Department of Agriculture and by the staff and
agents of the PromoFlor Council, 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) 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 the order or statistical data
collected therefrom, 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
the order, together with a statement of the
particular provisions of the order violated by
such person.
(3) Lists of importers.--The order shall provide that the
staff of the PromoFlor Council periodically shall review lists
of importers of cut flowers and cut greens to determine whether
persons listed therein are subject to the order; and the United
States Customs Service shall provide such lists at the request
of the PromoFlor Council.
(k) Consultations With Industry Experts.--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. For such purpose, the order also shall authorize
the appointment of special committees composed of persons other than
PromoFlor Council members. No such committee may provide advice or
recommendations to an agency or officer of the Federal Government, but
shall consult directly with the PromoFlor Council.
(1) Other Terms of the Order.--The order shall contain such other
terms and provisions, not inconsistent with this Act, as are necessary
to effectuate this Act, (including provision for the assessment of a
charge for each late payment of assessments under subsection (h)) and
as provided in section 6.
SEC. 6. EXCLUSION; DETERMINATIONS.
(a) Exclusion.--Any order issued under this Act 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 purposes of applying the $750,000
annual sales limitation to specific persons in order to
determine status as a qualified handler or an exempt handler
under section 3(4), or to specific facilities in order to
determine status as an eligible separate facility under section
7(b)(2), any order issued under this Act shall provide that--
(A) a determination of a person's or facility's
annual sales volume shall be based on the sales of cut
flowers and cut greens by such person or facility
during the most recently-completed calendar year,
except as provided in subparagraph (B); and
(B) with respect to new businesses and other
operations 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 procedures specified in the
order.
(2) Rule of attribution.--For purposes of determining the
annual sales volume of a person or a separate facility of a
person, sales attributable to a person shall include--
(A) in those cases in which the person is an
individual, sales attributable to such person's spouse,
children, grandchildren, parents, and grandparents;
(B) in those cases in which the person is a
partnership or member of a partnership, sales
attributable to the partnership and other partners of
the partnership;
(C) for both individuals and partnerships, sales
attributable to any corporation or other entity in
which the person owns more than 50 per centum of the
stock or (if the entity is not a corporation) that the
person controls; and
(D) in those cases in which the person is a
corporation, sales attributable to any corporate
subsidiary or other corporation or entity in which the
corporation owns more than 50 per centum of the stock
or (if the entity is not a corporation) that the
corporation controls.
For purposes 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 per centum of the stock of
which is owned by a person, shall be treated as owned by the
individual or person.
(3) Reports.--For purposes of this subsection, the order
may require each person that sells cut flowers or cut greens to
retailers to submit reports to the PromoFlor Council on annual
sales by such person. Such reports shall be subject to the
confidentiality requirements provided in section 5(j)(2).
SEC. 7. REFERENDA.
(a) Requirement for Initial Referendum.--
(1) Conduct.--Not later than thirty-six months after the
issuance of an order under section 4(b)(3), the Secretary shall
conduct a referendum among qualified handlers required to pay
assessments under the order, as provided in section 5(h)(1),
subject to the rules on voting provided in subsection (b), to
ascertain whether or not 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).
(b) Votes Permitted.--
(1) In general.--Each qualified handler eligible to vote in
a referendum under this section shall be entitled to cast one
vote for each separate facility of the person that is an
eligible separate facility, as defined in paragraph (2).
(2) Eligible separate facility.--
(A) Separate facility.--A handling or marketing
facility of a qualified handler shall be considered a
separate facility if it is physically located away from
other facilities of the qualified handler or its
business function is substantially different than the
functions of other facilities owned or operated by the
qualified handler.
(B) Eligibility.--A separate facility of a
qualified handler shall be considered an eligible
separate facility if the annual sales of cut flowers
and cut greens to retailers and exempt handlers from
such facility are $750,000 or more.
(C) Annual sales determined.--For purposes of
determining the amount of annual sales of cut flowers
and cut greens under subparagraph (B) of this
paragraph, the rules set out in subparagraphs (A) and
(C) of section 3(4) shall be applicable.
(c) Suspension or Termination Referenda.--Effective beginning three
years after an order issued under this Act is approved in a referendum
conducted under subsection (a), the Secretary--
(1) at the Secretary's discretion, may conduct at any time
a referendum of qualified handlers required to pay assessments
under the order, as provided in section 5(h)(1), subject to the
rules on voting provided in subsection (b), to ascertain
whether or not qualified handlers favor suspension or
termination of the order; and
(2) whenever requested by the PromoFlor Council or by a
representative group comprising thirty percent or more of all
qualified handlers required to pay assessments under the order,
as provided in section 5(h)(1), shall conduct a referendum of
all qualified handlers required to pay assessments under the
order, as provided section 5(h)(1), subject to the rules on
voting provided in subsection (b), to ascertain whether or not
qualified handlers favor suspension or termination of the
order.
(d) Suspension or Termination.--If, as a result of the referendum
conducted under subsection (a)(2), 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), 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) within six months 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 in an orderly manner as soon as practicable.
(e) Manner of Conducting Referenda.--Referenda under this section
shall be conducted in such manner as is determined appropriate by the
Secretary.
SEC. 8. PETITION AND REVIEW.
(a) Petition and Hearing.--
(1) Petition.--A person subject to an order issued under
this Act 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 10(b)(2)
and be held within the United States judicial district in which
the person's residence or principal place of business 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 that is a
petitioner under subsection (a) resides or carries on business
are hereby vested with jurisdiction to review the Secretary's
ruling on such person's petition, if a complaint for that
purpose is filed within twenty days after the date of the entry
of such 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 Secretary's ruling on the
person's petition 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 action as, in the opinion
of the court, the law requires.
(c) Enforcement Under Section 9.--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
9.
SEC. 9. ENFORCEMENT.
(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, this Act or an order or
regulation made or issued by the Secretary under this Act.
(b) Referral To Attorney General.--A civil action brought under
subsection (a) shall be referred to the Attorney General for
appropriate action, except that the Secretary is not required to refer
to the Attorney General a violation of this Act, or an order or
regulation issued under this Act, if the Secretary believes that the
administration and enforcement of this Act would be adequately served
by administrative action under subsection (c) or suitable written
notice or warning to the person who committed or is committing the
violation.
(c) Civil Penalties and Orders.--
(1) Civil penalties.--A person that violates a provision of
this Act, or an order or regulation issued by the Secretary
under this Act, or who fails or refuses to pay, collect, or
remit any assessment or fee duly required of the person under
an order or regulation issued under this Act, may be assessed
by the Secretary--
(A) a civil penalty of not less than $500 nor more
than $5,000 for each such violation; and
(B) 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 such
assessment.
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
any such violation of this Act, order, or regulation.
(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
such violation. Any such hearing shall be conducted in
accordance with section 10(b)(2) and be held within the United
States judicial district in which the person's residence or
principal place of business is located.
(4) Finality.--The penalty assessed or cease and desist
order issued under this subsection shall be final and
conclusive unless the person against whom the penalty is
assessed or the order is issued files an appeal with the
appropriate district court of the United States in accordance
with subsection (d).
(d) Review by District Court.--
(1) Commencement of action.--Any person against whom a
violation is found and a civil penalty assessed or cease and
desist order issued under subsection (c) may obtain review of
the penalty or order by--
(A) filing, within the thirty-day period beginning
on the date such penalty is assessed or order issued, a
notice of appeal in the district court of the United
States for the district in which such person resides or
carries on business, or in 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.
The Secretary promptly shall file in such court a certified
copy of the record on which the Secretary found that the person
had committed a violation.
(2) Standard of review.--A finding of the Secretary shall
be set aside under this subsection only if the finding is found
to be unsupported by substantial evidence.
(e) Failure to Obey an Order.--A person that fails to obey a cease
and desist order issued under subsection (c) after the order has become
final and unappealable, or after the appropriate United States district
court 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). Each day during which such failure continues shall be considered
as a separate violation of such order.
(f) Failure to Pay a Penalty.--If a person fails to pay a civil
penalty assessed under subsection (c) or (e) after the penalty has
become final and unappealable, or after the appropriate United States
district court has entered final judgment in favor of the Secretary,
the Secretary shall refer the matter to the Attorney General for
recovery of the amount assessed in any United States district court in
which the person resides or carries on business. In such action, the
validity and appropriateness of the civil penalty shall not be subject
to review.
(g) Additional Remedies.--The remedies provided in this Act shall
be in addition to, and not exclusive of, other remedies that may be
available.
SEC. 10. INVESTIGATIONS AND POWER TO SUBPOENA.
(a) Investigations.--The Secretary may make such investigations as
the Secretary considers necessary for the effective administration of
this Act, or to determine whether any person has engaged or is engaging
in any act that constitutes a violation of this Act, or any order or
regulation issued under this Act.
(b) Subpoenas, Oaths, and Affirmations.--
(1) In general.--For the purpose of an investigation under
subsection (a), 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
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 8(a)(2) or 9(c)(3),
the presiding officer may 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.--
(1) In general.--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 under
subsection (b). The court may issue an order requiring such
person to comply with such a subpoena. Any failure to obey such
order of the court may be punished by such court as a contempt
thereof.
(2) 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 carries
on business or wherever such person may be found.
SEC. 11. CONFIDENTIALITY.
(a) Prohibition.--No information on how a person voted in a
referendum conducted under this Act shall be made public.
(b) Penalty.--Any person knowingly violating subsection (a) or the
confidentiality terms of an order, as described in section 5(j)(2), on
conviction shall be subject to a fine of not less than $1,000 nor more
than $10,000 or to imprisonment for not more than one year, or both,
and, if an officer or employee of the Department of Agriculture or the
PromoFlor Council, shall be removed from office.
(c) Additional Prohibition.--No information obtained under this Act
may be made available to any agency or officer of the Federal
Government for any purpose other than the implementation of this Act
and any investigatory or enforcement actions necessary for the
implementation of this Act.
(d) Withholding Information From Congress Prohibited.--Nothing in
this Act shall be construed to authorize the withholding of information
from Congress.
SEC. 12. AUTHORITY FOR SECRETARY TO SUSPEND OR TERMINATE ORDER.
Whenever the Secretary finds that an order issued under this Act,
or any provision of the order, obstructs or does not tend to effectuate
the declared policy of this Act, the Secretary shall terminate or
suspend the operation of such order or provision under such terms as
the Secretary determines appropriate.
SEC. 13. CONSTRUCTION.
(a) Termination or Suspension Not an Order.--The termination or
suspension of an order, or any provision thereof, shall not be
considered an order under the meaning of this Act.
(b) Producer Rights.--Nothing in this Act may 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. This Act seeks to treat all persons producing cut
flowers and cut greens fairly and to implement any order established
hereunder equitably in every respect.
(c) Other Programs.--Nothing in this Act 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 any State.
SEC. 14. REGULATIONS.
The Secretary may issue such regulations as are necessary to carry
out this Act and the powers vested in the Secretary by this Act,
including regulations relating to the assessment of late payment
charges.
SEC. 15. AUTHORIZATION OF APPROPRIATIONS.
(a) In General.--There are authorized to be appropriated for each
fiscal year such sums as are necessary to carry out this Act.
(b) Administrative Expenses.--Funds appropriated under subsection
(a) may not be used for payment of the expenses or expenditures of the
PromoFlor Council in administering any provision of an order issued
under this Act.
SEC. 16. SEPARABILITY.
If any provision of this Act or the application thereof to any
person or circumstances is held invalid, the validity of the remainder
of the Act and of the application of such provision to other persons
and circumstances shall not be affected thereby.
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