< Back to H.R. 1738 (103rd Congress, 1993–1994)

Text of the Fresh Cut Flowers and Fresh Cut Greens Promotion and Information Act of 1993

This bill was introduced on April 20, 1993, in a previous session of Congress, but was not enacted. The text of the bill below is as of Apr 20, 1993 (Introduced).

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HR 1738 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.