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S. 994 (103rd): Fresh Cut Flowers and Fresh Cut Greens Promotion and Information Act of 1993

The text of the bill below is as of Nov 19, 1993 (Reported by Senate Committee).


S 994 RS

Calendar No. 320

103d CONGRESS

1st Session

S. 994

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 other persons, and for other purposes.

IN THE SENATE OF THE UNITED STATES

May 20 (legislative day, APRIL 19), 1993

Mr. PRYOR (for himself, Mr. HEFLIN, Mr. COCHRAN, Mr. MCCONNELL, Mr. GRAHAM, Mr. KERREY, Mr. LUGAR, Mr. HELMS, Mr. CHAFEE, and Mr. BUMPERS) introduced the following bill; which was read twice and referred to the Committee on Agriculture, Nutrition, and Forestry

November 19 (legislative day, NOVEMBER 2), 1993

Reported by Mr. LEAHY, with an amendment

[Strike out all after the enacting clause and insert the part printed in italic]


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 other persons, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

[Struck out->] SECTION 1. SHORT TITLE; TABLE OF CONTENTS. [<-Struck out]

    [Struck out->] (a) SHORT TITLE- This Act may be cited as the ‘Fresh Cut Flowers and Fresh Cut Greens Promotion and Information Act of 1993’. [<-Struck out]

    [Struck out->] (b) TABLE OF CONTENTS- The table of contents of this Act is as follows: [<-Struck out]

      [Struck out->] Sec. 1. Short title; table of contents. [<-Struck out]

      [Struck out->] Sec. 2. Findings and declaration of policy. [<-Struck out]

      [Struck out->] Sec. 3. Definitions. [<-Struck out]

      [Struck out->] Sec. 4. Issuance of orders. [<-Struck out]

      [Struck out->] Sec. 5. Required terms in orders. [<-Struck out]

      [Struck out->] Sec. 6. Exclusion; determinations. [<-Struck out]

      [Struck out->] Sec. 7. Referenda. [<-Struck out]

      [Struck out->] Sec. 8. Petition and review. [<-Struck out]

      [Struck out->] Sec. 9. Enforcement. [<-Struck out]

      [Struck out->] Sec. 10. Investigations and power to subpoena. [<-Struck out]

      [Struck out->] Sec. 11. Confidentiality. [<-Struck out]

      [Struck out->] Sec. 12. Authority for Secretary to suspend or terminate order. [<-Struck out]

      [Struck out->] Sec. 13. Construction. [<-Struck out]

      [Struck out->] Sec. 14. Regulations. [<-Struck out]

      [Struck out->] Sec. 15. Authorization of appropriations. [<-Struck out]

[Struck out->] SEC. 2. FINDINGS AND DECLARATION OF POLICY. [<-Struck out]

    [Struck out->] (a) FINDINGS- Congress finds that-- [<-Struck out]

      [Struck out->] (1) fresh cut flowers and fresh cut greens are an integral part of life in the United States, are consumed by millions of persons every year for a multitude of special purposes (especially important personal events), and contribute a natural and beautiful element to what is increasingly a man-made, artificial environment; [<-Struck out]

      [Struck out->] (2) cut flowers and cut greens are produced by many 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; [<-Struck out]

      [Struck out->] (3) the production, handling, and marketing of cut flowers and cut greens constitute a key segment of the United States horticultural industry and thus a significant part of the overall agricultural economy of the United States; [<-Struck out]

      [Struck out->] (4) handlers play a vital role in the marketing of cut flowers and cut greens in that handlers purchase most of the cut flowers and cut greens marketed by producers, prepare the cut flowers and cut greens for retail consumption, serve as an intermediary between the source of the product and the 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 the product and substantial price savings to retailers and consumers; [<-Struck out]

      [Struck out->] (5) it is widely recognized that it is in the public interest and important to the agricultural economy of the United States to provide an adequate, steady supply of cut flowers and cut greens at reasonable prices to the consumers of the United States; [<-Struck out]

      [Struck out->] (6) cut flowers and cut greens move in interstate and foreign commerce, and cut flowers and cut greens that do not move in interstate or foreign channels of commerce but only in intrastate commerce directly affect interstate commerce in these products; [<-Struck out]

      [Struck out->] (7) the maintenance and expansion of 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; [<-Struck out]

      [Struck out->] (8) 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; [<-Struck out]

      [Struck out->] (9) 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; [<-Struck out]

      [Struck out->] (10) there exist established State and commodity-specific producer-funded programs of promotion and research that are valuable efforts to expand markets for domestic producers of cut flowers and cut greens and that will benefit from the promotion and consumer information program authorized by this Act by enhancing their market development efforts for domestic producers; [<-Struck out]

      [Struck out->] (11) 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 products; and [<-Struck out]

      [Struck out->] (12) the most efficient method of financing such a nationwide program is to assess cut flowers and cut greens at the point cut flowers and cut greens are sold by handlers into the retail market. [<-Struck out]

    [Struck out->] (b) POLICY AND PURPOSE- 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 position of cut flowers and cut greens in the marketplace and to maintain, develop, and expand markets for cut flowers and cut greens. [<-Struck out]

[Struck out->] SEC. 3. DEFINITIONS. [<-Struck out]

    [Struck out->] As used in this Act: [<-Struck out]

      [Struck out->] (1) CONSUMER INFORMATION- The term ‘consumer information’ means any action or program that provides information to consumers and other persons on appropriate uses under varied circumstances, and on the care and handling, of cut flowers or cut greens. [<-Struck out]

      [Struck out->] (2) CUT FLOWERS AND CUT GREENS- [<-Struck out]

        [Struck out->] (A) IN GENERAL- [<-Struck out]

          [Struck out->] (i) CUT FLOWERS- The term ‘cut flowers’ includes all flowers cut from growing plants that are used as fresh-cut flowers, produced either under cover or in field operations. [<-Struck out]

          [Struck out->] (ii) CUT GREENS- The term ‘cut greens’ includes all cultivated or noncultivated decorative foliage cut from growing plants that are used as fresh-cut decorative foliage (except Christmas trees) produced either under cover or in field operations. [<-Struck out]

          [Struck out->] (iii) EXCLUSIONS- The terms ‘cut flowers’ and ‘cut greens’ do not include a foliage plant, floral supply, or flowering plant. [<-Struck out]

        [Struck out->] (B) SUBSTANTIAL PORTION- In any case in which a handler packages cut flowers or cut greens with hard goods in an article (such as a gift basket or similar presentation) for sale to a retailer, the PromoFlor Council may determine, under procedures specified in the order, that the cut flowers or cut greens in the article do not constitute a substantial portion of the value of the article and that, based on the determination, the article shall not be treated as an article of cut flowers or cut greens subject to assessment under the order. [<-Struck out]

      [Struck out->] (3) GROSS SALES PRICE- The term ‘gross sales price’ means the total amount of the transaction derived from the sale of cut flowers or cut greens from a handler to a retailer. [<-Struck out]

      [Struck out->] (4) HANDLERS- [<-Struck out]

        [Struck out->] (A) QUALIFIED HANDLER- [<-Struck out]

          [Struck out->] (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. [<-Struck out]

          [Struck out->] (ii) INCLUSIONS AND EXCLUSIONS- The term ‘qualified handler’ includes-- [<-Struck out]

            [Struck out->] (I) a bouquet manufacturer (subject to paragraph (2)(B)); [<-Struck out]

            [Struck out->] (II) an auction house that clears the sale of cut flowers and cut greens to retailers and exempt handlers through a central clearinghouse; and [<-Struck out]

            [Struck out->] (III) a distribution center that is owned or controlled by a retailer-- [<-Struck out]

[Struck out->] (aa) if the predominant retail business activity of the retailer is floral sales; or [<-Struck out]

[Struck out->] (bb) when a majority of the cut flowers and cut greens sales or transfers from the center are to entities other than entities owned or controlled by the retailer. [<-Struck out]

          [Struck out->] (iii) TRANSFERS- For purposes of determining sales of cut flowers and cut greens to a retailer from a distribution center under clause (ii)(III), each non-sale transfer to a retailer shall be treated as a sale in an amount calculated as provided in subparagraph (C). [<-Struck out]

          [Struck out->] (iv) TRANSPORTATION OR DELIVERY- The term ‘qualified handler’ does not include a person who merely physically transports or delivers cut flowers or cut greens without more. [<-Struck out]

          [Struck out->] (v) CONSTRUCTION- [<-Struck out]

            [Struck out->] (I) IN GENERAL- The term ‘qualified handler’ includes an importer or producer that sells cut flowers or cut greens the importer or producer has imported into the United States or produced, respectively, and sells the articles directly to consumers and whose sales of the articles (as calculated under subparagraph (C)), together with sales of cut flowers and cut greens to retailers or exempt handlers, annually are $750,000 or more. [<-Struck out]

            [Struck out->] (II) SALES- Each direct sale to a consumer by a qualified handler described in subclause (I) shall be treated as a sale to a retailer or exempt handler in an amount calculated as provided in subparagraph (C). [<-Struck out]

            [Struck out->] (III) DEFINITIONS- For purposes of this clause: [<-Struck out]

[Struck out->] (aa) IMPORTER- The term ‘importer’ has the same meaning as that provided for the term in section 5(b)(2)(B)(iii)(I). [<-Struck out]

[Struck out->] (bb) PRODUCER- The term ‘producer’ has the same meaning as that provided for the term in section 5(b)(2)(B)(ii)(I). [<-Struck out]

        [Struck out->] (B) EXEMPT HANDLER- The term ‘exempt handler’ means a person that would otherwise be considered to be a qualified handler, except that the annual sales by the person of cut flowers and cut greens to retailers and other exempt handlers are less than $750,000. [<-Struck out]

        [Struck out->] (C) ANNUAL SALES DETERMINED- [<-Struck out]

          [Struck out->] (i) IN GENERAL- Except as provided in clause (ii), 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 of a product sold. [<-Struck out]

          [Struck out->] (ii) TRANSFERS- In the case of the non-sale transfer of cut flowers or cut greens from a distribution center (as described in subparagraph (A)(ii)(III)) and a direct sale to a consumer (as described in subparagraph (A)(v)), 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-- [<-Struck out]

            [Struck out->] (I) an amount determined by multiplying the acquisition price by a uniform percentage established by the PromoFlor Council to represent the mark-up of a wholesale handler on a sale to a retailer; or [<-Struck out]

            [Struck out->] (II) in the case of a direct sale to a consumer by a producer, 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 the mark-up of a wholesale handler on a sale to a retailer. [<-Struck out]

      [Struck out->] (5) PERSON- The term ‘person’ means an individual, group of individuals, firm, partnership, corporation, joint stock company, association, society, cooperative, or other legal entity. [<-Struck out]

      [Struck out->] (6) PROMOFLOR COUNCIL- The term ‘PromoFlor Council’ means the Fresh Cut Flowers and Fresh Cut Greens Promotion Council established under section 5(b). [<-Struck out]

      [Struck out->] (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. [<-Struck out]

      [Struck out->] (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. [<-Struck out]

      [Struck out->] (9) RETAILER- [<-Struck out]

        [Struck out->] (A) IN GENERAL- The term ‘retailer’ means a person (such as a retail florist, supermarket, mass market retail outlet, or other end-use seller, as described in an order issued under this Act) that sells cut flowers or cut greens to consumers. [<-Struck out]

        [Struck out->] (B) DISTRIBUTION CENTERS- The term ‘retailer’ includes a distribution center owned or controlled by a person described in subparagraph (A) only if-- [<-Struck out]

          [Struck out->] (i) the predominant retail business activity of the retailer is not floral sales; and [<-Struck out]

          [Struck out->] (ii) the majority of the cut flowers and cut greens sales or transfers from the center are to entities owned or controlled by the person. [<-Struck out]

      [Struck out->] (10) SECRETARY- The term ‘Secretary’ means the Secretary of Agriculture. [<-Struck out]

      [Struck out->] (11) STATE- The term ‘State’ means each of the several States of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the Commonwealth of the Northern Mariana Islands, the United States Virgin Islands, Guam, American Samoa, the Republic of the Marshall Islands, the Federated States of Micronesia, and the Republic of Palau (until such time as the Compact of Free Association is ratified). [<-Struck out]

      [Struck out->] (12) UNITED STATES- The term ‘United States’ means the States collectively. [<-Struck out]

[Struck out->] SEC. 4. ISSUANCE OF ORDERS. [<-Struck out]

    [Struck out->] (a) IN GENERAL- [<-Struck out]

      [Struck out->] (1) ISSUANCE- To effectuate the purpose of this Act, 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. [<-Struck out]

      [Struck out->] (2) SCOPE- Any order issued under this Act shall be national in scope. [<-Struck out]

      [Struck out->] (3) ONE ORDER- Not more than one order shall be in effect under this Act at any time. [<-Struck out]

    [Struck out->] (b) PROCEDURES- [<-Struck out]

      [Struck out->] (1) PROPOSAL FOR AN ORDER- [<-Struck out]

        [Struck out->] (A) SECRETARY- The Secretary may propose the issuance of an order under this Act. [<-Struck out]

        [Struck out->] (B) INDUSTRY GROUP- An industry group of long standing that represents a substantial number of the industry members who are to be assessed under the order (as determined by the Secretary) may request the issuance of, and submit a proposal for, an order under this Act. [<-Struck out]

      [Struck out->] (2) PUBLICATION OF PROPOSAL- The Secretary shall publish a proposed order and give notice and opportunity for public comment on the proposed order not later than 60 days after the earlier of-- [<-Struck out]

        [Struck out->] (A) the date on which the Secretary proposes an order, as provided in paragraph (1)(A); or [<-Struck out]

        [Struck out->] (B) the date of the receipt by the Secretary of a proposal for an order from an industry group, as provided in paragraph (1)(B). [<-Struck out]

      [Struck out->] (3) ISSUANCE OF ORDER- [<-Struck out]

        [Struck out->] (A) IN GENERAL- After notice and opportunity for public comment are provided in accordance with paragraph (2), the Secretary shall issue the order, taking into consideration the comments received and including in the order provisions necessary to ensure that the order is in conformity with the requirements of this Act. [<-Struck out]

        [Struck out->] (B) EFFECTIVE DATE- The order shall be issued and become effective not later than 150 days following publication of the proposed order. [<-Struck out]

    [Struck out->] (c) AMENDMENTS- The Secretary, from time to time, may amend an order issued under this Act. The provisions of this Act applicable to an order shall be applicable to amendments to the order. [<-Struck out]

[Struck out->] SEC. 5. REQUIRED TERMS IN ORDERS. [<-Struck out]

    [Struck out->] (a) IN GENERAL- An order issued under this Act shall contain the terms and provisions prescribed in this section. [<-Struck out]

    [Struck out->] (b) PROMOFLOR COUNCIL- [<-Struck out]

      [Struck out->] (1) ESTABLISHMENT AND MEMBERSHIP- [<-Struck out]

        [Struck out->] (A) ESTABLISHMENT- The order shall provide for the establishment of a Fresh Cut Flowers and Fresh Cut Greens Promotion Council, consisting of 21 members, to administer the order. [<-Struck out]

        [Struck out->] (B) MEMBERSHIP- The order shall provide that members of the PromoFlor Council shall be 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). [<-Struck out]

      [Struck out->] (2) DISTRIBUTION OF APPOINTMENTS- [<-Struck out]

        [Struck out->] (A) IN GENERAL- The order shall provide that the membership of the PromoFlor Council shall be made up of-- [<-Struck out]

          [Struck out->] (i) 14 members representing qualified wholesale handlers of domestic or imported cut flowers and cut greens; [<-Struck out]

          [Struck out->] (ii) 3 members representing producers that are qualified handlers of cut flowers and cut greens; [<-Struck out]

          [Struck out->] (iii) 3 members representing importers that are qualified handlers of cut flowers and cut greens; and [<-Struck out]

          [Struck out->] (iv) 1 member representing cut flowers and cut greens retailers. [<-Struck out]

        [Struck out->] (B) DEFINITIONS- As used in this subsection: [<-Struck out]

          [Struck out->] (i) QUALIFIED WHOLESALE HANDLERS- [<-Struck out]

            [Struck out->] (I) IN GENERAL- The term ‘qualified wholesale handler’ means a person in business as a floral wholesale jobber or floral supplier that is subject to assessments as a qualified handler under the order. [<-Struck out]

            [Struck out->] (II) DEFINITIONS- As used in this clause: [<-Struck out]

[Struck out->] (aa) FLORAL WHOLESALE JOBBER- 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. [<-Struck out]

[Struck out->] (bb) FLORAL SUPPLIER- The term ‘floral supplier’ means a person engaged in acquiring cut flowers or cut greens to be manufactured into floral articles or otherwise processed for resale. [<-Struck out]

          [Struck out->] (ii) PRODUCER THAT IS A QUALIFIED HANDLER- The term ‘producer that is a qualified handler’ means an entity that-- [<-Struck out]

            [Struck out->] (I) is engaged-- [<-Struck out]

[Struck out->] (aa) in the domestic production, for sale in commerce, of cut flowers or cut greens and that owns or shares in the ownership and risk of loss of the cut flowers or cut greens; or [<-Struck out]

[Struck out->] (bb) as a first processor of noncultivated cut greens, in receiving the cut greens from the persons that gather the cut greens for handling; and [<-Struck out]

            [Struck out->] (II) that is subject to assessments as a qualified handler under the order. [<-Struck out]

          [Struck out->] (iii) IMPORTER THAT IS A QUALIFIED HANDLER- The term ‘importer that is a qualified handler’ means an entity-- [<-Struck out]

            [Struck out->] (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 [<-Struck out]

            [Struck out->] (II) that is subject to assessments as a qualified handler under the order. [<-Struck out]

        [Struck out->] (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. [<-Struck out]

      [Struck out->] (3) NOMINATION PROCESS- The order shall provide that-- [<-Struck out]

        [Struck out->] (A) 2 nominees be submitted for each appointment to the PromoFlor Council; [<-Struck out]

        [Struck out->] (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; [<-Struck out]

        [Struck out->] (C) nominations for the retailer appointment shall be made by the American Floral Marketing Council or a successor entity; and [<-Struck out]

        [Struck out->] (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. [<-Struck out]

      [Struck out->] (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. [<-Struck out]

      [Struck out->] (5) TERMS; COMPENSATION- The order shall provide that-- [<-Struck out]

        [Struck out->] (A) each term of appointment to the PromoFlor Council shall be for 3 years, except that, of the initial appointments, 1/3 of the terms shall be for 2-year terms, 1/3 of the terms shall be for 3-year terms, and 1/3 of the terms shall be for 4-year terms; [<-Struck out]

        [Struck out->] (B) no member of the PromoFlor Council may serve more than 2 consecutive terms of 3 years, except that any member serving an initial term of 4 years may serve an additional term of 3 years; and [<-Struck out]

        [Struck out->] (C) PromoFlor Council members shall serve without compensation, but shall be reimbursed for the expenses of the members incurred in performing duties as members of the PromoFlor Council. [<-Struck out]

      [Struck out->] (6) EXECUTIVE COMMITTEE- [<-Struck out]

        [Struck out->] (A) ESTABLISHMENT- [<-Struck out]

          [Struck out->] (i) IN GENERAL- The order shall authorize the PromoFlor Council to appoint from among the members of the Council an executive committee composed of not more than 9 members. [<-Struck out]

          [Struck out->] (ii) INITIAL MEMBERSHIP- The membership of the executive committee initially shall be composed of-- [<-Struck out]

            [Struck out->] (I) 4 members representing qualified wholesale handlers; [<-Struck out]

            [Struck out->] (II) 2 members representing producers that are qualified handlers; [<-Struck out]

            [Struck out->] (III) 2 members representing importers that are qualified handlers; and [<-Struck out]

            [Struck out->] (IV) 1 member representing retailers. [<-Struck out]

          [Struck out->] (iii) SUBSEQUENT MEMBERSHIP- After the initial appointments, 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. [<-Struck out]

          [Struck out->] (iv) TERMS- An initial appointment to the executive committee shall be for a term of 2 years. After the initial appointments, an appointment to the executive committee shall be for a term of 1 year. [<-Struck out]

        [Struck out->] (B) AUTHORITY- The PromoFlor Council may delegate to the executive committee the authority of the Council under the order to hire and manage staff and conduct the routine business of the PromoFlor Council consistent with the policies determined by the PromoFlor Council. [<-Struck out]

    [Struck out->] (c) GENERAL RESPONSIBILITIES OF THE PROMOFLOR COUNCIL- The order shall define the general responsibilities of the PromoFlor Council, which shall include the responsibility to-- [<-Struck out]

      [Struck out->] (1) administer the order in accordance with the terms and provisions of the order; [<-Struck out]

      [Struck out->] (2) make rules and regulations to effectuate the terms and provisions of the order; [<-Struck out]

      [Struck out->] (3) appoint members of the PromoFlor Council to serve on an executive committee; [<-Struck out]

      [Struck out->] (4) employ such persons as the PromoFlor Council determines are necessary, and set the compensation and define the duties of the persons; [<-Struck out]

      [Struck out->] (5)(A) develop budgets for the implementation of the order and submit the budgets to the Secretary for approval under subsection (d); and [<-Struck out]

      [Struck out->] (B) 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; [<-Struck out]

      [Struck out->] (6)(A) implement plans and projects for cut flowers or cut greens promotion, consumer information, or related research, as provided in subsection (d); or [<-Struck out]

      [Struck out->] (B) contract or enter into agreements with appropriate persons to implement the plans and projects, as provided in subsection (e), and pay the costs of the implementation, or contracts and agreements, with funds received under the order; [<-Struck out]

      [Struck out->] (7) evaluate on-going and completed plans and projects for cut flowers or cut greens promotion, consumer information, or related research; [<-Struck out]

      [Struck out->] (8) receive, investigate, and report to the Secretary complaints of violations of the order; [<-Struck out]

      [Struck out->] (9) recommend to the Secretary amendments to the order; [<-Struck out]

      [Struck out->] (10) invest, pending disbursement under a plan or project, funds collected through assessments authorized under this Act only in-- [<-Struck out]

        [Struck out->] (A) obligations of the United States or any agency of the United States; [<-Struck out]

        [Struck out->] (B) general obligations of any State or any political subdivision of a State; [<-Struck out]

        [Struck out->] (C) any interest-bearing account or certificate of deposit of a bank that is a member of the Federal Reserve System; or [<-Struck out]

        [Struck out->] (D) obligations fully guaranteed as to principal and interest by the United States, [<-Struck out]

      [Struck out->] except that income from any such invested funds may only be used for a purpose for which the invested funds may be used; and [<-Struck out]

      [Struck out->] (11) furnish the Secretary with such information as the Secretary may require. [<-Struck out]

    [Struck out->] (d) BUDGETS; PLANS AND PROJECTS- [<-Struck out]

      [Struck out->] (1) SUBMISSION OF BUDGETS- The order shall require the PromoFlor Council to submit to the Secretary for approval budgets on a fiscal year basis of the anticipated expenses and disbursements of the PromoFlor Council in the implementation of the order, including projected costs of cut flowers and cut greens promotion, consumer information, and related research plans and projects. [<-Struck out]

      [Struck out->] (2) PLANS OR PROJECTS- [<-Struck out]

        [Struck out->] (A) PROMOTION AND CONSUMER INFORMATION- The order shall provide-- [<-Struck out]

          [Struck out->] (i) for the establishment, implementation, administration, and evaluation of appropriate plans and projects for advertising, sales promotion, other promotion, and consumer information with respect to cut flowers and cut greens, and for the disbursement of necessary funds for the purposes described in this clause; [<-Struck out]

          [Struck out->] (ii) that any plan or project shall be directed toward increasing the general demand for cut flowers or cut greens and may not make reference to a private brand or trade name, point of origin, or source of supply, except that this clause shall not preclude the PromoFlor Council from offering the plans and projects of the PromoFlor Council for use by commercial parties, under terms and conditions prescribed by the PromoFlor Council and approved by the Secretary; and [<-Struck out]

          [Struck out->] (iii) that no plan or project may make use of unfair or deceptive acts or practices with respect to quality or value. [<-Struck out]

        [Struck out->] (B) RESEARCH- The order shall provide for-- [<-Struck out]

          [Struck out->] (i) 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; [<-Struck out]

          [Struck out->] (ii) the dissemination of the information gained by the activities; and [<-Struck out]

          [Struck out->] (iii) the disbursement of necessary funds to carry out this subparagraph. [<-Struck out]

        [Struck out->] (C) SUBMISSION TO SECRETARY- The order shall provide that the PromoFlor Council shall submit to the Secretary for approval a proposed plan or project for cut flowers or cut greens promotion, consumer information, or related research, as described in subparagraphs (A) and (B). [<-Struck out]

      [Struck out->] (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 the approval of the budget, plan, or project by the Secretary. [<-Struck out]

    [Struck out->] (e) CONTRACTS AND AGREEMENTS- [<-Struck out]

      [Struck out->] (1) PROMOTION, CONSUMER INFORMATION, AND RELATED RESEARCH PLANS AND PROJECTS- [<-Struck out]

        [Struck out->] (A) IN GENERAL- To ensure efficient use of funds, the order shall provide that the PromoFlor Council, with the approval of the Secretary, may enter into a contract or agreement for the implementation of a plan or project for promotion, consumer information, or related research with respect to cut flowers or cut greens, and for the payment of the cost of the implementation of the plan or project with funds received by the PromoFlor Council under the order. [<-Struck out]

        [Struck out->] (B) REQUIREMENTS- The order shall provide that any contract or agreement entered into under this paragraph shall provide that-- [<-Struck out]

          [Struck out->] (i) the contracting or agreeing party shall develop and submit to the PromoFlor Council a plan or project, together with a budget that shall show estimated costs to be incurred for the plan or project; [<-Struck out]

          [Struck out->] (ii) the plan or project shall become effective on the approval of the Secretary; and [<-Struck out]

          [Struck out->] (iii) the contracting or agreeing party shall keep accurate records of all of the transactions of the party, 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. [<-Struck out]

      [Struck out->] (2) OTHER CONTRACTS AND AGREEMENTS- The order shall provide that the PromoFlor Council may enter into a contract or agreement for administrative services. Any contract or agreement entered into under this paragraph shall include provisions comparable to those described in paragraph (1)(B). [<-Struck out]

    [Struck out->] (f) BOOKS AND RECORDS OF THE PROMOFLOR COUNCIL- [<-Struck out]

      [Struck out->] (1) IN GENERAL- The order shall require the PromoFlor Council to-- [<-Struck out]

        [Struck out->] (A) maintain such books and records (which shall be available to the Secretary for inspection and audit) as the Secretary may prescribe; [<-Struck out]

        [Struck out->] (B) prepare and submit to the Secretary, from time to time, such reports as the Secretary may prescribe; and [<-Struck out]

        [Struck out->] (C) account for the receipt and disbursement of all funds entrusted to the PromoFlor Council. [<-Struck out]

      [Struck out->] (2) AUDITS- The PromoFlor Council shall cause the books and records of the PromoFlor Council to be audited by an independent auditor at the end of each fiscal year. A report of each audit shall be submitted to the Secretary. [<-Struck out]

    [Struck out->] (g) CONTROL OF ADMINISTRATIVE COSTS- The order shall provide that the PromoFlor Council shall, as soon as practicable after the order becomes effective and after consultation with the Secretary and other appropriate persons, implement a system of cost controls based on normally accepted business practices that will ensure that the annual budgets of the PromoFlor Council 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. [<-Struck out]

    [Struck out->] (h) ASSESSMENTS- [<-Struck out]

      [Struck out->] (1) AUTHORITY- [<-Struck out]

        [Struck out->] (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 the sale is excluded from assessments under section 6(a). [<-Struck out]

        [Struck out->] (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. [<-Struck out]

        [Struck out->] (C) MAKING DETERMINATIONS- [<-Struck out]

          [Struck out->] (i) QUALIFIED HANDLER STATUS- The order shall contain provisions regarding the determination of the status of a person as a qualified handler or exempt handler that include the rules and requirements specified in sections 3(4) and 6(b). [<-Struck out]

          [Struck out->] (ii) COVERED TRANSACTIONS- [<-Struck out]

            [Struck out->] (I) IN GENERAL- The order shall provide that each non-sale transfer of cut flowers or cut greens to a retailer from a qualified handler that is a distribution center (as described in section 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)(v)), shall be treated as a sale of cut flowers or cut greens to a retailer subject to assessments under this subsection. [<-Struck out]

            [Struck out->] (II) AMOUNT- The amount of the assessment under this clause shall equal-- [<-Struck out]

[Struck out->] (aa) the price paid by the distribution center or importer, respectively, to acquire the cut flowers or cut greens; and [<-Struck out]

[Struck out->] (bb) an amount determined by multiplying the acquisition price by a uniform percentage established by the PromoFlor Council to represent the mark-up of a wholesale handler on a sale to a retailer (or in the case of a direct sale to a consumer by a producer, 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 the mark-up of a wholesale handler on a sale to a retailer). [<-Struck out]

      [Struck out->] (2) ASSESSMENT RATES- The order shall contain the following terms: [<-Struck out]

        [Struck out->] (A) INITIAL RATE- During the first 3 years the order is in effect, the rate of assessment on each sale or transfer of cut flowers or cut greens shall be 1/2 of 1 percent of the gross sales price of a 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). [<-Struck out]

        [Struck out->] (B) CHANGES IN THE RATE- [<-Struck out]

          [Struck out->] (i) IN GENERAL- After the first 3 years the order is in effect, the uniform assessment rate may be increased or decreased annually by not more than .25 percent of the gross sales price of a 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 percent of the gross sales price or transaction amount. [<-Struck out]

          [Struck out->] (ii) REQUIREMENTS- Any change in the rate of assessment under this subparagraph-- [<-Struck out]

            [Struck out->] (I) may be made only if adopted by the PromoFlor Council by a 2/3 majority vote and approved by the Secretary as necessary to achieve the objectives of this Act; [<-Struck out]

            [Struck out->] (II) shall be announced by the PromoFlor Council at least 30 days prior to going into effect; and [<-Struck out]

            [Struck out->] (III) shall not be subject to a vote in a referendum under section 7. [<-Struck out]

      [Struck out->] (3) TIMING OF SUBMITTING ASSESSMENTS- The order shall provide that each person required to pay assessments under this subsection shall remit, to the PromoFlor Council, the assessment due from each sale by the person of cut flowers or cut greens that is subject to an assessment within such time period after the sale (not to exceed 60 days from the end of the month in which the sale took place) as is specified in the order. [<-Struck out]

      [Struck out->] (4) REFUNDS FROM ESCROW ACCOUNT- [<-Struck out]

        [Struck out->] (A) ESTABLISHMENT OF ESCROW ACCOUNT- The order shall provide that the PromoFlor Council shall-- [<-Struck out]

          [Struck out->] (i) establish an escrow account to be used for assessment refunds, as needed; and [<-Struck out]

          [Struck out->] (ii) place into the account an amount equal to 10 percent of the total amount of assessments collected during the period beginning on the date the order 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. [<-Struck out]

        [Struck out->] (B) RIGHT TO RECEIVE REFUND- [<-Struck out]

          [Struck out->] (i) IN GENERAL- The order shall provide that, subject to subparagraph (C) and the conditions specified in clause (ii), any qualified handler shall have the right to demand and receive from the PromoFlor Council out of the escrow account a one-time refund of any assessments paid by or on behalf of the qualified handler during the time period specified in subparagraph (A)(ii), if-- [<-Struck out]

            [Struck out->] (I) the qualified handler is required to pay the assessments; [<-Struck out]

            [Struck out->] (II) the qualified handler does not support the program established under this Act; [<-Struck out]

            [Struck out->] (III) the qualified handler demands the refund prior to the conduct of the referendum on the order under section 7(a); and [<-Struck out]

            [Struck out->] (IV) the order is not approved by qualified handlers in the referendum. [<-Struck out]

          [Struck out->] (ii) CONDITIONS- The right of a qualified handler to receive a refund under clause (i) shall be subject to the following conditions: [<-Struck out]

            [Struck out->] (I) The demand shall be made in accordance with regulations, on a form, and within a time period prescribed by the PromoFlor Council. [<-Struck out]

            [Struck out->] (II) The refund shall be made only on submission of proof satisfactory to the Board that the qualified handler paid the assessment for which refund is demanded. [<-Struck out]

            [Struck out->] (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 the refund. [<-Struck out]

        [Struck out->] (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. [<-Struck out]

      [Struck out->] (5) USE OF ASSESSMENT FUNDS- The order shall provide that assessment funds (less any refunds paid out under the terms of the order required under paragraph (4)) shall be used for payment of costs incurred in implementing and administering the order, with provision for a reasonable reserve, and to cover those administrative costs incurred by the Secretary in implementing and administering this Act, except for the salaries of Federal Government employees incurred in conducting referenda. [<-Struck out]

    [Struck out->] (i) PROHIBITION- The order shall prohibit the use of any funds received by the PromoFlor Council in any manner for the purpose of influencing legislation or government action or policy, except that the funds may be used by the PromoFlor Council for the development and recommendation to the Secretary of amendments to the order. [<-Struck out]

    [Struck out->] (j) BOOKS AND RECORDS; REPORTS- [<-Struck out]

      [Struck out->] (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. [<-Struck out]

      [Struck out->] (2) CONFIDENTIALITY REQUIRED- [<-Struck out]

        [Struck out->] (A) IN GENERAL- 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. [<-Struck out]

        [Struck out->] (B) SUITS AND HEARINGS- Information described in subparagraph (A) may be disclosed to the public only-- [<-Struck out]

          [Struck out->] (i) in a suit or administrative hearing brought at the request of the Secretary, or to which the Secretary or any officer of the United States is a party, involving the order; and [<-Struck out]

          [Struck out->] (ii) to the extent the Secretary considers the information relevant to the suit or hearing. [<-Struck out]

        [Struck out->] (C) GENERAL STATEMENTS AND PUBLICATION- Nothing in this paragraph may be construed to prohibit-- [<-Struck out]

          [Struck out->] (i) the issuance of general statements, based on the reports, of the number of persons subject to the order or statistical data collected from the reports, which statements do not identify the information furnished by any person; or [<-Struck out]

          [Struck out->] (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 the person. [<-Struck out]

      [Struck out->] (3) LISTS OF IMPORTERS- [<-Struck out]

        [Struck out->] (A) REVIEW- 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 on the lists are subject to the order. [<-Struck out]

        [Struck out->] (B) CUSTOMS SERVICE- On the request of the PromoFlor Council, the United States Customs Service shall provide to the PromoFlor Council lists of importers of cut flowers and cut greens. [<-Struck out]

    [Struck out->] (k) CONSULTATIONS WITH INDUSTRY EXPERTS- [<-Struck out]

      [Struck out->] (1) IN GENERAL- The order shall provide that the PromoFlor Council, from time to time, may seek advice from and consult with experts from the production, import, wholesale, and retail segments of the cut flowers and cut greens industry to assist in the development of promotion, consumer information, and related research plans and projects. [<-Struck out]

      [Struck out->] (2) SPECIAL COMMITTEES- [<-Struck out]

        [Struck out->] (A) IN GENERAL- For the purposes described in paragraph (1), the order shall authorize the appointment of special committees composed of persons other than PromoFlor Council members. [<-Struck out]

        [Struck out->] (B) CONSULTATION- A committee appointed under subparagraph (A)-- [<-Struck out]

          [Struck out->] (i) may not provide advice or recommendations to an agency or officer of the Federal Government; and [<-Struck out]

          [Struck out->] (ii) shall consult directly with the PromoFlor Council. [<-Struck out]

    [Struck out->] (l) OTHER TERMS OF THE ORDER- The order shall contain such other terms and provisions, consistent with this Act, as are necessary to carry out this Act (including provision for the assessment of a charge for each late payment of assessments under subsection (h) and for carrying out section 6). [<-Struck out]

[Struck out->] SEC. 6. EXCLUSION; DETERMINATIONS. [<-Struck out]

    [Struck out->] (a) EXCLUSION- An 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. [<-Struck out]

    [Struck out->] (b) MAKING DETERMINATIONS- [<-Struck out]

      [Struck out->] (1) IN GENERAL- For purposes of applying the $750,000 annual sales limitation to a person to determine the status of the person as a qualified handler or an exempt handler under section 3(4), or to a specific facility in order to determine the status of the facility as an eligible separate facility under section 7(b)(2), an order issued under this Act shall provide that-- [<-Struck out]

        [Struck out->] (A) a determination of the annual sales volume of a person or facility shall be based on the sales of cut flowers and cut greens by the person or facility during the most recently-completed calendar year, except as provided in subparagraph (B); and [<-Struck out]

        [Struck out->] (B) in the case of a new business or other operation for which complete data on sales during all or part of the most recently-completed calendar year are not available to the PromoFlor Council, the determination may be made using an alternative time period or other alternative procedures specified in the order. [<-Struck out]

      [Struck out->] (2) RULE OF ATTRIBUTION- [<-Struck out]

        [Struck out->] (A) IN GENERAL- 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-- [<-Struck out]

          [Struck out->] (i) in the case of an individual, sales attributable to the spouse, children, grandchildren, parents, and grandparents of the individual; [<-Struck out]

          [Struck out->] (ii) in the case of a partnership or member of a partnership, sales attributable to the partnership and other partners of the partnership; [<-Struck out]

          [Struck out->] (iii) in the case of an individual and partnership, sales attributable to any corporation or other entity in which the individual or partnership owns more than 50 percent of the stock or (if the entity is not a corporation) that the individual or partnership controls; and [<-Struck out]

          [Struck out->] (iv) in the case of a corporation, sales attributable to any corporate subsidiary or other corporation or entity in which the corporation owns more than 50 percent of the stock or (if the entity is not a corporation) that the corporation controls. [<-Struck out]

        [Struck out->] (B) STOCK AND OWNERSHIP INTEREST- 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 percent of the stock of which is owned by a person, shall be treated as owned by the individual or person. [<-Struck out]

      [Struck out->] (3) REPORTS- For purposes of this subsection, the order may require a person that sells cut flowers or cut greens to retailers to submit reports to the PromoFlor Council on annual sales by the person. The reports shall be subject to the confidentiality requirements of section 5(j)(2). [<-Struck out]

[Struck out->] SEC. 7. REFERENDA. [<-Struck out]

    [Struck out->] (a) REQUIREMENT FOR INITIAL REFERENDUM- [<-Struck out]

      [Struck out->] (1) CONDUCT- Not later than 3 years 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 voting requirements of subsection (b), to ascertain whether or not the order then in effect shall be continued. [<-Struck out]

      [Struck out->] (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). [<-Struck out]

    [Struck out->] (b) VOTES PERMITTED- [<-Struck out]

      [Struck out->] (1) IN GENERAL- Each qualified handler eligible to vote in a referendum under this section shall be entitled to cast 1 vote for each separate facility of the person that is an eligible separate facility, as defined in paragraph (2). [<-Struck out]

      [Struck out->] (2) ELIGIBLE SEPARATE FACILITY- For purposes of paragraph (1): [<-Struck out]

        [Struck out->] (A) SEPARATE FACILITY- A handling or marketing facility of a qualified handler shall be considered a separate facility if the facility is physically located away from other facilities of the qualified handler or the business function of the facility is substantially different than the functions of other facilities owned or operated by the qualified handler. [<-Struck out]

        [Struck out->] (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 the facility are $750,000 or more. [<-Struck out]

        [Struck out->] (C) ANNUAL SALES DETERMINED- For purposes of determining the amount of annual sales of cut flowers and cut greens under subparagraph (B), the requirements of subparagraphs (A) and (C) of section 3(4) shall apply. [<-Struck out]

    [Struck out->] (c) SUSPENSION OR TERMINATION REFERENDA- Effective beginning on the date that is 3 years after an order issued under this Act is approved in a referendum conducted under subsection (a), the Secretary-- [<-Struck out]

      [Struck out->] (1) at the discretion of the Secretary, may conduct at any time a referendum of qualified handlers required to pay assessments under the order, as provided in section 5(h)(1), subject to the voting requirements of subsection (b), to ascertain whether or not qualified handlers favor suspension or termination of the order; and [<-Struck out]

      [Struck out->] (2) whenever requested by the PromoFlor Council or by a representative group comprising 30 percent or more of all qualified handlers required to pay assessments under the order, as provided in section 5(h)(1), shall conduct a referendum of all qualified handlers required to pay assessments under the order, as provided in section 5(h)(1), subject to the voting requirements of subsection (b), to ascertain whether or not qualified handlers favor suspension or termination of the order. [<-Struck out]

    [Struck out->] (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-- [<-Struck out]

      [Struck out->] (1) within 180 days after the referendum, suspend or terminate, as appropriate, collection of assessments under the order; and [<-Struck out]

      [Struck out->] (2) suspend or terminate, as appropriate, activities under the order in an orderly manner as soon as practicable. [<-Struck out]

    [Struck out->] (e) MANNER OF CONDUCTING REFERENDA- Referenda under this section shall be conducted in such manner as is determined appropriate by the Secretary. [<-Struck out]

[Struck out->] SEC. 8. PETITION AND REVIEW. [<-Struck out]

    [Struck out->] (a) PETITION AND HEARING- [<-Struck out]

      [Struck out->] (1) PETITION- A person subject to an order issued under this Act may file with the Secretary a petition-- [<-Struck out]

        [Struck out->] (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 [<-Struck out]

        [Struck out->] (B) requesting a modification of the order or an exemption from the order. [<-Struck out]

      [Struck out->] (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 shall be held within the United States judicial district in which the residence or principal place of business of the person is located. [<-Struck out]

      [Struck out->] (3) RULING- After a hearing under paragraph (2), the Secretary shall make a ruling on the petition, which shall be final if made in accordance with law. [<-Struck out]

    [Struck out->] (b) REVIEW- [<-Struck out]

      [Struck out->] (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 shall have jurisdiction to review the ruling of the Secretary on the petition of the person, if a complaint requesting the review is filed within 20 days after the date of the entry of the ruling by the Secretary. [<-Struck out]

      [Struck out->] (2) PROCESS- Service of process in proceedings under this subsection shall be conducted in accordance with the Federal Rules of Civil Procedure. [<-Struck out]

      [Struck out->] (3) REMAND- If the court in a proceeding under this subsection determines that the ruling of the Secretary on the petition of the person is not in accordance with law, the court shall remand the matter to the Secretary with directions-- [<-Struck out]

        [Struck out->] (A) to make such ruling as the court shall determine to be in accordance with law; or [<-Struck out]

        [Struck out->] (B) to take such further action as, in the opinion of the court, the law requires. [<-Struck out]

    [Struck out->] (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. [<-Struck out]

[Struck out->] SEC. 9. ENFORCEMENT. [<-Struck out]

    [Struck out->] (a) JURISDICTION- A district court of the United States shall have jurisdiction 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. [<-Struck out]

    [Struck out->] (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 a violation of 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. [<-Struck out]

    [Struck out->] (c) CIVIL PENALTIES AND ORDERS- [<-Struck out]

      [Struck out->] (1) CIVIL PENALTIES- [<-Struck out]

        [Struck out->] (A) IN GENERAL- 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 required of the person under an order or regulation issued under this Act, may be assessed by the Secretary-- [<-Struck out]

          [Struck out->] (i) a civil penalty of not less than $500 nor more than $5,000 for each violation; and [<-Struck out]

          [Struck out->] (ii) in the case of a willful failure to remit an assessment as required by an order or regulation, an additional penalty equal to the amount of the assessment. [<-Struck out]

        [Struck out->] (B) SEPARATE OFFENSES- Each violation shall be a separate offense. [<-Struck out]

      [Struck out->] (2) CEASE AND DESIST ORDERS- In addition to or in lieu of a civil penalty under paragraph (1), the Secretary may issue an order requiring a person to cease and desist from continuing a violation of this Act, order, or regulation described in paragraph (1)(A). [<-Struck out]

      [Struck out->] (3) NOTICE AND HEARING- No penalty shall be assessed or cease and desist order issued by the Secretary under this subsection unless the Secretary gives the person against whom the penalty is assessed or the order is issued notice and opportunity for a hearing before the Secretary with respect to the violation. Any such hearing shall be conducted in accordance with section 10(b)(2) and shall be held within the United States judicial district in which the residence or principal place of business of the person against whom the penalty is assessed or the order is issued is located. [<-Struck out]

      [Struck out->] (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). [<-Struck out]

    [Struck out->] (d) REVIEW BY DISTRICT COURT- [<-Struck out]

      [Struck out->] (1) COMMENCEMENT OF ACTION- [<-Struck out]

        [Struck out->] (A) IN GENERAL- Any person against whom a violation is found and a civil penalty is assessed or cease and desist order is issued under subsection (c) may obtain review of the penalty or order by-- [<-Struck out]

          [Struck out->] (i) filing, within the 30-day period beginning on the date the penalty is assessed or order is issued, a notice of appeal in the district court of the United States for the district in which the person resides or has a principal place of business, or in the United States district court for the District of Columbia; and [<-Struck out]

          [Struck out->] (ii) simultaneously sending a copy of the notice by certified mail to the Secretary. [<-Struck out]

        [Struck out->] (B) COPY OF RECORD- The Secretary shall promptly file in the court a certified copy of the record on which the Secretary found that the person had committed a violation. [<-Struck out]

      [Struck out->] (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. [<-Struck out]

    [Struck out->] (e) FAILURE TO OBEY AN ORDER- [<-Struck out]

      [Struck out->] (1) IN GENERAL- 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). [<-Struck out]

      [Struck out->] (2) SEPARATE VIOLATIONS- Each day during which the person fails to obey an order shall be considered as a separate violation of the order. [<-Struck out]

    [Struck out->] (f) FAILURE TO PAY A PENALTY- [<-Struck out]

      [Struck out->] (1) IN GENERAL- 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 has a principal place of business. [<-Struck out]

      [Struck out->] (2) SCOPE OF REVIEW- In the action, the validity and appropriateness of the civil penalty shall not be subject to review. [<-Struck out]

    [Struck out->] (g) ADDITIONAL REMEDIES- The remedies provided in this Act shall be in addition to, and not exclusive of, other remedies that may be available. [<-Struck out]

[Struck out->] SEC. 10. INVESTIGATIONS AND POWER TO SUBPOENA. [<-Struck out]

    [Struck out->] (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 an order or regulation issued under this Act. [<-Struck out]

    [Struck out->] (b) SUBPOENAS, OATHS, AND AFFIRMATIONS- [<-Struck out]

      [Struck out->] (1) IN GENERAL- For the purpose of conducting 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 records may be required from any place in the United States. [<-Struck out]

      [Struck out->] (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 the attendance of witnesses, take evidence, and require the production of any records that are relevant to the inquiry. The attendance of witnesses and the production of any records may be required from any place in the United States. [<-Struck out]

    [Struck out->] (c) AID OF COURTS- [<-Struck out]

      [Struck out->] (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 the investigation or proceeding is carried on, or where the person resides or carries on business, in order to enforce a subpoena issued under subsection (b). [<-Struck out]

      [Struck out->] (2) ORDER- The court may issue an order requiring the person to comply with such a subpoena. [<-Struck out]

      [Struck out->] (3) FAILURE TO OBEY- Any failure to obey the order of the court may be punished by the court as a contempt of the order. [<-Struck out]

      [Struck out->] (4) PROCESS- Process in any proceeding under this subsection may be served in the United States judicial district in which the person being proceeded against resides or carries on business or wherever the person may be found. [<-Struck out]

[Struck out->] SEC. 11. CONFIDENTIALITY. [<-Struck out]

    [Struck out->] (a) PROHIBITION- No information on how a person voted in a referendum conducted under this Act shall be made public. [<-Struck out]

    [Struck out->] (b) PENALTY- Any person who knowingly violates subsection (a) or the confidentiality terms of an order, as described in section 5(j)(2), shall be subject to a fine of not less than $1,000 nor more than $10,000 or to imprisonment for not more than 1 year, or both, and, if an officer or employee of the Department of Agriculture or the PromoFlor Council, shall be removed from office. [<-Struck out]

    [Struck out->] (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 or an investigatory or enforcement action necessary for the implementation of this Act. [<-Struck out]

    [Struck out->] (d) WITHHOLDING INFORMATION FROM CONGRESS PROHIBITED- Nothing in this Act shall be construed to authorize the withholding of information from Congress. [<-Struck out]

[Struck out->] SEC. 12. AUTHORITY FOR SECRETARY TO SUSPEND OR TERMINATE ORDER. [<-Struck out]

    [Struck out->] 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 the order or provision under such terms as the Secretary determines appropriate. [<-Struck out]

[Struck out->] SEC. 13. CONSTRUCTION. [<-Struck out]

    [Struck out->] (a) TERMINATION OR SUSPENSION NOT AN ORDER- The termination or suspension of an order, or any provision of an order, shall not be considered an order within the meaning of this Act. [<-Struck out]

    [Struck out->] (b) PRODUCER RIGHTS- This Act-- [<-Struck out]

      [Struck out->] (1) may not be construed to provide for control of production or otherwise limit the right of individual cut flowers and cut greens producers to produce cut flowers and cut greens; and [<-Struck out]

      [Struck out->] (2) shall be construed to treat all persons producing cut flowers and cut greens fairly and to implement any order established under this Act in an equitable manner. [<-Struck out]

    [Struck out->] (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 a State. [<-Struck out]

[Struck out->] SEC. 14. REGULATIONS. [<-Struck out]

    [Struck out->] 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. [<-Struck out]

[Struck out->] SEC. 15. AUTHORIZATION OF APPROPRIATIONS. [<-Struck out]

    [Struck out->] (a) IN GENERAL- There are authorized to be appropriated for each fiscal year such sums as are necessary to carry out this Act. [<-Struck out]

    [Struck out->] (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. [<-Struck out]

SECTION 1. SHORT TITLE AND TABLE OF CONTENTS.

    (a) SHORT TITLE- This Act may be cited as the ‘Fresh Cut Flowers and Fresh Cut Greens Promotion and Information Act of 1993’.

    (b) TABLE OF CONTENTS- The table of contents of this Act is as follows:

      Sec. 1. Short title and table of contents.

      Sec. 2. Findings and declaration of policy.

      Sec. 3. Definitions.

      Sec. 4. Issuance of orders.

      Sec. 5. Required terms in orders.

      Sec. 6. Exclusion; determinations.

      Sec. 7. Referenda.

      Sec. 8. Petition and review.

      Sec. 9. Enforcement.

      Sec. 10. Investigations and power to subpoena.

      Sec. 11. Confidentiality.

      Sec. 12. Authority for Secretary to suspend or terminate order.

      Sec. 13. Construction.

      Sec. 14. Regulations.

      Sec. 15. Authorization of appropriations.

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)(A) cut flowers and cut greens are produced by many individual producers throughout the United States as well as in other countries, and are handled and marketed by thousands of small-sized and medium-sized businesses; and

      (B) the production, handling, and marketing of cut flowers and cut greens constitute a key segment of the United States horticultural industry and thus a significant part of the overall agricultural economy of the United States;

      (3) handlers play a vital role in the marketing of cut flowers and cut greens in that handlers--

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

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

        (C) serve as an intermediary between the source of the product and the retailer;

        (D) otherwise facilitate the entry of cut flowers and cut greens into the current of domestic commerce; and

        (E) add efficiencies to the market process that ensure the availability of a much greater variety of the product to retailers and consumers;

      (4) it is widely recognized that it is in the public interest and important to the agricultural economy of the United States to provide an adequate, steady supply of cut flowers and cut greens at reasonable prices to the consumers of the United States;

      (5)(A) cut flowers and cut greens move in interstate and foreign commerce; and

      (B) cut flowers and cut greens that do not move in interstate or foreign channels of commerce but only in intrastate commerce directly affect interstate commerce in cut flowers and cut greens;

      (6) the maintenance and expansion of markets in existence on the date of enactment of this Act, and the development of new or improved markets or uses for cut flowers and cut greens, are needed to preserve and strengthen the economic viability of the domestic cut flowers and cut greens industry for the benefit of producers, handlers, retailers, and the entire floral industry;

      (7) generic programs of promotion and consumer information can be effective in maintaining and developing markets for cut flowers and cut greens, and have the advantage of equally enhancing the market position for all cut flowers and cut greens;

      (8) because cut flowers and cut greens producers are primarily agriculture-oriented rather than promotion-oriented, and because the floral marketing industry within the United States is comprised mainly of small-sized and medium-sized businesses, the development and implementation of an adequate and coordinated national program of generic promotion and consumer information necessary for the maintenance of markets in existence on the date of enactment of this Act and the development of new markets for cut flowers and cut greens have been prevented;

      (9) there exist established State and commodity-specific producer-funded programs of promotion and research that are valuable efforts to expand markets for domestic producers of cut flowers and cut greens and that will benefit from the promotion and consumer information program authorized by this Act in that the program will enhance the market development efforts of the programs for domestic producers;

      (10) an effective and coordinated method for ensuring cooperative and collective action in providing for and financing a nationwide program of generic promotion and consumer information is needed to ensure that the cut flowers and cut greens industry will be able to provide, obtain, and implement programs of promotion and consumer information necessary to maintain, expand, and develop markets for cut flowers and cut greens; and

      (11) the most efficient method of financing such a nationwide program is to assess cut flowers and cut greens at the point at which the flowers and greens are sold by handlers into the retail market.

    (b) POLICY AND PURPOSE- It is the policy of Congress that it is in the public interest, and it is the purpose of this 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 position of the cut flowers and cut greens industry in the marketplace and to maintain, develop, and expand markets for cut flowers and cut greens.

SEC. 3. DEFINITIONS.

    As used in this Act:

      (1) CONSUMER INFORMATION- The term ‘consumer information’ means any action or program that provides information to consumers and other persons on appropriate uses under varied circumstances, and on the care and handling, of cut flowers or cut greens.

      (2) CUT FLOWERS AND CUT GREENS-

        (A) IN GENERAL-

          (i) CUT FLOWERS- The term ‘cut flowers’ includes all flowers cut from growing plants that are used as fresh-cut flowers and that are produced under cover or in field operations.

          (ii) CUT GREENS- The term ‘cut greens’ includes all cultivated or noncultivated decorative foliage cut from growing plants that are used as fresh-cut decorative foliage (except Christmas trees) and that are produced under cover or in field operations.

          (iii) EXCLUSIONS- The terms ‘cut flowers’ and ‘cut greens’ do not include a foliage plant, floral supply, or flowering plant.

        (B) SUBSTANTIAL PORTION- In any case in which a handler packages cut flowers or cut greens with hard goods in an article (such as a gift basket or similar presentation) for sale to a retailer, the PromoFlor Council may determine, under procedures specified in the order, that the cut flowers or cut greens in the article do not constitute a substantial portion of the value of the article and that, based on the determination, the article shall not be treated as an article of cut flowers or cut greens subject to assessment under the order.

      (3) GROSS SALES PRICE- The term ‘gross sales price’ means the total amount of the transaction in a sale of cut flowers or cut greens from a handler to a retailer or exempt handler.

      (4) HANDLER-

        (A) QUALIFIED HANDLER-

          (i) IN GENERAL- The term ‘qualified handler’ means a person (including a cooperative) operating in the cut flowers or cut greens marketing system--

            (I) that sells domestic or imported cut flowers or cut greens to retailers and exempt handlers; and

            (II) whose annual sales of cut flowers and cut greens to retailers and exempt handlers are $750,000 or more.

          (ii) INCLUSIONS AND EXCLUSIONS-

            (I) IN GENERAL- The term ‘qualified handler’ includes--

(aa) bouquet manufacturers (subject to paragraph (2)(B));

(bb) an auction house that clears the sale of cut flowers and cut greens to retailers and exempt handlers through a central clearinghouse; and

(cc) a distribution center that is owned or controlled by a retailer if the predominant retail business activity of the retailer is floral sales.

            (II) TRANSFERS- For the purpose of determining sales of cut flowers and cut greens to a retailer from a distribution center described in subclause (I)(cc), each non-sale transfer to a retailer shall be treated as a sale in an amount calculated as provided in subparagraph (C).

            (III) TRANSPORTATION OR DELIVERY- The term ‘qualified handler’ does not include a person who only physically transports or delivers cut flowers or cut greens.

          (iii) CONSTRUCTION-

            (I) IN GENERAL- The term ‘qualified handler’ includes an importer or producer that sells cut flowers or cut greens that the importer or producer has imported into the United States or produced, respectively, directly to consumers and whose sales of the cut flowers and cut greens (as calculated under subparagraph (C)), together with sales of cut flowers and cut greens to retailers or exempt handlers, annually are $750,000 or more.

            (II) SALES- Each direct sale to a consumer by a qualified handler described in subclause (I) shall be treated as a sale to a retailer or exempt handler in an amount calculated as provided in subparagraph (C).

            (III) DEFINITIONS- As used in this paragraph:

(aa) IMPORTER- The term ‘importer’ has the meaning provided in section 5(b)(2)(B)(i)(I).

(bb) PRODUCER- The term ‘producer’ has the meaning provided in section 5(b)(2)(B)(ii)(I).

        (B) EXEMPT HANDLER- The term ‘exempt handler’ means a person who would otherwise be considered to be a qualified handler, except that the annual sales by the person of cut flowers and cut greens to retailers and other exempt handlers are less than $750,000.

        (C) ANNUAL SALES DETERMINED-

          (i) IN GENERAL- Except as provided in clause (ii), for the purpose of determining the amount of annual sales of cut flowers and cut greens under subparagraphs (A) and (B), the amount of a sale shall be determined on the basis of the gross sales price of the cut flowers and cut greens sold.

          (ii) TRANSFERS-

            (I) NON-SALE TRANSFERS AND DIRECT SALES BY IMPORTERS- Subject to subclause (III), in the case of a non-sale transfer of cut flowers or cut greens from a distribution center (as described in subparagraph (A)(ii)(II)), or a direct sale to a consumer by an importer (as described in subparagraph (A)(iii)), the amount of the sale shall be equal to the sum of--

(aa) the price paid by the distribution center or importer, respectively, to acquire the cut flowers or cut greens; and

(bb) an amount determined by multiplying the acquisition price referred to in item (aa) by a uniform percentage established by an order to represent the mark-up of a wholesale handler on a sale to a retailer.

            (II) DIRECT SALES BY PRODUCERS- Subject to subclause (III), in the case of a direct sale to a consumer by a producer (as described in subparagraph (A)(iii)), the amount of the sale shall be equal to an amount determined by multiplying the price paid by the consumer by a uniform percentage established by an order to represent the cost of producing the article and the mark-up of a wholesale handler on a sale to a retailer.

            (III) CHANGES IN UNIFORM PERCENTAGES- Any change in a uniform percentage referred to in subclause (I) or (II) may become effective after--

(aa) recommendation by the PromoFlor Council; and

(bb) approval by the Secretary after public notice and opportunity for comment in accordance with section 553 of title 5, United States Code, and without regard to sections 556 and 557 of such title.

      (5) ORDER- The term ‘order’ means an order issued under this Act (other than sections 9, 10, and 12).

      (6) PERSON- The term ‘person’ means any individual, group of individuals, firm, partnership, corporation, joint stock company, association, society, cooperative, or other legal entity.

      (7) PROMOFLOR COUNCIL- The term ‘PromoFlor Council’ means the Fresh Cut Flowers and Fresh Cut Greens Promotion Council established under section 5(b).

      (8) PROMOTION- The term ‘promotion’ means any action determined by the Secretary to advance the image, desirability, or marketability of cut flowers or cut greens, including paid advertising.

      (9) RESEARCH- The term ‘research’ means market research and studies limited to the support of advertising, market development, and other promotion efforts and consumer information efforts relating to cut flowers or cut greens, including educational activities.

      (10) RETAILER-

        (A) IN GENERAL- The term ‘retailer’ means a person (such as a retail florist, supermarket, mass market retail outlet, or other end-use seller), as described in an order, that sells cut flowers or cut greens to consumers, and a distribution center described in subparagraph (B)(i).

        (B) DISTRIBUTION CENTERS-

          (i) IN GENERAL- The term ‘retailer’ includes a distribution center that is--

            (I) owned or controlled by a person described in subparagraph (A), or owned or controlled cooperatively by a group of the persons, if the predominant retail business activity of the person is not floral sales; or

            (II) independently owned but operated primarily to provide food products to retail stores.

          (ii) IMPORTERS AND PRODUCERS- An independently owned distribution center described in clause (i)(II) that also is an importer or producer of cut flowers or cut greens shall be subject to the rules of construction specified in paragraph (4)(A)(iii) and, for the purpose of the rules of construction, be considered to be the seller of the articles directly to the consumer.

      (11) SECRETARY- The term ‘Secretary’ means the Secretary of Agriculture.

      (12) STATE- The term ‘State’ means each of the several States of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the Commonwealth of the Northern Mariana Islands, the United States Virgin Islands, Guam, American Samoa, the Republic of the Marshall Islands, the Federated States of Micronesia, and the Republic of Palau (until such time as the Compact of Free Association is ratified).

      (13) UNITED STATES- The term ‘United States’ means the States collectively.

SEC. 4. ISSUANCE OF ORDERS.

    (a) IN GENERAL-

      (1) ISSUANCE- To effectuate the policy of this Act specified in 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.

      (2) SCOPE- Any order shall be national in scope.

      (3) ONE ORDER- Not more than 1 order shall be in effect at any 1 time.

    (b) PROCEDURES-

      (1) PROPOSAL FOR AN ORDER-

        (A) SECRETARY- The Secretary may propose the issuance of an order.

        (B) OTHER PERSONS- An industry group that represents a substantial number of the industry members who are to be assessed under the order, or any other person who will be affected by this Act, may request the issuance of, and submit a proposal for, an order.

      (2) PUBLICATION OF PROPOSAL- The Secretary shall publish a proposed order and give notice and opportunity for public comment on the proposed order not later than 60 days after the earlier of--

        (A) the date on which the Secretary proposes an order, as provided in paragraph (1)(A); and

        (B) the date of the receipt by the Secretary of a proposal for an order, as provided in paragraph (1)(B).

      (3) ISSUANCE OF ORDER-

        (A) IN GENERAL- After notice and opportunity for public comment are provided in accordance with paragraph (2), the Secretary shall issue the order, taking into consideration the comments received and including in the order such provisions as are necessary to ensure that the order is in conformity with this Act.

        (B) EFFECTIVE DATE- The order shall be issued and become effective not later than 180 days after publication of the proposed order.

    (c) AMENDMENTS- The Secretary, from time to time, may amend an order. The provisions of this Act applicable to an order shall be applicable to any amendment to an order.

SEC. 5. REQUIRED TERMS IN ORDERS.

    (a) IN GENERAL- An order shall contain the terms and provisions specified in this section.

    (b) PROMOFLOR COUNCIL-

      (1) ESTABLISHMENT AND MEMBERSHIP-

        (A) ESTABLISHMENT- The order shall provide for the establishment of a Fresh Cut Flowers and Fresh Cut Greens Promotion Council, consisting of 25 members, to administer the order.

        (B) MEMBERSHIP-

          (i) APPOINTMENT- The order shall provide that members of the PromoFlor Council shall be appointed by the Secretary from nominations submitted as provided in paragraphs (2) and (3).

          (ii) COMPOSITION- The PromoFlor Council shall consist of--

            (I) participating qualified handlers representing qualified wholesale handlers and producers and importers that are qualified handlers;

            (II) representatives of traditional retailers; and

            (III) representatives of persons who produce fresh cut flowers and fresh cut greens.

      (2) DISTRIBUTION OF APPOINTMENTS-

        (A) IN GENERAL- The order shall provide that the membership of the PromoFlor Council shall consist of--

          (i) 14 members representing qualified wholesale handlers of domestic or imported cut flowers and cut greens;

          (ii) 3 members representing producers that are qualified handlers of cut flowers and cut greens;

          (iii) 3 members representing importers that are qualified handlers of cut flowers and cut greens;

          (iv) 3 members representing traditional cut flowers and cut greens retailers; and

          (v) 2 members representing persons who produce fresh cut flowers and fresh cut greens, of whom--

            (I) 1 member shall represent persons who produce the flowers or greens in locations that are east of the Mississippi River; and

            (II) 1 member shall represent persons who produce the flowers or greens in locations that are west of the Mississippi River.

        (B) DEFINITIONS- As used in this subsection:

          (i) IMPORTER THAT IS A QUALIFIED HANDLER- The term ‘importer that is a qualified handler’ means an entity--

            (I) whose principal activity is the importation of cut flowers or cut greens into the United States (either directly or as an agent, broker, or consignee of any person or nation that produces or handles cut flowers or cut greens outside the United States for sale in the United States); and

            (II) that is subject to assessments as a qualified handler under the order.

          (ii) PRODUCER THAT IS A QUALIFIED HANDLER- The term ‘producer that is a qualified handler’ means an entity that--

            (I) is engaged--

(aa) in the domestic production, for sale in commerce, of cut flowers or cut greens and that owns or shares in the ownership and risk of loss of the cut flowers or cut greens; or

(bb) as a first processor of noncultivated cut greens, in receiving the cut greens from a person who gathers the cut greens for handling; and

            (II) is subject to assessments as a qualified handler under the order.

          (iii) QUALIFIED WHOLESALE HANDLER-

            (I) IN GENERAL- The term ‘qualified wholesale handler’ means a person in business as a floral wholesale jobber or floral supplier that is subject to assessments as a qualified handler under the order.

            (II) DEFINITIONS- As used in this clause:

(aa) FLORAL SUPPLIER- The term ‘floral supplier’ means a person engaged in acquiring cut flowers or cut greens to be manufactured into floral articles or otherwise processed for resale.

(bb) FLORAL WHOLESALE JOBBER- The term ‘floral wholesale jobber’ means a person who conducts a commission or other wholesale business in buying and selling cut flowers or cut greens.

        (C) DISTRIBUTION OF QUALIFIED WHOLESALE HANDLER APPOINTMENTS- The order shall provide that the appointments of qualified wholesale handlers to the PromoFlor Council made by the Secretary shall take into account the geographical distribution of cut flowers and cut greens markets in the United States.

      (3) NOMINATION PROCESS- The order shall provide that--

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

        (B) nominations for each appointment of a qualified wholesale handler, producer that is a qualified handler, or importer that is a qualified handler to the PromoFlor Council shall be made by qualified wholesale handlers, producers that are qualified handlers, or importers that are qualified handlers, respectively, through an election process, in accordance with regulations issued by the Secretary;

        (C) nominations for--

          (i) 1 of the retailer appointments shall be made by the American Floral Marketing Council or a successor entity; and

          (ii) 2 of the retailer appointments shall be made by traditional retail florist organizations, in accordance with regulations issued by the Secretary;

        (D) nominations for each appointment of a representative of persons who produce fresh cut flowers and fresh cut greens shall be made by the persons through an election process, in accordance with regulations issued by the Secretary; and

        (E) in any case in which qualified wholesale handlers, producers that are qualified handlers, importers that are qualified handlers, persons who produce fresh cut flowers and fresh cut greens, or retailers fail to nominate individuals for an appointment to the PromoFlor Council, the Secretary may appoint an individual to fill the vacancy on a basis provided in the order or other regulations of the Secretary.

      (4) ALTERNATES- The order shall provide for the selection of alternate members of the PromoFlor Council by the Secretary in accordance with procedures specified in the order.

      (5) TERMS; COMPENSATION- The order shall provide that--

        (A) each term of appointment to the PromoFlor Council shall be for 3 years, except that, of the initial appointments, 9 of the appointments shall be for 2-year terms, 8 of the appointments shall be for 3-year terms, and 8 of the appointments shall be for 4-year terms;

        (B) no member of the PromoFlor Council may serve more than 2 consecutive terms of 3 years, except that any member serving an initial term of 4 years may serve an additional term of 3 years; and

        (C) members of the PromoFlor Council shall serve without compensation, but shall be reimbursed for the expenses of the members incurred in performing duties as members of the PromoFlor Council.

      (6) EXECUTIVE COMMITTEE-

        (A) ESTABLISHMENT-

          (i) IN GENERAL- The order shall authorize the PromoFlor Council to appoint, from among the members of the Council, an executive committee of not more than 9 members.

          (ii) INITIAL MEMBERSHIP- The membership of the executive committee initially shall be composed of--

            (I) 4 members representing qualified wholesale handlers;

            (II) 2 members representing producers that are qualified handlers;

            (III) 2 members representing importers that are qualified handlers; and

            (IV) 1 member representing traditional retailers.

          (iii) SUBSEQUENT MEMBERSHIP- After the initial appointments, each appointment to the executive committee shall be made so as to ensure that the committee reflects, to the maximum extent practicable, the membership composition of the PromoFlor Council as a whole.

          (iv) TERMS- Each initial appointment to the executive committee shall be for a term of 2 years. After the initial appointments, each appointment to the executive committee shall be for a term of 1 year.

        (B) AUTHORITY- The PromoFlor Council may delegate to the executive committee the authority of the PromoFlor Council under the order to hire and manage staff and conduct the routine business of the PromoFlor Council consistent with such policies as are determined by the PromoFlor Council.

    (c) GENERAL RESPONSIBILITIES OF THE PROMOFLOR COUNCIL- The order shall define the general responsibilities of the PromoFlor Council, which shall include the responsibility to--

      (1) administer the order in accordance with the terms and provisions of the order;

      (2) make rules and regulations to effectuate the terms and provisions of the order;

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

      (4) employ such persons as the PromoFlor Council determines are necessary, and set the compensation and define the duties of the persons;

      (5)(A) develop budgets for the implementation of the order and submit the budgets to the Secretary for approval under subsection (d); and

      (B) 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)(A) implement plans and projects for cut flowers or cut greens promotion, consumer information, or related research, as provided in subsection (d); or

      (B) contract or enter into agreements with appropriate persons to implement the plans and projects, as provided in subsection (e), and pay the costs of the implementation, or contracts and agreements, with funds received under the order;

      (7) evaluate on-going and completed plans and projects for cut flowers or cut greens promotion, consumer information, or related research;

      (8) receive, investigate, and report to the Secretary complaints of violations of the order;

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

      (10) invest, pending disbursement under a plan or project, funds collected through assessments authorized under this Act only in--

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

        (B) general obligations of any State or any political subdivision of a State;

        (C) any interest-bearing account or certificate of deposit of a bank that is a member of the Federal Reserve System; or

        (D) obligations fully guaranteed as to principal and interest by the United States,

      except that income from any such invested funds may be used only for a purpose for which the invested funds may be used; and

      (11) provide the Secretary such information as the Secretary may require.

    (d) BUDGETS; PLANS AND PROJECTS-

      (1) SUBMISSION OF BUDGETS- The order shall require the PromoFlor Council to submit to the Secretary for approval budgets, on a fiscal year basis, of the anticipated expenses and disbursements of the Council in the implementation of the order, including the projected costs of cut flowers and cut greens promotion, consumer information, and related research plans and projects.

      (2) PLANS AND PROJECTS-

        (A) PROMOTION AND CONSUMER INFORMATION- The order shall provide--

          (i) for the establishment, implementation, administration, and evaluation of appropriate plans and projects for advertising, sales promotion, other promotion, and consumer information with respect to cut flowers and cut greens, and for the disbursement of necessary funds for the purposes described in this clause;

          (ii) that any plan or project referred to in clause (i) shall be directed toward increasing the general demand for cut flowers or cut greens and may not make reference to a private brand or trade name, point of origin, or source of supply, except that this clause shall not preclude the PromoFlor Council from offering the plans and projects of the Council for use by commercial parties, under terms and conditions prescribed by the PromoFlor Council and approved by the Secretary; and

          (iii) that no plan or project may make use of unfair or deceptive acts or practices with respect to quality or value.

        (B) RESEARCH- The order shall provide for--

          (i) the establishment, implementation, administration, and evaluation of plans and projects for--

            (I) market development research;

            (II) research with respect to the sale, distribution, marketing, or use of cut flowers or cut greens; and

            (III) other research with respect to cut flowers or cut greens marketing, promotion, or consumer information;

          (ii) the dissemination of the information acquired through the plans and projects; and

          (iii) the disbursement of such funds as are necessary to carry out this subparagraph.

        (C) SUBMISSION TO SECRETARY- The order shall provide that the PromoFlor Council shall submit to the Secretary for approval a proposed plan or project for cut flowers or cut greens promotion, consumer information, or related research, as described in subparagraphs (A) and (B).

      (3) APPROVAL BY SECRETARY- A budget, or plan or project for cut flowers or cut greens promotion, consumer information, or related research may not be implemented prior to approval of the budget, plan, or project by the Secretary.

    (e) CONTRACTS AND AGREEMENTS-

      (1) PROMOTION, CONSUMER INFORMATION, AND RELATED RESEARCH PLANS AND PROJECTS-

        (A) IN GENERAL- To ensure efficient use of funds, the order shall provide that the PromoFlor Council, with the approval of the Secretary, may enter into a contract or an agreement for the implementation of a plan or project for promotion, consumer information, or related research with respect to cut flowers or cut greens, and for the payment of the cost of the contract or agreement with funds received by the PromoFlor Council under the order.

        (B) REQUIREMENTS- The order shall provide that any contract or agreement entered into under this paragraph shall provide that--

          (i) the contracting or agreeing party shall develop and submit to the PromoFlor Council a plan or project, together with a budget that includes the estimated costs to be incurred for the plan or project;

          (ii) the plan or project shall become effective on the approval of the Secretary; and

          (iii) the contracting or agreeing party shall--

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

            (II) account for funds received and expended;

            (III) make periodic reports to the PromoFlor Council of activities conducted; and

            (IV) make such other reports as the PromoFlor Council or the Secretary may require.

      (2) OTHER CONTRACTS AND AGREEMENTS- The order shall provide that the PromoFlor Council may enter into a contract or agreement for administrative services. Any contract or agreement entered into under this paragraph shall include provisions comparable to the provisions described in paragraph (1)(B).

    (f) BOOKS AND RECORDS OF 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 require;

        (B) prepare and submit to the Secretary, from time to time, such reports as the Secretary may require; and

        (C) account for the receipt and disbursement of all funds entrusted to the PromoFlor Council.

      (2) AUDITS- The PromoFlor Council shall cause the books and records of the Council to be audited by an independent auditor at the end of each fiscal year. A report of each audit shall be submitted to the Secretary.

    (g) CONTROL OF ADMINISTRATIVE COSTS- The order shall provide that the PromoFlor Council shall, as soon as practicable after the order becomes effective and after consultation with the Secretary and other appropriate persons, implement a system of cost controls based on normally accepted business practices that will ensure that the annual budgets of the PromoFlor Council include only amounts for administrative expenses that cover the minimum administrative activities and personnel needed to properly administer and enforce the order, and conduct, supervise, and evaluate plans and projects under the order.

    (h) ASSESSMENTS-

      (1) AUTHORITY-

        (A) IN GENERAL- The order shall provide that each qualified handler shall pay to the PromoFlor Council, in the manner provided in the order, an assessment on each sale of cut flowers or cut greens to a retailer or an exempt handler (including each transaction described in subparagraph (C)(ii)), except to the extent that the sale is excluded from assessments under section 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 shall contain provisions regarding the determination of the status of a person as a qualified handler or exempt handler that include the rules and requirements specified in sections 3(4) and 6(b).

          (ii) CERTAIN COVERED TRANSACTIONS-

            (I) IN GENERAL- The order shall provide that each non-sale transfer of cut flowers or cut greens to a retailer from a qualified handler that is a distribution center (as described in section 3(4)(A)(ii)(II)), and each direct sale of cut flowers or cut greens to a consumer by a qualified handler that is an importer or a producer (as described in section 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.

            (II) AMOUNT OF SALE IN THE CASE OF NON-SALE TRANSFERS AND DIRECT SALES BY IMPORTERS- Subject to subclause (IV), in the case of a non-sale transfer of cut flowers or cut greens from a distribution center, or a direct sale to a consumer by an importer, the amount of the sale shall be equal to the sum of--

(aa) the price paid by the distribution center or importer, respectively, to acquire the cut flowers or cut greens; and

(bb) an amount determined by multiplying the acquisition price referred to in item (aa) by a uniform percentage established by the order to represent the mark-up of a wholesale handler on a sale to a retailer.

            (III) DIRECT SALES BY PRODUCERS- Subject to subclause (IV), in the case of a direct sale to a consumer by a producer, the amount of the sale shall be equal to an amount determined by multiplying the price paid by the consumer by a uniform percentage established by the order to represent the cost of producing the article and the mark-up of a wholesale handler on a sale to a retailer.

            (IV) CHANGES IN UNIFORM PERCENTAGES- Any change in a uniform percentage referred to in subclause (II) or (III) may become effective after--

(aa) recommendation by the PromoFlor Council; and

(bb) approval by the Secretary after public notice and opportunity for comment in accordance with section 553 of title 5, United States Code, and without regard to sections 556 and 557 of such title.

      (2) ASSESSMENT RATES- With respect to assessment rates, the order shall contain the following terms:

        (A) INITIAL RATE- During the first 3 years the order is in effect, the rate of assessment on each sale or transfer of cut flowers or cut greens shall be 1/2 of 1 percent of--

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

          (ii) in the case of transactions described in paragraph (1)(C)(ii), the amount of each transaction calculated as provided in paragraph (1)(C)(ii).

        (B) CHANGES IN THE RATE-

          (i) IN GENERAL- After the first 3 years the order is in effect, the uniform assessment rate may be increased or decreased annually by not more than .25 percent of--

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

            (II) in the case of transactions described in paragraph (1)(C)(ii), the amount of each transaction calculated as provided in paragraph (1)(C)(ii),

          except that the assessment rate may in no case exceed 1 percent of the gross sales price or 1 percent of the transaction amount.

          (ii) REQUIREMENTS- Any change in the rate of assessment under this subparagraph--

            (I) may be made only if adopted by the PromoFlor Council by at least a 2/3 majority vote and approved by the Secretary as necessary to achieve the objectives of this Act (after public notice and opportunity for comment in accordance with section 553 of title 5, United States Code, and without regard to sections 556 and 557 of such title);

            (II) shall be announced by the PromoFlor Council not less than 30 days prior to going into effect; and

            (III) shall not be subject to a vote in a referendum conducted under section 7.

      (3) TIMING OF SUBMITTING ASSESSMENTS- The order shall provide that each person required to pay assessments under this subsection shall remit, to the PromoFlor Council, the assessment due from each sale by the person of cut flowers or cut greens that is subject to an assessment within such time period after the sale (not to exceed 60 days after the end of the month in which the sale took place) as is specified in the order.

      (4) REFUNDS FROM ESCROW ACCOUNT-

        (A) ESTABLISHMENT OF ESCROW ACCOUNT- The order shall provide that the PromoFlor Council shall--

          (i) establish an escrow account to be used for assessment refunds, as needed; and

          (ii) place into the account an amount equal to 10 percent of the total amount of assessments collected during the period beginning on the date the order becomes effective, as provided in section 4(b)(3)(B), and ending on the date the initial referendum on the order under 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 the qualified handler during the time period specified in subparagraph (A)(ii), if--

            (I) the qualified handler is required to pay the assessments;

            (II) the qualified handler does not support the program established under this Act;

            (III) the qualified handler demands the 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 a qualified handler to receive a refund under clause (i) shall be subject to the following conditions:

            (I) The demand shall be made in accordance with regulations, on a form, and within a time period specified by the PromoFlor Council.

            (II) The refund shall be made only on submission of proof satisfactory to the PromoFlor Council that the qualified handler paid the assessment for which the refund is demanded.

            (III) If the amount in the escrow account required under subparagraph (A) is not sufficient to refund the total amount of assessments demanded by all qualified handlers determined eligible for refunds and the order is not approved in the referendum on the order under section 7(a), the PromoFlor Council shall prorate the amount of all such refunds among all eligible qualified handlers that demand the refund.

        (C) PROGRAM APPROVED- The order shall provide that, if the order is approved in the referendum conducted under section 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 (less any refunds expended under the terms of the order required under paragraph (4)) shall be used for payment of costs incurred in implementing and administering the order, with provision for a reasonable reserve, and to cover the administrative costs incurred by the Secretary in implementing and administering this Act, except for the salaries of Federal Government employees incurred in conducting referenda.

      (6) POSTPONEMENT OF COLLECTIONS-

        (A) AUTHORITY-

          (i) IN GENERAL- Subject to the other provisions of this paragraph and notwithstanding any other provision of this Act, the PromoFlor Council may grant a postponement of the payment of an assessment under this subsection for any qualified handler that establishes that the handler is financially unable to make the payment.

          (ii) REQUIREMENTS AND PROCEDURES- A handler described in clause (i) shall establish that the handler is financially unable to make the payment in accordance with application and documentation requirements and review procedures established under rules recommended by the PromoFlor Council, approved by the Secretary, and issued after public notice and opportunity for comment in accordance with section 553 of title 5, United States Code, and without regard to sections 556 and 557 of such title.

        (B) CRITERIA AND RESPONSIBILITY FOR DETERMINATIONS- The PromoFlor Council may grant a postponement under subparagraph (A) only if the handler demonstrates by the submission of an opinion of an independent certified public accountant, and by submission of other documentation required under the rules established under subparagraph (A)(ii), that the handler is insolvent or will be unable to continue to operate if the handler is required to pay the assessment when otherwise due.

        (C) PERIOD OF POSTPONEMENT-

          (i) IN GENERAL- The time period of a postponement and the terms and conditions of the payment of each assessment that is postponed under this paragraph shall be established by the PromoFlor Council, in accordance with rules established under the procedures specified in subparagraph (A)(ii), so as to appropriately reflect the demonstrated needs of the qualified handler.

          (ii) EXTENSIONS- A postponement may be extended under rules established under the procedures specified in subparagraph (A)(ii) for the grant of initial postponements.

    (i) PROHIBITION- The order shall prohibit the use of any funds received by the PromoFlor Council in any manner for the purpose of influencing legislation or government action or policy, except that the funds may be used by the PromoFlor Council for the development and recommendation to the Secretary of amendments to the order.

    (j) BOOKS AND RECORDS; REPORTS-

      (1) IN GENERAL- The order shall provide that each qualified handler shall maintain, and make available for inspection, such books and records as are required by the order and file reports at the time, in the manner, and having the content required by the order, to the end that such information is made available to the Secretary and the PromoFlor Council as is appropriate for the administration or enforcement of this Act, the order, or any regulation issued under this Act.

      (2) CONFIDENTIALITY REQUIREMENT-

        (A) IN GENERAL- Information obtained from books, records, or reports under paragraph (1) or subsection (h)(6), 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.

        (B) SUITS AND HEARINGS- Information described in subparagraph (A) may be disclosed to the public only--

          (i) in a suit or administrative hearing brought at the request of the Secretary, or to which the Secretary or any officer of the United States is a party, involving the order; and

          (ii) to the extent the Secretary considers the information relevant to the suit or hearing.

        (C) GENERAL STATEMENTS AND PUBLICATIONS- Nothing in this paragraph may be construed to prohibit--

          (i) the issuance of general statements, based on the reports, of the number of persons subject to the order or statistical data collected from the reports, if the statements do not identify the information furnished by any person; or

          (ii) the publication, by direction of the Secretary, of the name of any person who violates the order, together with a statement of the particular provisions of the order violated by the person.

      (3) LISTS OF IMPORTERS-

        (A) REVIEW- The order shall provide that the staff of the PromoFlor Council shall periodically review lists of importers of cut flowers and cut greens to determine whether persons on the lists are subject to the order.

        (B) CUSTOMS SERVICE- On the request of the PromoFlor Council, the Commissioner of the United States Customs Service shall provide to the PromoFlor Council lists of importers of cut flowers and cut greens.

    (k) CONSULTATIONS WITH INDUSTRY EXPERTS-

      (1) IN GENERAL- The order shall provide that the PromoFlor Council, from time to time, may seek advice from and consult with experts from the production, import, wholesale, and retail segments of the cut flowers and cut greens industry to assist in the development of promotion, consumer information, and related research plans and projects.

      (2) SPECIAL COMMITTEES-

        (A) IN GENERAL- For the purposes described in paragraph (1), the order shall authorize the appointment of special committees composed of persons other than PromoFlor Council members.

        (B) CONSULTATION- A committee appointed under subparagraph (A)--

          (i) may not provide advice or recommendations to a representative of an agency, or an officer, of the Federal Government; and

          (ii) shall consult directly with the PromoFlor Council.

    (l) OTHER TERMS OF THE ORDER- The order shall contain such other terms and provisions, consistent with this Act, as are necessary to carry out this Act (including provision for the assessment of interest and a charge for each late payment of assessments under subsection (h) and for carrying out section 6).

SEC. 6. EXCLUSION; DETERMINATIONS.

    (a) EXCLUSION- An order shall exclude from assessments under the order any sale of cut flowers or cut greens for export from the United States.

    (b) MAKING DETERMINATIONS-

      (1) IN GENERAL- For the purpose of applying the $750,000 annual sales limitation to a specific person in order to determine the status of the person as a qualified handler or an exempt handler under section 3(4), or to a specific facility in order to determine the status of the facility as an eligible separate facility under section 7(b)(2), an order issued under this Act shall provide that--

        (A) a determination of the annual sales volume of a person or facility shall be based on the sales of cut flowers and cut greens by the person or facility during the most recently-completed calendar year, except as provided in subparagraph (B); and

        (B) in the case of a new business or other operation for which complete data on sales during all or part of the most recently-completed calendar year are not available to the PromoFlor Council, the determination may be made using an alternative time period or other alternative procedure specified in the order.

      (2) RULE OF ATTRIBUTION-

        (A) IN GENERAL- For the purpose of determining the annual sales volume of a person or a separate facility of a person, sales attributable to a person shall include--

          (i) in the case of an individual, sales attributable to the spouse, children, grandchildren, parents, and grandparents of the person;

          (ii) in the case of a partnership or member of a partnership, sales attributable to the partnership and other partners of the partnership;

          (iii) in the case of an individual or a partnership, sales attributable to any corporation or other entity in which the individual or partnership owns more than 50 percent of the stock or (if the entity is not a corporation) that the individual or partnership controls; and

          (iv) in the case of a corporation, sales attributable to any corporate subsidiary or other corporation or entity in which the corporation owns more than 50 percent of the stock or (if the entity is not a corporation) that the corporation controls.

        (B) STOCK AND OWNERSHIP INTEREST- For the purpose of this paragraph, stock or an ownership interest in an entity that is owned by the spouse, children, grandchildren, parents, grandparents, or partners of an individual, or by a partnership in which a person is a partner, or by a corporation more than 50 percent of the stock of which is owned by a person, shall be treated as owned by the individual or person.

      (3) REPORTS- For the purpose of this subsection, the order may require a person who sells cut flowers or cut greens to retailers to submit reports to the PromoFlor Council on annual sales by the person.

SEC. 7. REFERENDA.

    (a) REQUIREMENT FOR INITIAL REFERENDUM-

      (1) IN GENERAL- Not later than 3 years 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 voting requirements of subsection (b), to ascertain whether the order then in effect shall be continued.

      (2) APPROVAL OF ORDER NEEDED- The order shall be continued only if the Secretary determines that the order has been approved by a simple majority of all votes cast in the referendum. If the order is not approved, the Secretary shall terminate the order as provided in subsection (d).

    (b) VOTES PERMITTED-

      (1) IN GENERAL- Each qualified handler eligible to vote in a referendum conducted under this section shall be entitled to cast 1 vote for each separate facility of the person that is an eligible separate facility, as defined in paragraph (2).

      (2) ELIGIBLE SEPARATE FACILITY- For the purpose of paragraph (1):

        (A) SEPARATE FACILITY- A handling or marketing facility of a qualified handler shall be considered to be a separate facility if the facility is physically located away from other facilities of the qualified handler or the business function of the facility is substantially different from the functions of other facilities owned or operated by the qualified handler.

        (B) ELIGIBILITY- A separate facility of a qualified handler shall be considered to be an eligible separate facility if the annual sales of cut flowers and cut greens to retailers and exempt handlers from the facility are $750,000 or more.

        (C) ANNUAL SALES DETERMINED- For the purpose of determining the amount of annual sales of cut flowers and cut greens under subparagraph (B), subparagraphs (A) and (C) of section 3(4) shall apply.

    (c) SUSPENSION OR TERMINATION REFERENDA- If an order is approved in a referendum conducted under subsection (a), effective beginning on the date that is 3 years after the date of the approval, the Secretary--

      (1) at the discretion of the Secretary, may conduct at any time a referendum of qualified handlers required to pay assessments under the order, as provided in section 5(h)(1), subject to the voting requirements of subsection (b), to ascertain whether qualified handlers favor suspension or termination of the order; and

      (2) if requested by the PromoFlor Council or by a representative group comprising 30 percent or more of all qualified handlers required to pay assessments under the order, as provided in section 5(h)(1), shall conduct a referendum of all qualified handlers required to pay assessments under the order, as provided in section 5(h)(1), subject to the voting requirements of subsection (b), to ascertain whether qualified handlers favor suspension or termination of the order.

    (d) SUSPENSION OR TERMINATION- If, as a result of the referendum conducted under subsection (a), 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) not later than 180 days after the referendum, suspend or terminate, as appropriate, collection of assessments under the order; and

      (2) suspend or terminate, as appropriate, activities under the order as soon as practicable and in an orderly manner.

    (e) MANNER OF CONDUCTING REFERENDA- Referenda under this section shall be conducted in such manner as is determined appropriate by the Secretary.

SEC. 8. PETITION AND REVIEW.

    (a) PETITION AND HEARING-

      (1) PETITION- A person subject to an order may file with the Secretary a petition--

        (A) stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law; and

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

      (2) HEARING- The petitioner shall be given the opportunity for a hearing on a petition filed under paragraph (1), in accordance with regulations issued by the Secretary. Any such hearing shall be conducted in accordance with section 10(b)(2) and be held within the United States judicial district in which the residence or principal place of business of the person is located.

      (3) RULING- After a hearing under paragraph (2), the Secretary shall make a ruling on the petition, which shall be final if in accordance with law.

    (b) REVIEW-

      (1) COMMENCEMENT OF ACTION- The district courts of the United States in any district in which a person who is a petitioner under subsection (a) resides or conducts business shall have jurisdiction to review the ruling of the Secretary on the petition of the person, if a complaint requesting the review is filed not later than 20 days after the date of the entry of the ruling by the Secretary.

      (2) PROCESS- Service of process in proceedings under this subsection shall be conducted in accordance with the Federal Rules of Civil Procedure.

      (3) REMAND- If the court in a proceeding under this subsection determines that the ruling of the Secretary on the petition of the person is not in accordance with law, the court shall remand the matter to the Secretary with directions--

        (A) to make such ruling as the court shall determine to be in accordance with law; or

        (B) to take such further action as, in the opinion of the court, the law requires.

    (c) ENFORCEMENT- The pendency of proceedings instituted under this section shall not impede, hinder, or delay the Attorney General or the Secretary from obtaining relief under section 9.

SEC. 9. ENFORCEMENT.

    (a) JURISDICTION- A district court of the United States shall have jurisdiction to enforce, and to prevent and restrain any person from violating, this Act or an order or regulation 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) IN GENERAL- A person who 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 required of the person under an order or regulation issued under this Act, may be assessed by the Secretary--

          (i) a civil penalty of not less than $500 nor more than $5,000 for each violation; and

          (ii) in the case of a willful failure to remit an assessment as required by an order or regulation, an additional penalty equal to the amount of the assessment.

        (B) SEPARATE OFFENSES- Each violation shall be a separate offense.

      (2) CEASE AND DESIST ORDERS- In addition to or in lieu of a civil penalty under paragraph (1), the Secretary may issue an order requiring a person to cease and desist from continuing a violation of this Act, or an order or regulation issued under this Act.

      (3) NOTICE AND HEARING- No penalty shall be assessed or cease and desist order issued by the Secretary under this subsection unless the Secretary gives the person against whom the penalty is assessed or the order is issued notice and opportunity for a hearing before the Secretary with respect to the violation. Any such hearing shall be conducted in accordance with section 10(b)(2) and shall be held within the United States judicial district in which the residence or principal place of business of the person is located.

      (4) FINALITY- The penalty assessed or cease and desist order issued under this subsection shall be final and conclusive unless the person against whom the penalty is assessed or the order is issued files an appeal with the appropriate district court of the United States in accordance with subsection (d).

    (d) REVIEW BY DISTRICT COURT-

      (1) COMMENCEMENT OF ACTION-

        (A) IN GENERAL- Any person against whom a violation is found and a civil penalty is assessed or a cease and desist order is issued under subsection (c) may obtain review of the penalty or order by, within the 30-day period beginning on the date the penalty is assessed or order issued--

          (i) filing a notice of appeal in the district court of the United States for the district in which the person resides or conducts business, or in the United States District Court for the District of Columbia; and

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

        (B) COPY OF RECORD- The Secretary shall promptly file in the court a certified copy of the record on which the Secretary found that the person had committed a violation.

      (2) STANDARD OF REVIEW- A finding of the Secretary shall be set aside under this subsection only if the finding is found to be unsupported by substantial evidence.

    (e) FAILURE TO OBEY AN ORDER-

      (1) IN GENERAL- A person who 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).

      (2) SEPARATE VIOLATIONS- Each day during which the person fails to obey an order described in paragraph (1) shall be considered as a separate violation of the order.

    (f) FAILURE TO PAY A PENALTY-

      (1) IN GENERAL- 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 conducts business.

      (2) SCOPE OF REVIEW- In an action by the Attorney General under paragraph (1), the validity and appropriateness of the civil penalty shall not be subject to review.

    (g) ADDITIONAL REMEDIES- The remedies provided in this 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) INVESTIGATIONS- For the purpose of making 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 the records may be required from any place in the United States.

      (2) ADMINISTRATIVE HEARINGS- For the purpose of an administrative hearing held under section 8(a)(2) or 9(c)(3), the presiding officer may administer oaths and affirmations, subpoena witnesses, compel the attendance of witnesses, take evidence, and require the production of any records that are relevant to the inquiry. The attendance of witnesses and the production of the records may be required from any place in the United States.

    (c) AID OF COURTS-

      (1) IN GENERAL- In the case of contumacy by, or refusal to obey a subpoena issued under subsection (b) to, any person, the Secretary may invoke the aid of any court of the United States within the jurisdiction of which the investigation or proceeding is conducted, or where the person resides or conducts business, in order to enforce a subpoena issued under subsection (b).

      (2) ORDER- The court may issue an order requiring the person referred to in paragraph (1) to comply with a subpoena referred to in paragraph (1).

      (3) FAILURE TO OBEY- Any failure to obey the order of the court may be punished by the court as a contempt of court.

      (4) PROCESS- Process in any proceeding under this subsection may be served in the United States judicial district in which the person being proceeded against resides or conducts business or wherever the person may be found.

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 who knowingly violates subsection (a) or the confidentiality terms of an order, as described in section 5(j)(2), shall be subject to a fine of not less than $1,000 nor more than $10,000 or to imprisonment for not more than 1 year, or both. If the person is an officer or employee of the Department of Agriculture or the PromoFlor Council, the person shall be removed from office.

    (c) ADDITIONAL PROHIBITION- No information obtained under this Act may be made available to any agency or officer of the Federal Government for any purpose other than the implementation of this Act or an investigatory or enforcement action 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.

    If the Secretary finds that an order, or any provision of the order, obstructs or does not tend to effectuate the policy of this Act specified in section 2(b), the Secretary shall terminate or suspend the operation of the order or provision under such terms as the Secretary determines are appropriate.

SEC. 13. CONSTRUCTION.

    (a) TERMINATION OR SUSPENSION NOT AN ORDER- The termination or suspension of an order, or a provision of an order, shall not be considered an order under the meaning of this Act.

    (b) PRODUCER RIGHTS- This Act--

      (1) may not be construed to provide for control of production or otherwise limit the right of individual cut flowers and cut greens producers to produce cut flowers and cut greens; and

      (2) shall be construed to treat all persons producing cut flowers and cut greens fairly and to implement any order in an equitable manner.

    (c) OTHER PROGRAMS- Nothing in this 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 a 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 and interest.

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 the payment of the expenses or expenditures of the PromoFlor Council in administering any provision of an order.

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