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H.R. 1486 (104th): National Kiwifruit Research, Promotion, and Consumer Information Act

The text of the bill below is as of Apr 7, 1995 (Introduced).


HR 1486 IH

104th CONGRESS

1st Session

H. R. 1486

To provide for a nationally coordinated program of research, promotion, and consumer information regarding kiwifruit for the purpose of expanding domestic and foreign markets for kiwifruit.

IN THE HOUSE OF REPRESENTATIVES

April 7, 1995

Mr. HERGER (for himself, Mr. FAZIO of California, Mr. DOOLEY, Mr. RIGGS, Mr. GALLEGLY, Mr. POMBO, Mr. CALVERT, Mrs. SEASTRAND, Mr. MATSUI, Mr. FARR, Mr. CONDIT, Mr. THORNTON, Mr. BISHOP, Mr. BROWN of California, and Mr. THOMAS) introduced the following bill; which was referred to the Committee on Agriculture, and in addition to the Committee on Ways and Means, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned


A BILL

To provide for a nationally coordinated program of research, promotion, and consumer information regarding kiwifruit for the purpose of expanding domestic and foreign markets for kiwifruit.

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

SECTION 1. SHORT TITLE AND TABLE OF CONTENTS.

    (a) SHORT TITLE- This Act may be cited as the ‘National Kiwifruit Research, Promotion, and Consumer Information Act’.

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

      Sec. 1. Short title and table of contents.

      Sec. 2. Findings and purposes.

      Sec. 3. Definitions.

      Sec. 4. Issuance of Kiwifruit Research, Promotion, and Consumer Information Order.

      Sec. 5. National Kiwifruit Board.

      Sec. 6. Required terms in order.

      Sec. 7. Permissive terms in order.

      Sec. 8. Incorporation of petition and review, enforcement, and investigation provisions by reference.

      Sec. 9. Referenda.

      Sec. 10. Suspension and termination of order by Secretary.

      Sec. 11. Authorization of appropriations.

      Sec. 12. Regulations.

SEC. 2. FINDINGS AND PURPOSES.

    (a) FINDINGS- Congress finds that--

      (1) domestically produced kiwifruit are grown by many individual producers;

      (2) virtually all domestically produced kiwifruit are grown in the State of California, although there is potential for production in many other areas of the United States;

      (3) kiwifruit move in interstate and foreign commerce, and kiwifruit that do not move in such channels of commerce directly burden or affect interstate commerce;

      (4) in recent years, large quantities of kiwifruit have been imported into the United States;

      (5) the maintenance and expansion of existing domestic and foreign markets for kiwifruit, and the development of additional and improved markets for kiwifruit, are vital to the welfare of kiwifruit producers and other persons concerned with producing, marketing, and processing kiwifruit;

      (6) a coordinated program of research, promotion, and consumer information regarding kiwifruit is necessary for the maintenance and development of such markets; and

      (7) kiwifruit producers, handlers, and importers are unable to implement and finance such a program without cooperative action.

    (b) PURPOSES- The purposes of this Act are--

      (1) to authorize the establishment of an orderly procedure for the development and financing (through an assessment) of an effective and coordinated program of research, promotion, and consumer information regarding kiwifruit;

      (2) to use such program to strengthen the position of the kiwifruit industry in domestic and foreign markets and maintain, develop, and expand markets for kiwifruit; and

      (3) to treat domestically produced kiwifruit and imported kiwifruit equitably.

SEC. 3. DEFINITIONS.

    As used in this Act:

      (1) BOARD- The term ‘Board’ means the National Kiwifruit Board, as provided for under section 5.

      (2) CONSUMER INFORMATION- The term ‘consumer information’ means any action taken to provide information to, and broaden the understanding of, the general public regarding the consumption, use, nutritional attributes, and care of kiwifruit.

      (3) EXPORTER- The term ‘exporter’ means any person from outside the United States who exports kiwifruit into the United States.

      (4) HANDLER- The term ‘handler’ means any person, excluding a common carrier, engaged in the business of buying and selling, packing, marketing, or distributing kiwifruit as specified in the order.

      (5) IMPORTER- The term ‘importer’ means any person who imports kiwifruit into the United States.

      (6) KIWIFRUIT- The term ‘kiwifruit’ means all varieties of fresh kiwifruit grown or imported in the United States.

      (7) MARKETING- The term ‘marketing’ means the sale or other disposition of kiwifruit into interstate, foreign, or intrastate commerce by buying, marketing, distribution or otherwise placing kiwifruit into commerce.

      (8) ORDER- The term ‘order’ means a kiwifruit research, promotion, and consumer information order issued by the Secretary under section 4.

      (9) PERSON- The term ‘person’ means any individual, group of individuals, partnership, corporation, association, cooperative, or other legal entity.

      (10) PROCESSING- The term ‘processing’ means canning, fermenting, distilling, extracting, preserving, grinding, crushing, or in any manner changing the form of kiwifruit for the purposes of preparing it for market or marketing the kiwifruit.

      (11) PRODUCER- The term ‘producer’ means any person who grows kiwifruit in the United States for sale in commerce.

      (12) PROMOTION- The term ‘promotion’ means any action taken under this Act (including paid advertising) to present a favorable image for kiwifruit to the general public for the purpose of improving the competitive position of kiwifruit and stimulating the sale of kiwifruit.

      (13) RESEARCH- The term ‘research’ means any type of research relating to the use, nutritional value, and marketing of kiwifruit conducted for the purpose of advancing the image, desirability, marketability, or quality of kiwifruit.

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

      (15) UNITED STATES- The term ‘United States’ means the 50 States of the United States, the District of Columbia, and the Commonwealth of Puerto Rico. (7 U.S.C. 6202.)

SEC. 4. ISSUANCE OF KIWIFRUIT RESEARCH, PROMOTION, AND CONSUMER INFORMATION ORDER.

    (a) ISSUANCE- To effectuate the declared purposes of this Act, the Secretary shall issue an order applicable to producers, handlers, and importers of kiwifruit. Any such order shall be national in scope. Not more than one order shall be in effect under this Act at any one time.

    (b) PROCEDURE-

      (1) PROPOSAL FOR ISSUANCE OF ORDER- Any person that will be affected by this Act may request the issuance of, and submit a proposal for, an order under this Act.

      (2) PROPOSED ORDER- Not later than 90 days after the receipt of a request and proposal for an

order, the Secretary shall publish a proposed order and give due notice and opportunity for public comment on the proposed order.

      (3) ISSUANCE OF ORDER- After notice and opportunity for public comment are given, as provided in paragraph (2), the Secretary shall issue an order, taking into consideration the comments received and including in the order provisions necessary to ensure that the order is in conformity with the requirements of this Act.

    (c) AMENDMENTS- The Secretary may amend any order issued under this section. The provisions of this Act applicable to orders shall be applicable to amendments to orders.

SEC. 5. NATIONAL KIWIFRUIT BOARD.

    (a) MEMBERSHIP- An order issued by the Secretary under section 4 shall provide for the establishment of a National Kiwifruit Board, to consist of 11 members as follows:

      (1) Six members who are producers (or their representatives) and who are not exempt from an assessment under section 6(b).

      (2) Four members who are importers (or their representatives) and who are not exempt from an assessment under section 6(b) or are exporters (or their representatives).

      (3) One member appointed from the general public.

    (b) ADJUSTMENT OF MEMBERSHIP- Subject to the 11-member limit, the Secretary may adjust membership on the Board to accommodate changes in production and import levels of kiwifruit, so long as producers comprise not less than 51 percent of the membership of the Board.

    (c) APPOINTMENT AND NOMINATION-

      (1) APPOINTMENT- The Secretary shall appoint the members of the Board from nominations submitted in accordance with this subsection.

      (2) PRODUCERS- The members referred to in subsection (a)(1) shall be appointed from individuals nominated by producers.

      (3) IMPORTERS AND EXPORTERS- The members referred to in subsection (a)(2) shall be appointed from individuals nominated by importers or exporters.

      (4) PUBLIC REPRESENTATIVE- The public representative shall be appointed from nominations submitted by other members of the Board.

      (5) FAILURE TO NOMINATE- If producers, importers, and exporters fail to nominate individuals for appointment, the Secretary may appoint members on a basis provided for in the order. If the Board fails to nominate a public representative, such member may be appointed by the Secretary without a nomination.

    (d) ALTERNATES- The Secretary shall appoint an alternate for each member of the Board. An alternate shall--

      (1) be appointed in the same manner as the member for whom such individual is an alternate; and

      (2) serve on the Board if such member is absent from a meeting or is disqualified under subsection (f).

    (e) TERMS- Members of the Board shall be appointed for a term of three years. No member may serve more than two consecutive three-year terms. However, of the members first appointed--

      (1) five members shall be appointed for a term of two years; and

      (2) six members shall be appointed for a term of three years.

    (f) REPLACEMENT- If a member or alternate of the Board who was appointed as a producer, importer, exporter, or public representative member ceases to belong to the group for which such member was appointed, such member or alternate shall be disqualified from serving on the Board.

    (g) COMPENSATION- Members and alternates of the Board shall serve without pay.

    (h) GENERAL POWERS AND DUTIES- The Board shall--

      (1) administer orders issued by the Secretary under section 4, and amendments to such orders, in accordance with their terms and provisions and consistent with this Act;

      (2) prescribe rules and regulations to effectuate the terms and provisions of such orders;

      (3) meet, organize, and select from among members of the Board a chairperson, other officers, and committees and subcommittees, as the Board determines appropriate;

      (4) receive, investigate, and report to the Secretary accounts of violations of such orders;

      (5) make recommendations to the Secretary with respect to amendments that should be made to such orders; and

      (6) employ or contract with a manager and staff to assist in administering such orders, except that, in order to reduce administrative costs and increase efficiency, the Board shall seek, to the extent possible, to employ or contract with personnel who are already associated with State chartered organizations involved in promoting kiwifruit.

SEC. 6. REQUIRED TERMS IN ORDER.

    (a) BUDGETS AND PLANS- An order issued under section 4 shall provide for periodic budgets and plans as follows:

      (1) BUDGETS- The Board shall prepare and submit to the Secretary a budget prior to the beginning of the fiscal year of the anticipated expenses and disbursements of the Board in the administration of the order, including probable costs of research, promotion, and consumer information. A budget shall take effect upon a two-thirds vote of a quorum of the Board and approval by the Secretary.

      (2) PLANS- Each budget shall include a plan for research, promotion, and consumer information regarding kiwifruit. A plan under this paragraph shall take effect upon approval by the Secretary. The Board may enter into contracts and agreements, upon approval by the Secretary, for--

        (A) the development and carrying out of such plan; and

        (B) the payment of the cost of such plan, with funds collected pursuant to this Act.

    (b) ASSESSMENTS- Such order shall provide for the imposition and collection of assessments with regard to the production and importation of kiwifruit as follows:

      (1) RATE- The assessment rate shall be recommended by a two-thirds vote of a quorum of the Board, approved by the Secretary, but shall not exceed $0.10 per seven pound tray of kiwifruit or equivalent.

      (2) COLLECTION BY FIRST HANDLERS- Except as provided in paragraph (4), the first handler of kiwifruit shall--

        (A) be responsible for the collection from the producer, and payment to the Board, of assessments under this subsection; and

        (B) maintain a separate record of the kiwifruit of each producer whose kiwifruit are so handled, including the kiwifruit owned by the handler.

      (3) IMPORTERS- The assessment on imported kiwifruit shall be paid by the importer to the United States Customs Service at the time of entry into the United States and shall be remitted to the Board.

      (4) EXEMPTION FROM ASSESSMENT- The following persons or activities are exempt from an assessment under this subsection:

        (A) A producer who produces less than 500 pounds of kiwifruit per year.

        (B) An importer who imports less than 10,000 pounds of kiwifruit per year.

        (C) Sales of kiwifruit made directly from the producer to a consumer for a purpose other than resale.

        (D) The production or importation of kiwifruit for processing.

      (5) CLAIM OF EXEMPTION- To claim an exemption under paragraph (4) for a particular year, a person shall--

        (A) submit an application to the Board stating the basis for the exemption and certifying that the person will not exceed any poundage limitation required for the exemption in such year; or

        (B) be on a list of approved processors developed by the Board.

    (c) Use of Assessments.

      (1) AUTHORIZED USES- Such order shall provide that funds paid to the Board as assessments under subsection (b) may be used by the Board--

        (A) to pay for research, promotion, and consumer information described in the budget of the Board under subsection (a) and for other expenses incurred by the Board in the administration of an order;

        (B) to pay such other expenses for the administration, maintenance, and functioning of the Board, including any enforcement efforts for the collection of assessments as may be authorized by the Secretary, including interest and penalties for late payments; and

        (C) to fund a reserve established under section 7(d).

      (2) REQUIRED USES- Such order shall provide that funds paid to the Board as assessments under subsection (b) shall be used by the Board--

        (A) to pay the expenses incurred by the Secretary, including salaries and expenses of Government employees, in implementing and administering the order; and

        (B) to reimburse the Secretary for any expenses incurred by the Secretary in conducting referenda under this Act.

      (3) LIMITATION ON USE OF ASSESSMENTS- Except for the first year of operation of the Board, expenses for the administration, maintenance, and functioning of the Board may not exceed 30 percent of the budget.

    (d) FALSE CLAIMS- Such order shall provide that any promotion funded with assessments collected under subsection (b) may not make--

      (1) any false claims on behalf of kiwifruit; and

      (2) any false statements with respect to the attributes or use of any product that competes with kiwifruit for sale in commerce.

    (e) PROHIBITION ON USE OF FUNDS- Such order shall provide that funds collected by the Board under this Act through assessments may not, in any manner, be used for the purpose of influencing legislation or governmental policy or action, except for making recommendations to the Secretary as provided for in this Act.

    (f) BOOKS, RECORDS, AND REPORTS-

      (1) BY THE BOARD- Such order shall require the Board--

        (A) to maintain books and records with respect to the receipt and disbursement of funds received by the Board;

        (B) to submit to the Secretary from time to time such reports as the Secretary may require for appropriate accounting; and

        (C) to submit to the Secretary at the end of each fiscal year a complete audit report by an independent auditor regarding the activities of the Board during such fiscal year.

      (2) BY OTHERS- So that information and data will be available to the Board and the Secretary that is appropriate or necessary for the effectuation, administration, or enforcement of this Act (or any order or regulation issued under this Act), such order shall require handlers and importers who are responsible for the collection, payment, or remittance of assessments under subsection (b)--

        (A) to maintain and make available for inspection by the employees of the Board and the Secretary such books and records as may be required by the order; and

        (B) to file, at the times and in the manner and content prescribed by the order, reports regarding the collection, payment, or remittance of such assessments.

    (g) CONFIDENTIALITY-

      (1) IN GENERAL- Such order shall require that all information obtained pursuant to subsection (f)(2) be kept confidential by all officers and employees of the Department and of the Board. Only such information as the Secretary considers relevant shall be disclosed to the public and only in a suit or administrative hearing, brought at the request of the Secretary or to which the Secretary or any officer of the United States is a party, involving the order with respect to which the information was furnished or acquired.

      (2) LIMITATIONS- Nothing in this subsection prohibits--

        (A) issuance of general statements based on the reports of a number of handlers and importers subject to an order, if the statements do not identify the information furnished by any person; or

        (B) the publication by direction of the Secretary of the name of any person violating an order issued under section 4(a), together with a

statement of the particular provisions of the order violated by such person.

      (3) PENALTY- Any person who willfully violates the provisions of this subsection, upon conviction, shall be subject to a fine of not more than $1,000, or to imprisonment for not more than one year, or both, and, if a member, officer, or agent of the board or an employee of the Department, shall be removed from office.

    (h) WITHHOLDING INFORMATION- Nothing in this Act shall be construed to authorize the withholding of information from Congress.

SEC. 7. PERMISSIVE TERMS IN ORDER.

    (a) PERMISSIVE TERMS- On the recommendation of the Board, and with the approval of the Secretary, an order issued under section 4 may include the authorities specified in this section and such additional terms and conditions as the Secretary considers necessary to effectuate the other provisions of the order and are incidental to, and not inconsistent with, the terms and conditions required by this Act.

    (b) ALTERNATIVE PAYMENT AND REPORTING SCHEDULES- Such order may authorize the Board to designate different handler payment and reporting schedules to recognize differences in marketing practices and procedures.

    (c) WORKING GROUPS- Such order may authorize the Board to convene working groups drawn from producers, handlers, importers, exporters, or the general public and utilize the expertise of such groups to assist in the development of research and marketing programs for kiwifruit.

    (d) RESERVE FUNDS- Such order may authorize the Board to accumulate reserve funds from assessments collected pursuant to section 6(b) to permit an effective and continuous coordinated program of research, promotion, and consumer information in years in which production and assessment income may be reduced. However, any reserve fund so established may not exceed the amount budgeted for operation of this Act for one year.

    (e) PROMOTION ACTIVITIES OUTSIDE UNITED STATES- Such order may authorize the Board to use, with the approval of the Secretary, funds collected under section 6(b) for the development and expansion of sales in foreign markets of kiwifruit produced in the United States.

SEC. 8. INCORPORATION OF PETITION AND REVIEW, ENFORCEMENT, AND INVESTIGATION PROVISIONS BY REFERENCE.

    The following provisions of the Lime Research, Promotion, and Consumer Information Act of 1990 (subtitle D of title XIX of Public Law 101-624) shall apply to this Act and any order or regulation issued under this Act:

      (1) Section 1957 (7 U.S.C. 6206), relating to petitions filed by persons subject to an order issued under this Act and review of administrative rulings on such petitions.

      (2) Section 1958 (7 U.S.C. 6207), relating to violations of any order or regulation issued under this Act.

      (3) Section 1959 (7 U.S.C. 6208), relating to the authority of the Secretary to make investigations, administer oaths and affirmations, and issue subpoenas in connection with inquiries under this Act.

SEC. 9. REFERENDA.

    (a) INITIAL REFERENDUM-

      (1) REFERENDUM REQUIRED- During the 60-day period immediately preceding the proposed effective date of an order issued under section 4, the Secretary shall conduct a referendum among kiwifruit producers and importers who will be subject to

assessments under the order, to ascertain whether producers and importers approve of the implementation of the order.

      (2) APPROVAL OF ORDER- The order shall become effective, as provided in section 4, if the Secretary determines that the order has been approved by a majority of the producers and importers voting in the referendum and these producers and importers produce and import more than 50 percent of the total volume of kiwifruit produced and imported by persons voting in the referendum.

    (b) SUBSEQUENT REFERENDA- The Secretary may periodically conduct a referendum to determine if kiwifruit producers and importers favor the continuation, termination, or suspension of any order issued under section 4 and in effect at the time of the referendum.

    (c) REQUIRED REFERENDA- The Secretary shall hold a referendum under subsection (b)--

      (1) at the end of the six-year period beginning on the effective date of the order and at the end of every six-year period thereafter;

      (2) at the request of the Board; and

      (3) if not less than 40 percent of the kiwifruit producers and importers subject to assessments under the order submit a petition requesting such a referendum.

    (d) VOTE- Upon completion of a referendum under subsection (b), the Secretary shall suspend or terminate the order that was subject to the referendum at the end of the marketing year if--

      (1) the suspension or termination of the order is favored by not less than a majority of the producers and importers voting in the referendum; and

      (2) these producers and importers produce and import more than 50 percent of the total volume of kiwifruit produced and imported by persons voting in the referendum.

    (e) CONFIDENTIALITY- The ballots and other information or reports that reveal, or tend to reveal, the vote of any person under this Act as well as the voting list shall be held strictly confidential and shall not be disclosed.

SEC. 10. SUSPENSION AND TERMINATION OF ORDER BY SECRETARY.

    (a) UPON FINDING- If the Secretary finds that an order issued under section 4, or a provision of such an order, obstructs or does not tend to effectuate the purposes of this Act, the Secretary shall terminate or suspend the operation of such order or provision.

    (b) LIMITATION- The termination or suspension of any order, or any provision thereof, shall not be considered an order within the meaning of this Act.

SEC. 11. AUTHORIZATION OF APPROPRIATIONS.

    There are authorized to be appropriated for each fiscal year such funds as are necessary to carry out this Act.

SEC. 12. REGULATIONS.

    The Secretary may issue such regulations as are necessary to carry out this Act.