§ 6005. — Required terms in plans.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 7USC6005]
TITLE 7--AGRICULTURE
CHAPTER 89--PECAN PROMOTION AND RESEARCH
Sec. 6005. Required terms in plans
(a) In general
Each plan issued under this chapter shall contain the terms and
conditions prescribed in this section.
(b) Pecan Marketing Board
(1) Establishment
The plan shall establish a Pecan Marketing Board to carry out
the program referred to in section 6001(b) of this title.
(2) Service to entire industry
The Board shall carry out programs and projects that will
provide maximum benefit to the pecan industry in all parts of the
United States and only generically promote pecans.
(3) Board membership
The Board shall consist of 15 members, including--
(A) 8 members who are growers;
(B) 4 members who are shellers;
(C) one member who is a first handler and who derives over
50 percent of the member's gross income from buying and selling
pecans;
(D) one member who is an importer of pecans into the United
States, nominated by the Board;
(E) one member representing the general public, nominated by
the Board; and
(F) at the option of the Board, a consultant or advisor
representing the views of pecan producers in a country other
than the United States who may be chosen to attend Board
functions as a nonvoting member.
(4) Representation of members
(A) Grower representatives
Of the growers referred to in paragraph (3)(A), 2 members
shall be from each district.
(B) Sheller representatives
Of the shellers referred to in paragraph (3)(B)--
(i) 2 members shall be selected from among shellers
whose place of residence is east of the Mississippi River;
and
(ii) 2 members shall be selected from among shellers
whose place of residence is west of the Mississippi River.
(C) First handler representative
The first handler representative on the Board referred to in
paragraph (3)(C) shall be selected from among first handlers
whose place of residence is in a district.
(D) Importer representative
The importer representative on the Board referred to in
paragraph (3)(D) shall be an individual who imports pecans into
the United States.
(E) Public representative
The public representative on the Board referred to in
paragraph (3)(E) shall not be a grower, grower-sheller, sheller,
first handler, or importer.
(5) Alternate for each member
Each member of the Board shall have an alternate with the same
qualifications as the member such alternate would replace.
(6) Limitation on State residence
There shall be no more than one member from each State in each
district, except that the State of Georgia may have 2 growers from
such State representing the district that it is in.
(7) Modifying Board membership
In accordance with regulations approved by the Secretary, at
least once each 3 years and not more than once each 2 years, the
Board shall--
(A) review the geographic distribution of pecan production
throughout the United States; and
(B) if warranted, recommend to the Secretary that the
Secretary reapportion a district in order to reflect the
geographic distribution of pecan production.
(8) Selection process for members
(A) Publicity
The Board shall give reasonable publicity to the industry
for nomination of persons interested in being nominated for
Board membership.
(B) Eligibility
Each grower and sheller shall be eligible to vote for the
nomination of members who represent that class of members on the
Board. Growers shall be eligible to vote for the nomination of
the first handler members on the Board.
(C) Selection of nominees
Each person referred to in subparagraph (B) shall have one
vote. The 2 eligible candidates receiving the largest number of
votes cast for each Board position for each class of members
shall be the nominees for such position.
(D) Certification
Except for the establishment of the initial Board, the
nominations made under subparagraph (C) and subsections
(b)(3)(D) and (b)(3)(E) of this section shall be certified by
the Board and submitted to the Secretary no later than May 1 or
such other date recommended by the Board and approved by the
Secretary preceding the commencement of the term of office for
Board membership, as established in paragraph (9).
(E) Appointment
To each vacant Board position, the Secretary shall appoint 1
individual from among the nominees certified and submitted under
subparagraph (D).
(F) Rejection of nominees
The Secretary may reject any nominee submitted under
subparagraph (D). If there are insufficient nominees from which
to appoint members to the Board as a result of the Secretary's
rejecting such nominees, additional nominees shall be submitted
to the Secretary in the same manner.
(G) Initial Board
The Secretary shall establish an initial Board from among
nominations solicited by the Secretary. For the purpose of
obtaining nominations for the members of the initial Board
described in subparagraphs (A), (B), and (C) of paragraph (3),
the Secretary shall perform the functions of the Board under
this subsection as the Secretary determines necessary and
appropriate. Nominations for those members of the initial Board
described in subparagraphs (D) and (E) of paragraph (3) shall be
made in accordance with paragraph (3).
(H) Failure to nominate
If growers and shellers fail to nominate individuals for
appointment, the Secretary may appoint members on a basis
provided for in the plan. If the Board fails to nominate an
importer or a public representative, such member may be
appointed without a nomination.
(9) Terms of office
(A) In general
The members of the Board shall serve for a term of 3 years,
except that the members appointed to the initial Board
established under paragraph (8)(G) shall serve, proportionately,
for terms of 1, 2, and 3 years, as determined by the Secretary.
(B) Termination of terms
Notwithstanding subparagraph (C), each member shall continue
to serve until a successor is appointed by the Secretary.
(C) Limitation on terms
No individual may serve more than 2 consecutive 3-year terms
as a member.
(D) Vacancies
(i) Submitting nominations
To fill any vacancy created by the death, removal,
resignation, or disqualification of any member of the Board,
the Secretary shall request that at least 2 eligible
nominations for a successor for each such vacancy be
submitted by the Board in the manner provided in paragraph
(8).
(ii) Lack of nominations
If at least 2 eligible nominations are not submitted
under clause (i), the Secretary shall determine the manner
of submission of nominations for the vacancy.
(10) Compensation
A member of the Board shall serve without compensation, but
shall be reimbursed for necessary and reasonable expenses incurred
in the performance of duties for and approved by the Board.
(c) Powers and duties of Board
The plan shall define the powers and duties of the Board, which
shall include the power and duty--
(1) to administer the plan in accordance with its terms and
conditions;
(2) to make regulations to effectuate the terms and conditions
of the plan;
(3) to meet, organize, and select from among members of the
Board a chairperson, other officers, and committees and
subcommittees, as the Board determines appropriate;
(4) to establish working committees of persons other than Board
members;
(5) to employ such persons, other than Board members, as the
Board considers necessary and to determine the compensation and
define the duties of such persons;
(6) to prepare and submit for the approval of the Secretary,
prior to the beginning of each fiscal period, a recommended rate of
assessment under section 6007 of this title, and a fiscal period
budget of the anticipated expenses in the administration of the
plan, including the probable costs of all programs and projects;
(7) to develop programs and projects, subject to subsection (d)
of this section;
(8) to enter into contracts or agreements, subject to subsection
(e) of this section, to develop and carry out programs or projects
of promotion, research, industry information and consumer
information;
(9) to carry out research, promotion, industry information, and
consumer information, and to pay the costs of such projects with
assessments collected pursuant to section 6007 of this title;
(10) to keep minutes, books, and records that reflect the
actions and transactions of the Board, and promptly report minutes
of each Board meeting to the Secretary;
(11) to appoint and convene, from time to time, working
committees comprised of growers, grower-shellers, first handlers,
shellers, importers, and the public to assist in the development of
research, promotion, industry information, and consumer information
programs for pecans;
(12) to invest, pending disbursement under a program or project,
funds collected through assessments authorized under this chapter,
only in--
(A) obligations of the United States or any agency thereof;
(B) general obligations of any State or any political
subdivision thereof;
(C) any interest-bearing account or certificate of deposit
of a bank that is a member of the Federal Reserve System; or
(D) obligations fully guaranteed as to principal and
interest by the United States;
except that income from any such invested funds may be used for any
purpose for which the invested funds may be used;
(13) to receive, investigate, and report to the Secretary
complaints of violations of the plan;
(14) to furnish the Secretary with such information as the
Secretary may request;
(15) to recommend to the Secretary amendments to the plan; and
(16) to develop and recommend to the Secretary for approval such
regulations as may be necessary for the development and execution of
programs or projects, or as may otherwise be necessary, to carry out
the plan.
(d) Programs and budgets
(1) Submission to Secretary
The plan shall provide that the Board shall submit to the
Secretary for approval any program or project of promotion,
research, consumer information, or industry information. No program
or project shall be implemented prior to its approval by the
Secretary.
(2) Budgets
The plan shall require the Board, prior to the beginning of each
fiscal year, or as may be necessary after the beginning of such
fiscal year, to submit to the Secretary for approval budgets of its
anticipated expenses (including reimbursements under subsection
(b)(10) of this section) and disbursements in the implementation of
the plan, including projected costs of promotion, research, consumer
information, and industry information programs and projects.
(3) Incurring expenses
The Board may incur such expenses for programs or projects of
research, promotion, consumer information, or industry information,
and other expenses for the administration, maintenance, and
functioning of the Board as may be authorized by the Secretary,
including any implementation, administrative, and referendum costs
incurred by the Department.
(4) Paying expenses
The funds to cover the expenses referred to in paragraph (3)
shall be paid by the Board from assessments collected under section
6007 of this title or funds borrowed pursuant to paragraph (5).
(5) Authority to borrow
In order to meet the expenses referred to in paragraph (3), the
Board shall have the authority to borrow funds, as approved by the
Secretary, for capital outlays and startup costs.
(6) Limitation on spending
Effective on the date that is 3 years after the date of the
establishment of the Board, the Board shall not spend in excess of
20 percent of the assessments collected under section 6007 of this
title for administration of the Board.
(e) Contracts and agreements
(1) In general
To ensure efficient use of funds, the plan shall provide that
the Board may enter into contracts or agreements for the
implementation and carrying out of programs or projects of pecan
promotion, research, consumer information, or industry information,
including contracts with grower and grower-sheller organizations,
and for the payment of the cost thereof with funds received by the
Board under the plan.
(2) Requirements
Any such contract or agreement shall provide that--
(A) the contracting party shall develop and submit to the
Board a program or project together with a budget or budgets
that shall show estimated costs to be incurred for such program
or project;
(B) the program or project shall become effective on the
approval of the Secretary; and
(C) the contracting party shall keep accurate records of all
of its transactions, account for funds received and expended,
make periodic reports to the Board of activities conducted, and
make such other reports as the Board or the Secretary may
require.
(3) Grower and grower-sheller organizations
The plan shall provide that the Board may contract with grower
and grower-sheller organizations for any other services. Any such
contract shall include provisions comparable to those required by
paragraph (2).
(f) Books and records of Board
(1) In general
The plan shall require the Board to--
(A) maintain such books and records (which shall be
available to the Secretary for inspection and audit) as the
Secretary may prescribe;
(B) prepare and submit to the Secretary, from time to time,
such reports as the Secretary may prescribe; and
(C) account for the receipt and disbursement of all funds
entrusted to the Board.
(2) Audits
The Board shall cause its books and records to be audited by an
independent auditor at the end of each fiscal year, and a report of
such audit to be submitted to the Secretary.
(g) Prohibition
The Board shall not engage in any action to, nor shall any funds
received by the Board under this chapter be used to--
(1) influence legislation or governmental action, other than
recommending to the Secretary amendments to the plan;
(2) engage in any action that would be a conflict of interest;
or
(3) engage in any advertising that may be false or misleading.
(h) Books and records
(1) In general
The plan shall require that each first handler, grower-sheller,
or importer shall--
(A) maintain and submit to the Board any reports considered
necessary by the Secretary to ensure compliance with this
chapter; and
(B) make available during normal business hours, for
inspection by employees of the Board or Secretary, such books
and records as are necessary to carry out this chapter,
including such records as are necessary to verify any required
reports.
(2) Time requirement
The records required under paragraph (1) shall be maintained for
2 years beyond the fiscal period of the applicability of such
records.
(3) Confidentiality
(A) In general
Except as otherwise provided in this chapter, all
information obtained from books, records, or reports required to
be maintained under paragraph (1) shall be kept confidential,
and shall not be disclosed to the public by any person.
(B) Disclosure
Information referred to in subparagraph (A) may be disclosed
to the public only if--
(i) the Secretary considers the information relevant;
(ii) the information is revealed in a suit or
administrative hearing brought at the direction or on the
request of the Secretary or to which the Secretary or any
officer of the Department is a party; and
(iii) the information relates to this chapter.
(C) Misconduct
Any disclosure of confidential information in violation of
subparagraph (A) by any Board member or employee of the Board,
except as required by other law or allowed under subparagraph
(B) or (D), shall be considered a violation of this chapter.
(D) General statements
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 plan or
statistical data collected therefrom, which statements do
not identify the information furnished by any person; or
(ii) the publication, by direction of the Secretary, of
the name of any person violating the plan, together with a
statement of the particular provisions of the plan violated
by such person.
(4) Availability of information
(A) Exception
Except as provided in this chapter, information obtained
under this chapter may be made available to another agency of
the Federal Government for a civil or criminal law enforcement
activity if the activity is authorized by law and if the head of
the agency has made a written request to the Secretary
specifying the particular information desired and the law
enforcement activity for which the information is sought.
(B) Penalty
Any person knowingly violating this subsection, on
conviction, shall be subject to a fine of not more than $1,000
or to imprisonment for not more than 1 year, or both, and if an
officer or employee of the Board or the Department, shall be
removed from office.
(5) Withholding information
Nothing in this chapter shall be construed to authorize the
withholding of information from Congress.
(i) Use of assessments
The plan shall provide that the assessments collected under section
6007 of this title shall be used for payment of the expenses in
implementing and administering this chapter, with provision for a
reasonable reserve, and to cover those administrative costs incurred by
the Secretary in implementing and administering this chapter, except for
the salaries of Government employees incurred in conducting referenda.
(j) Other terms and conditions
The plan also shall contain such terms and conditions, not
inconsistent with this chapter, as determined necessary by the Secretary
to effectuate this chapter.
(Pub. L. 101-624, title XIX, Sec. 1910, Nov. 28, 1990, 104 Stat. 3841;
Pub. L. 102-237, title VIII, Sec. 802(2), Dec. 13, 1991, 105 Stat.
1882.)
Amendments
1991--Subsec. (b)(8)(G). Pub. L. 102-237 substituted ``subparagraphs
(A), (B), and (C) of paragraph (3),'' for ``paragraph 3(A), (B), and
(C),'' and ``subparagraphs (D) and (E) of paragraph (3)'' for
``paragraph (3)(D) and (E)''.
Section Referred to in Other Sections
This section is referred to in section 6002 of this title.
