§ 6407. — Required terms in orders.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 7USC6407]
TITLE 7--AGRICULTURE
CHAPTER 93--PROCESSOR-FUNDED MILK PROMOTION PROGRAM
Sec. 6407. Required terms in orders
(a) In general
Each order issued under this chapter shall contain the terms and
conditions prescribed in this section.
(b) National Processor Advertising and Promotion Board
(1) Establishment
The order shall establish a National Processor Advertising and
Promotion Board to administer the order.
(2) Service to entire industry
In administering the order, the Board shall carry out programs
and projects that will provide maximum benefit to the fluid milk
industry and promote only fluid milk products. The Board shall, to
the extent practicable, ensure that advertising coverage in each
region is proportionate to the funds collected from each region.
(3) Regions
The Secretary shall establish not less than 12 nor more than 15
regions in order to ensure appropriate geographic representation on
the Board.
(4) Board membership
The Board shall consist of one member appointed by the
Secretary, from among fluid milk processors, to represent each of
the regions established under paragraph (3), with the membership
representing, to the extent practicable, differing sizes of
operations. The Secretary shall appoint five additional at-large
members to the Board, of which at least three shall be fluid milk
processors and at least one shall be from the general public.
(5) Terms of office
The members of the Board shall serve for terms of 3 years,
except that the members appointed to the initial Board shall serve,
proportionately, for terms of 1, 2, and 3 years, as determined by
the Secretary. No member shall serve for more than 2 consecutive
terms, except that the members that are selected to serve for the
initial term of 1 or 2 years shall be eligible to be reappointed for
a 3-year term.
(6) Compensation
Each member of the Board shall serve without compensation, but
shall be reimbursed for necessary and reasonable expenses incurred
in the performance of duties of the Board.
(c) Powers and duties of Board
The order shall define the powers and duties of the Board, which
shall include the power and duty--
(1) to administer the order in accordance with the terms and
conditions of the order;
(2) to make rules to effectuate the terms and conditions of the
order;
(3) to receive, investigate, and report to the Secretary
complaints of violations of the order;
(4) to develop and recommend such rules, regulations, and
amendments to the order to the Secretary for approval as may be
necessary for the development and execution of programs or projects
to carry out the order;
(5) to employ such persons as the Board considers necessary and
determine the compensation and define the duties of the persons;
(6) to prepare and submit for the approval of the Secretary,
prior to the beginning of each fiscal year, a fiscal year budget of
the anticipated expenses in the administration of the order,
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, with the approval of
the Secretary, to develop and carry out programs or projects of
research and advertising;
(9) to carry out advertising or research, and pay the costs of
the projects with funds collected pursuant to section 6409 of this
title;
(10) to keep minutes, books, and records that reflect all of the
acts and transactions of the Board, and promptly report minutes of
each Board meeting to the Secretary;
(11) to furnish the Secretary with such other information as the
Secretary may require; and
(12) to invest funds collected by the Board pursuant to
subsection (g) of this section.
(d) Plans and budgets
(1) Budgets
The order shall require the Board, prior to the beginning of
each fiscal year, or as may be necessary after the beginning of the
fiscal year, to develop budgets of the anticipated expenses and
disbursements of the Board in the implementation of the order,
including projected costs of research and advertising. The budget
shall be submitted to the Secretary and be effective on the approval
of the Secretary.
(2) Incurring expenses
The Board may incur such expenses for research or advertising of
fluid milk products, and other expenses for the administration,
maintenance, and functioning of the Board, as may be authorized by
the Secretary. The expenses shall include any implementation,
administrative, and referendum costs incurred by the Department.
(3) Paying expenses
The funds to cover the expenses referred to in paragraph (2)
shall be paid from assessments collected under section 6409 of this
title.
(4) Limitation on spending
Effective 1 year after the date of the establishment of the
Board, the Board shall not spend in excess of 5 percent of the
assessments collected for the administration of the Board.
(e) Prohibition on branded advertising
A program or project conducted under this chapter shall not make any
reference to private brand names or use false or unwarranted claims on
behalf of fluid milk products, or false or unwarranted statements with
respect to the attributes or use of any competing products, except that
this subsection shall not preclude the Board from offering its programs
and projects for use by commercial parties, under such terms and
conditions as the Board may prescribe as approved by the Secretary.
(f) Contracts and agreements
(1) In general
To ensure efficient use of funds collected under this chapter,
the order shall provide that the Board may enter into contracts or
agreements for the implementation and carrying out of programs or
projects for fluid milk products research and advertising and for
the payment of the costs of the programs or projects with funds
received by the Board under the order.
(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 disclose 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 the transactions of the contracting party, 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.
(g) Investment of funds
(1) In general
The order shall provide that the Board, with the approval of the
Secretary, may invest assessment funds collected by the Board under
the order, pending disbursement of the funds, 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.
(2) Income
Income from any such investment may be used for any purpose for
which the invested funds may be used.
(h) Books and records of Board
(1) In general
The order 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 the books and records of the Board to be
audited by an independent auditor at the end of each fiscal year. A
report of each such audit shall be submitted to the Secretary.
(i) Books and records of processors
(1) In general
The order shall require that each fluid milk processor subject
to this chapter 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.
(2) Use of information
Information obtained under paragraph (1) shall be made available
to the Secretary as is appropriate for the effectuation,
administration, or enforcement of this chapter, or any order or
regulation issued under this chapter.
(3) Confidentiality
(A) In general
Except as provided in subparagraphs (B) and (C), commercial
or financial information that is obtained under paragraph (1) or
(2) and that is privileged or confidential shall be kept
confidential by all officers and employees of the Department and
agents of the Board, and only such information so obtained as
the Secretary considers relevant may be disclosed to the public
by them and then only in a suit or administrative hearing
brought at the request of the Secretary, or to which the
Secretary or any officer of the United States is a party, and
involving the order.
(B) Availability of information
Except as otherwise 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.
(C) Other exceptions
Nothing in subparagraph (A) may be construed to prohibit--
(i) the issuance of general statements, based on the
reports, of the number of persons subject to an order or
statistical data collected from the persons, 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 any order, together with a
statement of the particular provisions of the order violated
by the person.
(4) Penalty
Any person 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 such person is an agent of the
Board or an officer or employee of the Department, shall be removed
from office.
(5) Withholding information
Nothing in this subsection shall authorize the Secretary to
withhold information from a duly authorized committee or
subcommittee of Congress.
(6) Time requirement
The records required under paragraph (1) shall be maintained for
2 years beyond the fiscal year of the applicability of the records.
(j) Prohibition on use of funds to influence governmental action
(1) In general
Except as otherwise provided in paragraph (2), the order shall
prohibit any funds collected by the Board under the order from being
used in any manner for the purpose of influencing legislation or
government action or policy.
(2) Exception
Paragraph (1) shall not apply to the development or
recommendation of amendments to the order.
(k) Coordination
The order shall require the Board to take reasonable steps to
coordinate the collection of assessments, and advertising and research
activities of the Board with the National Dairy Promotion and Research
Board established under section 4504(b) of this title.
(l) Exemptions
The order shall exempt fluid milk products exported from the United
States from assessments under the order.
(m) Report
The Secretary shall provide annually for an independent evaluation
of the effectiveness of the fluid milk promotion program carried out
under this chapter during the previous fiscal year, in conjunction with
the evaluation of the National Dairy Promotion and Research Board
established under section 4504(b) of this title.
(n) Other terms and conditions
The order also shall contain such terms and conditions, not
inconsistent with this chapter, as are necessary to effectuate this
chapter, including regulations relating to the assessment of late
payment charges.
(Pub. L. 101-624, title XIX, Sec. 1999H, Nov. 28, 1990, 104 Stat. 3916.)
Section Referred to in Other Sections
This section is referred to in section 6402 of this title.
