§ 6804. — 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: 7USC6804]
TITLE 7--AGRICULTURE
CHAPTER 97--FRESH CUT FLOWERS AND FRESH CUT GREENS PROMOTION AND
INFORMATION
Sec. 6804. 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 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) of this section; and
(B) propose and develop (or receive and evaluate), approve, and
submit to the Secretary for approval under subsection (d) of this
section 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) of this section; or
(B) contract or enter into agreements with appropriate persons
to implement the plans and projects, as provided in subsection (e)
of this section, 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 chapter 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 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 6805(a) of
this title.
(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 6802(4) and 6805(b) of
this title.
(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 6802(4)(A)(ii)(II) of this title),
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 6802(4)(A)(iii) of
this title), 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 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 chapter (after public notice and opportunity for
comment in accordance with section 553 of title 5 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 6806 of this title.
(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 6803(b)(3)(B) of this
title, and ending on the date the initial referendum on the
order under section 6806(a) of this title 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 chapter;
(III) the qualified handler demands the refund prior
to the conduct of the referendum on the order under
section 6806(a) of this title; 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 6806(a) of this title, 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 6806(a) of this title,
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 chapter.
(6) Postponement of collections
(A) Authority
(i) In general
Subject to the other provisions of this paragraph and
notwithstanding any other provision of this chapter, 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 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 chapter, the order, or any regulation issued
under this chapter.
(2) Confidentiality requirement
(A) In general
Information obtained from books, records, or reports under
paragraph (1) or subsection (h)(6) of this section, or from
reports required under section 6805(b)(3) of this title, 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 order
The order shall contain such other terms and provisions, consistent
with this chapter, as are necessary to carry out this chapter (including
provision for the assessment of interest and a charge for each late
payment of assessments under subsection (h) of this section and for
carrying out section 6805 of this title).
(Pub. L. 103-190, Sec. 5, Dec. 14, 1993, 107 Stat. 2272.)
Transfer of Functions
For transfer of functions, personnel, assets, and liabilities of the
United States Customs Service of the Department of the Treasury,
including functions of the Secretary of the Treasury relating thereto,
to the Secretary of Homeland Security, and for treatment of related
references, see sections 203(1), 551(d), 552(d), and 557 of Title 6,
Domestic Security, and the Department of Homeland Security
Reorganization Plan of November 25, 2002, as modified, set out as a note
under section 542 of Title 6.
Section Referred to in Other Sections
This section is referred to in sections 6802, 6806, 6810 of this
title.
