7 USC 6804 - Required terms in orders

U.S Code last checked for updates: Nov 23, 2024

§ 6804.

Required terms in orders

(a)

In general

(b)

PromoFlor Council

(1)

Establishment and membership

(A)

Establishment

(B)

Membership

(i)

Appointment

(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

(II)

Definitions

As used in this clause:

(aa)

Floral supplier

(bb)

Floral wholesale jobber

(C)

Distribution of qualified wholesale handler appointments

(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

(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

(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

(iv)

Terms

(B)

Authority

(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); 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 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

(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

(3)

Approval by Secretary

(e)

Contracts and agreements

(1)

Promotion, consumer information, and related research plans and projects

(A)

In general

(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

(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

(g)

Control of administrative costs

(h)

Assessments

(1)

Authority

(A)

In general

(B)

Published lists

(C)

Making determinations

(i)

Qualified handler status

(ii)

Certain covered transactions

(I)

In general

(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

(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 ½ 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 ⅔ 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

(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

(5)

Use of assessment funds

(6)

Postponement of collections

(A)

Authority

(i)

In general

(ii)

Requirements and procedures

(B)

Criteria and responsibility for determinations

(C)

Period of postponement

(i)

In general

(ii)

Extensions

(i)

Prohibition

(j)

Books and records; reports

(1)

In general

(2)

Confidentiality requirement

(A)

In general

(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

(B)

Customs service

(k)

Consultations with industry experts

(1)

In general

(2)

Special committees

(A)

In general

(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

(Pub. L. 103–190, § 5, Dec. 14, 1993, 107 Stat. 2272.)

cite as: 7 USC 6804