7 USC 7443 - Issuance and amendment of orders

Collapse to view only § 7443. Issuance and amendment of orders

§ 7441. Findings and declaration of policy
§ 7442. Definitions
§ 7443. Issuance and amendment of orders
§ 7444. Required terms in orders
§ 7445. Assessments
§ 7446. Referenda
§ 7447. Petition and review
§ 7448. Enforcement
§ 7449. Investigations and power to subpoena
§ 7450. Suspension or termination
§ 7451. Regulations
§ 7452. Authorization of appropriations

§ 7441. Findings and declaration of policy

(a) FindingsCongress finds that—

(1) canola and rapeseed products are an important and nutritious part of the human diet;

(2) the production of canola and rapeseed products plays a significant role in the economy of the United States in that—

(A) canola and rapeseed products are produced by thousands of canola and rapeseed producers and processed by numerous processing entities; and

(B) canola and rapeseed products produced in the United States are consumed by people throughout the United States and foreign countries;

(3) canola, rapeseed, and canola and rapeseed products should be readily available and marketed efficiently to ensure that consumers have an adequate supply of canola and rapeseed products at a reasonable price;

(4) the maintenance and expansion of existing markets and development of new markets for canola, rapeseed, and canola and rapeseed products are vital to the welfare of canola and rapeseed producers and processors and those persons concerned with marketing canola, rapeseed, and canola and rapeseed products, as well as to the general economy of the United States, and are necessary to ensure the ready availability and efficient marketing of canola, rapeseed, and canola and rapeseed products;

(5) there exist established State and national organizations conducting canola and rapeseed research, promotion, and consumer education programs that are valuable to the efforts of promoting the consumption of canola, rapeseed, and canola and rapeseed products;

(6) the cooperative development, financing, and implementation of a coordinated national program of canola and rapeseed research, promotion, consumer information, and industry information is necessary to maintain and expand existing markets and develop new markets for canola, rapeseed, and canola and rapeseed products; and

(7) canola, rapeseed, and canola and rapeseed products move in interstate and foreign commerce, and canola, rapeseed, and canola and rapeseed products that do not move in interstate or foreign commerce directly burden or affect interstate commerce in canola, rapeseed, and canola and rapeseed products.

(b) Policy

(Pub. L. 104–127, title V, § 532, Apr. 4, 1996, 110 Stat. 1048.)

§ 7442. Definitions

In this subchapter (unless the context otherwise requires):

(1) Board

(2) Canola; rapeseed

(3) Canola or rapeseed product

(4) Commerce

(5) Conflict of interest

(6) Consumer information

(7) Department

(8) First purchaser

The term “first purchaser” means—

(A) except as provided in subparagraph (B), a person who buys or otherwise acquires canola, rapeseed, or canola or rapeseed products produced by a producer; or

(B) the Commodity Credit Corporation, in a case in which canola or rapeseed is forfeited to the Commodity Credit Corporation as collateral for a loan issued under a price support loan program administered by the Commodity Credit Corporation.

(9) Industry information

(10) Industry member

The term “industry member” means a member of the canola and rapeseed industry who represents—

(A) manufacturers of canola or rapeseed products; or

(B) persons who commercially buy or sell canola or rapeseed.

(11) Marketing

(12) Order

(13) Person

(14) Producer

(15) Promotion

(16) Research

(17) Secretary

(18) State

(19) United States

(Pub. L. 104–127, title V, § 533, Apr. 4, 1996, 110 Stat. 1049.)

§ 7443. Issuance and amendment of orders

(a) In general

(b) Procedure

(1) Proposal or request for issuance

(2) Notice and comment concerning proposed order

(3) Issuance of order

(Pub. L. 104–127, title V, § 534, Apr. 4, 1996, 110 Stat. 1050.)

§ 7444. Required terms in orders

(a) In general

(b) Establishment and membership of National Canola and Rapeseed Board

(1) In general

(2) Service to entire industry

(3) Board membershipThe Board shall consist of 15 members, including—

(A) 11 members who are producers, including—

(i) 1 member from each of the 6 geographic regions comprised of States where canola or rapeseed is produced, as determined by the Secretary; and

(ii) 5 members from the geographic regions referred to in clause (i), allocated according to the production in each region; and

(B) 4 members who are industry members, including at least—

(i) 1 member who represents manufacturers of canola or rapeseed end products; and

(ii) 1 member who represents persons who commercially buy or sell canola or rapeseed.

(4) Limitation on State residence

(5) Modifying Board membershipIn accordance with regulations approved by the Secretary, at least once each 3 years and not more than once each 2 years, the Board shall review the geographic distribution of canola and rapeseed production throughout the United States and, if warranted, recommend to the Secretary that the Secretary—

(A) reapportion regions in order to reflect the geographic distribution of canola and rapeseed production; and

(B) reapportion the seats on the Board to reflect the production in each region.

(6) Certification of organizations

(A) In general

(B) CriteriaThe Secretary shall certify any State organization that the Secretary determines has a history of stability and permanency and meets at least 1 of the following criteria:

(i) Majority representationThe total paid membership of the organization—(I) is comprised of at least a majority of canola or rapeseed producers; or(II) represents at least a majority of the canola or rapeseed producers in the State.

(ii) Substantial number of producers represented

(iii) Purpose

(7) Terms of office

(A) In general

(B) Limitation on terms

(8) Compensation

(c) Powers and duties of BoardThe 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 issue regulations to effectuate the terms and conditions of the order;

(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 the persons;

(6) to prepare and submit for the approval of the Secretary, when appropriate or necessary, a recommended rate of assessment under section 7445 of this title, and a fiscal period 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);

(8) to enter into contracts or agreements, subject to subsection (e), to develop and carry out programs or projects of research, promotion, industry information, and consumer information;

(9) to carry out research, promotion, industry information, and consumer information projects, and to pay the costs of the projects with assessments collected under section 7445 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 producers, industry members, and the public to assist in the development of research, promotion, industry information, and consumer information programs for canola, rapeseed, and canola and rapeseed products;

(12) to invest, pending disbursement under a program or project, funds collected through assessments authorized under section 7445 of this title, or funds earned from investments, only in—

(A) obligations of the United States or an agency of the United States;

(B) general obligations of a State or a political subdivision of a State;

(D) obligations fully guaranteed as to principal and interest by the United States;

(13) to receive, investigate, and report to the Secretary complaints of violations of the order;

(14) to furnish the Secretary with such information as the Secretary may request;

(15) to recommend to the Secretary amendments to the order;

(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 order; and

(17) to provide the Secretary with advance notice of meetings.

(d) Programs and budgets

(1) Submission to Secretary

(2) Budgets

(3) Incurring expenses

(4) Paying expenses

(5) Authority to borrow

(e) Contracts and agreements

(1) In general

(2) RequirementsA contract or agreement under paragraph (1) shall provide that—

(A) the contracting party shall develop and submit to the Board a program or project together with a budget that shall show the estimated costs to be incurred for the 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 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) Producer organizations

(f) Books and records of Board

(1) In generalThe 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

(2) Audits

(g) Prohibition

(1) In generalSubject to paragraph (2), the Board shall not engage in any action to, nor shall any funds received by the Board under this subchapter be used to—

(A) influence legislation or governmental action;

(B) engage in an action that would be a conflict of interest;

(D) engage in promotion that would disparage other commodities.

(2) Action permittedParagraph (1) does not preclude—

(A) the development and recommendation of amendments to the order;

(B) the communication to appropriate government officials of information relating to the conduct, implementation, or results of promotion, research, consumer information, or industry information activities under the order; or

(C) any action designed to market canola or rapeseed products directly to a foreign government or political subdivision of a foreign government.

(h) Books and records

(1) In generalThe order shall require that each producer, first purchaser, or industry member shall—

(A) maintain and submit to the Board any reports considered necessary by the Secretary to ensure compliance with this subchapter; 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 subchapter, including such records as are necessary to verify any required reports.

(2) Confidentiality

(A) In general

(B) DisclosureInformation referred to in subparagraph (A) may be disclosed to the public 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 subchapter.

(D) General statementsNothing in this paragraph prohibits—

(i) the issuance of general statements based on the reports of a number of persons subject to an 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 a person violating the order, together with a statement of the particular provisions of the order violated by the person.

(3) Availability of information for law enforcement

(4) Penalty

(5) Withholding of information

(i) Use of assessments

(j) Other terms and conditions

(Pub. L. 104–127, title V, § 535, Apr. 4, 1996, 110 Stat. 1051.)

§ 7445. Assessments

(a) In general

(1) First purchasers

During the effective period of an order issued pursuant to this subchapter, assessments shall be—

(A) levied on all canola or rapeseed produced in the United States and marketed; and

(B) deducted from the payment made to a producer for all canola or rapeseed sold to a first purchaser.

(2) Direct processing

(b) Limitation on assessments

(1) In general

(2) Times to remit assessment

(d) Assessment rate

(1) Initial rate

(2) Increase

The assessment rate may be increased on recommendation by the Board to a rate not exceeding 10 cents per hundredweight of canola or rapeseed produced and marketed in a State, unless—

(A) after the initial referendum is held under section 7446(a) of this title, the Board recommends an increase above 10 cents per hundredweight; and

(B) the increase is approved in a referendum under section 7446(b) of this title.

(3) Credit

(e) Late payment charge

(1) In general

(2) Amount of charge

(f) Refund of assessments from escrow account

(1) Establishment of escrow account

During the period beginning on the date on which an order is first issued under section 7443(b)(3) of this title and ending on the date on which a referendum is conducted under section 7446(a) of this title, the Board shall—

(A) establish and maintain an escrow account to be used for assessment refunds; and

(B) place funds in the account in accordance with paragraph (2).

(2) Placement of funds in account

(3) Right to receive refund

The Board shall refund to a producer the assessments paid by or on behalf of the producer if—

(A) the producer is required to pay the assessment;

(B) the producer does not support the program established under this subchapter; and

(4) Form of demand

(5) Making of refund

(6) Proration

If—

(A) the amount in the escrow account required by paragraph (1) is not sufficient to refund the total amount of assessments demanded by eligible producers; and

(B) the order is not approved pursuant to the referendum conducted under section 7446(a) of this title;

the Board shall prorate the amount of the refunds among all eligible producers who demand a refund.

(7) Program approved

(Pub. L. 104–127, title V, § 536, Apr. 4, 1996, 110 Stat. 1056.)

§ 7446. Referenda

(a) Initial referendum

(1) Requirement

(2) Advance notice

(3) Approval of order

(4) Disapproval of order

(b) Additional referenda

(1) In general

(A) Requirement

(B) Representative group of producers

(2) Disapproval of order

(3) Opportunity to request additional referenda

(A) In general

(B) Method of making request

(i) In-person requests

(ii) Mail-in requests

(D) Action by Secretary

(E) Time limit

(1) Reimbursement of Secretary

(2) Date

(3) Place

(Pub. L. 104–127, title V, § 537, Apr. 4, 1996, 110 Stat. 1058; Pub. L. 110–234, title VII, § 7511(c)(28), May 22, 2008, 122 Stat. 1270; Pub. L. 110–246, § 4(a), title VII, § 7511(c)(28), June 18, 2008, 122 Stat. 1664, 2031.)

§ 7447. Petition and review

(a) Petition

(1) In general

A person subject to an order issued under this subchapter may file with the Secretary a petition—

(A) stating that the order, a provision of the order, or an obligation imposed in connection with the order is not established in accordance with law; and

(B) requesting a modification of the order or an exemption from the order.

(2) Hearings

(3) Ruling

(4) Limitation on petition

(b) Review

(1) Commencement of action

(2) Process

(3) Remands

If the court determines, under paragraph (1), that a ruling issued under subsection (a)(3) is not in accordance with applicable law, the court shall remand the matter to the Secretary with directions either—

(A) to make such ruling as the court shall determine to be in accordance with law; or

(B) to take such further proceedings as, in the opinion of the court, the law requires.

(4) Enforcement

(Pub. L. 104–127, title V, § 538, Apr. 4, 1996, 110 Stat. 1060.)

§ 7448. Enforcement

(a) Jurisdiction

(b) Referral to Attorney General

(1) Civil penalties

(A) In generalAny person who willfully violates any provision of an order or regulation issued by the Secretary under this subchapter, or who fails or refuses to pay, collect, or remit an assessment or fee required of the person under an order or regulation, may be assessed—

(i) a civil penalty by the Secretary of not more than $1,000 for each violation; and

(ii) in the case of a willful failure to pay, collect, or remit an assessment as required by an order or regulation, an additional penalty equal to the amount of the assessment.

(B) Separate offense

(2) Cease-and-desist orders

(3) Notice and hearing

(4) Finality

(d) Review by district court

(1) Commencement of actionAny person who has been determined to be in violation of this subchapter, or against whom a civil penalty has been assessed or a cease-and-desist order issued under subsection (c), may obtain review of the penalty or cease-and-desist order by—

(A) filing, within the 30-day period beginning on the date the penalty is assessed or cease-and-desist order issued, a notice of appeal in—

(i) the district court of the United States for the district in which the person resides or carries on business; or

(ii) the United States District Court for the District of Columbia; and

(B) simultaneously sending a copy of the notice by certified mail to the Secretary.

(2) Record

(3) Standard of review

(e) Failure to obey cease-and-desist orders

(f) Failure to pay penalties

(g) Additional remedies

(Pub. L. 104–127, title V, § 539, Apr. 4, 1996, 110 Stat. 1061.)

§ 7449. Investigations and power to subpoena

(a) Investigations

The Secretary may make such investigations as the Secretary considers necessary—

(1) for the effective administration of this subchapter; and

(2) to determine whether any person has engaged or is engaging in an act that constitutes a violation of this subchapter, or an order, rule, or regulation issued under this subchapter.

(b) Subpoenas, oaths, and affirmations

(1) In general

(2) Administrative hearings

(d) Contempt

(e) Process

(f) Hearing site

(Pub. L. 104–127, title V, § 540, Apr. 4, 1996, 110 Stat. 1062.)

§ 7450. Suspension or termination

The Secretary shall, whenever the Secretary finds that an order or a provision of an order obstructs or does not tend to effectuate the declared policy of this subchapter, suspend or terminate the operation of the order or provision. The suspension or termination of an order shall not be considered an order within the meaning of this subchapter.

(Pub. L. 104–127, title V, § 541, Apr. 4, 1996, 110 Stat. 1063.)

§ 7451. Regulations

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

(Pub. L. 104–127, title V, § 542, Apr. 4, 1996, 110 Stat. 1063.)

§ 7452. Authorization of appropriations

(a) In general

(b) Administrative expenses

(Pub. L. 104–127, title V, § 543, Apr. 4, 1996, 110 Stat. 1063.)