7 USC 7470 - Referenda

§ 7461. Findings and purposes
§ 7462. Definitions
§ 7463. Issuance of orders
§ 7464. National Kiwifruit Board
§ 7465. Required terms in order
§ 7466. Permissive terms in order
§ 7467. Petition and review
§ 7468. Enforcement
§ 7469. Investigations and power to subpoena
§ 7470. Referenda
§ 7471. Suspension or termination
§ 7472. Regulations
§ 7473. Authorization of appropriations

§ 7461. Findings and purposes

(a) Findings

Congress finds that—

(1) domestically produced kiwifruit are grown by many individual producers;

(2) virtually all domestically produced kiwifruit are grown in the State of California, although there is potential for production in many other areas of the United States;

(3) kiwifruit move in interstate and foreign commerce, and kiwifruit that do not move in channels of commerce directly burden or affect interstate commerce;

(4) in recent years, large quantities of kiwifruit have been imported into the United States;

(5) the maintenance and expansion of existing domestic and foreign markets for kiwifruit, and the development of additional and improved markets for kiwifruit, are vital to the welfare of kiwifruit producers and other persons concerned with producing, marketing, and processing kiwifruit;

(6) a coordinated program of research, promotion, and consumer information regarding kiwifruit is necessary for the maintenance and development of the markets; and

(7) kiwifruit producers, handlers, and importers are unable to implement and finance such a program without cooperative action.

(b) Purposes

The purposes of this subchapter are—

(1) to authorize the establishment of an orderly procedure for the development and financing (through an assessment) of an effective and coordinated program of research, promotion, and consumer information regarding kiwifruit;

(2) to use the program to strengthen the position of the kiwifruit industry in domestic and foreign markets and maintain, develop, and expand markets for kiwifruit; and

(3) to treat domestically produced kiwifruit and imported kiwifruit equitably.

(Pub. L. 104–127, title V, § 552, Apr. 4, 1996, 110 Stat. 1064.)

§ 7462. Definitions

In this subchapter (unless the context otherwise requires):

(1) Board

(2) Consumer information

(3) Exporter

(4) Handler

(5) Importer

(6) Kiwifruit

(7) Marketing

(8) Order

(9) Person

(10) Processing

(11) Producer

(12) Promotion

(13) Research

(14) Secretary

(15) United States

(Pub. L. 104–127, title V, § 553, Apr. 4, 1996, 110 Stat. 1064.)

§ 7463. Issuance of orders

(a) Issuance

(b) Procedure

(1) Proposal for issuance of order

(2) Proposed order

(3) Issuance of order

(Pub. L. 104–127, title V, § 554, Apr. 4, 1996, 110 Stat. 1065; Pub. L. 105–185, title VI, § 603(a), June 23, 1998, 112 Stat. 585.)

§ 7464. National Kiwifruit Board

(a) Membership

An order issued by the Secretary under section 7463 of this title shall provide for the establishment of a National Kiwifruit Board that consists of the following 11 members:

(1) 10 members who are producers, exporters, or importers (or their representatives), based on a proportional representation of the level of domestic production and imports of kiwifruit (as determined by the Secretary).

(2) 1 member appointed from the general public.

(b) Adjustment of membership

(1) Appointment

(2) Producers

(3) Importers and exporters

(4) Public representative

(5) Failure to nominate

(d) Alternates

The Secretary shall appoint an alternate for each member of the Board. An alternate shall—

(1) be appointed in the same manner as the member for whom the individual is an alternate; and

(2) serve on the Board if the member is absent from a meeting or is disqualified under subsection (f).

(e) Terms

A member of the Board shall be appointed for a term of 3 years. No member may serve more than 2 consecutive 3-year terms, except that of the members first appointed—

(1) 5 members shall be appointed for a term of 2 years; and

(2) 6 members shall be appointed for a term of 3 years.

(f) Disqualification

(g) Compensation

(h) General powers and duties

The Board shall—

(1) administer an order issued by the Secretary under section 7463 of this title, and an amendment to the order, in accordance with the order and amendment and this subchapter;

(2) prescribe rules and regulations to carry out the order;

(3) meet, organize, and select from among members of the Board a chairperson, other officers, and committees and subcommittees, as the Board determines appropriate;

(4) receive, investigate, and report to the Secretary accounts of violations of the order;

(5) make recommendations to the Secretary with respect to an amendment that should be made to the order; and

(6) employ or contract with a manager and staff to assist in administering the order, except that, to reduce administrative costs and increase efficiency, the Board shall seek, to the extent practicable, to employ or contract with personnel who are already associated with organizations involved in promoting kiwifruit that are chartered by a State, the District of Columbia, or the Commonwealth of Puerto Rico.

(Pub. L. 104–127, title V, § 555, Apr. 4, 1996, 110 Stat. 1066; Pub. L. 105–185, title VI, § 603(b), June 23, 1998, 112 Stat. 585.)

§ 7465. Required terms in order

(a) Budgets and plans

(1) In general

(2) Budgets

(3) Plans

Each budget shall include a plan for research, promotion, and consumer information regarding kiwifruit. A plan under this paragraph shall become effective on approval by the Secretary. The Board may enter into contracts and agreements, on approval by the Secretary, for—

(A) the development and carrying out of the plan; and

(B) the payment of the cost of the plan, with funds collected pursuant to this subchapter.

(b) Assessments

(1) In general

(2) Rate

(3) Collection by first handlers

Except as provided in paragraph (5), the first handler of kiwifruit shall—

(A) be responsible for the collection from the producer, and payment to the Board, of assessments required under this subsection; and

(B) maintain a separate record of the kiwifruit of each producer whose kiwifruit are so handled, including the kiwifruit owned by the handler.

(4) Importers

(5) Exemption from assessment

The following persons or activities are exempt from an assessment under this subsection:

(A) A producer who produces less than 500 pounds of kiwifruit per year.

(B) An importer who imports less than 10,000 pounds of kiwifruit per year.

(D) The production or importation of kiwifruit for processing.

(6) Claim of exemption

To claim an exemption under paragraph (5) for a particular year, a person shall—

(A) submit an application to the Board stating the basis for the exemption and certifying that the quantity of kiwifruit produced, imported, or sold by the person will not exceed any poundage limitation required for the exemption in the year; or

(B) be on a list of approved processors developed by the Board.

(1) Authorized uses

The order shall provide that funds paid to the Board as assessments under subsection (b) may be used by the Board—

(A) to pay for research, promotion, and consumer information described in the budget of the Board under subsection (a) and for other expenses incurred by the Board in the administration of an order;

(B) to pay such other expenses for the administration, maintenance, and functioning of the Board (including any enforcement efforts for the collection of assessments) as may be authorized by the Secretary, including interest and penalties for late payments; and

(2) Required uses

The order shall provide that funds paid to the Board as assessments under subsection (b) shall be used by the Board—

(A) to pay the expenses incurred by the Secretary, including salaries and expenses of Federal Government employees, in implementing and administering the order; and

(B) to reimburse the Secretary for any expenses incurred by the Secretary in conducting referenda under this subchapter.

(3) Limitation on use of assessments

(d) False claims

The order shall provide that any promotion funded with assessments collected under subsection (b) may not make—

(1) any false claims on behalf of kiwifruit; and

(2) any false statements with respect to the attributes or use of any product that competes with kiwifruit for sale in commerce.

(e) Prohibition on use of funds

(f) Books, records, and reports

(1) Board

The order shall require the Board—

(A) to maintain books and records with respect to the receipt and disbursement of funds received by the Board;

(B) to submit to the Secretary from time to time such reports as the Secretary may require for appropriate accounting; and

(C) to submit to the Secretary at the end of each fiscal year a complete audit report by an independent auditor regarding the activities of the Board during the fiscal year.

(2) Others

To make information and data available to the Board and the Secretary that is appropriate or necessary for the effectuation, administration, or enforcement of this subchapter (or any order or regulation issued under this subchapter), the order shall require handlers and importers who are responsible for the collection, payment, or remittance of assessments under subsection (b)—

(A) to maintain and make available for inspection by the employees and agents of the Board and the Secretary such books and records as may be required by the order; and

(B) to file, at the times and in the manner and span prescribed by the order, reports regarding the collection, payment, or remittance of the assessments.

(g) Confidentiality

(1) In general

(2) Limitations

Nothing in this subsection prohibits—

(A) the issuance of general statements based on the reports of a number of handlers and importers subject to an order, if the statements do not identify the information furnished by any person; or

(B) the publication, by direction of the Secretary, of the name of any person violating an order issued under section 7463(a) of this title, together with a statement of the particular provisions of the order violated by the person.

(3) Penalty

(h) Withholding of information

(Pub. L. 104–127, title V, § 556, Apr. 4, 1996, 110 Stat. 1067.)

§ 7466. Permissive terms in order

(a) Permissive terms

(b) Alternative payment and reporting schedules

(d) Reserve funds

(e) Promotion activities outside United States

(Pub. L. 104–127, title V, § 557, Apr. 4, 1996, 110 Stat. 1070.)

§ 7467. Petition and review

(a) Petition

(1) In general

A person subject to an order 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 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 that the ruling is not in accordance with law, the court shall remand the matter to the Secretary with directions—

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

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

(4) Enforcement

(Pub. L. 104–127, title V, § 558, Apr. 4, 1996, 110 Stat. 1070.)

§ 7468. Enforcement

(a) Jurisdiction

(b) Referral to Attorney General

(1) Civil penalties

(2) Cease-and-desist orders

(3) Notice and hearing

(4) Finality

(d) Review by United States district court

(1) Commencement of action

Any person against whom a violation is found and a civil penalty assessed or cease-and-desist order issued under subsection (c) may obtain review of the penalty or cease-and-desist order in the district court of the United States for the district in which the person resides or carries on business, or the United States District Court for the District of Columbia, by—

(A) filing a notice of appeal in the court not later than 30 days after the date on which the penalty is assessed or cease-and-desist order issued; 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

(Pub. L. 104–127, title V, § 559, Apr. 4, 1996, 110 Stat. 1071.)

§ 7469. Investigations and power to subpoena

(a) In general

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

(1) for the effective carrying out of the responsibilities of the Secretary under this subchapter; or

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

(b) Power to subpoena

(1) Investigations

(2) Administrative hearings

(d) Contempt

(e) Process

(f) Hearing site

(Pub. L. 104–127, title V, § 560, Apr. 4, 1996, 110 Stat. 1072.)

§ 7470. Referenda

(a) Initial referendum

(1) Referendum required

(2) Approval of order

The order shall become effective, as provided in section 7463 of this title, if the Secretary determines that—

(A) the order has been approved by a majority of the producers and importers voting in the referendum; and

(B) the producers and importers favoring approval produce and import more than 50 percent of the total volume of kiwifruit produced and imported by persons voting in the referendum.

(b) Subsequent referenda

The Secretary shall hold a referendum under subsection (b)—

(1) at the end of the 6-year period beginning on the effective date of the order and at the end of each subsequent 6-year period;

(2) at the request of the Board; or

(3) if not less than 30 percent of the kiwifruit producers and importers subject to assessments under the order submit a petition requesting the referendum.

(d) Vote

On completion of a referendum under subsection (b), the Secretary shall suspend or terminate the order that was subject to the referendum at the end of the marketing year if—

(1) the suspension or termination of the order is favored by not less than a majority of the producers and importers voting in the referendum; and

(2) the producers and importers produce and import more than 50 percent of the total volume of kiwifruit produced and imported by persons voting in the referendum.

(e) Confidentiality

(Pub. L. 104–127, title V, § 561, Apr. 4, 1996, 110 Stat. 1073.)

§ 7471. Suspension or termination

(a) In general

(b) Limitation

(Pub. L. 104–127, title V, § 562, Apr. 4, 1996, 110 Stat. 1074.)

§ 7472. Regulations

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

(Pub. L. 104–127, title V, § 563, Apr. 4, 1996, 110 Stat. 1074.)

§ 7473. Authorization of appropriations

There are authorized to be appropriated for each fiscal year such sums as are necessary to carry out this subchapter.

(Pub. L. 104–127, title V, § 564, Apr. 4, 1996, 110 Stat. 1074.)