7 USC 7806 - Petition and review

Collapse to view only § 7806. Petition and review

§ 7801. Findings and declaration of policy
§ 7802. Definitions
§ 7803. Issuance of orders
§ 7804. Required terms in orders
§ 7805. Referenda
§ 7806. Petition and review
§ 7807. Enforcement
§ 7808. Investigations and power to subpoena
§ 7809. Confidentiality
§ 7810. Authority for Secretary to suspend or terminate order
§ 7811. Rules of construction
§ 7812. Regulations
§ 7813. Authorization of appropriations

§ 7801. Findings and declaration of policy

(a) Findings

Congress finds the following:

(1) Hass avocados are an integral food source in the United States that are a valuable and healthy part of the human diet and are enjoyed by millions of persons every year for a multitude of everyday and special occasions.

(2) Hass avocados are a significant tree fruit crop grown by many individual producers, but virtually all domestically produced Hass avocados for the commercial market are grown in the State of California.

(3) Hass avocados move in interstate and foreign commerce, and Hass avocados that do not move in interstate or foreign channels of commerce but only in intrastate commerce directly affect interstate commerce in Hass avocados.

(4) In recent years, large quantities of Hass avocados have been imported into the United States from other countries.

(5) The maintenance and expansion of markets in existence on October 28, 2000, and the development of new or improved markets or uses for Hass avocados are needed to preserve and strengthen the economic viability of the domestic Hass avocado industry for the benefit of producers and other persons associated with the producing, marketing, processing, and consuming of Hass avocados.

(6) An effective and coordinated program of promotion, research, industry information, and consumer information regarding Hass avocados is necessary for the maintenance, expansion, and development of domestic markets for Hass avocados.

(b) Purpose

It is the purpose of this chapter to authorize the establishment, through the exercise of the powers provided in this chapter, of an orderly procedure for the development and financing (through an adequate assessment on Hass avocados sold by producers and importers in the United States) of an effective and coordinated program of promotion, research, industry information, and consumer information, including funds for marketing and market research activities, that is designed to—

(1) strengthen the position of the Hass avocado industry in the domestic marketplace; and

(2) maintain, develop, and expand markets and uses for Hass avocados in the domestic marketplace.

(Pub. L. 106–387, § 1(a) [title XII, § 1202], Oct. 28, 2000, 114 Stat. 1549, 1549A–79.)

§ 7802. Definitions

As used in this chapter:

(1) Board

(2) Conflict of interest

(3) Consumer information

(4) Customs

(5) Department

(6) Hass avocado

(A) In general

The term “Hass avocado” includes—

(i) the fruit of any Hass variety avocado tree; and

(ii) any other type of avocado fruit that the Board, with the approval of the Secretary, determines is so similar to the Hass variety avocado as to be indistinguishable to consumers in fresh form.

(B) Form of fruit

(7) Handler

(A) First handler

(B) Exempt handler

(8) Importer

(9) Industry information

(10) Order

(11) Person

(12) Producer

The term “producer” means any person who—

(A) is engaged in the domestic production of Hass avocados for commercial use; and

(B) owns, or shares the ownership and risk of loss, of such Hass avocados.

(13) Promotion

(14) Research

(15) Secretary

(16) State

(17) United States

(Pub. L. 106–387, § 1(a) [title XII, § 1203], Oct. 28, 2000, 114 Stat. 1549, 1549A–79.)

§ 7803. Issuance of orders

(a) In general

(1) Issuance

(2) Scope

(3) One order

(b) Procedures

(1) Proposal for an order

(2) Publication of proposal

(3) Issuance of order

(A) In general

(B) Effective date

(Pub. L. 106–387, § 1(a) [title XII, § 1204], Oct. 28, 2000, 114 Stat. 1549, 1549A–81.)

§ 7804. Required terms in orders

(a) In general

(b) Hass Avocado Board

(1) Establishment and membership

(A) Establishment

(B) Membership

(i) Appointment

(ii) Composition

(2) Distribution of appointments

(A) In generalThe order shall provide that the membership of the Board shall consist of the following:

(i) Seven members who are domestic producers of Hass avocados and are subject to assessments under the order.

(ii) Two members who represent importers of Hass avocados and are subject to assessments under the order.

(iii) Three members who are domestic producers of Hass avocados and are subject to assessments under the order, or are importers of Hass avocados and are subject to assessments under the order, to reflect the proportion of domestic production and imports supplying the United States market, which shall be based on the Secretary’s determination of the average volume of domestic production of Hass avocados proportionate to the average volume of imports of Hass avocados in the United States over the previous 3 years.

(B) Adjustment in Board representation

(3) Nomination processThe order shall provide that—

(A) two nominees shall be submitted for each appointment to the Board;

(B) nominations for each appointment of a producer or an importer shall be made by domestic producers or importers, respectively—

(i) in the case of producers, through an election process which utilizes existing organizations of avocado producers established pursuant to a State statute, with approval by the Secretary; and

(ii) in the case of importers, nominations are submitted by importers under such procedures as the Secretary determines appropriate; and

(C) in any case in which producers or importers fail to nominate individuals for an appointment to the Board, 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) TermsThe order shall provide that—

(A) each term of appointment to the Board shall be for 3 years, except that, of the initial appointments, four of the appointments shall be for 2-year terms, four of the appointments shall be for 3-year terms, and four of the appointments shall be for 4-year terms; and

(B) no member of the Board 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.

(6) Replacement

(A) Disqualification from Board service

(B) Manner of filling vacancy

(7) Compensation

(c) General responsibilities of the Avocado BoardThe order shall define the general responsibilities of the Avocado Board, which shall include the responsibility to—

(1) administer the order in accordance with the terms and provisions of the order;

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

(3) recommend to the Secretary rules and regulations to effectuate the terms and provisions of the order;

(4) employ such persons as the Board 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 or projects for Hass avocado promotion, industry information, consumer information, or related research;

(6)

(A) implement plans and projects for Hass avocado promotion, industry information, 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 agreement, with funds received under the order;

(7) evaluate on-going and completed plans and projects for Hass avocado promotion, industry information, consumer information, or related research and comply with the independent evaluation provisions of the Commodity Promotion, Research, and Information Act of 1996 (subtitle B of title V of Public Law 104–127 [7 U.S.C. 7411 et seq.]);

(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;

(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;

(11) borrow funds necessary for the startup expenses of the order; and

(12) 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 informationThe 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 Hass avocados, and for the disbursement of necessary funds for the purposes described in this clause; and

(ii) that any plan or project referred to in clause (i) shall be directed toward increasing the general demand for Hass avocados in the domestic marketplace.

(B) Industry information

(i) the establishment, implementation, administration, and evaluation of plans and projects for market development research, research with respect to the sale, distribution, marketing, use, quality, or nutritional value of Hass avocados, and other research with respect to Hass avocado marketing, promotion, industry information 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.

(D) Submission to Secretary

(3) Approval by Secretary

(e) Contracts and agreements

(1) Promotion, consumer information, industry information and related research plans and projects

(A) In general

(B) RequirementsThe 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 Board 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 party or agreeing party shall—(I) keep accurate records of all transactions of the party;(II) account for funds received and expended;(III) make periodic reports to the Board of activities conducted; and(IV) make such other reports as the Board or the Secretary shall require.

(2) Other contracts and agreements

(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 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 the funds entrusted to the Board, including all assessment funds disbursed by the Board to a State organization of avocado producers established pursuant to State law.

(2) Audits

(g) Control of administrative costs

(1) System of cost controlsThe order shall provide that the Board 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—

(A) will ensure that the costs incurred by the Board in administering the order in any fiscal year shall not exceed 10 percent of the projected level of assessments to be collected by the Board for that fiscal year; and

(B) 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.

(2) Use of existing personnel and facilities

(h) Assessments

(1) Authority

(A) In general

(B) Published lists

(i) First handler status

(ii) Producer-handlers

(iii) Importers

(2) Assessment ratesWith respect to assessment rates, the order shall contain the following terms:

(A) Initial rate

(B) Changes in the rate

(i) In general

(ii) RequirementsAny change in the rate of assessment under this subparagraph—(I) may be made only if adopted by the Board by an affirmative vote of at least seven members of the Board 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 Board 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 7805 of this title.

(3) Collection by first handlers

(4) Timing of submitting assessments

(5) Claiming an exemption from collecting assessmentsTo claim an exemption under section 7802(6) of this title as an exempt handler for a particular fiscal year, a person shall submit an application to the Board—

(A) stating the basis for such exemption; and

(B) certifying such person will not purchase Hass avocados in the United States on which an assessment has not been paid for the current fiscal year.

(6) Exclusion

(7) Use of assessment funds

(8) Assessment funds for State association

(9) Assessment funds for importers associations

(A) In generalThe order shall provide that any importers association shall receive a credit described in subparagraph (B) if such association is—

(i) established pursuant to State law that requires detailed State regulation comparable to that applicable to the State organization of United States avocado producers, as determined by the Secretary; or

(ii) certified by the Secretary as meeting the requirements applicable to the Board as to budgets, plans, projects, audits, conflicts of interest, and reimbursements for administrative costs incurred by the Secretary.

(B) Credit

(i) In general

(ii) Administrative expenses

(i) Reimbursement of Secretary expensesThe order shall provide for reimbursing the Secretary—

(1) for expenses not to exceed $25,000 incurred by the Secretary in connection with any referendum conducted under section 7805 of this title;

(2) for administrative costs incurred by the Secretary for supervisory work of up to two employee years annually after an order or amendment to any order has been issued and made effective; and

(3) for costs incurred by the Secretary in implementation of the order issued under section 7803 of this title, for enforcement of the chapter and the order, for subsequent referenda conducted under section 7805 of this title, and in defending the Board in litigation arising out of action taken by the Board.

(j) Prohibition on brand advertising and certain claims

(1) ProhibitionsExcept as provided in paragraph (2), a program or project conducted under this chapter shall not—

(A) make any reference to private brand names;

(B) make false, misleading, or disparaging claims on behalf of Hass avocados; or

(2) Exceptions

(k) Prohibition on use of funds to influence governmental action

(1) In general

(2) Exception

(l) Prohibition of conflict of interest

(m) Books and records; reports

(1) In general

(2) Confidentiality requirement

(A) In general

(B) Suits and hearingsInformation 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.

(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

(n) Consultations with industry experts

(1) In general

(2) Special committees

(A) In general

(B) Consultation

(o) Other terms of the order

(Pub. L. 106–387, § 1(a) [title XII, § 1205], Oct. 28, 2000, 114 Stat. 1549, 1549A–82.)

§ 7805. Referenda

(a) Requirements for initial referendum

(1) Referendum required

(2) Approval of order needed

(b) Votes permitted

(1) In general

(2) Eligibility

(1) In general

(2) Advance registration

(3) Voting

(4) Notice

(d) Subsequent referenda

If an order is approved in a referendum conducted under subsection (a), effective beginning on the date that is 3 years after the date of the approval, the Secretary—

(1) at the discretion of the Secretary, may conduct at any time a referendum of producers and importers required to pay assessments under the order, as provided in section 7804(h)(1) of this title, subject to the voting requirements of subsections (b) and (c), to ascertain whether eligible producers and importers favor suspension, termination, or continuance of the order; or

(2) shall conduct a referendum of eligible producers and importers if requested by the Board or by a representative group comprising 30 percent or more of all producers and importers required to pay assessments under the order, as provided in section 7804(h)(1) of this title, subject to the voting requirements of subsections (b) and (c), to ascertain whether producers and importers favor suspension, termination, or continuance of the order.

(e) Suspension or termination

If, as a result of a referendum conducted under subsection (d), the Secretary determines that suspension or termination of the order is favored by a simple majority of all votes cast in the referendum, the Secretary shall—

(1) not later than 180 days after the referendum, suspend or terminate, as appropriate, collection of assessments under the order; and

(2) suspend or terminate, as appropriate, activities under the order as soon as practicable and in an orderly manner.

(Pub. L. 106–387, § 1(a) [title XII, § 1206], Oct. 28, 2000, 114 Stat. 1549, 1549A–91.)

§ 7806. Petition and review

(a) Petition and hearing

(1) Petition

A person subject to an order may file with the Secretary a petition—

(A) stating that the order, any provision of the order, or any 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) Hearing

(3) Ruling

(4) Limitation

(b) Review

(1) Commencement of action

(2) Process

(3) Remand

If the court in a proceeding under this subsection determines that the ruling of the Secretary on the petition of the person 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 the court, the law requires.

(Pub. L. 106–387, § 1(a) [title XII, § 1207], Oct. 28, 2000, 114 Stat. 1549, 1549A–92.)

§ 7807. Enforcement

(a) Jurisdiction

(b) Referral to Attorney General

(1) Civil penalties

(A) In general

A person who violates a provision of this chapter, or an order or regulation issued by the Secretary under this chapter, or who fails or refuses to pay, collect, or remit any assessment or fee required of the person under an order or regulation issued under this chapter, may be assessed by the Secretary—

(i) a civil penalty of not less than $1,000 nor more than $10,000 for each violation; and

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

(B) Separate offenses

(2) Cease and desist orders

(3) Notice and hearing

(4) Finality

(d) Review by district court

(1) Commencement of action

(A) In general

Any person against whom a violation is found and a civil penalty is assessed or a cease and desist order is issued under subsection (c) may obtain review of the penalty or order by, within the 30-day period beginning on the date the penalty is assessed or the order is issued—

(i) filing a notice of appeal in the district court of the United States for the district in which the person resides or conducts business, or in the United States District Court for the District of Columbia; and

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

(B) Copy of record

(2) Standard of review

(e) Failure to obey an order

(1) In general

(2) Separate violations

(f) Failure to pay a penalty

(1) In general

(2) Scope of review

(g) Additional remedies

(Pub. L. 106–387, § 1(a) [title XII, § 1208], Oct. 28, 2000, 114 Stat. 1549, 1549A–93.)

§ 7808. Investigations and power to subpoena

(a) Investigations

(b) Subpoenas, oaths, and affirmations

(1) Investigations

(2) Administrative hearings

(1) In general

(2) Order

(3) Failure to obey

(4) Process

(Pub. L. 106–387, § 1(a) [title XII, § 1209], Oct. 28, 2000, 114 Stat. 1549, 1549A–95.)

§ 7809. Confidentiality

(a) Prohibition

(b) Penalty

(d) Withholding information from Congress prohibited

(Pub. L. 106–387, § 1(a) [title XII, § 1210], Oct. 28, 2000, 114 Stat. 1549, 1549A–96.)

§ 7810. Authority for Secretary to suspend or terminate order

(a) Grounds for suspension or termination

(b) Effect of lack of approval of order

(Pub. L. 106–387, § 1(a) [title XII, § 1211], Oct. 28, 2000, 114 Stat. 1549, 1549A–96.)

§ 7811. Rules of construction

(a) Termination or suspension not an order

(b) Rights

This chapter—

(1) may not be construed to provide for control of production or otherwise limit the right of individual Hass avocado growers, handlers and importers to produce, handle, or import Hass avocados; and

(2) shall be construed to treat all persons producing, handling, and importing Hass avocados fairly and to implement any order in an equitable manner.

(Pub. L. 106–387, § 1(a) [title XII, § 1212], Oct. 28, 2000, 114 Stat. 1549, 1549A–96.)

§ 7812. Regulations

The Secretary may issue such regulations as are necessary to carry out this chapter and the powers vested in the Secretary by this chapter, including regulations relating to the assessment of late payment charges and interest.

(Pub. L. 106–387, § 1(a) [title XII, § 1213], Oct. 28, 2000, 114 Stat. 1549, 1549A–97.)

§ 7813. Authorization of appropriations

(a) In general

(b) Administrative expenses

(Pub. L. 106–387, § 1(a) [title XII, § 1214], Oct. 28, 2000, 114 Stat. 1549, 1549A–97.)