« AnteriorContinuar »
Any such contract or agreement shall provide that
(A) the contracting party shall develop and submit to the Board a program or project together with a budget or budgets that shall show estimated costs to be incurred for such 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 of its 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) Grower and grower-sheller organizations
The plan shall provide that the Board may contract with grower and grower-sheller organizations for any other services. Any such contract shall include provisions comparable to those required by paragraph (2).
(f) Books and records of Board (1) In general
The plan 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
(C) account for the receipt and disbursement of all funds entrusted to the Board. (2) Audits
The Board shall cause its books and records to be audited by an independent auditor at the end of each fiscal year, and a report of such audit to be submitted to the Secretary. (g) Prohibition
The Board shall not engage in any action to, nor shall any funds received by the Board under this chapter be used to
(1) influence legislation or governmental action, other than recommending to the Secretary amendments to the plan;
(2) engage in any action that would be a conflict of interest; or
(3) engage in any advertising that may be false or misleading.
(h) Books and records
(1) In general
The plan shall require that each first handler, grower-sheller, or importer shall
(A) maintain and submit to the Board any reports considered necessary by the Secretary to ensure compliance with this chapter; 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 chapter, including such records as are necessary to verify any required reports. (2) Time requirement
The records required under paragraph (1) shall be maintained for 2 years beyond the fiscal period of the applicability of such records.
(A) In general
Except as otherwise provided in this chapter, all information obtained from books, records, or reports required to be maintained under paragraph (1) shall be kept confidential, and shall not be disclosed to the public by any person.
Information referred to in subparagraph (A) may be disclosed to the public only 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 information relates to this
(iii) the chapter.
Any disclosure of confidential information in violation of subparagraph (A) by any Board member or employee of the Board, except as required by other law or allowed under subparagraph (B) or (D), shall be considered a violation of this chapter. (D) General statements
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 plan or statistical data collected therefrom, which 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 violating the plan, together with a statement of the particular provisions of the plan violated by such person.
(4) Availability of information
as determined necessary by the Secretary to effectuate this chapter.
(Pub. L. 101-624, title XIX, § 1910, Nov. 28, 1990, 104 Stat. 3841; Pub. L. 102-237, title VIII, § 802(2), Dec. 13, 1991, 105 Stat. 1882.)
1991-Subsec. (b)(8)(G). Pub. L. 102-237 substituted "subparagraphs (A), (B), and (C) of paragraph (3)," for "paragraph 3(A), (B), and (C)," and "subparagraphs (D) and (E) of paragraph (3)” for “paragraph (3)(D) and (E)”.
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in section 6002 of this title.
§ 6006. Permissive terms in plans
(a) In general
A plan issued pursuant to this chapter may contain one or more of the terms and conditions contained in this section.
The plan may provide authority to exempt from the plan pecans used for nonfood uses and authority for the Board to require satisfactory safeguards against improper uses of such exemptions.
(c) Different payment and reporting schedules
The plan may provide authority to designate different payment and reporting schedules for growers, grower-shellers, first handlers and importers to recognize differences in marketing practices and procedures utilized in different production areas.
The plan may provide for the establishment, issuance, effectuation, and administration of appropriate programs or projects for the promotion of pecans and for the disbursement of necessary funds for such purposes, except that
(1) any such program or project shall be directed toward increasing the general demand for pecans; and
(2) such promotional activities shall comply with other restrictions on the use of funds that are established under this chapter. (e) Research and information
The plan may provide for establishing and carrying on research, consumer information, and industry information projects and studies to the end that the marketing and utilization of pecans may be encouraged, expanded, improved, or made more efficient, and for the disbursement of necessary funds for such pur.
(f) Reserve funds
The plan may provide authority to accumu late reserve funds from assessments collected pursuant to this chapter, to permit an effective and continuous coordinated program of research, consumer information, industry information and promotion in years when the production and assessment income may be reduced, except that the total reserve fund may
not exceed the amount budgeted for the operation of the plan for 2 years. (g) Foreign markets
The plan may provide authority to use funds collected under this chapter, with the approval of the Secretary, for the development and expansion of pecan sales in foreign markets.
(Pub. L. 101-624, title XIX, § 1911, Nov. 28, 1990, 104 Stat. 3847.)
§ 6007. Assessments
(a) In general
During the effective period of a plan issued pursuant to this chapter, assessments shall be— (1) levied on all pecans produced in, and all pecans imported into, the United States and marketed; and
(2) deducted from the payment made to a grower for all pecans sold to a first handler. (b) Limitation on assessments
No more than one assessment may be assessed under subsection (a) of this section on a grower (as remitted by a first handler), growersheller, or importer, for any lot of pecans handled or imported.
(c) Remitting assessments
(1) In general
Assessments required under subsection (a) of this section shall be remitted to the Board by
(A) a first handler; and
(B) an importer.
(2) Times to remit assessment
(A) First handlers
Each first handler who is not a growersheller and who is required to remit an assessment under paragraph (1) shall remit such assessment to the Board no later than the last day of the month following the month that the pecans being assessed were purchased or marketed by such first handler.
Each first handler who is a grower-sheller and who is required to remit an assessment under paragraph (1) shall remit such assessment to the Board, to the extent practicable, in payments of one-third of the total annual amount of such assessment due to the Board on January 31, March 31, and May 10, or such dates as may be recommended by the Board and approved by the Secretary, during the fiscal year that the pecans being assessed were harvested.
Importers of pecans into the United States shall pay the assessment at the time the pecans enter the United States and shall remit such assessment to the Board. (d) Assessment rate
(1) In general
Except as provided in paragraph (2), assessment rates shall be recommended by the Board and approved by the Secretary, except
that the maximum assessment shall not exceed
(A) during the period commencing on the effective date of the issuance of a plan and ending on the date the referendum is conducted under section 6011(a) of this title, one-half cent per pound for in-shell pecans as determined by the Board and approved by the Secretary; and
(B) after such period, 2 cents per pound for in-shell pecans.
(2) Adjusting rate for shelled pecans
The rate of assessment of shelled pecans shall be twice the rate established for in-shell pecans pursuant to paragraph (1).
(3) Special State assessment
(A) In general
Notwithstanding any other provision of this chapter, with the approval of the Secretary and if authorized by State law and requested by such State, a special assessment of one-quarter cent per pound for inshell pecans, and an appropriate per-pound assessment for shelled pecans as adjusted under paragraph (2), shall be remitted to the Board for the purpose of utilizing such funds by a State pecan marketing board for research projects to promote pecans pursuant to State law.
(B) Collection and remittance
The Board shall collect such assessments and upon receipt of such assessments shall remit such assessments to the State, within a time period mutually agreed upon between the State and the Board, and approved by the Secretary. In the collection of such State assessments, neither the Board nor the Secretary shall in any manner enforce the collection or remittance of any such payment by producers of such State assessments or investigate nonpayment of such State assessments, except to provide to a State the names of growers from whom such assessments were collected and the respective amounts of assessments collected.
The Secretary is authorized to make such regulations as may be necessary to carry out the provisions of this section.
(e) Late-payment charge
(1) In general
There shall be a late-payment charge imposed on any person who fails to remit, on or before the due date established by the Board under subsection (c)(2) of this section, to the Board the total amount for which such person is liable.
(2) Amount of charge
The amount of the late-payment charge imposed under paragraph (1) shall be prescribed by the Board with the approval of the Secretary.
(f) Refund of assessments from escrow account (1) Establishment of escrow account
During the period beginning on the effective date of a plan first issued under section 6003 of this title and ending on the date the referendum is conducted under section 6011(a) of this title, the Board shall—
(A) establish an escrow account to be used for assessment refunds; and
(B) place funds in such account in accordance with paragraph (2).
(2) Placement of funds in account
The Board shall place in such account, from assessments collected during the period referred to in paragraph (1), an amount equal to the product obtained by multiplying the total amount of assessments collected during such period by 10 percent.
(3) Right to receive refund
Subject to paragraphs (4), (5), and (6), any grower, grower-sheller, or importer shall have the right to demand and receive from the Board a one-time refund of assessments paid by or on behalf of such grower, grower-sheller, or importer during the period referred to in paragraph (1) if—
(A) such grower, grower-sheller, or importer is required to pay such assessments;
(B) such grower, grower-sheller, or importer does not support the program established under this chapter;
(C) such grower, grower-sheller, or importer demands such refund prior to the conduct of the referendum under section 6011(a) of this title; and
(D) the plan is not approved pursuant to the referendum conducted under section 6011(a) of this title.
(4) Form of demand
Such demand shall be made in accordance with regulations, on a form, and within a time period prescribed by the Board.
(5) Making of refund
Such refund shall be made on submission of proof satisfactory to the Board that such grower, grower-sheller, or importer paid the assessment for which refund is demanded. (6) Proration
(A) the amount in the escrow account required by paragraph (1) is not sufficient to refund the total amount of assessments demanded by eligible growers, grower-shellers, or importers; and
(B) the plan is not approved pursuant to the referendum conducted under section 6011(a) of this title;
the Board shall prorate the amount of such refunds among all eligible growers, growershellers, and importers who demand such refund.
(7) Program approved
If the plan is approved pursuant to the referendum conducted under section 6011(a) of this title, all funds in the escrow account shall be returned to the Board for use by the Board in accordance with this chapter.
(Pub. L. 101-624, title XIX, § 1912, Nov. 28, 1990, 104 Stat. 3848.)
SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 6005 of this title.
§ 6008. Petition and review
(1) In general
A person subject to a plan issued under this chapter may file with the Secretary a peti tion
(A) stating that the plan, any provision of the plan, or any obligation imposed in con nection with the plan is not in accordance with law; and
(B) requesting a modification of the plan or an exemption from the plan. (2) Hearings
The petitioner shall be given the opportuni ty for a hearing on the petition, on the record and in accordance with regulations issued by the Secretary.
After such hearing, the Secretary shall make a ruling on the petition, which shall be final if in accordance with law.
(1) Commencement of action
The district courts of the United States in any district in which a person who is a peti tioner under subsection (a) of this section resides or carries on business are hereby vested with jurisdiction to review the ruling on such person's petition, if a complaint for that pur pose is filed within 20 days after the date of the entry of a ruling by the Secretary under subsection (a) of this section. (2) Process
Service of process in such proceedings shall be conducted in accordance with the Federal Rules of Civil Procedure.
If the court determines that such ruling is not in accordance with law, the court shall remand the matter to the Secretary with di rections 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
The pendency of proceedings instituted under subsection (a) of this section shall not impede, hinder, or delay the Attorney Gener al or the Secretary from taking any action
under section 6009 of this title.
(Pub. L. 101-624, title XIX, § 1913, Nov. 28,
1990, 104 Stat. 3850.)
SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 6010 of this title.
§ 6009. Enforcement
The district courts of the United States shall have jurisdiction specifically to enforce, and to prevent and restrain a person from violating, this chapter or any plan or regulation issued under this chapter.
(b) Referral to Attorney General
A civil action to be brought under this section shall be referred to the Attorney General for appropriate action, except that the Secretary is not required to refer to the Attorney General a violation of this chapter or any plan or regulation issued under this chapter if the Secretary believes that the administration and enforcement of this chapter would be adequately served by administrative action under subsection (c) of this section or by providing a suitable written notice or warning to any person committing the violation.
(c) Civil penalties and orders
(1) Civil penalties
(A) In general
A person who willfully violates any provision of this chapter or any plan or regulation issued under this chapter, or who fails to pay, collect, or remit any assessment or fee required of the person under this chapter or any plan or regulation issued under this chapter, may be assessed by the Secretary a civil penalty of not less than $1,000 nor more than $10,000 for each such violation.
(B) Separate offense
Each violation described in subparagraph (A) shall be a separate offense.
(2) Cease and desist orders
In addition to or in lieu of such civil penalty, the Secretary may issue an order requiring such person to cease and desist from continuing such violation.
(3) Notice and hearing
No penalty shall be assessed or cease and desist order issued by the Secretary under this subsection unless the Secretary gives the person against whom the order is issued notice and opportunity for a hearing on the record with respect to such violation.
The order of the Secretary assessing a penalty or imposing a cease and desist order shall be final and conclusive unless the person against whom the order is issued files an appeal from the Secretary's order in accordance with subsection (d) of this section. (d) Review by district court
(1) Commencement of action
A person against whom a civil penalty is assessed or a cease and desist order is issued under subsection (c) of this section may obtain review of such penalty or order in the
district court of the United States for the district in which such person resides or does business, or in the United States District Court for the District of Columbia, by
(A) filing, within the 30-day period beginning on the date such penalty is assessed or order issued, a notice of appeal in such court; and
(B) simultaneously sending a copy of the notice by certified mail to the Secretary. (2) Record
The Secretary shall promptly file in such court a certified copy of the record on which the Secretary found that the person had committed a violation.
(3) Standard of review
A finding of the Secretary shall be set aside only if the finding is found to be unsupported by substantial evidence.
(e) Failure to obey orders
Any person who fails to obey a cease and desist order after the order has become final and unappealable, or after the appropriate district court has entered a final judgment in favor of the Secretary, shall be subject to a civil penalty assessed by the Secretary, after opportunity for a hearing on the record and for judicial review under the procedures specified in subsections (c) and (d) of this section, of not more than $1,000 for each offense. Each day during which the failure continues shall be considered a separate violation of such order.
(f) Failure to pay penalty
If a person fails to pay a civil penalty after it has become a final and unappealable order issued by the Secretary, or after the appropriate district court has entered a final judgment in favor of the Secretary, the Secretary shall refer the matter to the Attorney General for recovery of the amount assessed in the district court of the United States in any district in which the person resides or conducts business. In such action, the validity and appropriateness of such order imposing such civil penalty shall not be subject to review.
(Pub. L. 101-624, title XIX, § 1914, Nov. 28, 1990, 104 Stat. 3851.)
SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 6008, 6010 of this title.
§ 6010. Investigations and power to subpoena (a) In general
The Secretary may make such investigations as the Secretary determines necessary—
(1) for the effective administration of this chapter; or
(2) to determine whether a person has engaged or is engaging in any act or practice that constitutes a violation of any provision of this chapter, or of any plan, rule, or regulation issued under this chapter.