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sessments 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
The order shall require the PromoFlor Council to submit to the Secretary for approval budgets, on a fiscal year basis, of the anticipated expenses and disbursements of the Council in the implementation of the order, including the projected costs of cut flowers and cut greens promotion, consumer information, and related research plans and projects.
(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.
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
The order shall provide that the PromoFlor Council shall submit to the Secretary for approval a proposed plan or project for cut flowers or cut greens promotion, consumer information, or related research, as described in subparagraphs (A) and (B).
(3) Approval by Secretary
A budget, or plan or project for cut flowers or cut greens promotion, consumer information, or related research may not be implemented prior to approval of the budget, plan, or project by the Secretary.
(e) Contracts and agreements
(1) Promotion, consumer information, and related research plans and projects
(A) In general
To ensure efficient use of funds, the order shall provide that the PromoFlor Council, with the approval of the Secretary, may enter into a contract or an agreement for the implementation of a plan or project for promotion, consumer information, or related research with respect to cut flowers or cut greens, and for the payment of the cost of the contract or agreement with funds received by the PromoFlor Council under the order.
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
The order shall provide that the Promo Flor Council may enter into a contract or agreement for administrative services. Any contract or agreement entered into under this paragraph shall include provisions comparable to the provisions described in paragraph (1)(B).
(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.
The PromoFlor Council shall cause the books and records of the Council to be audited by an independent auditor at the end of each fiscal year. A report of each audit shall be submitted to the Secretary.
(g) Control of administrative costs
The order shall provide that the PromoFlor Council 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 will ensure that the annual budgets of the PromoFlor Council include only amounts for administrative expenses that 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. (h) Assessments
greens to a retailer from a qualified handler that is a distribution center (as described in section 6802(4)(A)(ii)(II) of this title), and each direct sale of cut flowers or cut greens to a consumer by a qualified handler that is an importer or a producer (as described in section 6802(4)(A)(iii) of this title), shall be treated as a sale of cut flowers or cut greens to a retailer subject to assessments under this subsection.
(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.
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 3 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
The order shall provide that each person required to pay assessments under this subsection shall remit, to the PromoFlor Council, the assessment due from each sale by the person of cut flowers or cut greens that is subject to an assessment within such time period after the sale (not to exceed 60 days after the end of the month in which the sale took place) as is specified in the order. (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
The order shall provide that, if the order is approved in the referendum conducted under section 6806(a) of this title, there shall be no refunds made, and all funds in the escrow account shall be returned to the PromoFlor Council for use by the PromoFlor Council in accordance with the other provisions of the order.
(5) Use of assessment funds
The order shall provide that assessment funds (less any refunds expended under the terms of the order required under paragraph (4)) shall be used for payment of costs incurred in implementing and administering the order, with provision for a reasonable reserve, and to cover the administrative costs incurred by the Secretary in implementing and administering this chapter. (6) Postponement of collections (A) Authority
(i) In general
Subject to the other provisions of this paragraph and notwithstanding any other provision of this chapter, the PromoFlor Council may grant a postponement of the
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The order shall prohibit the use of any funds received by the PromoFlor Council in any manner for the purpose of influencing legislation or government action or policy, except that the funds may be used by the PromoFlor Council for the development and recommendation to the Secretary of amendments to the order.
(j) Books and records; reports
(1) In general
The order shall provide that each qualified handler shall maintain, and make available for inspection, such books and records as are required by the order and file reports at the time, in the manner, and having the content required by the order, to the end that such information is made available to the Secretary and the PromoFlor Council as is appropriate for the administration or enforcement of this chapter, the order, or any regulation issued under this chapter.
(2) Confidentiality requirement (A) In general
Information obtained from books, records, or reports under paragraph (1) or subsection (h)(6) of this section, or from reports required under section 6805(b)(3) of this title, shall be kept confidential by all officers and employees of the Department of Agriculture and by the staff and agents of the PromoFlor Council.
(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
The order shall provide that the staff of the PromoFlor Council shall periodically review lists of importers of cut flowers and cut greens to determine whether persons on the lists are subject to the order.
(B) Customs service
On the request of the PromoFlor Council, the Commissioner of the United States Customs Service shall provide to the PromoFlor Council lists of importers of cut flowers and cut greens.
(k) Consultations with industry experts
(1) In general
The order shall provide that the PromoFlor Council, from time to time, may seek advice from and consult with experts from the production, import, wholesale, and retail segments of the cut flowers and cut greens industry to assist in the development of promotion, consumer information, and related research plans and projects.
(2) Special committees
(A) In general
For the purposes described in paragraph (1), the order shall authorize the appointment of special committees composed of
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persons other than PromoFlor Council members.
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.
(1) Other terms of order
The order shall contain such other terms and provisions, consistent with this chapter, as are necessary to carry out this chapter (including provision for the assessment of interest and a charge for each late payment of assessments under subsection (h) of this section and for carrying out section 6805 of this title).
(Pub. L. 103-190, § 5, Dec. 14, 1993, 107 Stat. 2272.)
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in sections 6802, 6806, 6810 of this title.
§ 6805. Exclusion; determinations
An order shall exclude from assessments under the order any sale of cut flowers or cut greens for export from the United States. (b) Making determinations
(1) In general
For the purpose of applying the $750,000 annual sales limitation to a specific person in order to determine the status of the person as a qualified handler or an exempt handler under section 6802(4) of this title, or to a specific facility in order to determine the status of the facility as an eligible separate facility under section 6806(b)(2) of this title, an order issued under this chapter shall provide that
(A) a determination of the annual sales volume of a person or facility shall be based on the sales of cut flowers and cut greens by the person or facility during the most recently-completed calendar year, except as provided in subparagraph (B); and
(B) in the case of a new business or other operation for which complete data on sales during all or part of the most recently-completed calendar year are not available to the PromoFlor Council, the determination may be made using an alternative time period or other alternative procedure specified in the order.
(2) Rule of attribution
(A) In general
For the purpose of determining the annual sales volume of a person or a separate facility of a person, sales attributable to a person shall include
(i) in the case of an individual, sales attributable to the spouse, children, grandchildren, parents, and grandparents of the person;
(ii) in the case of a partnership or member of a partnership, sales attributa
ble to the partnership and other partners of the partnership;
(iii) in the case of an individual or a partnership, sales attributable to any corporation or other entity in which the individual or partnership owns more than 50 percent of the stock or (if the entity is not a corporation) that the individual or partnership controls; and
(iv) in the case of a corporation, sales attributable to any corporate subsidiary or other corporation or entity in which the corporation owns more than 50 percent of the stock or (if the entity is not a corporation) that the corporation controls.
(B) Stock and ownership interest
For the purpose of this paragraph, stock or an ownership interest in an entity that is owned by the spouse, children, grandchildren, parents, grandparents, or partners of an individual, or by a partnership in which a person is a partner, or by a corporation more than 50 percent of the stock of which is owned by a person, shall be treated as owned by the individual or person. (3) Reports
For the purpose of this subsection, the order may require a person who sells cut flowers or cut greens to retailers to submit reports to the PromoFlor Council on annual sales by the person.
(Pub. L. 103-190, § 6, Dec. 14, 1993, 107 Stat. 2283.)
SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in section 6804 of this title.
§ 6806. Referenda
(a) Requirement for initial referendum (1) In general
Not later than 3 years after the issuance of an order under section 6803(b)(3) of this title, the Secretary shall conduct a referendum among qualified handlers required to pay assessments under the order, as provided in section 6804(h)(1) of this title, subject to the voting requirements of subsection (b) of this section, to ascertain whether the order then in effect shall be continued.
(2) Approval of order needed
The order shall be continued only if the Secretary determines that the order has been approved by a simple majority of all votes cast in the referendum. If the order is not approved, the Secretary shall terminate the order as provided in subsection (d) of this section.
(b) Votes permitted
(1) In general
Each qualified handler eligible to vote in a referendum conducted under this section shall be entitled to cast 1 vote for each separate facility of the person that is an eligible separate facility, as defined in paragraph (2).