(2) Eligible separate facility For the purpose of paragraph (1): (A) Separate facility A handling or marketing facility of a qualified handler shall be considered to be a separate facility if the facility is physically located away from other facilities of the qualified handler or the business function of the facility is substantially different from the functions of other facilities owned or operated by the qualified handler. (B) Eligibility A separate facility of a qualified handler shall be considered to be an eligible separate facility if the annual sales of cut flowers and cut greens to retailers and exempt handlers from the facility are $750,000 or more. (C) Annual sales determined For the purpose of determining the amount of annual sales of cut flowers and cut greens under subparagraph (B), subparagraphs (A) and (C) of section 6802(4) of this title shall apply. (c) Suspension or termination referenda If an order is approved in a referendum conducted under subsection (a) of this section, 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 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 qualified handlers favor suspension or termination of the order; and (2) if requested by the PromoFlor Council or by a representative group comprising 30 percent or more of all qualified handlers required to pay assessments under the order, as provided in section 6804(h)(1) of this title, shall conduct a referendum of all 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 qualified handlers favor suspension or termination of the order. (d) Suspension or termination If, as a result of the referendum conducted under subsection (a) of this section, the Secretary determines that the order has not been approved by a simple majority of all votes cast in the referendum, or as a result of a referendum conducted under subsection (c) of this section, 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. (e) Manner of conducting referenda Referenda under this section shall be corducted in such manner as is determined appro priate by the Secretary. (Pub. L. 103-190, § 7, Dec. 14, 1993, 107 Stat. 2284.) SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 6804, 6805 d this title. § 6807. 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 accord ance with law; and (B) requesting a modification of the order or an exemption from the order. (2) Hearing The petitioner shall be given the opportunity for a hearing on a petition filed under paragraph (1), in accordance with regulations issued by the Secretary. Any such hearing shall be conducted in accordance with section 6809(b)(2) of this title and be held within the United States judicial district in which the residence or principal place of business of the person is located. (3) Ruling After a hearing under paragraph (2), the Secretary shall make a ruling on the petition, which shall be final if in accordance with law. (b) Review (1) Commencement of action The district courts of the United States in any district in which a person who is a petitioner under subsection (a) of this section resides or conducts business shall have jurisdic tion to review the ruling of the Secretary on the petition of the person, if a complaint re questing the review is filed not later than 20 days after the date of the entry of the ruling by the Secretary. (2) Process Service of process in proceedings under this subsection shall be conducted in accordance with the Federal Rules of Civil Procedure. (3) Remand If the court in a proceeding under this subsection determines that the ruling of the Sec retary 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 of the court, the law requires. (c) Enforcement The pendency of proceedings instituted under this section shall not impede, hinder, or delay A district court of the United States shall have jurisdiction to enforce, and to prevent and restrain any person from violating, this chapter or an order or regulation issued by the Secretary under this chapter. (b) Referral to Attorney General A civil action brought under subsection (a) of 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 an order 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 suitable written notice or warning to the person who committed or is committing the violation. (c) Civil penalties and orders (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 $500 nor more than $5,000 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 Each violation shall be a separate offense. (2) Cease and desist orders In addition to or in lieu of a civil penalty under paragraph (1), the Secretary may issue an order requiring a person to cease and desist from continuing a violation of this chapter, or an order or regulation issued under this chapter. (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 penalty is assessed or the order is issued notice and opportunity for a hearing before the Secretary with respect to the violation. Any such hearing shall be conducted in accordance with section 6809(b)(2) of this title and shall be held within the United States judicial district in which the residence or principal place of business of the person is located. (4) Finality The penalty assessed or cease and desist order issued under this subsection shall be final and conclusive unless the person against whom the penalty is assessed or the order is issued files an appeal with the appropriate district court of the United States in accordance with subsection (d) of this section. (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) of this section may obtain review of the penalty or order by, within the 30day period beginning on the date the penalty is assessed or order 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 The Secretary shall promptly file in the court a certified copy of the record on which the Secretary found that the person had committed a violation. (2) Standard of review A finding of the Secretary shall be set aside under this subsection only if the finding is found to be unsupported by substantial evidence. (e) Failure to obey order (1) In general A person who fails to obey a cease and desist order issued under subsection (c) of this section after the order has become final and unappealable, or after the appropriate United States district court has entered a final judgment in favor of the Secretary, shall be subject to a civil penalty assessed by the Secretary of not more than $5,000 for each offense, after opportunity for a hearing and for judicial review under the procedures specified in subsections (c) and (d) of this section. (2) Separate violations Each day during which the person fails to obey an order described in paragraph (1) shall be considered as a separate violation of the order. (f) Failure to pay penalty (1) In general If a person fails to pay a civil penalty assessed under subsection (c) or (e) of this section after the penalty has become final and unappealable, or after the appropriate United States district court has entered final judgment in favor of the Secretary, the Secretary shall refer the matter to the Attorney General for recovery of the amount assessed in any United States district court in which the person resides or conducts business. (2) Scope of review In an action by the Attorney General under paragraph (1), the validity and appropriateness of the civil penalty shall not be subject to review. (g) Additional remedies The remedies provided in this chapter shall be in addition to, and not exclusive of, other remedies that may be available. (Pub. L. 103-190, § 9, Dec. 14, 1993, 107 Stat. 2286.) SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 6802, 6807, 6809 of this title. § 6809. Investigations and power to subpoena (a) Investigations The Secretary may make such investigations as the Secretary considers necessary for the effective administration of this chapter, or to determine whether any person has engaged or is engaging in any act that constitutes a violation of this chapter or any order or regulation issued under this chapter. (b) Subpoenas, oaths, and affirmations (1) Investigations For the purpose of making an investigation under subsection (a) of this section, the Secretary may administer oaths and affirmations, and issue subpoenas to require the production of any records that are relevant to the inquiry. The production of the records may be required from any place in the United States. (2) Administrative hearings For the purpose of an administrative hearing held under section 6807(a)(2) or 6808(c)(3) of this title, the presiding officer may administer oaths and affirmations, subpoena witnesses, compel the attendance of witnesses, take evidence, and require the production of any records that are relevant to the inquiry. The attendance of witnesses and the production of the records may be required from any place in the United States. (c) Aid of courts (1) In general In the case of contumacy by, or refusal to obey a subpoena issued under subsection (b) of this section to, any person, the Secretary may invoke the aid of any court of the United States within the jurisdiction of which the in vestigation or proceeding is conducted, or where the person resides or conducts business, in order to enforce a subpoena issued under subsection (b) of this section. (2) Order The court may issue an order requiring the person referred to in paragraph (1) to comply with a subpoena referred to in paragraph (1). (3) Failure to obey Any failure to obey the order of the court may be punished by the court as a contempt of court. (4) Process Process in any proceeding under this subsection may be served in the United States judicial district in which the person being proceeded against resides or conducts business or wherever the person may be found. (Pub. L. 103-190, § 10, Dec. 14, 1993, 107 Stat. 2288.) SECTION REFERRED TO IN OTHER SECTIONS This section is referred to in sections 6802, 6807, 6808 of this title. § 6810. Confidentiality (a) Prohibition No information on how a person voted in a referendum conducted under this chapter shall be made public. (b) Penalty Any person who knowingly violates subsection (a) of this section or the confidentiality terms of an order, as described in section 6804(j)(2) of this title, shall be subject to a fine of not less than $1,000 nor more than $10,000 or to imprisonment for not more than 1 year, or both. If the person is an officer or employee of the Department of Agriculture or the PromoFlor Council, the person shall be removed from office. (c) Additional prohibition No information obtained under this chapter may be made available to any agency or officer of the Federal Government for any purpose other than the implementation of this chapter or an investigatory or enforcement action necessary for the implementation of this chapter. (d) Withholding information from Congress prohibit. ed Nothing in this chapter shall be construed to authorize the withholding of information from Congress. (Pub. L. 103-190, § 11, Dec. 14, 1993, 107 Stat. 2288.) § 6811. Authority for Secretary to suspend or terminate order If the Secretary finds that an order, or any provision of the order, obstructs or does not tend to effectuate the policy of this chapter specified in section 6801(b) of this title, the Secretary shall terminate or suspend the operation |
0 Opiniones Las opiniones no están verificadas, pero Google revisa que no haya contenido falso y lo quita si lo identifica Escribir un comentario |