§ 6804 — Required Terms In Orders

(a) An order shall contain the terms and provisions specified in this section. (A) The order shall provide for the establishment of a Fresh Cut Flowers and Fresh Cut Greens Promotion Council, consisting of 25 members, to administer the order. (i) The order shall provide that members of the PromoFlor Council shall be appointed by the Secretary from nominations submitted as provided in paragraphs (2) and (3). (ii) The PromoFlor Council shall consist of— (I) participating qualified handlers representing qualified wholesale handlers and producers and importers that are qualified handlers; (II) representatives of traditional retailers; and (III) representatives of persons who produce fresh cut flowers and fresh cut greens. (A) The order shall provide that the membership of the PromoFlor Council shall consist of— (i) 14 members representing qualified wholesale handlers of domestic or imported cut flowers and cut greens; (ii) 3 members representing producers that are qualified handlers of cut flowers and cut greens; (iii) 3 members representing importers that are qualified handlers of cut flowers and cut greens; (iv) 3 members representing traditional cut flowers and cut greens retailers; and (v) 2 members representing persons who produce fresh cut flowers and fresh cut greens, of whom— (I) 1 member shall represent persons who produce the flowers or greens in locations that are east of the Mississippi River; and (II) 1 member shall represent persons who produce the flowers or greens in locations that are west of the Mississippi River. (B) As used in this subsection: (i) The term “importer that is a qualified handler” means an entity— (I) whose principal activity is the importation of cut flowers or cut greens into the United States (either directly or as an agent, broker, or consignee of any person or nation that produces or handles cut flowers or cut greens outside the United States for sale in the United States); and (II) that is subject to assessments as a qualified handler under the order. (ii) The term “producer that is a qualified handler” means an entity that— (I) is engaged— (aa) in the domestic production, for sale in commerce, of cut flowers or cut greens and that owns or shares in the ownership and risk of loss of the cut flowers or cut greens; or (bb) as a first processor of noncultivated cut greens, in receiving the cut greens from a person who gathers the cut greens for handling; and (II) is subject to assessments as a qualified handler under the order. (I) The term “qualified wholesale handler” means a person in business as a floral wholesale jobber or floral supplier that is subject to assessments as a qualified handler under the order. (II) As used in this clause: (aa) The term “floral supplier” means a person engaged in acquiring cut flowers or cut greens to be manufactured into floral articles or otherwise processed for resale. (bb) The term “floral wholesale jobber” means a person who conducts a commission or other wholesale business in buying and selling cut flowers or cut greens. (C) The order shall provide that the appointments of qualified wholesale handlers to the PromoFlor Council made by the Secretary shall take into account the geographical distribution of cut flowers and cut greens markets in the United States. (3) The order shall provide that— (A) 2 nominees shall be submitted for each appointment to the PromoFlor Council; (B) nominations for each appointment of a qualified wholesale handler, producer that is a qualified handler, or importer that is a qualified handler to the PromoFlor Council shall be made by qualified wholesale handlers, producers that are qualified handlers, or importers that are qualified handlers, respectively, through an election process, in accordance with regulations issued by the Secretary; (C) nominations for— (i) 1 of the retailer appointments shall be made by the American Floral Marketing Council or a successor entity; and (ii) 2 of the retailer appointments shall be made by traditional retail florist organizations, in accordance with regulations issued by the Secretary; (D) nominations for each appointment of a representative of persons who produce fresh cut flowers and fresh cut greens shall be made by the persons through an election process, in accordance with regulations issued by the Secretary; and (E) in any case in which qualified wholesale handlers, producers that are qualified handlers, importers that are qualified handlers, persons who produce fresh cut flowers and fresh cut greens, or retailers fail to nominate individuals for an appointment to the PromoFlor Council, the Secretary may appoint an individual to fill the vacancy on a basis provided in the order or other regulations of the Secretary. (4) The order shall provide for the selection of alternate members of the PromoFlor Council by the Secretary in accordance with procedures specified in the order. (5) The order shall provide that— (A) each term of appointment to the PromoFlor Council shall be for 3 years, except that, of the initial appointments, 9 of the appointments shall be for 2-year terms, 8 of the appointments shall be for 3-year terms, and 8 of the appointments shall be for 4-year terms; (B) no member of the PromoFlor Council 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; and (C) members of the PromoFlor Council shall serve without compensation, but shall be reimbursed for the expenses of the members incurred in performing duties as members of the PromoFlor Council. (i) The order shall authorize the PromoFlor Council to appoint, from among the members of the Council, an executive committee of not more than 9 members. (ii) The membership of the executive committee initially shall be composed of— (I) 4 members representing qualified wholesale handlers; (II) 2 members representing producers that are qualified handlers; (III) 2 members representing importers that are qualified handlers; and (IV) 1 member representing traditional retailers. (iii) After the initial appointments, each appointment to the executive committee shall be made so as to ensure that the committee reflects, to the maximum extent practicable, the membership composition of the PromoFlor Council as a whole. (iv) Each initial appointment to the executive committee shall be for a term of 2 years. After the initial appointments, each appointment to the executive committee shall be for a term of 1 year. (B) The PromoFlor Council may delegate to the executive committee the authority of the PromoFlor Council under the order to hire and manage staff and conduct the routine business of the PromoFlor Council consistent with such policies as are determined by the PromoFlor Council. (c) The order shall define the general responsibilities of the PromoFlor Council, which shall include the responsibility to— (1) administer the order in accordance with the terms and provisions of the order; (2) make rules and regulations to effectuate the terms and provisions of the order; (3) appoint members of the PromoFlor Council to serve on an executive committee; (4) employ such persons as the PromoFlor Council determines are necessary, and set the compensation and define the duties of the persons; (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 and projects for cut flowers or cut greens promotion, consumer information, or related research; (A) implement plans and projects for cut flowers or cut greens promotion, 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 agreements, with funds received under the order; (7) evaluate on-going and completed plans and projects for cut flowers or cut greens promotion, consumer information, or related research; (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; (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, (11) provide the Secretary such information as the Secretary may require. (1) 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. (A) 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. (B) 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) 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) 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. (A) 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. (B) 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) The order shall provide that the PromoFlor 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). (1) 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. (2) 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) 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. (A) The order shall provide that each qualified handler shall pay to the PromoFlor Council, in the manner provided in the order, an assessment on each sale of cut flowers or cut greens to a retailer or an exempt handler (including each transaction described in subparagraph (C)(ii)), except to the extent that the sale is excluded from assessments under section 6805(a) of this title. (B) To facilitate the payment of assessments under this paragraph, the PromoFlor Council shall publish lists of qualified handlers required to pay assessments under the order and exempt handlers. (i) The order shall contain provisions regarding the determination of the status of a person as a qualified handler or exempt handler that include the rules and requirements specified in sections 6802(4) and 6805(b) of this title. (I) The order shall provide that each non-sale transfer of cut flowers or cut 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. (II) Subject to subclause (IV), in the case of a non-sale transfer of cut flowers or cut greens from a distribution center, or a direct sale to a consumer by an importer, the amount of the sale shall be equal to the sum of— (aa) the price paid by the distribution center or importer, respectively, to acquire the cut flowers or cut greens; and (bb) an amount determined by multiplying the acquisition price referred to in item (aa) by a uniform percentage established by the order to represent the mark-up of a wholesale handler on a sale to a retailer. (III) Subject to subclause (IV), in the case of a direct sale to a consumer by a producer, the amount of the sale shall be equal to an amount determined by multiplying the price paid by the consumer by a uniform percentage established by the order to represent the cost of producing the article and the mark-up of a wholesale handler on a sale to a retailer. (IV) Any change in a uniform percentage referred to in subclause (II) or (III) may become effective after— (aa) recommendation by the PromoFlor Council; and (bb) approval by the Secretary 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. (2) With respect to assessment rates, the order shall contain the following terms: (A) During the first 3 years the order is in effect, the rate of assessment on each sale or transfer of cut flowers or cut greens shall be ½ of 1 percent of— (i) the gross sales price of the cut flowers or cut greens 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). (i) 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), (ii) 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 ⅔ 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) 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. (A) 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. (i) 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) 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) 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) 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. (i) 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 payment of an assessment under this subsection for any qualified handler that establishes that the handler is financially unable to make the payment. (ii) A handler described in clause (i) shall establish that the handler is financially unable to make the payment in accordance with application and documentation requirements and review procedures established under rules recommended by the PromoFlor Council, approved by the Secretary, and issued 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. (B) The PromoFlor Council may grant a postponement under subparagraph (A) only if the handler demonstrates by the submission of an opinion of an independent certified public accountant, and by submission of other documentation required under the rules established under subparagraph (A)(ii), that the handler is insolvent or will be unable to continue to operate if the handler is required to pay the assessment when otherwise due. (i) The time period of a postponement and the terms and conditions of the payment of each assessment that is postponed under this paragraph shall be established by the PromoFlor Council, in accordance with rules established under the procedures specified in subparagraph (A)(ii), so as to appropriately reflect the demonstrated needs of the qualified handler. (ii) A postponement may be extended under rules established under the procedures specified in subparagraph (A)(ii) for the grant of initial postponements. (i) 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. (1) 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. (A) Information obtained from books, records, or reports under paragraph (1) or subsection (h)(6), 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) 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) 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. (A) 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) 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. (1) 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. (A) For the purposes described in paragraph (1), the order shall authorize the appointment of special committees composed of persons other than PromoFlor Council members. (B) 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. (l) 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) and for carrying out section 6805 of this title).