7 USC 2621 - Enforcement

Collapse to view only § 2621. Enforcement

§ 2611. Congressional findings and declaration of policy
§ 2612. Definitions
§ 2613. Authority for issuance and amendment of plan
§ 2614. Notice and hearings
§ 2615. Finding and issuance of plan
§ 2616. Regulations
§ 2617. Required terms and conditions of plans
§ 2618. Permissive terms and conditions of plans
§ 2619. Assessments
§ 2620. Procedural rights of persons subject to plan
§ 2621. Enforcement
§ 2622. Investigations
§ 2623. Referendum
§ 2624. Suspension or termination of plans
§ 2625. Amendment procedure
§ 2626. Separability
§ 2627. Authorization

§ 2611. Congressional findings and declaration of policy

Potatoes are a basic food in the United States and foreign countries. They are produced by many individual potato growers in every State in the United States and imported into the United States from foreign countries. In 1966, there were one million four hundred and ninety-seven thousand acres of cropland in the United States devoted to the production of potatoes.

Potatoes and potato products move in the channels of interstate or foreign commerce, and potatoes which do not move in such channels directly burden or affect interstate commerce in potatoes and potato products.

The maintenance and expansion of existing potato markets and the development of new or improved markets are vital to the welfare of potato growers and those concerned with marketing, using, and processing potatoes as well as the general economic welfare of the Nation.

Therefore, it is the declared policy of the Congress and the purpose of this chapter that it is essential in the public interest, through the exercise of the powers provided herein, to authorize the establishment of an orderly procedure for the financing, through adequate assessments on all potatoes harvested in the United States for commercial use and imported into the United States from foreign countries, and the carrying out of an effective and continuous coordinated program of research, development, advertising, and promotion designed to strengthen potatoes’ competitive position, and to maintain and expand domestic and foreign markets for potatoes and potato products.

(Pub. L. 91–670, title III, § 302, Jan. 11, 1971, 84 Stat. 2041; Pub. L. 101–624, title XIX, § 1936, Nov. 28, 1990, 104 Stat. 3865.)

§ 2612. Definitions

As used in this chapter:

(a) The term “Secretary” means the Secretary of Agriculture.

(b) The term “person” means any individual, partnership, corporation, association, or other entity.

(c) The term “potatoes” means all varieties of Irish potatoes grown by producers in the 50 States of the United States, and grown in foreign countries and imported into the United States.

(d) The term “handler” means any person (except a common or contract carrier of potatoes owned by another person) who handles potatoes in a manner specified in a plan issued pursuant to this chapter or in the rules and regulations issued thereunder.

(e) The term “producer” means any person engaged in the growing of five or more acres of potatoes.

(f) The term “promotion” means any action taken by the National Potato Promotion Board, pursuant to this chapter, to present a favorable image for potatoes to the public with the express intent of improving their competitive positions and stimulating sales of potatoes and shall include, but shall not be limited to, paid advertising.

(g) The term “importer” means any person who imports tablestock, frozen, or processed potatoes for ultimate consumption by humans or seed potatoes into the United States.

(Pub. L. 91–670, title III, § 303, Jan. 11, 1971, 84 Stat. 2041; Pub. L. 101–624, title XIX, § 1937, Nov. 28, 1990, 104 Stat. 3866.)

§ 2613. Authority for issuance and amendment of plan

To effectuate the declared policy of this chapter, the Secretary shall, subject to the provisions of this chapter, issue and from time to time amend, orders applicable to handlers and importers and shall have authority to issue orders authorizing the collection of assessments on potatoes handled or imported under the provisions of this chapter, and to authorize the use of such funds to provide research, development, advertising, and promotion of potatoes in a manner prescribed in this chapter. Any order issued by the Secretary under this chapter shall hereinafter in this chapter be referred to as a “plan”. Any such plan shall be applicable to potatoes produced in the 50 States of the United States and in foreign countries, if importers are subject to a plan and such potatoes are imported into the United States.

(Pub. L. 91–670, title III, § 304, Jan. 11, 1971, 84 Stat. 2042; Pub. L. 101–624, title XIX, § 1938, Nov. 28, 1990, 104 Stat. 3866.)

§ 2614. Notice and hearings

When sufficient evidence is presented to the Secretary by interested persons, or whenever the Secretary has reason to believe that a plan will tend to effectuate the declared policy of this chapter, he shall give due notice and opportunity for a hearing upon a proposed plan. Such hearing may be requested by any interested person, including the Secretary, when the request for such hearing is accompanied by a proposal for a plan.

(Pub. L. 91–670, title III, § 305, Jan. 11, 1971, 84 Stat. 2042; Pub. L. 101–624, title XIX, § 1939, Nov. 28, 1990, 104 Stat. 3866.)

§ 2615. Finding and issuance of plan

After notice and opportunity for hearing, the Secretary shall issue a plan if he finds, and sets forth in such plan, upon the evidence introduced at such hearing, that the issuance of such plan and all the terms and conditions thereof will tend to effectuate the declared policy of this chapter.

(Pub. L. 91–670, title III, § 306, Jan. 11, 1971, 84 Stat. 2042.)

§ 2616. Regulations

The Secretary is authorized to make such regulations with the force and effect of law, as may be necessary to carry out the provisions of this chapter and the powers vested in him by this chapter.

(Pub. L. 91–670, title III, § 307, Jan. 11, 1971, 84 Stat. 2042.)

§ 2617. Required terms and conditions of plans

Any plan issued pursuant to this chapter shall contain the following terms and conditions:

(a) National Potato Promotion Board; establishment; powers and duties

Providing for the establishment by the Secretary of a National Potato Promotion Board (hereinafter referred to as “the board”) and for defining its powers and duties, which shall include powers—

(1) to administer such plan in accordance with its terms and conditions;

(2) to make rules and regulations to effectuate the terms and conditions of such plan;

(3) to receive, investigate, and report to the Secretary complaints of violations of such plan; and

(4) to recommend to the Secretary amendments to such plan.

(b) Membership of board

(d) Budget; preparation and submission

(e) Assessment rate per poundage handled; limitation

(f) Restrictions

Providing that—

(1) funds collected by the board shall be used for research, development, advertising, or promotion of potatoes and potato products and such other expenses for the administration, maintenance, and functioning of the board, as may be authorized by the Secretary, including any referendum and administrative costs incurred by the Department of Agriculture under this chapter: Provided, That the provision for payment to the Department of Agriculture for any referendum and administrative costs so incurred shall not be subject to producer approval, or importer approval when importers are subject to a plan, in a referendum;

(2) no advertising or sales promotion program shall make any reference to private brand names or use false or unwarranted claims in behalf of potatoes or their products or false or unwarranted statements with respect to the attributes or use of any competing products; and

(3) no funds collected by the board shall in any manner be used for the purpose of influencing governmental policy or action, except as provided by subsection (a)(4) of this section.

(g) Research, development, advertising or promotion programs or projects; development and submission by board; approval by Secretary

(h) Contract authority of board; funds for payment of cost

(i) Recordkeeping; reports for accounting: receipts and disbursements; audit report

(Pub. L. 91–670, title III, § 308, Jan. 11, 1971, 84 Stat. 2042; Pub. L. 97–244, § 2, Aug. 26, 1982, 96 Stat. 310; Pub. L. 98–171, § 2(a), Nov. 29, 1983, 97 Stat. 1117; Pub. L. 101–624, title XIX, § 1940, Nov. 28, 1990, 104 Stat. 3866.)

§ 2618. Permissive terms and conditions of plans

Any plan issued pursuant to this chapter may contain one or more of the following terms and conditions:

(a) Exemptions

(b) Handler payment and reporting schedules

(d) Research and development projects and studies for marketing and utilization of potatoes

(e) Reserve funds; accumulation; limitation

(f) Foreign markets; sales development and expansion

(g) Assessment; refund

(h) Assessment authority

(i) Incidental and necessary terms and conditions

(Pub. L. 91–670, title III, § 309, Jan. 11, 1971, 84 Stat. 2044; Pub. L. 101–624, title XIX, § 1941, Nov. 28, 1990, 104 Stat. 3867.)

§ 2619. Assessments

(a) Collection and payment; recordkeeping; limitation

(1) Each handler designated by the board, pursuant to regulations issued under the plan, to make payment of assessments shall be responsible for payment to the board, as it may direct, of any assessment levied on potatoes; and such handler may collect from any producer or deduct from the proceeds paid to any producer, on whose potatoes such assessment is made, any such assessment required to be paid by such handler. Such handler shall maintain a separate record with respect to each producer for whom potatoes were handled, and such records shall indicate the total quantity of potatoes handled by him including those handled for producers and for himself, shall indicate the total quantity of potatoes handled by him which are included under the terms of a plan as well as those which are exempt under such plan, and shall indicate such other information as may be prescribed by the board. To facilitate the collection and payment of such assessments, the board may designate different handlers or classes of handlers to recognize differences in marketing practices or procedures utilized in any State or area. No more than one such assessment shall be made on any potatoes.

(2) When importers are subject to a plan, each importer designated by the board, pursuant to regulations issued under the plan, to make payment of assessments shall be responsible for payment to the board, as it may direct, of any assessment levied on potatoes. The assessment on imported tablestock, frozen, or processed potatoes for ultimate consumption by humans, and seed potatoes shall be established by the board so that the effective assessment shall equal that on domestic production and shall be paid by the importer to the board at the time of entry into the United States. Each such importer shall maintain a separate record including the total quantity of tablestock, frozen, processed potatoes for ultimate consumption by humans, and seed potatoes imported into the United States that are included under the terms of the plan as well as those that are exempt under such plan, and shall indicate such other information as may be prescribed by the board. No more than one assessment shall be made on any imported potatoes.

(b) Records and reports; availability

(c) Confidential information; disclosure during proceedings; prohibition inapplicable to general statements and publication of violations; penalties; removal from office

All information obtained pursuant to subsections (a) and (b) of this section shall be kept confidential by all officers and employees of the Department of Agriculture and of the board, and only such information so furnished or acquired as the Secretary deems relevant shall be disclosed by them, and then only in a suit or administrative hearing brought at the direction, or upon the request, of the Secretary, or to which he or any officer of the United States is a party, and involving the plan with reference to which the information to be disclosed was furnished or acquired. Nothing in this section shall be deemed to prohibit—

(1) the issuance of general statements based upon the reports of a number of handlers or importers subject to a plan if such statements do not identify the information furnished by any person, or

(2) the publication by direction of the Secretary of the name of any person violating any plan together with a statement of the particular provisions of the plan violated by such person.

Any such officer or employee violating the provisions of this subsection shall upon conviction be subject to a fine of not more than $1,000 or imprisonment for not more than one year, or both, and shall be removed from office.

(Pub. L. 91–670, title III, § 310, Jan. 11, 1971, 84 Stat. 2044; Pub. L. 101–624, title XIX, § 1942, Nov. 28, 1990, 104 Stat. 3867; Pub. L. 102–237, title VIII, § 804, Dec. 13, 1991, 105 Stat. 1882.)

§ 2620. Procedural rights of persons subject to plan

(a) Administrative proceedings; petition; hearing; finality of ruling

(b) Judicial review; jurisdiction; complaint; remand; relief during pendency of proceedings

(Pub. L. 91–670, title III, § 311, Jan. 11, 1971, 84 Stat. 2045.)

§ 2621. Enforcement

(a) Jurisdiction of United States district courts; administrative action

(b) Civil penalties; cease and desist orders; appeal; failure to comply with order or assessment; further proceedings and penalties

(1) Any person who violates any provision of any plan or regulation issued by the Secretary under this chapter, or who fails or refuses to pay, collect, or remit any assessment or fee duly required of such person thereunder, may be assessed a civil penalty by the Secretary of not less than $500 or more than $5,000 for each such violation. Each violation shall be a separate offense. 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 violations. No penalty shall be assessed or cease and desist order issued unless such person is given notice and opportunity for a hearing before the Secretary with respect to such violation, and the order of the Secretary assessing a penalty or imposing a cease and desist order shall be final and conclusive unless the affected person files an appeal from the Secretary’s order with the appropriate United States court of appeals.

(2) Any person against whom a violation is found and a civil penalty assessed or cease and desist order issued under subsection (b)(1) of this section may obtain review in the court of appeals of the United States for the circuit in which such person resides or carries on business or in the United States Court of Appeals for the District of Columbia Circuit by filing a notice of appeal in such court within thirty days from the date of such order and by simultaneously sending a copy of such notice by certified mail to the Secretary. The Secretary shall promptly file in such court a certified copy of the record upon which such violation was found. The findings of the Secretary shall be set aside only if found to be unsupported by substantial evidence.

(3) Any person who fails to obey a cease and desist order after it has become final and unappealable, or after the appropriate court of appeals 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 and for judicial review under the procedures specified in subsections (b)(1) and (2) of this section, of not more than $500 for each offense, and each day during which such failure continues shall be deemed a separate offense.

(4) If any person fails to pay an assessment of a civil penalty after it has become a final and unappealable order, or after the appropriate court of appeals 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 appropriate district court of the United States. In such action, the validity and appropriateness of the final order imposing the civil penalty shall not be subject to review.

(Pub. L. 91–670, title III, § 312, Jan. 11, 1971, 84 Stat. 2045; Pub. L. 97–244, § 3, Aug. 26, 1982, 96 Stat. 310.)

§ 2622. Investigations

(a) Administration of oath; subpena; contempts; process; jurisdiction

(b) Self-incrimination; privilege

(Pub. L. 91–670, title III, § 313, Jan. 11, 1971, 84 Stat. 2046; Pub. L. 101–624, title XIX, § 1943, Nov. 28, 1990, 104 Stat. 3868.)

§ 2623. Referendum

(a) Secretary’s duty to conduct; purpose of referendum

(b) Required margin of approval

(d) Penalties for disclosure of confidential information, ballots and reports

(Pub. L. 91–670, title III, § 314, Jan. 11, 1971, 84 Stat. 2046; Pub. L. 97–244, § 4, Aug. 26, 1982, 96 Stat. 311; Pub. L. 101–624, title XIX, § 1944, Nov. 28, 1990, 104 Stat. 3868.)

§ 2624. Suspension or termination of plans

(a) Duty of Secretary

(b) Referendum

(Pub. L. 91–670, title III, § 315, Jan. 11, 1971, 84 Stat. 2047; Pub. L. 101–624, title XIX, § 1945, Nov. 28, 1990, 104 Stat. 3868.)

§ 2625. Amendment procedure

The provisions of this chapter applicable to plans shall be applicable to amendments to plans.

(Pub. L. 91–670, title III, § 316, Jan. 11, 1971, 84 Stat. 2047.)

§ 2626. Separability

If any provision of this chapter or the application thereof to any person or circumstances is held invalid, the validity of the remainder of this chapter and of the application of such provision to other persons and circumstances shall not be affected thereby.

(Pub. L. 91–670, title III, § 317, Jan. 11, 1971, 84 Stat. 2047.)

§ 2627. Authorization

There is hereby made available from the funds provided by section 612c of this title such sums as are necessary to carry out the provisions of this chapter: Provided, That no such sum shall be used for the payment of any expenses or expenditures of the board in administering any provision of any plan issued under authority of this chapter.

(Pub. L. 91–670, title III, § 318, Jan. 11, 1971, 84 Stat. 2047.)