7 USC 6010 - Investigations and power to subpoena

Collapse to view only § 6010. Investigations and power to subpoena

§ 6001. Findings and declaration of policy
§ 6002. Definitions
§ 6003. Issuance of plans
§ 6004. Regulations
§ 6005. Required terms in plans
§ 6006. Permissive terms in plans
§ 6007. Assessments
§ 6008. Petition and review
§ 6009. Enforcement
§ 6010. Investigations and power to subpoena
§ 6011. Requirement of referendum
§ 6012. Suspension or termination of plan
§ 6013. Authorization of appropriations

§ 6001. Findings and declaration of policy

(a) Findings

Congress finds that—

(1) pecans are a native American nut that is an important food, and is a valuable part of the human diet;

(2) the production of pecans plays a significant role in the economy of the United States in that pecans are produced by thousands of pecan producers, shelled and processed by numerous shellers and processors, and pecans produced in the United States are consumed by millions of people throughout the United States and foreign countries;

(3) pecans must be high quality, readily available, handled properly, and marketed efficiently to ensure that consumers have an adequate supply of pecans;

(4) the maintenance and expansion of existing markets and development of new markets for pecans are vital to the welfare of pecan producers and those concerned with marketing, using, and producing pecans, as well as to the general economy of the United States, and necessary to ensure the ready availability and efficient marketing of pecans;

(5) there exist established State organizations conducting pecan promotion, research, and industry and consumer education programs that are invaluable to the efforts of promoting the consumption of pecans;

(6) the cooperative development, financing, and implementation of a coordinated national program of pecan promotion, research, industry information, and consumer information are necessary to maintain and expand existing markets and develop new markets for pecans; and

(7) pecans move in interstate and foreign commerce, and pecans that do not move in such channels of commerce directly burden or affect interstate commerce in pecans.

(b) Policy

It is declared to be the policy of Congress that it is in the public interest to authorize the establishment, through the exercise of the powers provided in this chapter, of an orderly procedure for developing, financing (through adequate assessments on pecans produced or imported into the United States), and carrying out an effective, continuous, coordinated program of promotion, research, industry information, and consumer information designed to—

(1) strengthen the pecan industry’s position in the marketplace;

(2) maintain and expand existing domestic and foreign markets and uses for pecans; and

(3) develop new markets and uses for pecans.

(Pub. L. 101–624, title XIX, § 1906, Nov. 28, 1990, 104 Stat. 3838.)

§ 6002. Definitions

As used in this chapter—

(1) Board

(2) Commerce

(3) Conflict of interest

(4) Consumer information

(5) Department

(6) District

(7) First handler

(8) Grower

(9) Grower-sheller

The term “grower-sheller” means a person who—

(A) shells pecans, or has pecans shelled for such person, in the United States; and

(B) during the immediately previous year, grew 50 percent or more of the pecans such person shelled or had shelled for such person.

(10) Handle

(11) Importer

(12) Industry information

(13) In-shell pecan

(14) To market

(15) Member

(16) Pecan

(17) Person

(18) Plan

(19) Promotion

(20) Research

(21) Secretary

(22) Shell

(23) Shelled pecan

(24) Sheller

The term “sheller” means any person who—

(A) shells pecans or has pecans shelled for the account of such person; and

(B) during the immediately previous year, purchased more than 50 percent of the pecans such person shelled or had shelled for such account.

(25) State

(26) United States

(Pub. L. 101–624, title XIX, § 1907, Nov. 28, 1990, 104 Stat. 3839; Pub. L. 102–237, title VIII, § 802(1), Dec. 13, 1991, 105 Stat. 1882.)

§ 6003. Issuance of plans

(a) In general

(b) Procedure

(1) Proposal for issuance of plan

(2) Proposed plan

(3) Issuance of plan

(4) Effective date of plan

(Pub. L. 101–624, title XIX, § 1908, Nov. 28, 1990, 104 Stat. 3841.)

§ 6004. Regulations

The Secretary may issue such regulations as are necessary to carry out this chapter.

(Pub. L. 101–624, title XIX, § 1909, Nov. 28, 1990, 104 Stat. 3841.)

§ 6005. Required terms in plans

(a) In general

(b) Pecan Marketing Board

(1) Establishment

(2) Service to entire industry

(3) Board membershipThe Board shall consist of 15 members, including—

(A) 8 members who are growers;

(B) 4 members who are shellers;

(C) one member who is a first handler and who derives over 50 percent of the member’s gross income from buying and selling pecans;

(D) one member who is an importer of pecans into the United States, nominated by the Board;

(E) one member representing the general public, nominated by the Board; and

(F) at the option of the Board, a consultant or advisor representing the views of pecan producers in a country other than the United States who may be chosen to attend Board functions as a nonvoting member.

(4) Representation of members

(A) Grower representatives

(B) Sheller representativesOf the shellers referred to in paragraph (3)(B)—

(i) 2 members shall be selected from among shellers whose place of residence is east of the Mississippi River; and

(ii) 2 members shall be selected from among shellers whose place of residence is west of the Mississippi River.

(D) Importer representative

(E) Public representative

(5) Alternate for each member

(6) Limitation on State residence

(7) Modifying Board membershipIn accordance with regulations approved by the Secretary, at least once each 3 years and not more than once each 2 years, the Board shall—

(A) review the geographic distribution of pecan production throughout the United States; and

(B) if warranted, recommend to the Secretary that the Secretary reapportion a district in order to reflect the geographic distribution of pecan production.

(8) Selection process for members

(A) Publicity

(B) Eligibility

(D) Certification

(E) Appointment

(F) Rejection of nominees

(G) Initial Board

(H) Failure to nominate

(9) Terms of office

(A) In general

(B) Termination of terms

(D) Vacancies

(i) Submitting nominations

(ii) Lack of nominations

(10) Compensation

(c) Powers and duties of BoardThe plan shall define the powers and duties of the Board, which shall include the power and duty—

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

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

(3) to meet, organize, and select from among members of the Board a chairperson, other officers, and committees and subcommittees, as the Board determines appropriate;

(4) to establish working committees of persons other than Board members;

(5) to employ such persons, other than Board members, as the Board considers necessary and to determine the compensation and define the duties of such persons;

(6) to prepare and submit for the approval of the Secretary, prior to the beginning of each fiscal period, a recommended rate of assessment under section 6007 of this title, and a fiscal period budget of the anticipated expenses in the administration of the plan, including the probable costs of all programs and projects;

(7) to develop programs and projects, subject to subsection (d);

(8) to enter into contracts or agreements, subject to subsection (e), to develop and carry out programs or projects of promotion, research, industry information and consumer information;

(9) to carry out research, promotion, industry information, and consumer information, and to pay the costs of such projects with assessments collected pursuant to section 6007 of this title;

(10) to keep minutes, books, and records that reflect the actions and transactions of the Board, and promptly report minutes of each Board meeting to the Secretary;

(11) to appoint and convene, from time to time, working committees comprised of growers, grower-shellers, first handlers, shellers, importers, and the public to assist in the development of research, promotion, industry information, and consumer information programs for pecans;

(12) to invest, pending disbursement under a program or project, funds collected through assessments authorized under this chapter, only in—

(A) obligations of the United States or any agency thereof;

(B) general obligations of any State or any political subdivision thereof;

(D) obligations fully guaranteed as to principal and interest by the United States;

except that income from any such invested funds may be used for any purpose for which the invested funds may be used;

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

(14) to furnish the Secretary with such information as the Secretary may request;

(15) to recommend to the Secretary amendments to the plan; and

(16) to develop and recommend to the Secretary for approval such regulations as may be necessary for the development and execution of programs or projects, or as may otherwise be necessary, to carry out the plan.

(d) Programs and budgets

(1) Submission to Secretary

(2) Budgets

(3) Incurring expenses

(4) Paying expenses

(5) Authority to borrow

(6) Limitation on spending

(e) Contracts and agreements

(1) In general

(2) RequirementsAny 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

(f) Books and records of Board

(1) In generalThe 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

(2) Audits

(g) ProhibitionThe 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 generalThe 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

(3) Confidentiality

(A) In general

(B) DisclosureInformation 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

(iii) the information relates to this chapter.

(D) General statementsNothing 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

(A) Exception

(B) Penalty

(5) Withholding information

(i) Use of assessments

(j) Other terms and conditions

(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.)

§ 6006. Permissive terms in plans

(a) In general

(b) Exemptions

(d) Promotion

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

(f) Reserve funds

(g) 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

(1) In general

Assessments required under subsection (a) shall be remitted to the Board by—

(A) a first handler; and

(B) an importer.

(2) Times to remit assessment

(A) First handlers

(B) Grower-shellers

(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

(3) Special State assessment

(A) In general

(B) Collection and remittance

(e) Late-payment charge

(1) In general

(2) Amount of charge

(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

(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

(5) Making of refund

(6) Proration

If—

(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, grower-shellers, and importers who demand such refund.

(7) Program approved

(Pub. L. 101–624, title XIX, § 1912, Nov. 28, 1990, 104 Stat. 3848.)

§ 6008. Petition and review

(a) Petition

(1) In general

A person subject to a plan issued under this chapter may file with the Secretary a petition—

(A) stating that the plan, any provision of the plan, or any obligation imposed in connection 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

(3) Ruling

(b) Review

(1) Commencement of action

(2) Process

(3) Remands

If the court determines that such ruling is not in accordance with law, the court shall remand the matter to the Secretary with directions 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

(Pub. L. 101–624, title XIX, § 1913, Nov. 28, 1990, 104 Stat. 3850.)

§ 6009. Enforcement

(a) Jurisdiction

(b) Referral to Attorney General

(1) Civil penalties

(A) In general

(B) Separate offense

(2) Cease and desist orders

(3) Notice and hearing

(4) Finality

(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) 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

(3) Standard of review

(e) Failure to obey orders

(f) Failure to pay penalty

(Pub. L. 101–624, title XIX, § 1914, Nov. 28, 1990, 104 Stat. 3851.)

§ 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.

(b) Power to subpoena

(1) Investigations

(2) Administrative hearings

(d) Contempt

(e) Process

(f) Hearing site

(Pub. L. 101–624, title XIX, § 1915, Nov. 28, 1990, 104 Stat. 3852; Pub. L. 102–237, title VIII, § 802(3), Dec. 13, 1991, 105 Stat. 1882.)

§ 6011. Requirement of referendum

(a) In general

(b) Other referenda

(1) In general

(2) Suspension or termination

(d) Manner

(1) In general

(2) Advance registration

(3) Voting

(4) Notice

(Pub. L. 101–624, title XIX, § 1916, Nov. 28, 1990, 104 Stat. 3853.)

§ 6012. Suspension or termination of plan

(a) Mandatory suspension or termination

(b) Suspension or termination

If, as a result of any referendum conducted under this chapter, the Secretary determines that suspension or termination of a plan is favored by a majority of the growers, grower-shellers, and importers voting in the referendum, the Secretary shall—

(1) within 6 months after making such determination, suspend or terminate, as the case may be, collection of assessments under the plan; and

(2) suspend or terminate, as the case may be, activities under the plan in an orderly manner as soon as practicable.

(Pub. L. 101–624, title XIX, § 1917, Nov. 28, 1990, 104 Stat. 3854.)

§ 6013. Authorization of appropriations

(a) In general

(b) Administrative expenses

(Pub. L. 101–624, title XIX, § 1918, Nov. 28, 1990, 104 Stat. 3854.)