7 USC 7804 - Required terms in orders

View all text of Chapter 105 [§ 7801 - § 7813]

§ 7804. Required terms in orders

(a) In general

(b)

(1) Establishment and membership

(A) Establishment

(B) Membership

(i) Appointment

(ii) Composition

(2) Distribution of appointments

(A) In generalThe order shall provide that the membership of the Board shall consist of the following:

(i) Seven members who are domestic producers of Hass avocados and are subject to assessments under the order.

(ii) Two members who represent importers of Hass avocados and are subject to assessments under the order.

(iii) Three members who are domestic producers of Hass avocados and are subject to assessments under the order, or are importers of Hass avocados and are subject to assessments under the order, to reflect the proportion of domestic production and imports supplying the United States market, which shall be based on the Secretary’s determination of the average volume of domestic production of Hass avocados proportionate to the average volume of imports of Hass avocados in the United States over the previous 3 years.

(B) Adjustment in Board representation

(3) Nomination processThe order shall provide that—

(A) two nominees shall be submitted for each appointment to the Board;

(B) nominations for each appointment of a producer or an importer shall be made by domestic producers or importers, respectively—

(i) in the case of producers, through an election process which utilizes existing organizations of avocado producers established pursuant to a State statute, with approval by the Secretary; and

(ii) in the case of importers, nominations are submitted by importers under such procedures as the Secretary determines appropriate; and

(C) in any case in which producers or importers fail to nominate individuals for an appointment to the Board, the Secretary may appoint an individual to fill the vacancy on a basis provided in the order or other regulations of the Secretary.

(4) Alternates

(5) TermsThe order shall provide that—

(A) each term of appointment to the Board shall be for 3 years, except that, of the initial appointments, four of the appointments shall be for 2-year terms, four of the appointments shall be for 3-year terms, and four of the appointments shall be for 4-year terms; and

(B) no member of the Board 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.

(6) Replacement

(A) Disqualification from Board service

(B) Manner of filling vacancy

(7) Compensation

(c) General responsibilities of the Avocado BoardThe order shall define the general responsibilities of the Avocado Board, which shall include the responsibility to—

(1) administer the order in accordance with the terms and provisions of the order;

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

(3) recommend to the Secretary rules and regulations to effectuate the terms and provisions of the order;

(4) employ such persons as the Board determines are necessary, and set the compensation and define the duties of the persons;

(5)

(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 or projects for Hass avocado promotion, industry information, consumer information, or related research;

(6)

(A) implement plans and projects for Hass avocado promotion, industry information, 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 agreement, with funds received under the order;

(7) evaluate on-going and completed plans and projects for Hass avocado promotion, industry information, consumer information, or related research and comply with the independent evaluation provisions of the Commodity Promotion, Research, and Information Act of 1996 (subtitle B of title V of Public Law 104–127 [7 U.S.C. 7411 et seq.]);

(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;

(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;

(11) borrow funds necessary for the startup expenses of the order; and

(12) provide the Secretary such information as the Secretary may require.

(d) Budgets; plans and projects

(1) Submission of budgets

(2) Plans and projects

(A) Promotion and consumer informationThe 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 Hass avocados, and for the disbursement of necessary funds for the purposes described in this clause; and

(ii) that any plan or project referred to in clause (i) shall be directed toward increasing the general demand for Hass avocados in the domestic marketplace.

(B) Industry information

(i) the establishment, implementation, administration, and evaluation of plans and projects for market development research, research with respect to the sale, distribution, marketing, use, quality, or nutritional value of Hass avocados, and other research with respect to Hass avocado marketing, promotion, industry information 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.

(D) Submission to Secretary

(3) Approval by Secretary

(e) Contracts and agreements

(1) Promotion, consumer information, industry information and related research plans and projects

(A) In general

(B) RequirementsThe 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 Board 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 party or agreeing party shall—(I) keep accurate records of all transactions of the party;(II) account for funds received and expended;(III) make periodic reports to the Board of activities conducted; and(IV) make such other reports as the Board or the Secretary shall require.

(2) Other contracts and agreements

(f) Books and records of Board

(1) In generalThe order 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 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 the funds entrusted to the Board, including all assessment funds disbursed by the Board to a State organization of avocado producers established pursuant to State law.

(2) Audits

(g) Control of administrative costs

(1) System of cost controlsThe order shall provide that the Board 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—

(A) will ensure that the costs incurred by the Board in administering the order in any fiscal year shall not exceed 10 percent of the projected level of assessments to be collected by the Board for that fiscal year; and

(B) 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.

(2) Use of existing personnel and facilities

(h) Assessments

(1) Authority

(A) In general

(B) Published lists

(i) First handler status

(ii) Producer-handlers

(iii) Importers

(2) Assessment ratesWith respect to assessment rates, the order shall contain the following terms:

(A) Initial rate

(B) Changes in the rate

(i) In general

(ii) RequirementsAny change in the rate of assessment under this subparagraph—(I) may be made only if adopted by the Board by an affirmative vote of at least seven members of the Board 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 Board 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 7805 of this title.

(3) Collection by first handlers

(4) Timing of submitting assessments

(5) Claiming an exemption from collecting assessmentsTo claim an exemption under section 7802(6) of this title as an exempt handler for a particular fiscal year, a person shall submit an application to the Board—

(A) stating the basis for such exemption; and

(B) certifying such person will not purchase Hass avocados in the United States on which an assessment has not been paid for the current fiscal year.

(6) Exclusion

(7) Use of assessment funds

(8) Assessment funds for State association

(9) Assessment funds for importers associations

(A) In generalThe order shall provide that any importers association shall receive a credit described in subparagraph (B) if such association is—

(i) established pursuant to State law that requires detailed State regulation comparable to that applicable to the State organization of United States avocado producers, as determined by the Secretary; or

(ii) certified by the Secretary as meeting the requirements applicable to the Board as to budgets, plans, projects, audits, conflicts of interest, and reimbursements for administrative costs incurred by the Secretary.

(B) Credit

(i) In general

(ii) Administrative expenses

(i) Reimbursement of Secretary expensesThe order shall provide for reimbursing the Secretary—

(1) for expenses not to exceed $25,000 incurred by the Secretary in connection with any referendum conducted under section 7805 of this title;

(2) for administrative costs incurred by the Secretary for supervisory work of up to two employee years annually after an order or amendment to any order has been issued and made effective; and

(3) for costs incurred by the Secretary in implementation of the order issued under section 7803 of this title, for enforcement of the chapter and the order, for subsequent referenda conducted under section 7805 of this title, and in defending the Board in litigation arising out of action taken by the Board.

(j) Prohibition on brand advertising and certain claims

(1) ProhibitionsExcept as provided in paragraph (2), a program or project conducted under this chapter shall not—

(A) make any reference to private brand names;

(B) make false, misleading, or disparaging claims on behalf of Hass avocados; or

(2) Exceptions

(k) Prohibition on use of funds to influence governmental action

(1) In general

(2) Exception

(l) Prohibition of conflict of interest

(m) Books and records; reports

(1) In general

(2) Confidentiality requirement

(A) In general

(B) Suits and hearingsInformation 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.

(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

(A) Review

(B) Customs Service

(n) Consultations with industry experts

(1) In general

(2) Special committees

(A) In general

(B) Consultation

(o) Other terms of the order

(Pub. L. 106–387, § 1(a) [title XII, § 1205], Oct. 28, 2000, 114 Stat. 1549, 1549A–82.)