[Congressional Bills 104th Congress]
[From the U.S. Government Publishing Office]
[S. 1336 Introduced in Senate (IS)]







104th CONGRESS
  1st Session
                                S. 1336

 To enable processors of popcorn to develop, finance, and carry out a 
    nationally coordinated program for popcorn promotion, research, 
consumer information, and industry information, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

             October 19 (legislative day, October 18), 1995

   Mr. Lugar introduced the following bill; which was read twice and 
   referred to the Committee on Agriculture, Nutrition, and Forestry

_______________________________________________________________________

                                 A BILL


 
 To enable processors of popcorn to develop, finance, and carry out a 
    nationally coordinated program for popcorn promotion, research, 
consumer information, and industry information, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Popcorn Promotion, Research, and 
Consumer Information Act''.

SEC. 2. FINDINGS AND DECLARATION OF POLICY.

    (a) Findings.--Congress finds that--
            (1) popcorn is an important food that is a valuable part of 
        the human diet;
            (2) the production and processing of popcorn plays a 
        significant role in the economy of the United States in that 
        popcorn is processed by several popcorn processors, distributed 
        through wholesale and retail outlets, and consumed by millions 
        of people throughout the United States and foreign countries;
            (3) popcorn must be of high quality, readily available, 
        handled properly, and marketed efficiently to ensure that the 
        benefits of popcorn are available to the people of the United 
        States;
            (4) the maintenance and expansion of existing markets and 
        uses and the development of new markets and uses for popcorn 
        are vital to the welfare of processors and persons concerned 
        with marketing, using, and producing popcorn for the market, as 
        well as to the agricultural economy of the United States;
            (5) the cooperative development, financing, and 
        implementation of a coordinated program of popcorn promotion, 
        research, consumer information, and industry information is 
        necessary to maintain and expand markets for popcorn; and
            (6) popcorn moves in interstate and foreign commerce, and 
        popcorn that does not move in those channels of commerce 
        directly burdens or affects interstate commerce in popcorn.
    (b) Policy.--It is the policy of Congress that it is in the public 
interest to authorize the establishment, through the exercise of the 
powers provided in this Act, of an orderly procedure for developing, 
financing (through adequate assessments on unpopped popcorn processed 
domestically), and carrying out an effective, continuous, and 
coordinated program of promotion, research, consumer information, and 
industry information designed to--
            (1) strengthen the position of the popcorn industry in the 
        marketplace; and
            (2) maintain and expand domestic and foreign markets and 
        uses for popcorn.
    (c) Purposes.--The purposes of this Act are to--
            (1) maintain and expand the markets for all popcorn 
        products in a manner that--
                    (A) is not designed to maintain or expand any 
                individual share of a producer or processor of the 
                market;
                    (B) does not compete with or replace individual 
                advertising or promotion efforts designed to promote 
                individual brand name or trade name popcorn products; 
                and
                    (C) authorizes and funds programs that result in 
                government speech promoting government objectives; and
            (2) establish a nationally coordinated program for popcorn 
        promotion, research, consumer information, and industry 
        information.
    (d) Statutory Construction.--This Act treats processors equitably. 
Nothing in this Act--
            (1) provides for the imposition of a trade barrier to the 
        entry into the United States of imported popcorn for the 
        domestic market; or
            (2) provides for the control of production or otherwise 
        limits the right of any individual processor to produce 
        popcorn.

SEC. 3. DEFINITIONS.

    In this Act (except as otherwise specifically provided):
            (1) Board.--The term ``Board'' means the Popcorn Board 
        established under section 5(b).
            (2) Commerce.--The term ``commerce'' means interstate, 
        foreign, or intrastate commerce.
            (3) Consumer information.--The term ``consumer 
        information'' means information and programs that will assist 
        consumers and other persons in making evaluations and decisions 
        regarding the purchase, preparation, and use of popcorn.
            (4) Department.--The term ``Department'' means the 
        Department of Agriculture.
            (5) Industry information.--The term ``industry 
        information'' means information and programs that will lead to 
        the development of--
                    (A) new markets, new marketing strategies, or 
                increased efficiency for the popcorn industry; or
                    (B) activities to enhance the image of the popcorn 
                industry.
            (6) Marketing.--The term ``marketing'' means the sale or 
        other disposition of unpopped popcorn for human consumption in 
        a channel of commerce, but does not include a sale or 
        disposition to or between processors.
            (7) Order.--The term ``order'' means an order issued under 
        section 4.
            (8) Person.--The term ``person'' means an individual, group 
        of individuals, partnership, corporation, association, or 
        cooperative, or any other legal entity.
            (9) Popcorn.--The term ``popcorn'' means unpopped popcorn 
        (Zea Mays L), commercially grown in the United States, 
        processed by shelling, cleaning, or drying and introduced into 
        a channel of commerce.
            (10) Process.--The term ``process'' means to shell, clean, 
        dry, and prepare popcorn for the market, but does not include 
        packaging popcorn for the market without also engaging in 
        another activity described in this paragraph.
            (11) Processor.--The term ``processor'' means a person 
        engaged in the preparation of unpopped popcorn for the market 
        who owns or shares the ownership and risk of loss of the 
        popcorn and who processes and distributes over 4,000,000 pounds 
        of popcorn in the market per year.
            (12) Promotion.--The term ``promotion'' means an action, 
        including paid advertising, to enhance the image or 
        desirability of popcorn.
            (13) Research.--The term ``research'' means any type of 
        study to advance the image, desirability, marketability, 
        production, product development, quality, or nutritional value 
        of popcorn.
            (14) Secretary.--The term ``Secretary'' means the Secretary 
        of Agriculture.
            (15) State.--The term ``State'' means each of the 50 States 
        and the District of Columbia.
            (16) United states.--The term ``United States'' means all 
        of the States.

SEC. 4. ISSUANCE OF ORDERS.

    (a) In General.--To effectuate the policy described in section 
2(b), the Secretary, subject to subsection (b), shall issue 1 or more 
orders applicable to processors. An order shall be applicable to all 
popcorn production and marketing areas in the United States. Not more 
than 1 order shall be in effect under this Act at any 1 time.
    (b) Procedure.--
            (1) Proposal or request for issuance.--The Secretary may 
        propose the issuance of an order, or an association of 
        processors or any other person that would be affected by an 
        order may request the issuance of, and submit a proposal for, 
        an order.
            (2) Notice and comment concerning proposed order.--Not 
        later than 30 days after the receipt of a request and proposal 
        for an order under paragraph (1), or at such time as the 
        Secretary determines to propose an order, the Secretary shall 
        publish a proposed order and give due notice and opportunity 
        for public comment on the proposed order.
            (3) Issuance of order.--After notice and opportunity for 
        public comment under paragraph (2), the Secretary shall issue 
        an order, taking into consideration the comments received and 
        including in the order such provisions as are necessary to 
        ensure that the order conforms to this Act. The order shall be 
        issued and become effective not later than 150 days after the 
        date of publication of the proposed order.
    (c) Amendments.--The Secretary, as appropriate, may amend an order. 
The provisions of this Act applicable to an order shall be applicable 
to any amendment to an order, except that an amendment to an order may 
not require a referendum to become effective.

SEC. 5. REQUIRED TERMS IN ORDERS.

    (a) In General.--An order shall contain the terms and conditions 
specified in this section.
    (b) Establishment and Membership of Popcorn Board.--
            (1) In general.--The order shall provide for the 
        establishment of, and appointment of members to, a Popcorn 
        Board that shall consist of not fewer than 4 members and not 
        more than 9 members.
            (2) Nominations.--The members of the Board shall be 
        processors appointed by the Secretary from nominations 
        submitted by processors in a manner authorized by the 
        Secretary, subject to paragraph (3). Not more than 1 member may 
        be appointed to the Board from nominations submitted by any 1 
        processor.
            (3) Geographical diversity.--In making appointments, the 
        Secretary shall take into account, to the extent practicable, 
        the geographical distribution of popcorn production throughout 
        the United States.
            (4) Terms.--The term of appointment of each member of the 
        Board shall be 3 years, except that the members appointed to 
        the initial Board shall serve, proportionately, for terms of 2, 
        3, and 4 years, as determined by the Secretary.
            (5) Compensation and expenses.--A member of the Board shall 
        serve without compensation, but shall be reimbursed for the 
        expenses of the member incurred in the performance of duties 
        for the Board.
    (c) Powers and Duties of Board.--The order shall define the powers 
and duties of the Board, which shall include the power and duty--
            (1) to administer the order in accordance with the terms 
        and provisions of the order;
            (2) to make regulations to effectuate the terms and 
        provisions of the order;
            (3) to appoint members of the Board to serve on an 
        executive committee;
            (4) to propose, receive, evaluate, and approve budgets, 
        plans, and projects of promotion, research, consumer 
        information, and industry information, and to contract with 
        appropriate persons to implement the plans or projects;
            (5) to accept and receive voluntary contributions, gifts, 
        and market promotion or similar funds;
            (6) to invest, pending disbursement under a plan or 
        project, funds collected through assessments authorized under 
        subsection (f), only in--
                    (A) obligations of the United States or an agency 
                of the United States;
                    (B) general obligations of a State or a political 
                subdivision of a State;
                    (C) an 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;
            (7) to receive, investigate, and report to the Secretary 
        complaints of violations of the order; and
            (8) to recommend to the Secretary amendments to the order.
    (d) Plans and Budgets.--
            (1) In general.--The order shall provide that the Board 
        shall submit to the Secretary for approval any plan or project 
        of promotion, research, consumer information, or industry 
        information.
            (2) Budgets.--The order shall require the Board to submit 
        to the Secretary for approval budgets on a fiscal year basis of 
        the anticipated expenses and disbursements of the Board in the 
        implementation of the order, including projected costs of plans 
        and projects of promotion, research, consumer information, and 
        industry information.
    (e) Contracts and Agreements.--
            (1) In general.--The order shall provide that the Board may 
        enter into contracts or agreements for the implementation and 
        carrying out of plans or projects of promotion, research, 
        consumer information, or industry information, including 
        contracts with a processor organization, and for the payment of 
        the cost of the plans or projects with funds collected by the 
        Board under the order.
            (2) Requirements.--A contract or agreement under paragraph 
        (1) shall provide that--
                    (A) the contracting party shall develop and submit 
                to the Board a plan or project, together with a budget 
                that shows the estimated costs to be incurred for the 
                plan or project;
                    (B) the plan or project shall become effective on 
                the approval of the Secretary; and
                    (C) the contracting party shall keep accurate 
                records of each transaction of the party, 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) Processor organizations.--The order shall provide that 
        the Board may contract with processor organizations for any 
        other services. The contract shall include provisions 
        comparable to the provisions required by paragraph (2).
    (f) Assessments.--
            (1) Processors.--The order shall provide that each 
        processor marketing popcorn in the United States or for export 
        shall, in the manner prescribed in the order, pay assessments 
        and remit the assessments to the Board.
            (2) Direct marketers.--A processor that markets popcorn 
        produced by the processor directly to consumers shall pay and 
        remit the assessments on the popcorn directly to the Board in 
        the manner prescribed in the order.
            (3) Rate.--
                    (A) In general.--The rate of assessment prescribed 
                in the order shall be a rate established by the Board 
                but not more than $.08 per hundredweight of popcorn.
                    (B) Adjustment of rate.--The order shall provide 
                that the Board, with the approval of the Secretary, may 
                raise or lower the rate of assessment annually up to a 
                maximum of $.08 per hundredweight of popcorn.
            (4) Use of assessments.--
                    (A) In general.--Subject to subparagraph (B), the 
                order shall provide that the assessments collected 
                shall be used by the Board--
                            (i) to pay the expenses incurred in 
                        implementing and administering the order, with 
                        provision for a reasonable reserve; and
                            (ii) to cover such administrative costs as 
                        are incurred by the Secretary after the order 
                        has been issued under this Act, except that the 
                        costs incurred by the Secretary that may be 
                        reimbursed by the Board may not exceed 5 
                        percent of the projected annual revenues of the 
                        Board.
                    (B) Expenditures based on source of assessments.--
                In implementing plans and projects of promotion, 
                research, consumer information, and industry 
                information, the Board shall expend funds on--
                            (i) plans and projects for domestic popcorn 
                        (including Canadian popcorn) in proportion to 
                        the amount of assessments collected on popcorn 
                        marketed domestically (including Canada); and
                            (ii) plans and projects for exported 
                        popcorn in proportion to the amount of 
                        assessments collected on exported popcorn.
    (g) Prohibition on Use of Funds.--The order shall prohibit any 
funds collected by the Board under the order from being used to 
influence government action or policy, other than the use of funds by 
the Board for the development and recommendation to the Secretary of 
amendments to the order.
    (h) Books and Records of the Board.--The order shall require the 
Board to--
            (1) maintain such books and records (which shall be 
        available to the Secretary for inspection and audit) as the 
        Secretary may prescribe;
            (2) prepare and submit to the Secretary, from time to time, 
        such reports as the Secretary may prescribe; and
            (3) account for the receipt and disbursement of all funds 
        entrusted to the Board.
    (i) Books and Records of Processors.--
            (1) Maintenance and reporting of information.--The order 
        shall require that each processor of popcorn for the market 
        shall--
                    (A) maintain, and make available for inspection, 
                such books and records as are required by the order; 
                and
                    (B) file reports at such time, in such manner, and 
                having such content as is prescribed in the order.
            (2) Use of information.--The Secretary shall authorize the 
        use of information regarding processors that may be accumulated 
        under a law or regulation other than this Act or a regulation 
        issued under this Act. The information shall be made available 
        to the Secretary as appropriate for the administration or 
        enforcement of this Act, the order, or any regulation issued 
        under this Act.
            (3) Confidentiality.--
                    (A) In general.--Subject to subparagraphs (B), (C), 
                and (D), all information obtained by the Secretary 
                under paragraphs (1) and (2) shall be kept confidential 
                by all officers, employees, and agents of the Board and 
                the Department.
                    (B) Disclosure by secretary.--Information referred 
                to in subparagraph (A) may be disclosed if--
                            (i) the Secretary considers the information 
                        relevant;
                            (ii) the information is revealed 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; and
                            (iii) the information relates to the order.
                    (C) Disclosure to other agency of federal 
                government.--
                            (i) In general.--No information obtained 
                        under the authority of this Act may be made 
                        available to another agency or officer of the 
                        Federal Government for any purpose other than 
                        the implementation of this Act and any 
                        investigatory or enforcement activity necessary 
                        for the implementation of this Act.
                            (ii) Penalty.--A person who violates this 
                        subparagraph shall, on conviction, be subject 
                        to a fine of not more than $1,000 or to 
                        imprisonment for not more than 1 year, or both, 
                        and if an officer, employee, or agent of the 
                        Board or the Department, shall be removed from 
                        office or terminated from employment, as 
                        applicable.
                    (D) General statements.--Nothing in this paragraph 
                prohibits--
                            (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 provided by any 
                        person; or
                            (ii) the publication, by direction of the 
                        Secretary, of the name of a person violating 
                        the order, together with a statement of the 
                        particular provisions of the order violated by 
                        the person.
    (j) Other Terms and Conditions.--The order shall contain such terms 
and conditions, consistent with this Act, as are necessary to 
effectuate this Act, including regulations relating to the assessment 
of late payment charges.

SEC. 6. REFERENDA.

    (a) Initial Referendum.--
            (1) In general.--Within the 60-day period immediately 
        preceding the effective date of an order, as provided in 
        section 4(b)(3), the Secretary shall conduct a referendum among 
        processors who, during a representative period as determined by 
        the Secretary, have been engaged in processing, for the purpose 
        of ascertaining whether the order shall go into effect.
            (2) Approval of order.--The order shall become effective, 
        as provided in section 4(b), only if the Secretary determines 
        that the order has been approved by not less than a majority of 
        the processors voting in the referendum and if the majority 
        processed more than 50 percent of the popcorn certified as 
        having been processed, during the representative period, by the 
        processors voting.
    (b) Additional Referenda.--
            (1) In general.--Not earlier than 3 years after the 
        effective date of an order approved under subsection (a), on 
        the request of the Board or a representative group of 
        processors, as described in paragraph (2), the Secretary may 
        conduct an additional referendum to determine whether 
        processors favor the termination or suspension of the order.
            (2) Representative group of processors.--An additional 
        referendum on an order shall be conducted if the referendum is 
        requested by 40 percent or more of the number of processors 
        who, during a representative period as determined by the 
        Secretary, have been engaged in processing.
            (3) Disapproval of order.--If the Secretary determines, in 
        a referendum conducted under paragraph (1), that suspension or 
        termination of the order is favored by at least \2/3\ of the 
        processors voting in the referendum, the Secretary shall--
                    (A) suspend or terminate, as appropriate, 
                collection of assessments under the order not later 
                than 180 days after the date of determination; and
                    (B) suspend or terminate the order, as appropriate, 
                in an orderly manner as soon as practicable after the 
                date of determination.
    (c) Costs of Referendum.--The Secretary shall be reimbursed from 
assessments collected by the Board for any expenses incurred by the 
Secretary in connection with the conduct of any referendum under this 
section, except for the salaries of Government employees associated 
with conducting a referendum.
    (d) Method of Conducting Referendum.--Subject to this section, a 
referendum conducted under this section shall be conducted in such 
manner as is determined by the Secretary.
    (e) Confidentiality of Ballots and Other Information.--
            (1) In general.--The ballots and other information or 
        reports that reveal or tend to reveal the vote of any 
        processor, or any business operation of a processor, shall be 
        considered to be strictly confidential and shall not be 
        disclosed.
            (2) Penalty for violations.--An officer or employee of the 
        Department who violates paragraph (1) shall be subject to the 
        penalties described in section 5(i)(3)(C)(ii).

SEC. 7. PETITION AND REVIEW.

    (a) Petition.--
            (1) In general.--A person subject to an order may file with 
        the Secretary a petition--
                    (A) stating that the order, a provision of the 
                order, or an obligation imposed in connection with the 
                order is not established in accordance with law; and
                    (B) requesting a modification of the order or 
                obligation or an exemption from the order or 
                obligation.
            (2) Hearings.--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.
            (3) Ruling.--After a hearing under paragraph (2), the 
        Secretary shall issue a ruling on the petition that is the 
        subject of the hearing, which shall be final if the ruling is 
        in accordance with applicable law.
    (b) Review.--
            (1) Commencement of action.--The district court of the 
        United States for any district in which a person who is a 
        petitioner under subsection (a) resides or carries on business 
        shall have jurisdiction to review a ruling on the petition, if 
        the person files a complaint not later than 20 days after the 
        date of issuance of the ruling under subsection (a)(3).
            (2) Process.--Service of process in a proceeding under 
        paragraph (1) may be made on the Secretary by delivering a copy 
        of the complaint to the Secretary.
            (3) Remands.--If the court determines, under paragraph (1), 
        that a ruling issued under subsection (a)(3) is not in 
        accordance with applicable 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 proceedings as, in the 
                opinion of the court, the law requires.
    (c) Enforcement.--The pendency of proceedings instituted under 
subsection (a) may not impede, hinder, or delay the Secretary or the 
Attorney General from taking action under section 8.

SEC. 8. ENFORCEMENT.

    (a) In General.--The Secretary may issue an enforcement order to 
restrain or prevent any person from violating an order or regulation 
issued under this Act and may assess a civil penalty of not more than 
$1,000 for each violation of the enforcement order, after an 
opportunity for an administrative hearing, if the Secretary determines 
that the administration and enforcement of the order and this Act would 
be adequately served by such a procedure.
    (b) Jurisdiction.--The district courts of the United States are 
vested with jurisdiction specifically to enforce, and to prevent and 
restrain any person from violating, an order or regulation issued under 
this Act.
    (c) Referral to Attorney General.--A civil action authorized to be 
brought under this section shall be referred to the Attorney General 
for appropriate action.

SEC. 9. INVESTIGATIONS AND POWER TO SUBPOENA.

    (a) Investigations.--The Secretary may make such investigations as 
the Secretary considers necessary--
            (1) for the effective administration of this Act; and
            (2) to determine whether any person subject to this Act has 
        engaged, or is about to engage, in an act that constitutes or 
        will constitute a violation of this Act or of an order or 
        regulation issued under this Act.
    (b) Oaths, Affirmations, and Subpoenas.--For the purpose of an 
investigation under subsection (a), the Secretary 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 records may be required from any place in the United 
States.
    (c) Aid of Courts.--
            (1) Request.--In the case of contumacy by, or refusal to 
        obey a subpoena issued to, any person, the Secretary may 
        request the aid of any court of the United States within the 
        jurisdiction of which the investigation or proceeding is 
        carried on, or where the person resides or carries on business, 
        in requiring the attendance and testimony of the person and the 
        production of records.
            (2) Enforcement order of the court.--The court may issue an 
        enforcement order requiring the person to appear before the 
        Secretary to produce records or to give testimony concerning 
        the matter under investigation.
            (3) Contempt.--A failure to obey an enforcement order of 
        the court under paragraph (2) may be punished by the court as a 
        contempt of the court.
            (4) Process.--Process in a case under this subsection may 
        be served in the judicial district in which the person resides 
        or conducts business or wherever the person may be found.

SEC. 10. RELATION TO OTHER PROGRAMS.

    Nothing in this Act preempts or supersedes any other program 
relating to popcorn promotion organized and operated under the laws of 
the United States or any State.

SEC. 11. REGULATIONS.

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

SEC. 12. AUTHORIZATION OF APPROPRIATIONS.

    There are authorized to be appropriated such sums as are necessary 
to carry out this Act. Amounts made available under this section may 
not be used to pay any expense of the Board in administering any 
provision of an order.
                                 <all>
S 1336 IS----2