[Congressional Bills 104th Congress]
[From the U.S. Government Publishing Office]
[S. 897 Introduced in Senate (IS)]







104th CONGRESS
  1st Session
                                 S. 897

To provide for a nationally coordinated program of research, promotion, 
    and consumer information regarding kiwifruit for the purpose of 
         expanding domestic and foreign markets for kiwifruit.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                 June 8 (legislative day, June 5), 1995

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

_______________________________________________________________________

                                 A BILL


 
To provide for a nationally coordinated program of research, promotion, 
    and consumer information regarding kiwifruit for the purpose of 
         expanding domestic and foreign markets for kiwifruit.
    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE AND TABLE OF CONTENTS.

    (a) Short Title.--This Act may be cited as the ``National Kiwifruit 
Research, Promotion, and Consumer Information Act''.
    (b) Table of Contents.--The table of contents for this Act is as 
follows:

Sec. 1. Short title and table of contents.
Sec. 2. Findings and purposes.
Sec. 3. Definitions.
Sec. 4. Issuance of Kiwifruit Research, Promotion, and Consumer 
                            Information Order.
Sec. 5. National Kiwifruit Board.
Sec. 6. Required terms in order.
Sec. 7. Permissive terms in order.
Sec. 8. Incorporation of petition and review, enforcement, and 
                            investigation provisions by reference.
Sec. 9. Referenda.
Sec. 10. Suspension and termination of order by Secretary.
Sec. 11. Authorization of appropriations.
Sec. 12. Regulations.
SEC. 2. FINDINGS AND PURPOSES.

    (a) Findings.--Congress finds that--
            (1) domestically produced kiwifruit are grown by many 
        individual producers;
            (2) virtually all domestically produced kiwifruit are grown 
        in the State of California, although there is potential for 
        production in many other areas of the United States;
            (3) kiwifruit move in interstate and foreign commerce, and 
        kiwifruit that do not move in such channels of commerce 
        directly burden or affect interstate commerce;
            (4) in recent years, large quantities of kiwifruit have 
        been imported into the United States;
            (5) the maintenance and expansion of existing domestic and 
        foreign markets for kiwifruit, and the development of 
        additional and improved markets for kiwifruit, are vital to the 
        welfare of kiwifruit producers and other persons concerned with 
        producing, marketing, and processing kiwifruit;
            (6) a coordinated program of research, promotion, and 
        consumer information regarding kiwifruit is necessary for the 
        maintenance and development of such markets; and
            (7) kiwifruit producers, handlers, and importers are unable 
        to implement and finance such a program without cooperative 
        action.
    (b) Purposes.--The purposes of this Act are--
            (1) to authorize the establishment of an orderly procedure 
        for the development and financing (through an assessment) of an 
        effective and coordinated program of research, promotion, and 
        consumer information regarding kiwifruit;
            (2) to use such program to strengthen the position of the 
        kiwifruit industry in domestic and foreign markets and 
        maintain, develop, and expand markets for kiwifruit; and
            (3) to treat domestically produced kiwifruit and imported 
        kiwifruit equitably.

SEC. 3. DEFINITIONS.

    As used in this Act:
            (1) Board.--The term ``Board'' means the National Kiwifruit 
        Board, as provided for under section 5.
            (2) Consumer information.--The term ``consumer 
        information'' means any action taken to provide information to, 
        and broaden the understanding of, the general public regarding 
        the consumption, use, nutritional attributes, and care of 
        kiwifruit.
            (3) Exporter.--The term ``exporter'' means any person from 
        outside the United States who exports kiwifruit into the United 
        States.
            (4) Handler.--The term ``handler'' means any person, 
        excluding a common carrier, engaged in the business of buying 
        and selling, packing, marketing, or distributing kiwifruit as 
        specified in the order.
            (5) Importer.--The term ``importer'' means any person who 
        imports kiwifruit into the United States.
            (6) Kiwifruit.--The term ``kiwifruit'' means all varieties 
        of fresh kiwifruit grown or imported in the United States.
            (7) Marketing.--The term ``marketing'' means the sale or 
        other disposition of kiwifruit into interstate, foreign, or 
        intrastate commerce by buying, marketing, distribution or 
        otherwise placing kiwifruit into commerce.
            (8) Order.--The term ``order'' means a kiwifruit research, 
        promotion, and consumer information order issued by the 
        Secretary under section 4.
            (9) Person.--The term ``person'' means any individual, 
        group of individuals, partnership, corporation, association, 
        cooperative, or other legal entity.
            (10) Processing.--The term ``processing'' means canning, 
        fermenting, distilling, extracting, preserving, grinding, 
        crushing, or in any manner changing the form of kiwifruit for 
        the purposes of preparing it for market or marketing the 
        kiwifruit.
            (11) Producer.--The term ``producer'' means any person who 
        grows kiwifruit in the United States for sale in commerce.
            (12) Promotion.--The term ``promotion'' means any action 
        taken under this Act (including paid advertising) to present a 
        favorable image for kiwifruit to the general public for the 
        purpose of improving the competitive position of kiwifruit and 
        stimulating the sale of kiwifruit.
            (13) Research.--The term ``research'' means any type of 
        research relating to the use, nutritional value, and marketing 
        of kiwifruit conducted for the purpose of advancing the image, 
        desirability, marketability, or quality of kiwifruit.
            (14) Secretary.--The term ``Secretary'' means the Secretary 
        of Agriculture.
            (15) United states.--The term ``United States'' means the 
        50 States of the United States, the District of Columbia, and 
        the Commonwealth of Puerto Rico. (7 U.S.C. 6202.)

SEC. 4. ISSUANCE OF KIWIFRUIT RESEARCH, PROMOTION, AND CONSUMER 
              INFORMATION ORDER.

    (a) Issuance.--To effectuate the declared purposes of this Act, the 
Secretary shall issue an order applicable to producers, handlers, and 
importers of kiwifruit. Any such order shall be national in scope. Not 
more than one order shall be in effect under this Act at any one time.
    (b) Procedure.--
            (1) Proposal for issuance of order.--Any person that will 
        be affected by this Act may request the issuance of, and submit 
        a proposal for, an order under this Act.
            (2) Proposed order.--Not later than 90 days after the 
        receipt of a request and proposal for 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 are given, as provided in paragraph (2), the 
        Secretary shall issue an order, taking into consideration the 
        comments received and including in the order provisions 
        necessary to ensure that the order is in conformity with the 
        requirements of this Act.
    (c) Amendments.--The Secretary may amend any order issued under 
this section. The provisions of this Act applicable to orders shall be 
applicable to amendments to orders.

SEC. 5. NATIONAL KIWIFRUIT BOARD.

    (a) Membership.--An order issued by the Secretary under section 4 
shall provide for the establishment of a National Kiwifruit Board, to 
consist of 11 members as follows:
            (1) Six members who are producers (or their 
        representatives) and who are not exempt from an assessment 
        under section 6(b).
            (2) Four members who are importers (or their 
        representatives) and who are not exempt from an assessment 
        under section 6(b) or are exporters (or their representatives).
            (3) One member appointed from the general public.
    (b) Adjustment of Membership.--Subject to the 11-member limit, the 
Secretary may adjust membership on the Board to accommodate changes in 
production and import levels of kiwifruit, so long as producers 
comprise not less than 51 percent of the membership of the Board.
    (c) Appointment and Nomination.--
            (1) Appointment.--The Secretary shall appoint the members 
        of the Board from nominations submitted in accordance with this 
        subsection.
            (2) Producers.--The members referred to in subsection 
        (a)(1) shall be appointed from individuals nominated by 
        producers.
            (3) Importers and exporters.--The members referred to in 
        subsection (a)(2) shall be appointed from individuals nominated 
        by importers or exporters.
            (4) Public representative.--The public representative shall 
        be appointed from nominations submitted by other members of the 
        Board.
            (5) Failure to nominate.--If producers, importers, and 
        exporters fail to nominate individuals for appointment, the 
        Secretary may appoint members on a basis provided for in the 
        order. If the Board fails to nominate a public representative, 
        such member may be appointed by the Secretary without a 
        nomination.
    (d) Alternates.--The Secretary shall appoint an alternate for each 
member of the Board. An alternate shall--
            (1) be appointed in the same manner as the member for whom 
        such individual is an alternate; and
            (2) serve on the Board if such member is absent from a 
        meeting or is disqualified under subsection (f).
    (e) Terms.--Members of the Board shall be appointed for a term of 
three years. No member may serve more than two consecutive three-year 
terms. However, of the members first appointed--
            (1) five members shall be appointed for a term of two 
        years; and
            (2) six members shall be appointed for a term of three 
        years.
    (f) Replacement.--If a member or alternate of the Board who was 
appointed as a producer, importer, exporter, or public representative 
member ceases to belong to the group for which such member was 
appointed, such member or alternate shall be disqualified from serving 
on the Board.
    (g) Compensation.--Members and alternates of the Board shall serve 
without pay.
    (h) General Powers and Duties.--The Board shall--
            (1) administer orders issued by the Secretary under section 
        4, and amendments to such orders, in accordance with their 
        terms and provisions and consistent with this Act;
            (2) prescribe rules and regulations to effectuate the terms 
        and provisions of such orders;
            (3) meet, organize, and select from among members of the 
        Board a chairperson, other officers, and committees and 
        subcommittees, as the Board determines appropriate;
            (4) receive, investigate, and report to the Secretary 
        accounts of violations of such orders;
            (5) make recommendations to the Secretary with respect to 
        amendments that should be made to such orders; and
            (6) employ or contract with a manager and staff to assist 
        in administering such orders, except that, in order to reduce 
        administrative costs and increase efficiency, the Board shall 
        seek, to the extent possible, to employ or contract with 
        personnel who are already associated with State chartered 
        organizations involved in promoting kiwifruit.

SEC. 6. REQUIRED TERMS IN ORDER.

    (a) Budgets and Plans.--An order issued under section 4 shall 
provide for periodic budgets and plans as follows:
            (1) Budgets.--The Board shall prepare and submit to the 
        Secretary a budget prior to the beginning of the fiscal year of 
        the anticipated expenses and disbursements of the Board in the 
        administration of the order, including probable costs of 
        research, promotion, and consumer information. A budget shall 
        take effect upon a two-thirds vote of a quorum of the Board and 
        approval by the Secretary.
            (2) Plans.--Each budget shall include a plan for research, 
        promotion, and consumer information regarding kiwifruit. A plan 
        under this paragraph shall take effect upon approval by the 
        Secretary. The Board may enter into contracts and agreements, 
        upon approval by the Secretary, for--
                    (A) the development and carrying out of such plan; 
                and
                    (B) the payment of the cost of such plan, with 
                funds collected pursuant to this Act.
    (b) Assessments.--Such order shall provide for the imposition and 
collection of assessments with regard to the production and importation 
of kiwifruit as follows:
            (1) Rate.--The assessment rate shall be recommended by a 
        two-thirds vote of a quorum of the Board, approved by the 
        Secretary, but shall not exceed $0.10 per seven pound tray of 
        kiwifruit or equivalent.
            (2) Collection by first handlers.--Except as provided in 
        paragraph (4), the first handler of kiwifruit shall--
                    (A) be responsible for the collection from the 
                producer, and payment to the Board, of assessments 
                under this subsection; and
                    (B) maintain a separate record of the kiwifruit of 
                each producer whose kiwifruit are so handled, including 
                the kiwifruit owned by the handler.
            (3) Importers.--The assessment on imported kiwifruit shall 
        be paid by the importer to the United States Customs Service at 
        the time of entry into the United States and shall be remitted 
        to the Board.
            (4) Exemption from assessment.--The following persons or 
        activities are exempt from an assessment under this subsection:
                    (A) A producer who produces less than 500 pounds of 
                kiwifruit per year.
                    (B) An importer who imports less than 10,000 pounds 
                of kiwifruit per year.
                    (C) Sales of kiwifruit made directly from the 
                producer to a consumer for a purpose other than resale.
                    (D) The production or importation of kiwifruit for 
                processing.
            (5) Claim of exemption.--To claim an exemption under 
        paragraph (4) for a particular year, a person shall--
                    (A) submit an application to the Board stating the 
                basis for the exemption and certifying that the person 
                will not exceed any poundage limitation required for 
                the exemption in such year; or
                    (B) be on a list of approved processors developed 
                by the Board.
    (c) Use of Assessments.
            (1) Authorized uses.--Such order shall provide that funds 
        paid to the Board as assessments under subsection (b) may be 
        used by the Board--
                    (A) to pay for research, promotion, and consumer 
                information described in the budget of the Board under 
                subsection (a) and for other expenses incurred by the 
                Board in the administration of an order;
                    (B) to pay such other expenses for the 
                administration, maintenance, and functioning of the 
                Board, including any enforcement efforts for the 
                collection of assessments as may be authorized by the 
                Secretary, including interest and penalties for late 
                payments; and
                    (C) to fund a reserve established under section 
                7(d).
            (2) Required uses.--Such order shall provide that funds 
        paid to the Board as assessments under subsection (b) shall be 
        used by the Board--
                    (A) to pay the expenses incurred by the Secretary, 
                including salaries and expenses of Government 
                employees, in implementing and administering the order; 
                and
                    (B) to reimburse the Secretary for any expenses 
                incurred by the Secretary in conducting referenda under 
                this Act.
            (3) Limitation on use of assessments.--Except for the first 
        year of operation of the Board, expenses for the 
        administration, maintenance, and functioning of the Board may 
        not exceed 30 percent of the budget.
    (d) False Claims.--Such order shall provide that any promotion 
funded with assessments collected under subsection (b) may not make--
            (1) any false claims on behalf of kiwifruit; and
            (2) any false statements with respect to the attributes or 
        use of any product that competes with kiwifruit for sale in 
        commerce.
    (e) Prohibition on Use of Funds.--Such order shall provide that 
funds collected by the Board under this Act through assessments may 
not, in any manner, be used for the purpose of influencing legislation 
or governmental policy or action, except for making recommendations to 
the Secretary as provided for in this Act.
    (f) Books, Records, and Reports.--
            (1) By the board.--Such order shall require the Board--
                    (A) to maintain books and records with respect to 
                the receipt and disbursement of funds received by the 
                Board;
                    (B) to submit to the Secretary from time to time 
                such reports as the Secretary may require for 
                appropriate accounting; and
                    (C) to submit to the Secretary at the end of each 
                fiscal year a complete audit report by an independent 
                auditor regarding the activities of the Board during 
                such fiscal year.
            (2) By others.--So that information and data will be 
        available to the Board and the Secretary that is appropriate or 
        necessary for the effectuation, administration, or enforcement 
        of this Act (or any order or regulation issued under this Act), 
        such order shall require handlers and importers who are 
        responsible for the collection, payment, or remittance of 
        assessments under subsection (b)--
                    (A) to maintain and make available for inspection 
                by the employees of the Board and the Secretary such 
                books and records as may be required by the order; and
                    (B) to file, at the times and in the manner and 
                content prescribed by the order, reports regarding the 
                collection, payment, or remittance of such assessments.
    (g) Confidentiality.--
            (1) In general.--Such order shall require that all 
        information obtained pursuant to subsection (f)(2) be kept 
        confidential by all officers and employees of the Department 
        and of the Board. Only such information as the Secretary 
        considers relevant shall be disclosed to the public and only 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 with respect to 
        which the information was furnished or acquired.
            (2) Limitations.--Nothing in this subsection prohibits--
                    (A) issuance of general statements based on the 
                reports of a number of handlers and importers subject 
                to an order, if the statements do not identify the 
                information furnished by any person; or
                    (B) the publication by direction of the Secretary 
                of the name of any person violating an order issued 
                under section 4(a), together with a statement of the 
                particular provisions of the order violated by such 
                person.
            (3) Penalty.--Any person who willfully violates the 
        provisions of this subsection, upon conviction, shall be 
        subject to a fine of not more than $1,000, or to imprisonment 
        for not more than one year, or both, and, if a member, officer, 
        or agent of the board or an employee of the Department, shall 
        be removed from office.
    (h) Withholding Information.--Nothing in this Act shall be 
construed to authorize the withholding of information from Congress.

SEC. 7. PERMISSIVE TERMS IN ORDER.

    (a) Permissive Terms.--On the recommendation of the Board, and with 
the approval of the Secretary, an order issued under section 4 may 
include the authorities specified in this section and such additional 
terms and conditions as the Secretary considers necessary to effectuate 
the other provisions of the order and are incidental to, and not 
inconsistent with, the terms and conditions required by this Act.
    (b) Alternative Payment and Reporting Schedules.--Such order may 
authorize the Board to designate different handler payment and 
reporting schedules to recognize differences in marketing practices and 
procedures.
    (c) Working Groups.--Such order may authorize the Board to convene 
working groups drawn from producers, handlers, importers, exporters, or 
the general public and utilize the expertise of such groups to assist 
in the development of research and marketing programs for kiwifruit.
    (d) Reserve Funds.--Such order may authorize the Board to 
accumulate reserve funds from assessments collected pursuant to section 
6(b) to permit an effective and continuous coordinated program of 
research, promotion, and consumer information in years in which 
production and assessment income may be reduced. However, any reserve 
fund so established may not exceed the amount budgeted for operation of 
this Act for one year.
    (e) Promotion Activities Outside United States.--Such order may 
authorize the Board to use, with the approval of the Secretary, funds 
collected under section 6(b) for the development and expansion of sales 
in foreign markets of kiwifruit produced in the United States.

SEC. 8. INCORPORATION OF PETITION AND REVIEW, ENFORCEMENT, AND 
              INVESTIGATION PROVISIONS BY REFERENCE.

    The following provisions of the Lime Research, Promotion, and 
Consumer Information Act of 1990 (subtitle D of title XIX of Public Law 
101-624) shall apply to this Act and any order or regulation issued 
under this Act:
            (1) Section 1957 (7 U.S.C. 6206), relating to petitions 
        filed by persons subject to an order issued under this Act and 
        review of administrative rulings on such petitions.
            (2) Section 1958 (7 U.S.C. 6207), relating to violations of 
        any order or regulation issued under this Act.
            (3) Section 1959 (7 U.S.C. 6208), relating to the authority 
        of the Secretary to make investigations, administer oaths and 
        affirmations, and issue subpoenas in connection with inquiries 
        under this Act.

SEC. 9. REFERENDA.

    (a) Initial Referendum.--
            (1) Referendum required.--During the 60-day period 
        immediately preceding the proposed effective date of an order 
        issued under section 4, the Secretary shall conduct a 
        referendum among kiwifruit producers and importers who will be 
        subject to assessments under the order, to ascertain whether 
        producers and importers approve of the implementation of the 
        order.
            (2) Approval of order.--The order shall become effective, 
        as provided in section 4, if the Secretary determines that the 
        order has been approved by a majority of the producers and 
        importers voting in the referendum and these producers and 
        importers produce and import more than 50 percent of the total 
        volume of kiwifruit produced and imported by persons voting in 
        the referendum.
    (b) Subsequent Referenda.--The Secretary may periodically conduct a 
referendum to determine if kiwifruit producers and importers favor the 
continuation, termination, or suspension of any order issued under 
section 4 and in effect at the time of the referendum.
    (c) Required Referenda.--The Secretary shall hold a referendum 
under subsection (b)--
            (1) at the end of the six-year period beginning on the 
        effective date of the order and at the end of every six-year 
        period thereafter;
            (2) at the request of the Board; and
            (3) if not less than 40 percent of the kiwifruit producers 
        and importers subject to assessments under the order submit a 
        petition requesting such a referendum.
    (d) Vote.--Upon completion of a referendum under subsection (b), 
the Secretary shall suspend or terminate the order that was subject to 
the referendum at the end of the marketing year if--
            (1) the suspension or termination of the order is favored 
        by not less than a majority of the producers and importers 
        voting in the referendum; and
            (2) these producers and importers produce and import more 
        than 50 percent of the total volume of kiwifruit produced and 
        imported by persons voting in the referendum.
    (e) Confidentiality.--The ballots and other information or reports 
that reveal, or tend to reveal, the vote of any person under this Act 
as well as the voting list shall be held strictly confidential and 
shall not be disclosed.

SEC. 10. SUSPENSION AND TERMINATION OF ORDER BY SECRETARY.

    (a) Upon Finding.--If the Secretary finds that an order issued 
under section 4, or a provision of such an order, obstructs or does not 
tend to effectuate the purposes of this Act, the Secretary shall 
terminate or suspend the operation of such order or provision.
    (b) Limitation.--The termination or suspension of any order, or any 
provision thereof, shall not be considered an order within the meaning 
of this Act.

SEC. 11. AUTHORIZATION OF APPROPRIATIONS.

    There are authorized to be appropriated for each fiscal year such 
funds as are necessary to carry out this Act.

SEC. 12. REGULATIONS.

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