[Congressional Bills 106th Congress]
[From the U.S. Government Publishing Office]
[S. 1790 Introduced in Senate (IS)]







106th CONGRESS
  1st Session
                                S. 1790

 To provide for the issuance of a promotion, research, and information 
         order applicable to certain handlers of Hass avocados.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                            October 26, 1999

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

_______________________________________________________________________

                                 A BILL


 
 To provide for the issuance of a promotion, research, and information 
         order applicable to certain handlers of Hass avocados.

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

SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

    (a) Short Title.--This Act may be cited as the ``Hass Avocado 
Promotion, Research, and Information Act of 1999''.
    (b) Table of Contents.--The table of contents of this Act is as 
follows:

Sec. 1. Short title; table of contents.
Sec. 2. Findings and declaration of policy.
Sec. 3. Definitions.
Sec. 4. Issuance of orders.
Sec. 5. Required terms in orders.
Sec. 6. Referenda.
Sec. 7. Petition and review.
Sec. 8. Enforcement.
Sec. 9. Investigations and power to subpoena.
Sec. 10. Confidentiality.
Sec. 11. Authority for Secretary to suspend or terminate order.
Sec. 12. Construction.
Sec. 13. Regulations.
Sec. 14. Authorization of appropriations.

SEC. 2. FINDINGS AND DECLARATION OF POLICY.

    (a) Findings.--Congress finds the following:
            (1) Hass avocados are an integral food source in the United 
        States that are a valuable and healthy part of the human diet 
        and are enjoyed by millions of persons every year for a 
        multitude of everyday and special occasions.
            (2) Hass avocados are a significant tree fruit crop grown 
        by many individual producers, but virtually all domestically 
        produced Hass avocados for the commercial market are grown in 
        the State of California.
            (3) Hass avocados move in interstate and foreign commerce, 
        and Hass avocados that do not move in interstate or foreign 
        channels of commerce but only in intrastate commerce directly 
        affect interstate commerce in Hass avocados.
            (4) In recent years, large quantities of Hass avocados have 
        been imported into the United States from other countries.
            (5) The maintenance and expansion of markets in existence 
        on the date of enactment of this Act, and the development of 
        new or improved markets or uses for Hass avocados are needed to 
        preserve and strengthen the economic viability of the domestic 
        Hass avocado industry for the benefit of producers and other 
        persons associated with the producing, marketing, processing, 
        and consuming of Hass avocados.
            (6) An effective and coordinated program of promotion, 
        research, and consumer information regarding Hass avocados is 
        necessary for the maintenance, expansion, and development of 
        markets for Hass avocados.
    (b) Purpose.--It is the purpose of this Act to authorize the 
establishment, through the exercise of the powers provided in this Act, 
of an orderly procedure for the development and financing (through an 
adequate assessment on Hass avocados sold by producers and importers in 
the United States) of an effective and coordinated program of 
promotion, research, and consumer information, including funds for 
marketing and market research activities, that is designed to--
            (1) strengthen the position of the Hass avocado industry in 
        the domestic marketplace; and
            (2) maintain, develop, and expand markets and uses for Hass 
        avocados.
    (c) Limitation.--Nothing in this Act may be construed to provide 
for the control of production or otherwise limit the right of any 
person to produce, handle, or import Hass avocados.

SEC. 3. DEFINITIONS.

    As used in this Act:
            (1) Board.--The terms ``Avocado Board'' and ``Board'' mean 
        the Hass Avocado Board established under section 5.
            (2) Consumer information.--The term ``consumer 
        information'' means any action or program that provides 
        information to consumers and other persons on the use, 
        nutritional attributes, and other information that will assist 
        consumers and other persons in making evaluations and decisions 
        regarding the purchase, preparation, and use of Hass avocados.
            (3) Customs.--The term ``Customs'' means the United States 
        Customs Service.
            (4) Department.--The term ``Department'' means the United 
        States Department of Agriculture.
            (5) Hass avocado.--
                    (A) In general.--The term ``Hass avocado'' 
                includes--
                            (i) the fruit of any Hass variety avocado 
                        tree; and
                            (ii) any other type of avocado fruit that 
                        the Board determines is so similar to the Hass 
                        variety avocado as to be indistinguishable to 
                        consumers.
                    (B) Form of fruit.--Except as provided in 
                subparagraph (C), the term includes avocado fruit 
                described in subparagraph (A) whether in fresh, frozen, 
                or any other processed form.
                    (C) Exceptions.--In any case in which a handler 
                further processes avocados described in subparagraph 
                (A), or products of such avocados, for sale to a 
                retailer, the Board may determine that such further 
                processed products do not constitute a substantial 
                value of the product and that, based on its 
                determination, the product shall not be treated as a 
                product of Hass avocados subject to assessment under 
                the order. In addition, the Board may exempt certain 
                frozen avocado products from assessment under the 
                order.
            (6) Handler.--
                    (A) Qualified handler.--The term ``qualified 
                handler'' means a person operating in the Hass avocados 
                marketing system that sells domestic or imported Hass 
                avocados for United States domestic consumption, and 
                who is responsible for remitting assessments to the 
                Board. The term includes an importer or producer who 
                sells directly to consumers Hass avocados that the 
                importer or producer has imported into the United 
                States or produced, respectively.
                    (B) Exempt handler.--The term ``exempt handler'' 
                means a person who would otherwise be considered a 
                qualified handler, except that all avocados purchased 
                by the person have already been subject to the 
                assessment for the Board.
            (7) Importer.--The term ``importer'' means any person who 
        imports Hass avocados into the United States.
            (8) Industry information.--The term ``industry 
        information'' means information and programs that are designed 
        to increase efficiency in processing, enhance the development 
        of new markets and marketing strategies, increase marketing 
        efficiency, and activities to enhance the image of Hass 
        avocados and the Hass avocado industry domestically and 
        internationally.
            (9) Order.--The term ``order'' means the Hass avocado 
        promotion, research, and information order issued under this 
        Act.
            (10) Person.--The term ``person'' means any individual, 
        group of individuals, firm, partnership, corporation, joint 
        stock company, association, cooperative, or other legal entity.
            (11) Producer.--The term ``producer'' means any person 
        who--
                    (A) is engaged in the domestic production of Hass 
                avocados for commercial use; and
                    (B) owns, or shares the ownership and risk of loss, 
                of such Hass avocados.
            (12) Promotion.--The term ``promotion'' means any action to 
        advance the image, desirability, or marketability of Hass 
        avocados, including paid advertising, sales promotion, and 
        publicity, in order to improve the competitive position and 
        stimulate sales of Hass avocados in the marketplace.
            (13) Research.--The term ``research'' means any type of 
        test, study, or analysis relating to market research, market 
        development, and marketing efforts, or relating to the use, 
        quality, or nutritional value of Hass avocados, other related 
        food science research, or research designed to advance the 
        image, desirability, and marketability of Hass avocados.
            (14) Secretary.--The term ``Secretary'' means the Secretary 
        of Agriculture.
            (15) State.--The term ``State'' means each of the several 
        States of the United States, the District of Columbia, the 
        Commonwealth of Puerto Rico, the Commonwealth of the Northern 
        Mariana Islands, the United States Virgin Islands, Guam, 
        American Samoa, the Republic of the Marshall Islands, and the 
        Federated States of Micronesia.
            (16) United states.--The term ``United States'' means the 
        United States collectively.

SEC. 4. ISSUANCE OF ORDERS.

    (a) In General.--
            (1) Issuance.--To effectuate the policy of this Act 
        specified in section 2(b), the Secretary, subject to the 
        procedures provided in subsection (b), shall issue orders under 
        this Act applicable to producers, importers, and qualified 
        handlers of Hass avocados.
            (2) Scope.--Any order shall be national in scope.
            (3) One order.--Not more than one order shall be in effect 
        at any one time.
    (b) Procedures.--
            (1) Proposal for an order.--An existing organization of 
        avocado producers established pursuant to a State statute, or 
        any other person who will be affected by this Act, may request 
        the issuance of, and submit a proposal for an order.
            (2) Publication of proposal.--The Secretary shall publish a 
        proposed order and give notice and opportunity for public 
        comment on the proposed order not later than 60 days after 
        receipt by the Secretary of a proposal for an order from an 
        existing organization of avocado producers established pursuant 
        to a State statute, as provided in paragraph (1).
            (3) Issuance of order.--
                    (A) In general.--After notice and opportunity for 
                public comment are provided in accordance with 
                paragraph (2), the Secretary shall issue the order, 
                taking into consideration the comments received and 
                including in the order such provisions as are necessary 
                to ensure that the order is in conformity with this 
                Act.
                    (B) Effective date.--The order shall be issued and 
                become effective only after an affirmative vote in a 
                referendum as provided in section 6, but not later than 
                180 days after publication of the proposed order.
    (c) Amendments.--The Secretary, from time to time, may amend an 
order. The provisions of this Act applicable to an order shall be 
applicable to any amendment to an order.

SEC. 5. REQUIRED TERMS IN ORDERS.

    (a) In General.--An order shall contain the terms and provisions 
specified in this section.
    (b) Hass Avocado Board.--
            (1) Establishment and membership.--
                    (A) Establishment.--The order shall provide for the 
                establishment of a Hass Avocado Board, consisting of 11 
                members, to administer the order.
                    (B) Membership.--
                            (i) Appointment.--The order shall provide 
                        that members of the Board shall be appointed by 
                        the Secretary from nominations submitted as 
                        provided in this subsection.
                            (ii) Composition.--The Board shall consist 
                        of participating domestic producers and 
                        importers.
            (2) Distribution of appointments.--
                    (A) In general.--The order shall provide that the 
                membership of the Board shall consist of--
                            (i) 7 members who are domestic producers of 
                        Hass avocados and are subject to assessments 
                        under the order;
                            (ii) 2 members representing importers that 
                        are qualified handlers of Hass avocados; and
                            (iii) 2 members who are domestic producers 
                        of Hass avocados and are subject to assessments 
                        under the order or are importers that are 
                        qualified handlers, 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 proportionate to 
                        the average volume of imports in the United 
                        States market over the previous three years.
                    (B) Adjustment in board representation.--Three 
                years after the assessment of funds commences pursuant 
                to an order, and at the end of each three-year period 
                thereafter, the Avocado Board shall adjust the 
                proportion of producer representatives to importer 
                representatives on the Board under subparagraph 
                (A)(iii) on the basis of the amount of assessments 
                collected from producers and importers over the 
                immediately preceding three-year period. Any adjustment 
                under this subparagraph shall be subject to the review 
                and approval of the Secretary.
                    (C) Definition.--In this paragraph, the term 
                ``importer that is a qualified handler'' means an 
                entity whose principal activity is the importation, 
                sale, and marketing of Hass avocados in the United 
                States (either directly or as an agent, broker, or 
                consignee of any person or nation that produces or 
                handles Hass avocados outside the United States for 
                sale in the United States), and who is subject to 
                assessments as a qualified handler under the order.
            (3) Nomination process.--The order shall provide that--
                    (A) 2 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 that are 
                qualified handlers or importers that are qualified 
                handlers 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.--The order shall provide for the selection 
        of alternate members of the Board by the Secretary in 
        accordance with procedures specified in the order.
            (5) Terms.--The order shall provide that--
                    (A) each term of appointment to the Board shall be 
                for 3 years, except that, of the initial appointments, 
                4 of the appointments shall be for 2-year terms, 4 of 
                the appointments shall be for 3-year terms, and 3 of 
                the appointments shall be for 4-year terms; and
                    (B) no member of the Board may serve more than 2 
                consecutive terms of three years, except that any 
                member serving an initial term of 4 years may serve an 
                additional term of 3 years.
            (6) Replacement.--The order shall provide that if a member 
        or alternate of the Board who was appointed as a domestic 
        producer or importer that is a qualified handler ceases to 
        belong to the group for which such member was appointed, such 
        member or alternate shall be disqualified from serving on the 
        Board.
            (7) Compensation.--The order shall provide that members of 
        the Board shall serve without compensation, but shall be 
        reimbursed for the reasonable expenses of the members incurred 
        in performing duties as members of the Board.
    (c) General Responsibilities of the Avocado Board.--The 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) recommend to the Secretary rules and regulations to 
        effectuate the terms and provisions of the order;
            (3) employ such persons as the Board determines are 
        necessary, and set the compensation and define the duties of 
        the persons;
            (4)(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;
            (5)(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;
            (6) evaluate on-going and completed plans and projects for 
        Hass avocados and avocado products promotion, industry 
        information, consumer information, or related research;
            (7) receive, investigate, and report to the Secretary 
        complaints of violations of the order;
            (8) recommend to the Secretary amendments to the order;
            (9) invest, pending disbursement under a plan or project, 
        funds collected through assessments authorized under this Act 
        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;
                    (C) any 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, except that income 
                from any such invested funds may be used only for a 
                purpose for which the invested funds may be used;
            (10) borrow funds necessary for the startup expenses of the 
        order; and
            (11) provide the Secretary such information as the 
        Secretary may require.
    (d) Budgets; Plans and Projects.--
            (1) Submission of 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 the projected costs of Hass avocado promotion, 
        industry information, consumer information, and related 
        research plans and projects.
            (2) Plans and projects.--
                    (A) Promotion and consumer information.--The 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.
                    (B) Industry information.--The order shall provide 
                for the establishment, implementation, administration, 
                and evaluation of appropriate plans and projects that 
                will lead to the development of new markets, new 
                marketing strategies, or increased efficiency of the 
                Hass avocado industry, and activities to enhance the 
                image of the Hass avocado industry, and for the 
                disbursement of necessary funds for the purposes 
                described in this subparagraph.
                    (C) Research.--The order shall provide for--
                            (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, 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 the secretary.--The order shall 
                provide that the Board shall submit to the Secretary 
                for approval a proposed plan or project for Hass 
                avocados promotion, industry information, consumer 
                information, or related research, as described in 
                subparagraphs (A) and (B).
            (3) Approval by secretary.--A budget, plan, or project for 
        Hass avocados promotion, industry information, consumer 
        information, or related research may not be implemented prior 
        to approval of the budget, plan, or project by the Secretary.
    (e) Contracts and Agreements.--
            (1) Promotion, consumer information, industry information 
        and related research plans and projects.--
                    (A) In general.--To ensure the efficient use of 
                funds, the order shall provide that the Board, with the 
                approval of the Secretary, shall enter into a contract 
                or an agreement with an avocado organization 
                established by State statute in a State with the 
                majority of Hass avocado production in the United 
                States, for the implementation of a plan or project for 
                promotion, industry information, consumer information, 
                or related research with respect to Hass avocados, and 
                for the payment of the cost of the contract or 
                agreement with funds received by the Board under the 
                order.
                    (B) Requirements.--The 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.--The order shall 
        provide that the Board, with the approval of the Secretary, may 
        enter into a contract or agreement for administrative services. 
        Any contract or agreement entered into under this paragraph 
        shall include provisions comparable to the provisions described 
        in paragraph (1)(B).
    (f) Books and Records of Board.--
            (1) In general.--The 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.
            (2) Audits.--The Board shall cause the books and records of 
        the Board to be audited by an independent auditor at the end of 
        each fiscal year. A report of each audit shall be submitted to 
        the Secretary.
    (g) Control of Administrative Costs.--The 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 will ensure that the annual 
budgets of the Board include only amounts for administrative expenses 
that 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. The Board shall use, 
to the extent possible, the resources, staffs, and facilities of 
existing organizations, as provided in subsection (e)(1)(A).
    (h) Assessments.--
            (1) Authority.--
                    (A) In general.--The order shall provide that each 
                qualified handler shall remit to the Board, in the 
                manner provided in the order, an assessment collected 
                from the producer, except to the extent that the sale 
                is excluded from assessments under paragraph (6). In 
                the case of imports, the assessment shall be levied 
                upon imports and remitted to the Board by Customs.
                    (B) Published lists.--To facilitate the payment of 
                assessments under this paragraph, the Board shall 
                publish lists of qualified handlers required to remit 
                assessments under the order and exempt handlers.
                    (C) Making determinations.--
                            (i) Qualified handler status.--The order 
                        shall contain provisions regarding the 
                        determination of the status of a person as a 
                        qualified handler or exempt handler that 
                        include the rules and requirements specified in 
                        section 3(j).
                            (ii) Producer-handlers.--For purposes of 
                        paragraph (3), a producer-handler shall be 
                        considered the qualified handler of Hass 
                        avocados produced by such producer-handler. The 
                        qualified handler shall be the first person who 
                        packs the avocados for sale at wholesale or 
                        retail.
                            (iii) Importers.--The assessment on 
                        imported Hass avocados shall be paid by the 
                        importer at the time of entry into the United 
                        States and shall be remitted to the Board. 
                        Importation occurs when Hass avocados 
                        originating outside the United States are 
                        released from custody of the United States 
                        Customs Service and introduced into the stream 
                        of commerce within the United States. Importers 
                        include persons who hold title to foreign-
                        produced Hass avocados immediately upon release 
                        by the Customs Service, as well as any persons 
                        who act on behalf of others, as agents or 
                        brokers, to secure the release of Hass avocados 
                        from Customs and the introduction of the 
                        released Hass avocados into the current of 
                        commerce.
            (2) Assessment rates.--With respect to assessment rates, 
        the order shall contain the following terms:
                    (A) Initial rate.--The rate of assessment on Hass 
                avocados shall be $.025 per pound.
                    (B) Changes in the rate.--
                            (i) In general.--Once the order is in 
                        effect, the uniform assessment rate may be 
                        increased or decreased not more than once 
                        annually, but in no event shall the rate of 
                        assessment be in excess of $.05 per pound.
                            (ii) Requirements.--Any 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 Act 
                                (after public notice and opportunity 
                                for comment in accordance with section 
                                553 of title 5, United States Code, 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 6.
            (3) Collection by qualified handlers.--Except as provided 
        in paragraph (1)(C)(iii), the qualified handler of Hass 
        avocados shall--
                    (A) be responsible for the collection from the 
                producer of assessments under this subsection; and
                    (B) maintain a separate record of the Hass avocados 
                of each producer whose Hass avocados are so handled, 
                including the Hass avocados owned by the handlers.
            (4) Timing of submitting assessments.--The order shall 
        provide that each person required to remit assessments under 
        this subsection shall remit to the Board the assessment due 
        from each sale of Hass avocados that is subject to an 
        assessment within such time period after the sale (not to 
        exceed 60 days after the end of the month in which the sale 
        took place) as is specified in the order.
            (5) Claiming an exemption from assessments.--To claim an 
        exemption under section 3(6) 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.--An order shall exclude from assessments 
        under the order any sale of Hass avocados for export from the 
        United States.
            (7) Use of assessment funds.--The order shall provide that 
        assessment funds shall be used for payment of costs incurred in 
        implementing and administering the order, with provision for a 
        reasonable reserve, and to cover the administrative costs 
        incurred by the Secretary in implementing and administering 
        this Act, including any expenses incurred by the Secretary in 
        conducting referenda under this Act, subject to subsection (i).
            (8) Assessment funds for state association.--The order 
        shall provide that a State association shall receive an amount 
        equal to the product obtained by multiplying the aggregate 
        amount of assessments attributable to the pounds of Hass 
        avocados produced in such State by 85 percent. A State 
        association shall use such funds and any proceeds from the 
        investment of such funds for financing--
                    (A) promotion, research, consumer information, and 
                industry information plans and projects; and
                    (B) administrative expenses incurred in connection 
                with such plans and projects.
    (i) Reimbursement of Secretary Expenses.--The order shall provide 
for reimbursing the Secretary--
            (1) for expenses not to exceed $75,000 incurred by the 
        Secretary in connection with any referendum conducted under 
        section 6; and
            (2) for administrative costs incurred by the Secretary for 
        supervisory work of up to 2 employee years after an order or 
        amendment to any order has been issued and made effective.
    (j) Prohibition on Brand Advertising and Certain Claims.--
            (1) Prohibitions.--Except as provided in paragraph (2), a 
        program or project conducted under this Act shall not--
                    (A) make any reference to private brand names;
                    (B) make false, misleading, or disparaging claims 
                on behalf of Hass avocados; or
                    (C) make false, misleading, or disparaging 
                statements with respect to the attributes or use of any 
                competing products.
            (2) Exceptions.--Paragraph (1) does not preclude the Board 
        from offering its programs and projects for use by commercial 
        parties, under such terms and conditions as the Board may 
        prescribe as approved by the Secretary. For the purposes of 
        this subsection, a reference to State of origin does not 
        constitute a reference to a private brand name.
    (k) Prohibition on Use of Funds To Influence Governmental Action.--
            (1) In general.--Except as otherwise provided in paragraph 
        (2), the order shall prohibit any funds collected by the Board 
        under the order from being used in any manner for the purpose 
        of influencing legislation or government action or policy.
            (2) Exception.--Paragraph (1) shall not apply to the 
        development or recommendation of amendments to the order.
    (l) Books and Records; Reports.--
            (1) In general.--The order shall provide that each 
        qualified handler, producer, and importer subject to the order 
        shall maintain, and make available for inspection, such books 
        and records as are required by the order and file reports at 
        the time, in the manner, and having the content required by the 
        order, to the end that such information is made available to 
        the Secretary and the Board as is appropriate for the 
        administration or enforcement of this Act, the order, or any 
        regulation issued under this Act.
            (2) Confidentiality requirement.--
                    (A) In general.--Information obtained from books, 
                records, or reports under paragraph (1) shall be kept 
                confidential by all officers and employees of the 
                Department of Agriculture and by the staff and agents 
                of the Board.
                    (B) Suits and hearings.--Information 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.
                    (C) General statements and publications.--Nothing 
                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 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.--The order shall provide that the staff 
                of the Board shall periodically review lists of 
                importers of Hass avocados to determine whether persons 
                on the lists are subject to the order.
                    (B) Customs service.--On the request of the 
                Secretary or the Board, the Commissioner of the United 
                States Customs Service shall provide to the Secretary 
                or the Board lists of importers of Hass avocados.
    (m) Consultations With Industry Experts.--
            (1) In general.--The order shall provide that the Board may 
        seek advice from and consult with experts from the production, 
        import, wholesale, and retail segments of the Hass avocado 
        industry to assist in the development of promotion, industry 
        information, consumer information, and related research plans 
        and projects.
            (2) Special committees.--
                    (A) In general.--For the purposes described in 
                paragraph (1), the order shall authorize the 
                appointment of special committees composed of persons 
                other than Board members.
                    (B) Consultation.--A committee appointed under 
                subparagraph (A)--
                            (i) may not provide advice or 
                        recommendations to a representative of an 
                        agency, or an officer, of the Federal 
                        Government; and
                            (ii) shall consult directly with the Board.
    (n) Other Terms of the Order.--The order shall contain such other 
terms and provisions, consistent with this Act, as are necessary to 
carry out this Act (including provision for the assessment of interest 
and a charge for each late payment of assessments under subsection 
(h)).

SEC. 6. REFERENDA.

    (a) Requirements for Initial Referendum.--
            (1) Referendum required.--During the 60-day period 
        immediately preceding the proposed effective date of an order 
        issued under section 4(b)(3), the Secretary shall conduct a 
        referendum among qualified producers and importers required to 
        pay assessments under the order, as provided in section 
        5(h)(1).
            (2) Approval of order needed.--The order shall become 
        effective only if the Secretary determines that the order has 
        been approved by a simple majority of all votes cast in the 
        referendum.
    (b) Votes Permitted.--
            (1) In general.--Each qualified producer and importer 
        eligible to vote in a referendum conducted under this section 
        shall be entitled to cast 1 vote if they satisfy the 
        eligibility requirements as defined in paragraph (2).
            (2) Eligibility.--For purposes of paragraph (1), producers 
        and importers, as these terms are defined in section 3, shall 
        be considered to be eligible to vote if they have been 
        producers or importers with sales of Hass avocados during a 
        period of at least 1 year prior to the referendum.
    (c) Manner of Conducting Referenda.--
            (1) In general.--Referenda conducted pursuant to this Act 
        shall be conducted in a manner determined by the Secretary.
            (2) Advance registration.--A qualified producer or importer 
        of Hass avocados who chooses to vote in any referendum 
        conducted under this Act shall register with the Secretary 
        prior to the voting period, after receiving notice from the 
        Secretary concerning the referendum under paragraph (4).
            (3) Voting.--A qualified producer or importer of Hass 
        avocados who chooses to vote in any referendum conducted under 
        this Act shall vote in accordance with procedures established 
        by the Secretary. The ballots and other information or reports 
        that reveal or tend to reveal the vote of any qualified handler 
        shall be strictly confidential.
            (4) Notice.--The Secretary shall notify all qualified 
        producers and importers at least 30 days prior to the 
        referendum conducted under this Act. The notice shall explain 
        the procedure established under this subsection.
    (d) Suspension or Termination Referenda.--If an order is approved 
in a referendum conducted under subsection (a), effective beginning on 
the date that is 3 years after the date of the approval, the 
Secretary--
            (1) at the discretion of the Secretary, may conduct at any 
        time a referendum of qualified producers and importers required 
        to pay assessments under the order, as provided in section 
        5(h)(1), subject to the voting requirements of subsection (b), 
        to ascertain whether qualified producers and importers favor 
        suspension or termination of the order; and
            (2) if requested by the Board or by a representative group 
        comprising 30 percent or more of all qualified producers and 
        importers required to pay assessments under the order, as 
        provided in section 5(h)(1), subject to the voting requirements 
        of subsections (c) and (d), to ascertain whether producers and 
        importers favor suspension or termination of the order.
    (e) Suspension or Termination.--If, as a result of a referendum 
conducted under subsection (d), the Secretary determines that 
suspension or termination of the order is favored by a simple majority 
of all votes cast in the referendum, the Secretary shall--
            (1) not later than 180 days after the referendum, suspend 
        or terminate, as appropriate, collection of assessments under 
        the order; and
            (2) suspend or terminate, as appropriate, activities under 
        the order as soon as practicable and in an orderly manner.

SEC. 7. PETITION AND REVIEW.

    (a) Petition and Hearing.--
            (1) Petition.--A person subject to an order may file with 
        the Secretary a petition--
                    (A) stating that the order, any provision of the 
                order, or any obligation imposed in connection with the 
                order is not in accordance with law; and
                    (B) requesting a modification of the order or an 
                exemption from the order.
            (2) Hearing.--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. Any such 
        hearing shall be conducted in accordance with section 9(b)(2) 
        and be held within the United States judicial district in which 
        the residence or principal place of business of the person is 
        located.
            (3) Ruling.--After a hearing under paragraph (2), the 
        Secretary shall make a ruling on the petition, which shall be 
        final if in accordance with law.
            (4) Limitation.--Any petition filed under this subsection 
        challenging an order, any provision of the order, or any 
        obligation imposed in connection with the order, shall be filed 
        within 2 years after the effective date of the order, 
        provision, or obligation subject to challenge in the petition.
    (b) Review.--
            (1) Commencement of action.--The district courts of the 
        United States in any district in which a person who is a 
        petitioner under subsection (a) resides or conducts business 
        shall have jurisdiction to review the ruling of the Secretary 
        on the petition of the person, if a complaint requesting the 
        review is filed no later than 20 days after the date of the 
        entry of the ruling by the Secretary.
            (2) Process.--Service of process in proceedings under this 
        subsection shall be conducted in accordance with the Federal 
        Rules of Civil Procedure.
            (3) Remand.--If the court in a proceeding under this 
        subsection determines that the ruling of the Secretary on the 
        petition of the person is not in accordance with 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 action as, in the opinion 
                the court, the law requires.
    (c) Enforcement.--The pendency of proceedings instituted under this 
section shall not impede, hinder, or delay the Attorney General or the 
Secretary from obtaining relief under section 8.

SEC. 8. ENFORCEMENT.

    (a) Jurisdiction.--A district court of the United States shall have 
jurisdiction to enforce, and to prevent and restrain any person from 
violating, this Act or an order or regulation issued by the Secretary 
under this Act.
    (b) Referral to Attorney General.--A civil action brought under 
subsection (a) shall be referred to the Attorney General for 
appropriate action, except that the Secretary is not required to refer 
to the Attorney General a violation of this Act, or an order or 
regulation issued under this Act, if the Secretary believes that the 
administration and enforcement of this Act would be adequately served 
by administrative action under subsection (c) or suitable written 
notice or warning to the person who committed or is committing the 
violation.
    (c) Civil Penalties and Orders.--
            (1) Civil penalties.--
                    (A) In general.--A person who violates a provision 
                of this Act, or an order or regulation issued by the 
                Secretary under this Act, or who fails or refuses to 
                pay, collect, or remit any assessment or fee required 
                of the person under an order or regulation issued under 
                this Act, may be assessed by the Secretary--
                            (i) a civil penalty of not less than $500 
                        nor more than $5,000 for each violation; and
                            (ii) in the case of a willful failure to 
                        remit an assessment as required by an order or 
                        regulation, an additional penalty equal to the 
                        amount of the assessment.
                    (B) Separate offenses.--Each violation shall be a 
                separate offense.
            (2) Cease and desist orders.--In addition to or in lieu of 
        a civil penalty under paragraph (1), the Secretary may issue an 
        order requiring a person to cease and desist from continuing a 
        violation of this Act, or an order or regulation issued under 
        this Act.
            (3) Notice and hearing.--No penalty shall be assessed, or 
        cease and desist order issued, by the Secretary under this 
        subsection unless the Secretary gives the person against whom 
        the penalty is assessed or the order is issued notice and 
        opportunity for a hearing before the Secretary with respect to 
        the violation. Any such hearing shall be conducted in 
        accordance with section 9(b)(2) and shall be held within the 
        United States judicial district in which the residence or 
        principal place of business of the person is located.
            (4) Finality.--The penalty assessed or cease and desist 
        order issued under this subsection shall be final and 
        conclusive unless the person against whom the penalty is 
        assessed or the order is issued files an appeal with the 
        appropriate district court of the United States in accordance 
        with subsection (d).
    (d) Review by District Court.--
            (1) Commencement of action.--
                    (A) In general.--Any person against whom a 
                violation is found and a civil penalty is assessed or a 
cease and desist order is issued under subsection (c) may obtain review 
of the penalty or order by, within the 30-day period beginning on the 
date the penalty is assessed or the order is issued--
                            (i) filing a notice of appeal in the 
                        district court of the United States for the 
                        district in which the person resides or 
                        conducts business, or in the United States 
                        District Court for the District of Columbia; 
                        and
                            (ii) sending a copy of the notice by 
                        certified mail to the Secretary.
                    (B) Copy of record.--The Secretary shall promptly 
                file in the court a certified copy of the record on 
                which the Secretary found that the person had committed 
                a violation.
            (2) Standard of review.--A finding of the Secretary shall 
        be set aside under this subsection only if the finding is found 
        to be unsupported by substantial evidence.
    (e) Failure To Obey an Order.--
            (1) In general.--A person who fails to obey a cease and 
        desist order issued under subsection (c) after the order has 
        become final and unappealable, or after the appropriate United 
        States district court had entered a final judgment in favor of 
        the Secretary of not more than $5,000 for each offense, after 
        opportunity for a hearing and for judicial review under the 
        procedures specified in subsections (c) and (d).
            (2) Separate violations.--Each day during which the person 
        fails to obey an order described in paragraph (1) shall be 
        considered as a separate violation of the order.
    (f) Failure To Pay a Penalty.--
            (1) In general.--If a person fails to pay a civil penalty 
        assessed under subsection (c) or (e) after the penalty has 
        become final and unappealable, or after the appropriate United 
        States district court has entered final judgment in favor of 
        the Secretary, the Secretary shall refer the matter to the 
        Attorney General for recovery of the amount assessed in any 
        United States district court in which the person resides or 
        conducts business.
            (2) Scope of review.--In an action by the Attorney General 
        under paragraph (1), the validity and appropriateness of a 
        civil penalty shall not be subject to review.
    (g) Additional Remedies.--The remedies provided in this Act shall 
be in addition to, and not exclusive of, other remedies that may be 
available.

SEC. 9. INVESTIGATIONS AND POWER TO SUBPOENA.

    (a) Investigations.--The Secretary may conduct such investigations 
as the Secretary considers necessary for the effective administration 
of this Act, or to determine whether any person has engaged or is 
engaging in any act that constitutes a violation of this Act or any 
order or regulation issued under this Act.
    (b) Subpoenas, Oaths, and Affirmations.--
            (1) Investigations.--For the purpose of conducting 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 
        production of the records may be required from any place in the 
        United States.
            (2) Administrative hearings.--For the purpose of an 
        administrative hearing held under section 7(a)(2) or 8(c)(3), 
        the presiding officer 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 the records may be required from any place in the 
        United States.
    (c) Aid of Courts.--
            (1) In general.--In the case of contumacy by, or refusal to 
        obey a subpoena issued under subsection (b) to, any person, the 
        Secretary may invoke the aid of any court of the United States 
        within the jurisdiction of which the investigation or 
        proceeding is conducted, or where the person resides or 
        conducts business, in order to enforce a subpoena issued under 
        subsection (b).
            (2) Order.--The court may issue an order requiring the 
        person referred to in a paragraph (1) to comply with a subpoena 
        referred to in paragraph (1).
            (3) Failure to obey.--Any failure to obey the order of the 
        court may be punished by the court as a contempt of court.
            (4) Process.--Process in any proceeding under this 
        subsection may be served in the United States judicial district 
        in which the person being proceeded against resides or conducts 
        business, or wherever the person may be found.

SEC. 10. CONFIDENTIALITY.

    (a) Prohibition.--No information regarding names of voters or how a 
person voted in a referendum conducted under this Act shall be made 
public.
    (b) Penalty.--Any person who knowingly violates subsection (a) or 
the confidentiality terms of an order, as described in section 5(k)(2), 
shall be subject to a fine of not less that $1,000 nor more than 
$10,000 or to imprisonment for not more than 1 year, or both. If the 
person is an officer or employee of the Department of Agriculture or 
the Board, the person shall be removed from office.
    (c) Additional Prohibition.--No information obtained under this Act 
may be made available to any agency or officer of the Federal 
Government for any purpose other than the implementation of this Act or 
an investigatory or enforcement action necessary for the implementation 
of this Act.
    (d) Withholding Information From Congress Prohibited.--Nothing in 
this Act shall be construed to authorize the withholding of information 
from Congress.

SEC. 11. AUTHORITY FOR SECRETARY TO SUSPEND OR TERMINATE ORDER.

    (a) Grounds for Suspension or Termination.--If the Secretary finds 
that an order, or any provision of the order, obstructs or does not 
tend to effectuate the policy of this Act specified in section 2(b), 
the Secretary shall terminate or suspend the operation of the order or 
provision under such terms as the Secretary determines are appropriate.
    (b) Effect of Lack of Approval of Order.--If, as a result of a 
referendum, the Secretary determines that the order is not approved, 
the Secretary shall, within 180 days after making the determination, 
suspend, or terminate, as appropriate, collection of assessments under 
the order, and suspend or terminate, as appropriate, activities under 
the order in an orderly manner as soon as possible.

SEC. 12. CONSTRUCTION.

    (a) Termination or Suspension Not an Order.--The termination or 
suspension of an order, or a provision of an order, shall not be 
considered an order under the meaning of this Act.
    (b) Producer Rights.--This Act--
            (1) may not be construed to provide for control of 
        production or otherwise limit the right of individual Hass 
        avocado growers to produce Hass avocados; and
            (2) shall be construed to treat all persons producing Hass 
        avocados fairly and to implement any order in an equitable 
        manner.
    (c) Relationship Between Secretary and Board.--In carrying out the 
Secretary's responsibilities to oversee the collection and disbursement 
of assessment funds and the operation of the program within the 
provisions of this Act, no official or employee of the Department shall 
attempt to make decisions as to the best use of assessment funds or 
shape the program to the personal preference of the official or 
employee. The Secretary's responsibility is to ensure that the program 
operates in a manner consistent with this Act and other applicable law. 
The Board shall retain sole authority to structure the projects and 
activities within the limits established by this Act and the order 
issued pursuant to this Act, and the Secretary shall not substitute its 
judgment to modify or alter such projects and activities. The Secretary 
shall eliminate any unnecessary regulatory costs or requirements to the 
industry in carrying out the Secretary's oversight and regulatory 
responsibilities and shall promote the most efficient use of producer 
and importer assessments.
    (d) Other Programs.--Nothing in this Act may be construed to 
preempt or supersede any other program relating to Hass avocado 
promotion and consumer information organized and operated under the 
laws of the United States or of a State.

SEC. 13. REGULATIONS.

    The Secretary may issue such regulations as are necessary to carry 
out this Act and the powers vested in the Secretary by this Act, 
including regulations relating to the assessment of late payment 
charges and interest.

SEC. 14. AUTHORIZATION OF APPROPRIATIONS.

    (a) In General.--There are authorized to be appropriated for each 
fiscal year such sums as are necessary to carry out this Act.
    (b) Administrative Expenses.--Funds appropriated under subsection 
(a) may not be used for the payment of the expenses or expenditures of 
the Board in administering a provision of an order.
                                 <all>