§ 4009. — Establishment of seafood marketing councils.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 16USC4009]
TITLE 16--CONSERVATION
CHAPTER 60--FISH AND SEAFOOD PROMOTION
Sec. 4009. Establishment of seafood marketing councils
(a) Application
An application for a charter for a seafood marketing council for one
or more species of fish and fish products of that species may be filed
by persons who meet the requirements specified in accordance with
subsection (b)(6) of this section.
(b) Form of application
An application for a charter for a council shall be made by filing
with the Secretary the text of a proposed charter in such form as shall
be prescribed by regulation by the Secretary. The text of a proposed
charter must contain such information as the Secretary considers
necessary or appropriate for carrying out the provisions of this
chapter, including--
(1) the name of the council and a provision proclaiming its
establishment;
(2) a declaration of the purposes and objectives of the council;
(3) a description of the species of fish and fish products for
which the council will implement marketing and promotion plans under
section 4010 of this title;
(4) the identification of each sector and the number and terms
of representatives of each sector that will be represented as voting
members of the council;
(5) the identification of those sectors (including the sector
consisting of harvesters, the sector consisting of receivers, and,
if subject to assessment, the sector consisting of importers)
subject to a referendum to establish a council under subsection (e)
of this section;
(6) a specification for each sector described under paragraph
(5) of this subsection of the minimum requirements, as measured by
income, volume, or other relevant factors, that a person engaging in
business in the sector must meet in order to participate in a
referendum;
(7)(A) a description of the procedures for determining
assessment rates under section 4012 of this title;
(B) the proposed rate or rates that will be imposed by the
council on receivers and, if subject to assessment, importers during
its first year of operation;
(C) the maximum amount an assessment rate for any period may be
raised above the rate applicable for the immediately preceding
period; and
(D) the maximum rate or rates that can be imposed by a council
on receivers or importers during the operation of the council;
(8) a provision setting forth the definition of a quorum for
making decisions on council business and the procedures for
selecting a chairman of the council;
(9) a provision setting forth the voting procedures by which
votes may be cast by proxy; and
(10) such other provisions relating to administration of the
council as the Secretary considers necessary.
The text of a proposed charter shall be accompanied by a document
identifying, to the extent practicable by address of place of business,
the persons (hereinafter referred to as ``sector participants'') that
are considered by the applicants to meet the requirements specified in
paragraph (6) of this subsection. The text of a proposed charter shall
include provisions setting forth procedures for providing refunds to
those sector participants subject to assessment under section 4012 of
this title, and may also include provisions which establish a maximum
limit on the amount that any one sector participant may be required to
pay under an assessment for any period.
(c) Contents of charter
The Secretary may not approve a proposed charter filed under
subsection (a) of this section unless such charter provides that--
(1) the council will have voting members representing the
harvesting, receiving and, if subject to assessment, importing
sectors; and
(2) the members of the council shall serve without compensation,
but shall be reimbursed for their reasonable expenses incurred in
performing their duties as members of the council.
(d) Review of charter
(1) Within 180 days of the receipt of an application to establish a
council, the Secretary shall--
(A) identify, to the extent practicable, those sector
participants that meet the requirements for eligibility to
participate in the referendum under subsection (e) of this section;
(B) determine, to the extent practicable, if the charter is
accompanied by a petition comprised of the signatures or corporate
certifications, as the case may be, of no less than three sector
participants in each sector identified in accordance with subsection
(b)(5) of this section who collectively accounted for, in the
twelve-month period immediately preceding the month in which the
application was filed, not less than 10 percent of the value of the
fish or fish products described in accordance with subsection (b)(3)
of this section that were handled by each such sector during that
period; and
(C) determine if the proposed charter is consistent with the
provisions of this chapter and any other applicable law.
(2) If any negative determination is made under paragraph (1) of
this subsection regarding a proposed charter, the Secretary shall advise
in writing the sector participants who made the application of the
reasons for such determination. A corrected application may be submitted
thereafter to the Secretary for approval.
(e) Conduct of referendum
(1) Upon making affirmative determinations under subsection (d)(1)
of this section regarding a proposed charter, the Secretary, within 90
days after the date of the last of such determinations, shall conduct a
referendum on the adoption of the proposed charter among all sector
participants identified in accordance with subsection (d)(1)(A) of this
section. The Secretary shall by order establish the council and approve
the proposed charter, if the referendum votes which are cast in favor of
the proposed charter constitute a majority of the sector participants
voting in each sector and the majority collectively accounts for, in the
twelve-month period immediately preceding the month in which the
proposed charter was filed under subsection (a) of this section, at
least sixty-six percent of the value of the fish and fish products
described in accordance with subsection (b)(3) of this section that were
handled by that sector during such period.
(2) Not less than thirty days prior to holding a referendum under
this subsection, the Secretary shall--
(A) publish (by such means as will result in wide publicity in
regions affected by the proposed charter) the text of the proposed
charter and a list of those sector participants eligible to vote in
the referendum; and
(B) provide for public comment, including the opportunity for a
public meeting.
(3)(A) The Secretary shall pay all costs of a referendum which
establishes a council under this subsection. Within two years after a
council is established the council shall reimburse the Secretary for any
expenses incurred for the conduct of the referendum from assessments
collected by the council. Prior to the holding of a referendum under
this subsection, the Secretary shall require the applicants to post a
bond or other security acceptable to the Secretary, in an amount which
the Secretary determines to be sufficient to pay any expenses incurred
for the conduct of the referendum, and shall immediately recover such
amount if a referendum fails to result in the establishment of a
council.
(B) As used in this paragraph, the term ``expenses incurred for the
conduct of the referendum'' does not include salaries of Government
employees or other administrative overhead, but is limited to those
additional direct costs incurred in connection with conduct of the
referendum.
(f) Nominations
(1) Within thirty days after a council is established under
subsection (e) of this section, the Secretary shall solicit from the
sectors represented on the council nominations for members of the
council. If the harvesters and receivers represented on the council are
engaged in business in two or more regions of the United States, the
nominations made under this paragraph, and the appointments to the
council made under paragraph (3) of this subsection, must, to the extent
practicable, result in equitable representation for the constituent
regions.
(2) No person is eligible for nomination or appointment as a member
of a council unless such person is knowledgeable and experienced with
regard to the activities of, and is or has been actively engaged in the
business of, the sector which such person will represent on the council.
(3) The Secretary shall, within sixty days after the end of the
thirty-day period referred to in paragraph (1) of this subsection,
appoint the members of the council from among the nominees.
(4) A vacancy on a council shall be filled, within sixty days after
the vacancy occurs, in the same manner in which the original appointment
was made. A member appointed to fill a vacancy occurring before the
expiration of the term for which the member's predecessor was appointed
shall be appointed only for the remainder of such term.
(5) The Secretary shall remove any member of a council if the
council concerned first recommends, by not less than two-thirds of its
members, removal for cause. Such a recommendation of a council must be
in writing and accompanied by a statement of the reasons upon which the
recommendation is based.
(g) Nature of a council
A council is not an instrumentality of the United States Government.
(Pub. L. 99-659, title II, Sec. 210, Nov. 14, 1986, 100 Stat. 3721.)
Section Referred to in Other Sections
This section is referred to in sections 4003, 4005, 4010, 4011,
4012, 4015 of this title.
