§ 7414. — Required terms in orders.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 7USC7414]
TITLE 7--AGRICULTURE
CHAPTER 101--AGRICULTURAL PROMOTION
SUBCHAPTER II--ISSUANCE OF ORDERS FOR PROMOTION, RESEARCH, AND
INFORMATION ACTIVITIES REGARDING AGRICULTURAL COMMODITIES
Sec. 7414. Required terms in orders
(a) In general
Each order shall contain the terms and conditions specified in this
section.
(b) Board
(1) Establishment
Each order shall establish a board to carry out a program of
generic promotion, research, and information regarding the
agricultural commodity covered by the order and intended to
effectuate the purpose of this subchapter.
(2) Board membership
(A) Number of members
Each board shall consist of the number of members considered
by the Secretary, in consultation with the agricultural
commodity industry involved, to be appropriate to administer the
order. In addition to members, the Secretary may also provide
for alternates on the board.
(B) Appointment
The Secretary shall appoint the members and any alternates
of a board from among producers of the agricultural commodity
and first handlers and others in the marketing chain as
appropriate. If imports of the agricultural commodity covered by
an order are subject to assessment under section 7415(f) of this
title, the Secretary shall also appoint importers as members of
the board and as alternates if alternates are included on the
board. The Secretary may appoint 1 or more members of the
general public to each board.
(C) Nominations
The Secretary may make appointments from nominations made
pursuant to the method set forth in the order.
(D) Geographical representation
To ensure fair and equitable representation of the
agricultural commodity industry covered by an order, the
composition of each board shall reflect the geographical
distribution of the production of the agricultural commodity
involved in the United States and the quantity or value of the
agricultural commodity imported into the United States.
(3) Reapportionment of board membership
In accordance with rules issued by the Secretary, at least once
in each 5-year period, but not more frequently than once in each 3-
year period, each board shall--
(A) review the geographical distribution in the United
States of the production of the agricultural commodity covered
by the order involved and the quantity or value of the
agricultural commodity imported into the United States; and
(B) if warranted, recommend to the Secretary the
reapportionment of the board membership to reflect changes in
the geographical distribution of the production of the
agricultural commodity and the quantity or value of the imported
agricultural commodity.
(4) Notice
(A) Vacancies
Each order shall provide for notice of board vacancies to
the agricultural commodity industry involved.
(B) Meetings
Each board shall provide the Secretary with prior notice of
meetings of the board to permit the Secretary, or a designated
representative of the Secretary, to attend the meetings.
(5) Term of office
(A) In general
The members and any alternates of a board shall each serve
for a term of 3 years, except that the members and any
alternates initially appointed to a board shall serve for terms
of not more than 2, 3, and 4 years, as specified by the order.
(B) Limitation on consecutive terms
A member or alternate may serve not more than 2 consecutive
terms.
(C) Continuation of term
Notwithstanding subparagraph (B), each member or alternate
shall continue to serve until a successor is appointed by the
Secretary.
(D) Vacancies
A vacancy arising before the expiration of a term of office
of an incumbent member or alternate of a board shall be filled
in a manner provided for in the order.
(6) Compensation
(A) In general
Members and any alternates of a board shall serve without
compensation.
(B) Travel expenses
If approved by a board, members or alternates shall be
reimbursed for reasonable travel expenses, which may include a
per diem allowance or actual subsistence incurred while away
from their homes or regular places of business in the
performance of services for the board.
(c) Powers and duties of board
Each order shall specify the powers and duties of the board
established under the order, which shall include the power and duty--
(1) to administer the order in accordance with its terms and
conditions and to collect assessments;
(2) to develop and recommend to the Secretary for approval such
bylaws as may be necessary for the functioning of the board and such
rules as may be necessary to administer the order, including
activities authorized to be carried out under the order;
(3) to meet, organize, and select from among the members of the
board a chairperson, other officers, and committees and
subcommittees, as the board determines to be appropriate;
(4) to employ persons, other than the members, as the board
considers necessary to assist the board in carrying out its duties,
and to determine the compensation and specify the duties of the
persons;
(5) subject to subsection (e) of this section, to develop and
carry out generic promotion, research, and information activities
relating to the agricultural commodity covered by the order;
(6) to prepare and submit for the approval of the Secretary,
before the beginning of each fiscal year, rates of assessment under
section 7416 of this title and an annual budget of the anticipated
expenses to be incurred in the administration of the order,
including the probable cost of each promotion, research, and
information activity proposed to be developed or carried out by the
board;
(7) to borrow funds necessary for the startup expenses of the
order;
(8) subject to subsection (f) of this section, to enter into
contracts or agreements to develop and carry out generic promotion,
research, and information activities relating to the agricultural
commodity covered by the order;
(9) to pay the cost of the activities with assessments collected
under section 7416 of this title, earnings from invested
assessments, and other funds;
(10) to keep records that accurately reflect the actions and
transactions of the board, to keep and report minutes of each
meeting of the board to the Secretary, and to furnish the Secretary
with any information or records the Secretary requests;
(11) to receive, investigate, and report to the Secretary
complaints of violations of the order; and
(12) to recommend to the Secretary such amendments to the order
as the board considers appropriate.
(d) Prohibited activities
A board may not engage in, and shall prohibit the employees and
agents of the board from engaging in--
(1) any action that would be a conflict of interest;
(2) using funds collected by the board under the order, any
action undertaken for the purpose of influencing any legislation or
governmental action or policy other than recommending to the
Secretary amendments to the order; and
(3) any advertising, including promotion, research, and
information activities authorized to be carried out under the order,
that may be false or misleading or disparaging to another
agricultural commodity.
(e) Activities and budgets
(1) Activities
Each order shall require the board established under the order
to submit to the Secretary for approval plans and projects for
promotion, research, or information relating to the agricultural
commodity covered by the order.
(2) Budgets
(A) Submission to Secretary
Each order shall require the board established under the
order to submit to the Secretary for approval a budget of its
anticipated annual expenses and disbursements to be paid to
administer the order. The budget shall be submitted before the
beginning of a fiscal year and as frequently as may be necessary
after the beginning of the fiscal year.
(B) Reimbursement of Secretary
Each order shall require that the Secretary be reimbursed
for all expenses incurred by the Secretary in the
implementation, administration, and supervision of the order,
including all referenda costs incurred in connection with the
order.
(3) Incurring expenses
A board may incur the expenses described in paragraph (2) and
other expenses for the administration, maintenance, and functioning
of the board as authorized by the Secretary.
(4) Payment of expenses
Expenses incurred under paragraph (3) shall be paid by a board
using assessments collected under section 7416 of this title,
earnings obtained from assessments, and other income of the board.
Any funds borrowed by the board shall be expended only for startup
costs and capital outlays.
(5) Limitation on spending
For fiscal years beginning 3 or more years after the date of the
establishment of a board, the board may not expend for
administration (except for reimbursements to the Secretary required
under paragraph (2)(B)), maintenance, and functioning of the board
in a fiscal year an amount that exceeds 15 percent of the assessment
and other income received by the board for the fiscal year.
(f) Contracts and agreements
(1) In general
Each order shall provide that, with the approval of the
Secretary, the board established under the order may--
(A) enter into contracts and agreements to carry out generic
promotion, research, and information activities relating to the
agricultural commodity covered by the order, including contracts
and agreements with producer associations or other entities as
considered appropriate by the Secretary; and
(B) pay the cost of approved generic promotion, research,
and information activities using assessments collected under
section 7416 of this title, earnings obtained from assessments,
and other income of the board.
(2) Requirements
Each contract or agreement shall provide that any person who
enters into the contract or agreement with the board shall--
(A) develop and submit to the board a proposed activity
together with a budget that specifies the cost to be incurred to
carry out the activity;
(B) keep accurate records of all of its transactions
relating to the contract or agreement;
(C) account for funds received and expended in connection
with the contract or agreement;
(D) make periodic reports to the board of activities
conducted under the contract or agreement; and
(E) make such other reports as the board or the Secretary
considers relevant.
(g) Records of board
(1) In general
Each order shall require the board established under the order--
(A) to maintain such records as the Secretary may require
and to make the records available to the Secretary for
inspection and audit;
(B) to collect and submit to the Secretary, at any time the
Secretary may specify, any information the Secretary may
request; and
(C) to account for the receipt and disbursement of all funds
in the possession, or under the control, of the board.
(2) Audits
Each order shall require the board established under the order
to have--
(A) its records audited by an independent auditor at the end
of each fiscal year; and
(B) a report of the audit submitted directly to the
Secretary.
(h) Periodic evaluation
In accordance with section 7401(c) of this title, each order shall
require the board established under the order to provide for the
independent evaluation of all generic promotion, research, and
information activities undertaken under the order.
(i) Books and records of persons covered by order
(1) In general
Each order shall require that producers, first handlers and
other persons in the marketing chain as appropriate, and importers
covered by the order shall--
(A) maintain records sufficient to ensure compliance with
the order and regulations;
(B) submit to the board established under the order any
information required by the board to carry out its
responsibilities under the order; and
(C) make the records described in subparagraph (A)
available, during normal business hours, for inspection by
employees or agents of the board or the Department, including
any records necessary to verify information required under
subparagraph (B).
(2) Time requirement
Any record required to be maintained under paragraph (1) shall
be maintained for such time period as the Secretary may prescribe.
(3) Other information
The Secretary may use, and may authorize the board to use under
this subchapter, information regarding persons subject to an order
that is collected by the Department under any other law.
(4) Confidentiality of information
(A) In general
Except as otherwise provided in this subchapter, all
information obtained under paragraph (1) or as part of a
referendum under section 7417 of this title shall be kept
confidential by all officers, employees, and agents of the
Department and of the board.
(B) Disclosure
Information referred to in subparagraph (A) may be disclosed
only if--
(i) the Secretary considers the information relevant;
and
(ii) the information is revealed in a judicial
proceeding or administrative hearing brought at the
direction or on the request of the Secretary or to which the
Secretary or any officer of the Department is a party.
(C) Other exceptions
This paragraph shall not prohibit--
(i) the issuance of general statements based on reports
or on information relating to a number of persons subject to
an order 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 violating any order and a statement
of the particular provisions of the order violated by the
person.
(D) Penalty
Any person who willfully violates this subsection shall be
subject, on conviction, to a fine of not more than $1,000 or to
imprisonment for not more than 1 year, or both.
(5) Withholding information
This subsection shall not authorize the withholding of
information from Congress.
(Pub. L. 104-127, title V, Sec. 515, Apr. 4, 1996, 110 Stat. 1036.)
Section Referred to in Other Sections
This section is referred to in section 7415 of this title.
