16 U.S.C. § 4010 — Functions and powers of councils

Page 2461 TITLE 16—CONSERVATION § 4010 1 So in original. Probably should not be capitalized. ceding the month in which the application was filed, not less than 10 percent of the value of the fish or fish products described in accord- ance 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 con- sistent 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 determina- tion. 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 deter- minations, shall conduct a referendum on the adoption of the proposed charter among all sec- tor participants identified in accordance with subsection (d)(1)(A) of this section. The Sec- retary 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 par- ticipants 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 sub- section (a) of this section, at least sixty-six per- cent 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 Sec- retary shall— (A) publish (by such means as will result in wide publicity in regions affected by the pro- posed 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 con- duct of the referendum from assessments col- lected 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 imme- diately recover such amount if a referendum fails to result in the establishment of a council. (B) As used in this paragraph, the term ‘‘ex- penses incurred for the conduct of the ref- erendum’’ does not include salaries of Govern- ment employees or other administrative over- head, 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 estab- lished under subsection (e) of this section, the Secretary shall solicit from the sectors rep- resented on the council nominations for mem- bers of the council. If the harvesters and receiv- ers represented on the council are engaged in business in two or more regions of the United States, the nominations made under this para- graph, and the appointments to the council made under paragraph (3) of this subsection, must, to the extent practicable, result in equi- table representation for the constituent regions. (2) No person is eligible for nomination or ap- pointment as a member of a council unless such person is knowledgeable and experienced with regard to the activities of, and is or has been ac- tively 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 nomi- nees. (4) A vacancy on a council shall be filled, with- in 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 rec- ommends, by not less than two-thirds of its members, removal for cause. Such a rec- ommendation 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, § 210, Nov. 14, 1986, 100 Stat. 3721.) § 4010. Functions and powers of councils (a) Activities of a council (1) Each council shall— (A) Adopt 1 a seal which shall be judicially noticed; (B) implement all terms of its charter; (C) prepare and submit to the Secretary, for review and approval under section 4011(a)(1) of this title, a marketing and promotion plan and amendments to such plan which contain descriptions of the projected consumer edu- cation, research, and other marketing and pro- motion activities of the council; (D) implement and administer an approved marketing and promotion plan and amend- ments to such plan; (E) determine the assessments to be made under section 4012 of this title and administer the collection of such assessments to finance council expenses described in paragraph (2) of this subsection; (F) receive, investigate and report to the Secretary accounts of violations of rules or or- Page 2462 TITLE 16—CONSERVATION § 4010 ders relating to assessments collected under section 4012 of this title, or quality standard requirements established under subsection (c) of this section; (G) prepare and submit to the Secretary, for review and approval under section 4011(a)(1) of this title, a budget (on a fiscal year basis) of the anticipated expenses and disbursements of the council, including— (i) all administrative and contractual ex- penses; (ii) the probable costs of consumer edu- cation, research, and other marketing and promotion plans or projects; (iii) the costs of the collection of assess- ments; and (iv) the expense of repayment of the costs of each referendum conducted in regard to the council; (H) maintain books and records, prepare and submit to the Secretary such reports from time to time as may be necessary for appro- priate accounting with respect to the receipt and disbursement of funds entrusted to it, and cause a complete audit report to be submitted to the Secretary at the end of each fiscal year; (I) reimburse the Secretary for the expenses incurred for the conduct of the referendum to establish the council or any subsequent ref- erendum to terminate the council that fails; and (J) prepare and submit to the Secretary from time to time such reports or proposals as the council determines appropriate to further the purposes of this chapter. (2) Funds collected by a council under section 4012 of this title shall be used by the council for— (A) research, consumer education, and other marketing and promotion activities regarding the quality and marketing of fish and fish products; (B) other expenses, as described in sub- section (a)(1)(G) of this section; (C) such other expenses for the administra- tion, maintenance, and functioning of the council as may be authorized by the Sec- retary; (D) any reserve fund established under sub- section (b)(5) of this section and any adminis- trative expenses incurred by the Secretary specified as reimbursable under this chapter. (3) Marketing and promotion plans and amend- ments to such plans prepared by a council under subsection (a)(1)(C) of this section shall be de- signed to increase the general demand for fish and fish products described in accordance with section 4009(b)(3) of this title by encouraging, expanding, and improving the marketing, pro- motion and utilization of such fish and fish products, in domestic or foreign markets, or both, through consumer education, research, and other marketing and promotion activities. (4) Consumer education and other marketing and promotion activities carried out by a coun- cil under a marketing and promotion plan and amendments to such plan may not contain ref- erences to any private brand or trade name and shall avoid the use of deceptive acts or practices in promoting fish or fish products or with re- spect to the quality, value, or use of any com- peting product or group of products. (b) Authority of a council A council may— (1) sue and be sued; (2) enter into contracts; (3) employ and determine the salary of an executive director who may, with the approval of the council, employ and determine the sal- ary of such additional staff as may be nec- essary; (4) collaborate with other councils and with the National Council in establishing and im- plementing a national marketing and pro- motion plan for one or more species of fish or fish products; and (5) establish a reserve fund from monies col- lected and received under section 4012 of this title to permit an effective and sustained pro- gram of research, consumer education, and other marketing and promotion activities re- garding the quality and marketing of fish and fish products in years when production and as- sessment income may be reduced, but the total reserve fund may not exceed the amount budgeted for the current fiscal year of oper- ation. (c) Quality standards (1) A council may develop and submit to the Secretary for approval, or upon the request of a council the Secretary shall develop, quality standards for a fish or fish product described in accordance with section 4009(b)(3) of this title. Any quality standard developed under this para- graph shall be consistent with the purposes of this chapter. (2) A quality standard developed under para- graph (1) of this subsection may be adopted by a council by a majority of the members of the council if first approved, in a referendum con- ducted by the council, by a majority of the sec- tor participants of the sector concerned voting and the majority collectively accounted for, in the twelve-month period immediately preceding the month in which the referendum is held, not less than sixty-six percent of the value of the fish or fish products described in accordance with section 4009(b)(3) of this title that were handled by that sector during such period. (3) With respect to a quality standard adopted under paragraph (2) of this subsection, the coun- cil shall develop and file with the Secretary an official identification in the form of a symbol, stamp, label, or seal that will be used to indi- cate that a fish or fish product meets the qual- ity standard at the time the official identifica- tion is affixed to the fish or fish product, or is affixed to or printed on the packaging material of the fish or fish product. (4) The Secretary shall establish by regulation procedures for the use of an official identifica- tion filed with the Secretary under paragraph (3) of this subsection. Misuse of an official identi- fication established under this section shall con- stitute a violation of this chapter. (5) Prior to issuing final regulations under paragraph (4) of this subsection, the Secretary shall— (A) publish the proposed regulations by such means as will result in wide publicity in af- fected regions; and Page 2463 TITLE 16—CONSERVATION § 4012 (B) provide for public comment and the op- portunity for a public hearing. (6) A council may receive, investigate and re- port to the Secretary accounts of violations of regulations issued under paragraph (4) of this subsection. (7) Any regulation issued under paragraph (4) of this subsection shall be repealed immediately by the Secretary upon the termination under section 4015 of this title of the council that de- veloped the official identification to which the regulations apply. (8) The procedures applicable to the adoption and the taking effect of a quality standard de- veloped under this subsection also apply to a subsequent amendment or the termination of such standard. (d) Amendment of a charter A council may submit to the Secretary amendments to the text of the council’s charter. Any proposed amendments to a charter shall be approved or disapproved in the same manner as the original charter was approved under section 4009(d) and (e) of this title, with the exception of section 4009(d)(1)(B) of this title. (Pub. L. 99–659, title II, § 211, Nov. 14, 1986, 100 Stat. 3724.) § 4011. Functions and powers of Secretary (a) Duties of the Secretary In addition to the duties prescribed under sec- tion 4009 of this title, the Secretary shall— (1) review, for consistency with the provi- sions of this chapter and other applicable law, and approve or disapprove, marketing and pro- motion plans and budgets within sixty days after their submission by a council; (2) immediately notify a council in writing of the disapproval of a marketing and pro- motion plan or budget, together with reasons for such disapproval; (3) issue orders and amendments to such or- ders that are necessary to implement quality standards under section 4010(c) of this title; (4) promulgate regulations necessary to carry out the purposes of this chapter; (5) enforce the provisions of this chapter, as provided under section 4016 of this title; and (6) make all appointments to councils in ac- cordance with section 4009(f) of this title. (b) Assistance The Secretary may provide, on a reimbursable or other basis, such administrative or technical assistance as a council may request for purposes of the initial organization and subsequent oper- ation of the council. (Pub. L. 99–659, title II, § 212, Nov. 14, 1986, 100 Stat. 3726.) § 4012. Assessments (a) Authority A council shall impose and administer the col- lection of the assessments that are necessary to pay for all expenses incurred by the council in carrying out its functions under this chapter. (b) Method of imposition (1) Assessments shall be imposed on sector participants in the receiving sector or the im- porting sector, or both, as specified in an ap- proved council charter. (2) An assessment on sector participants in the receiving sector shall be— (A) except for an owner of a fish processing vessel, in the form of a percentage of the value of the fish described in accordance with sec- tion 4009(b)(3) of this title when purchased by such participants from fish harvesters; and (B) for an owner of a fish processing vessel, in the form of a percentage of the value of the fish described in accordance with section 4009(b)(3) of this title and harvested by such a vessel that is no less than the value of such fish, if such fish had been purchased by a re- ceiver other than an owner of such a vessel. (3) An assessment on sector participants in the importing sector shall be in the form of a per- centage of the value, as determined for the pur- poses of the customs laws, of the fish or fish products described in accordance with section 4009(b)(3) of this title when entered, or with- drawn from warehouse for consumption, in the customs territory of the United States by such sector participants. (c) Prohibition on assessment A council may not impose an assessment on any person that was not eligible to vote in the referendum establishing the council under sec- tion 4009(e) of this title by reason of failure to meet the requirements specified under section 4009(b)(6) of this title, unless such person, after the date on which such referendum is held, meets the requirements of section 4009(b)(6) of this title. (d) Voluntary payments Any person may make voluntary payments or in-kind contributions to a council for purposes of assisting the council in carrying out its func- tions. (e) Deposit of funds All funds collected or received by a council under this section shall be deposited by the council in an appropriate account in the name of the council specified in its charter. Funds eligi- ble to be collected or received by a council shall be limited to those authorized under this sec- tion. (f) Information (1) Sector participants shall make available to the Secretary such information and data as is necessary for the effectuation, administration or enforcement of this chapter or any order or regulation issued pursuant to this chapter. Ex- cept as provided in paragraphs (2) and (3) of this subsection, any information obtained in car- rying out this subsection shall be kept confiden- tial by all officers and employees of the Depart- ment of Commerce, independent accountants and other persons who have access to such infor- mation. (2) If the Secretary or an employee of the United States Government is a party to a suit or administrative action involving an assessment, order, or regulation issued under this chapter, the Secretary may disclose information ob- tained under paragraph (1) of this subsection to the extent allowed by the judicial or administra- tive officer presiding over such suit or action.