16 U.S.C. § 4012 — Assessments

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 (7) Any regulation issued under paragraph (4) of this subsection shall be repealed immediately by the Secretary upon the termination under section 4015 of this title of the council that de- veloped the official identification to which the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. Page 2464 TITLE 16—CONSERVATION § 4013 (3) This subsection shall not prohibit— (A) the issuance of general or statistical statements based upon reports of a number of persons subject to the provisions of this chap- ter which do not identify the information fur- nished by any person; or (B) the publication by direction of the Sec- retary of the name of any person violating a requirement relating to an assessment im- posed under subsection (a) of this section or to quality standards implemented by the Sec- retary under section 4010(c) of this title, and a statement of the particular provisions of the requirement violated by such person. (4) Any individual who is required to keep in- formation confidential under this subsection and who knowingly violates this subsection shall, upon conviction, be— (A) subject to a fine of not more than $1,000 or to imprisonment for not more than one year, or both; and (B) removed from office if an officer or em- ployee of a council or the Department of Com- merce. (Pub. L. 99–659, title II, § 213, Nov. 14, 1986, 100 Stat. 3727.) § 4013. Petitions (a) Filing of petition Any person subject to assessment under sec- tion 4012 of this title may file a written petition with the Secretary alleging that— (1) the assessment, (2) the plan approved under section 4011(a)(1) of this title on which the assessment is based, or (3) any obligation imposed under the plan, is not in accordance with law and requesting the Secretary to modify or take other appropriate action regarding the assessment or plan. (b) Form of petition Any such petition shall be in writing and filed within the period prescribed by the Secretary. A person who files a petition under this section shall be given an opportunity for a hearing re- garding the petition in accordance with regula- tions issued by the Secretary. After such a hear- ing, or if no hearing is requested, after consider- ation of all documentation and other evidence, the Secretary shall make a ruling upon such pe- tition. (Pub. L. 99–659, title II, § 214, Nov. 14, 1986, 100 Stat. 3728.) § 4014. Refunds Notwithstanding any other provision of this chapter, any person who pays an assessment under this chapter may demand and shall promptly receive from the council a refund of such assessment. A demand for refund must be made in accordance with the procedures, and within such time, as shall be prescribed by the council and approved by the Secretary. Proce- dures to provide such a refund shall be estab- lished before any such assessment may be col- lected. Such procedures shall allow any person to request a refund for not less than ninety days from such collection, and provide that any such refund shall be made within sixty days after de- mand for such refund is made. (Pub. L. 99–659, title II, § 215, Nov. 14, 1986, 100 Stat. 3728.) § 4015. Termination of a council (a) Petition for termination (1) A petition to terminate a council may be filed with the Secretary by no less than three sector participants in any one sector. Any peti- tion filed under this subsection shall be accom- panied by a written document explaining the reasons for such petition. (2) If the Secretary determines that a petition filed under paragraph (1) of this subsection is ac- companied by the signatures, or corporate cer- tifications, as the case may be, of no less than three sector participants in a sector referred to in paragraph (1) of this subsection who collec- tively accounted for, in the twelve-month period immediately preceding the month in which such petition was filed, not less than 20 percent of the value of the fish or fish products described in ac- cordance with section 4009(b)(3) of this title that were handled by that sector during such period, the Secretary, within 90 days after such deter- mination, shall conduct a referendum for termi- nation of the council among all sector partici- pants in that sector. (3) Not less than 30 days prior to holding a ref- erendum under this subsection, the Secretary shall publish a notice of such referendum, in- cluding the document explaining the reasons for the petition filed under paragraph (1) of this subsection and any other relevant information the Secretary considers appropriate. (4) If the referendum votes which are cast in favor of terminating the council constitute a majority of the sector participants voting and the majority, in the period referred to in para- graph (2) of this subsection, collectively ac- counted for not less than sixty-six percent of the value of such fish and fish products that were handled during such period by a sector referred to in paragraph (1) of this subsection, the Sec- retary shall by order terminate the council ef- fective as of a date by which the affairs of the council may be concluded on an orderly basis. (5) The Secretary initially shall pay all costs of a referendum conducted under this sub- section. Prior to conducting such a referendum, the Secretary shall require petitioners to post a bond or other security acceptable to the Sec- retary in an amount which the Secretary deter- mines to be sufficient to pay any expenses in- curred for the conduct of such referendum. (6)(A) If a referendum conducted under this subsection fails to result in the termination of the council, the Secretary shall immediately re- cover the amount of the bond posted by peti- tioners under paragraph (5) of this subsection. (B) If a referendum conducted under this sub- section results in the termination of the coun- cil, the Secretary shall recover the expenses in- curred for the conduct of the referendum from the account established by the council under section 4012(e) of this title. If the amount re- maining in such account is insufficient for the Secretary to recover all expenses incurred for the conduct of the referendum, the Secretary