16 U.S.C. § 4009 — Establishment of seafood marketing coun-

Page 2460 TITLE 16—CONSERVATION § 4009 that shall be established by the Secretary of the Treasury, or invested in obligations of, or guar- anteed by, the United States. Any revenue ac- cruing from such deposits and investments shall be deposited in the Fund. (d) Authorization There are authorized to be appropriated from the Fund, for the purposes of carrying out the annual marketing and promotion plan and an- nual budget of the National Council under this chapter, such sums as are deposited in the Fund under subsection (b) of this section in each fiscal year beginning in fiscal year 1987 through fiscal year 1991. (Pub. L. 99–659, title II, § 209, Nov. 14, 1986, 100 Stat. 3720; Pub. L. 101–627, title VII, § 702, Nov. 28, 1990, 104 Stat. 4463.) Editorial Notes CODIFICATION Section is comprised of section 209 of Pub. L. 99–659. Subsec. (e) of section 209 of Pub. L. 99–659 amended sec- tion 713c–3 of Title 15, Commerce and Trade. AMENDMENTS 1990—Subsec. (d). Pub. L. 101–627 substituted ‘‘1991’’ for ‘‘1990’’. § 4009. Establishment of seafood marketing coun- cils (a) Application An application for a charter for a seafood mar- keting 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 pre- scribed by regulation by the Secretary. The text of a proposed charter must contain such infor- mation 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 objec- tives of the council; (3) a description of the species of fish and fish products for which the council will imple- ment 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 mem- bers of the council; (5) the identification of those sectors (in- cluding the sector consisting of harvesters, the sector consisting of receivers, and, if sub- ject to assessment, the sector consisting of importers) subject to a referendum to estab- lish a council under subsection (e) of this sec- tion; (6) a specification for each sector described under paragraph (5) of this subsection of the minimum requirements, as measured by in- come, volume, or other relevant factors, that a person engaging in business in the sector must meet in order to participate in a ref- erendum; (7)(A) a description of the procedures for de- termining 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 pro- cedures by which votes may be cast by proxy; and (10) such other provisions relating to admin- istration of the council as the Secretary con- siders necessary. The text of a proposed charter shall be accom- panied by a document identifying, to the extent practicable by address of place of business, the persons (hereinafter referred to as ‘‘sector par- ticipants’’) 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 provi- sions which establish a maximum limit on the amount that any one sector participant may be required to pay under an assessment for any pe- riod. (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 reim- bursed 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 applica- tion to establish a council, the Secretary shall— (A) identify, to the extent practicable, those sector participants that meet the require- ments for eligibility to participate in the ref- erendum under subsection (e) of this section; (B) determine, to the extent practicable, if the charter is accompanied by a petition com- prised of the signatures or corporate certifi- cations, as the case may be, of no less than three sector participants in each sector identi- fied in accordance with subsection (b)(5) of this section who collectively accounted for, in the twelve-month period immediately pre- 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-