7 U.S.C. § 4504 — Required terms in orders

Page 1693 TITLE 7—AGRICULTURE § 4504 Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2008 AMENDMENT Amendment of this section and repeal of Pub. L. 110–234 by Pub. L. 110–246 effective May 22, 2008, the date of enactment of Pub. L. 110–234, see section 4 of Pub. L. 110–246, set out as an Effective Date note under section 8701 of this title. TRANSFER OF FUNCTIONS For transfer of functions, personnel, assets, and li- abilities of the United States Customs Service of the Department of the Treasury, including functions of the Secretary of the Treasury relating thereto, to the Sec- retary of Homeland Security, and for treatment of re- lated references, see sections 203(1), 551(d), 552(d), and 557 of Title 6, Domestic Security, and the Department of Homeland Security Reorganization Plan of Novem- ber 25, 2002, as modified, set out as a note under section 542 of Title 6. For establishment of U.S. Customs and Border Protection in the Department of Homeland Se- curity, treated as if included in Pub. L. 107–296 as of Nov. 25, 2002, see section 211 of Title 6, as amended gen- erally by Pub. L. 114–125, and section 802(b) of Pub. L. 114–125, set out as a note under section 211 of Title 6. § 4503. Issuance of orders (a) Notice and opportunity for public comment During the period beginning with November 29, 1983, and ending thirty days after receipt of a proposal for an initial dairy products pro- motion and research order, the Secretary shall publish such proposed order and give due notice and opportunity for public comment upon the proposed order. The proposal for an order may be submitted by an organization certified under section 4505 of this title or by any interested person affected by the provisions of this sub- chapter. (b) Effective date of orders After notice and opportunity for public com- ment are given, as provided for in subsection (a) of this section, the Secretary shall issue a dairy products promotion and research order. Such order shall become effective not later than nine- ty days following publication of the proposal. (c) Amendment of orders The Secretary may, from time to time, amend a dairy products promotion and research order. (d) Order implementation and international trade obligations The Secretary, in consultation with the United States Trade Representative, shall en- sure that the order is implemented in a manner consistent with the international trade obliga- tions of the Federal Government. (Pub. L. 98–180, title I, § 112, Nov. 29, 1983, 97 Stat. 1137; Pub. L. 107–171, title I, § 1505(g), May 13, 2002, 116 Stat. 209.) Editorial Notes AMENDMENTS 2002—Subsec. (d). Pub. L. 107–171, which directed the addition of subsec. (d) at the end of section 112 of the Dairy Promotion Stabilization Act of 1983, was exe- cuted by adding subsec. (d) at the end of this section to reflect the probable intent of Congress. § 4504. Required terms in orders Any order issued under this subchapter shall contain terms and conditions as follows: (a) The order shall provide for the establish- ment and administration of appropriate plans or projects for advertisement and promotion of the sale and consumption of dairy products, for re- search projects related thereto, for nutrition education projects, and for the disbursement of necessary funds for such purposes. Any such plan or project shall be directed toward the sale and marketing or use of dairy products to the end that the marketing and use of dairy prod- ucts may be encouraged, expanded, improved, or made more acceptable. No such advertising or sales promotion program shall make use of un- fair or deceptive acts or practices with respect to the quality, value, or use of any competing product. (b) NATIONAL DAIRY PROMOTION AND RESEARCH BOARD.— (1) The order shall provide for the establish- ment and appointment by the Secretary of a National Dairy Promotion and Research Board that shall consist of not less than thirty-six members. (2) Except as provided in paragraph (6), the members of the Board shall be milk producers appointed by the Secretary from nominations submitted by eligible organizations certified under section 4505 of this title, or, if the Sec- retary determines that a substantial number of milk producers are not members of, or their interests are not represented by, any such eli- gible organization, then from nominations made by such milk producers in the manner authorized by the Secretary. (3) In making such appointments, the Sec- retary shall take into account, to the extent practicable, the geographical distribution of milk production volume throughout the United States. (4) In determining geographic representa- tion, whole States shall be considered as a unit. (5) A region may be represented by more than one director and a region may be made up of more than one State. (6) IMPORTERS.— (A) INITIAL REPRESENTATION.—In making initial appointments to the Board of im- porter representatives, the Secretary shall appoint 2 members who represent importers of dairy products and are subject to assess- ments under the order. (B) SUBSEQUENT REPRESENTATION.—At least once every 3 years after the initial ap- pointment of importer representatives under subparagraph (A), the Secretary shall review the average volume of domestic production of dairy products compared to the average volume of imports of dairy products into the United States during the previous 3 years and, on the basis of that review, shall re- apportion importer representation on the Board to reflect the proportional share of the United States market by domestic pro- duction and imported dairy products. (C) ADDITIONAL MEMBERS; NOMINATIONS.— The members appointed under this para- graph— (i) shall be in addition to the total num- ber of members appointed under paragraph (2); and Page 1694 TITLE 7—AGRICULTURE § 4504 (ii) shall be appointed from nominations submitted by importers under such proce- dures as the Secretary determines to be appropriate. (7) The term of appointment to the Board shall be for three years with no member serv- ing more than two consecutive terms, except that initial appointments shall be proportion- ately for one-year, two-year, and three-year terms. (8) The Board shall appoint from its mem- bers an executive committee whose member- ship shall equally reflect each of the different regions in the United States in which milk is produced as well as importers of dairy prod- ucts. (9) The executive committee shall have such duties and powers as are conferred upon it by the Board. (10) Board members shall serve without com- pensation, but shall be reimbursed for their reasonable expenses incurred in performing their duties as members of the Board includ- ing a per diem allowance as recommended by the Board and approved by the Secretary. (c) The order shall define the powers and du- ties of the Board that shall include only the powers enumerated in this section. These shall include, in addition to the powers set forth else- where in this section, the powers to (1) receive and evaluate, or on its own initiative develop, and budget for plans or projects to promote the use of fluid milk and dairy products as well as projects for research and nutrition education and to make recommendations to the Secretary regarding such proposals, (2) administer the order in accordance with its terms and provi- sions, (3) make rules and regulations to effec- tuate the terms and provisions of the order, (4) receive, investigate, and report to the Secretary complaints of violations of the order, and (5) recommend to the Secretary amendments to the order. The Board shall solicit, among others, re- search proposals that would increase the use of fluid milk and dairy products by the military and by persons in developing nations, and that would demonstrate the feasibility of converting surplus nonfat dry milk to casein for domestic and export use. (d) The order shall provide that the Board shall develop and submit to the Secretary for approval any promotion, research, or nutrition education plan or project and that any such plan or project must be approved by the Secretary before becoming effective. (e) BUDGETS.— (1) PREPARATION AND SUBMISSION.—The order shall require the Board to submit to the Sec- retary for approval budgets on a fiscal period basis of its anticipated expenses and disburse- ments in the administration of the order, in- cluding projected costs of dairy products pro- motion and research projects. (2) FOREIGN MARKET EFFORTS.—The order shall authorize the Board to expend in the maintenance and expansion of foreign markets an amount not to exceed the amount collected from United States producers for a fiscal year. Of those funds, for each of the 2002 through 2023 fiscal years, the Board’s budget may pro- vide for the expenditure of revenues available to the Board to develop international markets for, and to promote within such markets, the consumption of dairy products produced or manufactured in the United States. (f) The order shall provide that the Board, with the approval of the Secretary, may enter into agreements for the development and con- duct of the activities authorized under the order as specified in subsection (a) and for the pay- ment of the cost thereof with funds collected through assessments under the order. Any such agreement shall provide that (1) the contracting party shall develop and submit to the Board a plan or project together with a budget or budg- ets that shall show estimated costs to be in- curred for such plan or project, (2) the plan or project shall become effective upon the approval of the Secretary, and (3) the contracting party shall keep accurate records of all of its trans- actions, account for funds received and ex- pended, and make periodic reports to the Board of activities conducted, and such other reports as the Secretary or the Board may require. (g) ASSESSMENTS.— (1) The order shall provide that each person making payment to a producer for milk pro- duced in the United States and purchased from the producer shall, in the manner as pre- scribed by the order, collect an assessment based upon the number of hundredweights of milk for commercial use handled for the ac- count of the producer and remit the assess- ment to the Board. (2) The assessment shall be used for payment of the expenses in administering the order, with provision for a reasonable reserve, and shall include those administrative costs in- curred by the Department after an order has been promulgated under this subchapter. (3) RATE.— (A) IN GENERAL.—The rate of assessment for milk produced in the United States pre- scribed by the order shall be 15 cents per hundredweight of milk for commercial use or the equivalent thereof, as determined by the Secretary. (B) IMPORTED DAIRY PRODUCTS.—The rate of assessment for imported dairy products prescribed by the order shall be 7.5 cents per hundredweight of milk for commercial use or the equivalent thereof, as determined by the Secretary. (4) A milk producer or the producer’s cooper- ative who can establish that the producer is participating in active, ongoing qualified State or regional dairy product promotion or nutrition education programs intended to in- crease consumption of milk and dairy prod- ucts generally shall receive credit in deter- mining the assessment due from such producer for contributions to such programs of up to 10 cents per hundredweight of milk marketed or, for the period ending six months after Novem- ber 29, 1983, up to the aggregate rate in effect on November 29, 1983, of such contributions to such programs (but not to exceed 15 cents per hundredweight of milk marketed) if such ag- gregate rate exceeds 10 cents per hundred- weight of milk marketed. (5) Any person marketing milk of that per- son’s own production directly to consumers Page 1695 TITLE 7—AGRICULTURE § 4504 shall remit the assessment directly to the Board in the manner prescribed by the order. (6) IMPORTERS.— (A) IN GENERAL.—The order shall provide that each importer of imported dairy prod- ucts shall pay an assessment to the Board in the manner prescribed by the order. (B) USE OF ASSESSMENTS ON IMPORTED DAIRY PRODUCTS.—Assessments collected on imported dairy products shall not be used for foreign market promotion. (7) REFUND OF ASSESSMENTS ON CERTAIN IM- PORTED PRODUCTS.— (A) IN GENERAL.—An importer shall be en- titled to a refund of any assessment paid under this subsection on imported dairy products imported under a contract entered into prior to the date of enactment of the Food, Conservation, and Energy Act of 2008. (B) EXPIRATION.—Refunds under subpara- graph (A) shall expire 1 year after the date of enactment of the Food, Conservation, and Energy Act of 2008. (h) The order shall require the Board to (1) maintain such books and records (which shall be available to the Secretary for inspection and audit) as the Secretary may prescribe, (2) pre- pare and submit to the Secretary, from time to time, such reports as the Secretary may pre- scribe, and (3) account for the receipt and dis- bursement of all funds entrusted to it. (i) The order shall provide that the Board, with the approval of the Secretary, may invest, pending disbursement under a plan or project, funds collected through assessments authorized under this subchapter only in obligations of the United States or any agency thereof, in general obligations of any State or any political subdivi- sion thereof, in any interest-bearing account or certificate of deposit of a bank that is a member of the Federal Reserve System, or in obligations fully guaranteed as to principal and interest by the United States. (j) The order shall prohibit any funds collected by the Board under the order from being used in any manner for the purpose of influencing gov- ernmental policy or action except as provided by subsection (c)(5). (k) The order shall require that each importer of imported dairy products, each person receiv- ing milk from farmers for commercial use, and any person marketing milk of that person’s own production directly to consumers, maintain and make available for inspection such books and records as may be required by the order and file reports at the time, in the manner, and having the content prescribed by the order. Such infor- mation shall be made available to the Secretary as is appropriate to the administration or en- forcement of this subchapter, or any order or regulation issued under this subchapter. All in- formation so obtained shall be kept confidential by all officers and employees of the Department, and only such information so obtained as the Secretary deems relevant may be disclosed by them and then only in a suit or administrative hearing brought at the request of the Secretary, or to which the Secretary or any officer of the United States is a party, and involving the order with reference to which the information to be disclosed was obtained. Nothing in this sub- section may be deemed to prohibit (1) the issuance of general statements, based upon the reports, of the number of persons subject to an order or statistical data collected therefrom, which statements do not identify the informa- tion furnished by any person, or (2) the publica- tion, by direction of the Secretary, of the name of any person violating any order, together with a statement of the particular provisions of the order violated by such person. No information obtained under the authority of this subchapter may be made available to any agency or officer of the Federal Government for any purpose other than the implementation of this sub- chapter and any investigatory or enforcement action necessary for the implementation of this subchapter. Any person violating the provisions of this subsection shall, upon conviction, be sub- ject to a fine of not more than $1,000, or to im- prisonment for not more than one year, or both, and, if an officer or employee of the Board or the Department, shall be removed from office. (l) The order shall provide terms and condi- tions, not inconsistent with the provisions of this subchapter, as necessary to effectuate the provisions of the order. (Pub. L. 98–180, title I, § 113, Nov. 29, 1983, 97 Stat. 1137; Pub. L. 104–127, title I, § 152, Apr. 4, 1996, 110 Stat. 922; Pub. L. 107–171, title I, § 1505(b)–(e), May 13, 2002, 116 Stat. 208, 209; Pub. L. 110–234, title I, § 1507(a), (d)–(f), May 22, 2008, 122 Stat. 997; Pub. L. 110–246, § 4(a), title I, § 1507(a), (d)–(f), June 18, 2008, 122 Stat. 1664, 1725; Pub. L. 113–79, title I, § 1426, Feb. 7, 2014, 128 Stat. 695; Pub. L. 115–334, title I, § 1402(c), Dec. 20, 2018, 132 Stat. 4518.) Editorial Notes REFERENCES IN TEXT The date of enactment of the Food, Conservation, and Energy Act of 2008, referred to in subsec. (g)(7), is the date of enactment of Pub. L. 110–246, which was ap- proved June 18, 2008. CODIFICATION Pub. L. 110–234 and Pub. L. 110–246 made identical amendments to this section. The amendments by Pub. L. 110–234 were repealed by section 4(a) of Pub. L. 110–246. AMENDMENTS 2018—Subsec. (e)(2). Pub. L. 115–334 substituted ‘‘2023’’ for ‘‘2018’’. 2014—Subsec. (e)(2). Pub. L. 113–79 substituted ‘‘2018’’ for ‘‘2012’’. 2008—Subsec. (e)(2). Pub. L. 110–246, § 1507(a), sub- stituted ‘‘2012’’ for ‘‘2007’’. Subsec. (g)(3). Pub. L. 110–246, § 1507(d), added par. (3) and struck out former par. (3) which read as follows: ‘‘The rate of assessment for milk produced in the United States and imported dairy products prescribed by the order shall be 15 cents per hundredweight of milk for commercial use or the equivalent thereof, as determined by the Secretary.’’ Subsec. (g)(6)(B), (C). Pub. L. 110–246, § 1507(e), redesig- nated subpar. (C) as (B) and struck out former subpar. (B). Prior to amendment, text read as follows: ‘‘The as- sessment on imported dairy products shall be paid by the importer to Customs at the time the entry docu- ments are filed with Customs. Customs shall remit the assessments to the Board. For purposes of this subpara- graph, the term ‘importer’ includes persons who hold Page 1696 TITLE 7—AGRICULTURE § 4505 title to foreign-produced dairy products immediately upon release by Customs, as well as persons who act on behalf of others, as agents, brokers, or consignees, to secure the release of dairy products from Customs.’’ Subsec. (g)(7). Pub. L. 110–246, § 1507(f), added par. (7). 2002—Subsec. (b). Pub. L. 107–171, § 1505(b), inserted heading, designated first to ninth sentences as pars. (1) to (5) and (7) to (10), respectively, and realigned mar- gins, substituted ‘‘Except as provided in paragraph (6), the members of the Board’’ for ‘‘Members of the Board’’ in par. (2) and ‘‘is produced as well as importers of dairy products’’ for ‘‘is produced’’ in par. (8), and added par. (6). Subsec. (e). Pub. L. 107–171, § 1505(c), inserted heading, designated existing provisions as par. (1), inserted heading, and struck out ‘‘For each of fiscal years 1997 through 2001, the Board’s budget may provide for the expenditure of revenues available to the Board to de- velop international markets for, and to promote within such markets, the consumption of dairy products pro- duced in the United States from milk produced in the United States.’’ at end, and added par. (2). Subsec. (g). Pub. L. 107–171, § 1505(d), inserted heading, designated first to fifth sentences as pars. (1) to (5), re- spectively, and realigned margins, inserted ‘‘for milk produced in the United States and imported dairy prod- ucts’’ after ‘‘The rate of assessment’’ and ‘‘, as deter- mined by the Secretary’’ before period at end in par. (3), and added par. (6). Subsec. (k). Pub. L. 107–171, § 1505(e), substituted ‘‘im- porter of imported dairy products, each person receiv- ing milk from farmers’’ for ‘‘person receiving milk from farmers’’ in first sentence. 1996—Subsec. (e). Pub. L. 104–127 inserted at end ‘‘For each of fiscal years 1997 through 2001, the Board’s budg- et may provide for the expenditure of revenues avail- able to the Board to develop international markets for, and to promote within such markets, the consumption of dairy products produced in the United States from milk produced in the United States.’’ Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2008 AMENDMENT Amendment of this section and repeal of Pub. L. 110–234 by Pub. L. 110–246 effective May 22, 2008, the date of enactment of Pub. L. 110–234, see section 4 of Pub. L. 110–246, set out as an Effective Date note under section 8701 of this title. § 4505. Certification of organizations (a) The eligibility of any organization to rep- resent milk producers, and to participate in the making of nominations under section 4504 of this title shall be certified by the Secretary. The Secretary shall certify any organization that the Secretary determines meets the eligibility criteria established by the Secretary under this section and the Secretary’s determination as to eligibility shall be final. (b) Certification shall be based, in addition to other available information, on a factual report submitted by the organization, which shall con- tain information deemed relevant and specified by the Secretary, including, but not limited to, the following: (1) geographic territory covered by the orga- nization’s active membership; (2) nature and size of the organization’s ac- tive membership including the proportion of the total number of active milk producers rep- resented by the organization; (3) evidence of stability and permanency of the organization; (4) sources from which the organization’s op- erating funds are derived; (5) functions of the organization; and (6) the organization’s ability and willingness to further the aims and objectives of this sub- chapter. The primary considerations in determining the eligibility of an organization shall be whether its membership consists primarily of milk pro- ducers who produce a substantial volume of milk and whether the primary or overriding in- terest of the organization is in the production or processing of fluid milk and dairy products and promotion of the nutritional attributes of fluid milk and dairy products. (Pub. L. 98–180, title I, § 114, Nov. 29, 1983, 97 Stat. 1140.) § 4506. Requirement of referendum (a) Within the sixty-day period immediately preceding September 30, 1985, the Secretary shall conduct a referendum among producers who, during a representative period (as deter- mined by the Secretary), have been engaged in the production of milk for commercial use for the purpose of ascertaining whether the order then in effect shall be continued. Such order shall be continued only if the Secretary deter- mines that it has been approved by not less than a majority of the producers voting in the ref- erendum, who during a representative period (as determined by the Secretary) have been engaged in the production of milk for commercial use. If continuation of the order is not approved by a majority of the producers voting in the ref- erendum, the Secretary shall terminate collec- tion of assessments under the order within six months after the Secretary determines that such action is favored by a majority of the pro- ducers voting in the referendum and shall termi- nate the order in an orderly manner as soon as practicable after such determination. (b) The Secretary shall be reimbursed from as- sessments collected by the Board for any ex- penses incurred by the Department in connec- tion with the conduct of any referendum under this section and section 4507 of this title, except for the salaries of Government employees. (Pub. L. 98–180, title I, § 115, Nov. 29, 1983, 97 Stat. 1141.) § 4507. Suspension and termination of orders (a) Determination by Secretary After September 30, 1985, the Secretary shall, whenever the Secretary finds that any order issued under this subchapter or any provision thereof obstructs or does not tend to effectuate the declared policy of this subchapter, termi- nate or suspend the operation of such order or such provisions thereof. (b) Referendum After September 30, 1985, the Secretary may conduct a referendum at any time, and shall hold a referendum on request of a representative group comprising 10 per centum or more of the number of producers and importers subject to the order, to determine whether the producers and importers favor the termination or suspen- sion of the order. The Secretary shall suspend or terminate collection of assessments under the