FEDERAL · 7 U.S.C. · Chapter 92
Required terms in orders
Current through Pub. L. 119-102
(a)In general
Any order issued under this chapter shall contain the terms and conditions specified in this section.
(b)Establishment and membership of United Soybean Board
(1)In general
The order shall provide for the establishment of, and appointment of members to, a United Soybean Board to administer the order. Members of the Board shall be soybean producers appointed by the Secretary, on a geographic basis, from State or combined units, as provided in this subsection. The cumulative number of seats on the Board shall be the total number of seats to which all the units are entitled.
(2)Seats
The Secretary shall establish State units and combined units and seats on the Board for such units, as follows:
(A)State units
Except as provided in subparagraph (B), each State shall be conside
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(a) In general
Any order issued under this chapter shall contain the terms and conditions specified in this section.
(b) Establishment and membership of United Soybean Board
(1) In general
The order shall provide for the establishment of, and appointment of members to, a United Soybean Board to administer the order. Members of the Board shall be soybean producers appointed by the Secretary, on a geographic basis, from State or combined units, as provided in this subsection. The cumulative number of seats on the Board shall be the total number of seats to which all the units are entitled.
(2) Seats
The Secretary shall establish State units and combined units and seats on the Board for such units, as follows:
(A) State units
Except as provided in subparagraph (B), each State shall be considered as a unit.
(B) Combined units
A State in which average annual soybean production is less than 3,000,000 bushels shall be grouped with other States into a combined unit. To the extent practicable, each State with average annual soybean production of less than 3,000,000 bushels shall be grouped with other States with average annual soybean production of less than 3,000,000 bushels into a combined unit, in a manner prescribed in the order, and each combined unit shall consist of geographically contiguous States. To the extent practicable, each combined unit shall have an average annual production of soybeans of at least 3,000,000 bushels.
(C) Number of seats per unit
Subject to subparagraph (F), each unit, as established under subparagraph (A) or (B)—
(i) if its average annual soybean production is less than 15,000,000 bushels, shall be entitled to one seat on the Board;
(ii) if its average annual soybean production is 15,000,000 bushels or more but less than 70,000,000 bushels, shall be entitled to 2 seats on the Board;
(iii) if its average annual soybean production is 70,000,000 bushels or more but less than 200,000,000 bushels, shall be entitled to 3 seats on the Board; and
(iv) if its average annual soybean production is 200,000,000 bushels or more, shall be entitled to 4 seats on the Board.
(D) Determination of average annual soybean production
For purposes of subparagraphs (A), (B), (C), and (F), the Secretary shall determine average annual soybean production applicable to a crop year by using the average of the 5 previous crops of soybeans, excluding the crop in which production was the highest and the crop in which production was the lowest.
(E) Reapportionment of seats
At the end of each 3 year period beginning with the 3 year period starting on the effective date of the order, the Secretary, if necessary, shall adjust any unit to conform with subparagraphs (A) and (B). If the Secretary makes such an adjustment, the Secretary shall reapportion the seats on the Board to conform with subparagraph (C) and any modifications made under subparagraph (F). If payment of refunds following the initial referendum conducted under section 6305(a) of this title is authorized by producers, in making such adjustments, the Secretary shall exclude, from each State's annual soybean production, those bushels of soybeans on which such refunds are paid.
(F) Adjustment of levels of production
At the end of each 3 year period beginning with the 3 year period starting on the effective date of the order, the Board may recommend to the Secretary, to the extent it determines appropriate, changes in the levels of production used in subparagraphs (A), (B), and (C) to determine per-unit representation on the Board. The Secretary may amend the order to make such changes in levels of production used to determine per-unit representation. Any such amendment to the order shall not be subject to a referendum of producers. A unit may not, as a result of any modification under this subparagraph, lose Board seats to which it is entitled at the time the order is initially issued unless its average annual production, as determined under subparagraph (D), declines below the levels required for representation, as specified in subparagraphs (A), (B), and (C).
(3) Nominations
(A) In general
The Secretary shall appoint soybean producers to seats established under paragraph (2) from nominations submitted by each unit. Each unit shall submit to the Secretary at least two nominations for each appointment to the Board to which the unit is entitled, as determined under paragraph (2).
(B) Method for obtaining nominations
(i) Initially-established Board
(I) State units
The Secretary shall solicit nominations for each seat on the initially-established Board to which a State unit is entitled from the State soybean board in the State that submits satisfactory evidence to the Secretary that such board meets the criteria of subparagraph (A) or (B) of section 6302(14) of this title. If no such organization exists in the unit, the Secretary shall solicit nominations for appointments in such manner as the Secretary determines appropriate.
(II) Combined units
The Secretary shall solicit nominations for each seat on the initially-established Board to which a combined unit is entitled in such manner as the Secretary determines appropriate, taking into consideration the recommendations of any State soybean board operating in the unit that submits to the Secretary satisfactory evidence that such board meets the criteria described in subparagraph (A) or (B) of section 6302(14) of this title.
(ii) Subsequent appointment
(I) State units
Nominations for each subsequent appointment to a seat on the Board to which a State unit is entitled shall be made by the qualified State soybean board in the unit. If no such organization exists in the unit, the Secretary shall solicit nominations for such appointment in such manner as the Secretary determines appropriate.
(II) Combined units
The Secretary shall solicit nominations for each subsequent appointment to the Board to which a combined unit is entitled in such manner as the Secretary determines appropriate, taking into consideration the recommendations of any qualified State soybean board operating in the unit.
(iii) Rejection
The Secretary may reject any nomination submitted by a unit under this paragraph. If there are insufficient nominations from which to appoint members to the Board as a result of the Secretary rejecting the nominations submitted by a unit, the unit shall submit additional nominations, as provided in this paragraph.
(4) Terms
Each appointment to the Board shall be for a term of 3 years, except that appointments to the initially-established Board shall be proportionately for 1-year, 2-year, and 3-year terms. No person may serve more than three consecutive 3-year terms.
(5) Compensation
Board members shall serve without compensation, but shall be reimbursed for their reasonable expenses incurred in performing their duties as members of the Board.
(6) Temporary appointments
(A) Appointment
Notwithstanding paragraphs (1) through (5), the Secretary, under procedures established by the Secretary, shall appoint to the initially-established Board up to three temporary members to serve in addition to the members appointed as otherwise provided in this subsection, as the Secretary determines appropriate for transition purposes under the criteria set out in subparagraph (B). Each such temporary member shall be appointed for a single term not to exceed 3 years.
(B) Representation of certain States
The Secretary shall make temporary appointments to the initially-established Board to ensure, to the extent practicable, that each State with a State soybean board that, prior to November 28, 1990, was contributing State soybean promotion and research assessment funds to national soybean promotion and research efforts has representation on the initially-established Board that reflects the relative contributions of such State to the national soybean promotion and research effort.
(7) Meetings
The order shall provide for at least one meeting of the Board annually and specify the circumstances under which additional special meetings of the Board may be held.
(c) Powers and duties of Board
The order shall define the powers and duties of the Board and shall include the power and duty—
(1) to administer the order in accordance with the terms and provisions of the order;
(2) to make regulations to effectuate the terms and provisions of the order;
(3) if the Board exercises its authority to establish the Committee described in subsection (g)—
(A) to elect members of the Board to serve on the Committee; and
(B) if the Board assigns to the Committee the power to develop and submit budgets as provided for in subsection (h)(1), to approve, modify, or reject budgets submitted by the Committee;
(4) to submit budgets to the Secretary for the approval or disapproval of the Secretary;
(5) to contract with appropriate persons to implement plans or projects;
(6) to contract with qualified State soybean boards to implement programs in their States;
(7) to receive, investigate, and report to the Secretary complaints of violations of the order;
(8) to recommend to the Secretary amendments to the order;
(9) to provide the Secretary with prior notice of meetings of the Board and meetings of committees of the Board to permit the Secretary, or a designated representative, to attend such meetings; and
(10) to provide not less than annually a report to producers accounting for funds and describing programs implemented, and such reports shall be made available to the public on request.
(d) Board voting procedures
(1) In general
The order shall establish procedures for the conduct of voting by the Board, as provided in this subsection. On or after the end of the 3-year period beginning on the effective date of the order, the Board may recommend to the Secretary changes in the voting procedures of the Board and the Secretary may amend the order to make such changes. Such changes shall not be subject to a referendum of producers.
(2) Number of votes per member
Each member of the Board shall be entitled, in any vote conducted by the Board, to cast the number of votes determined under the following rules:
(A) In general
Each member shall be entitled to cast one vote unless a roll call vote is conducted. On a roll call vote, each member shall be entitled to cast such additional votes as are assigned to the member under subparagraph (B).
(B) Additional votes
The additional votes that each member is assigned for roll call votes shall be computed as follows:
(i) Assessment level
Except as provided in clause (ii), each unit shall be allotted one vote for each percent, or portion of a percent, of the total amount of assessments remitted to the Board that was remitted from the unit (net of any refunds made under subsection (l)(2)), on the average, during each of the 3 previous fiscal years of the Board.
(ii) First three fiscal years
(I) First fiscal year
During the first fiscal year of the Board, each unit shall be allotted one vote for each percent, or portion of a percent, of the total production of soybeans in the United States that was produced in the unit, on the average, during each of the 3 immediately preceding crop years.
(II) Second and third fiscal years
The order shall provide appropriate adjustments of the procedure for the allotment of votes under clause (i) to apply to allotments of votes during the second and third fiscal years of the Board.
(iii) Division of votes within units
A unit's total votes under clause (i) or (ii) shall be divided equally among all the members present and voting representing that unit. The procedures established by the order shall provide for the equitable disposition of fractional votes assigned to a member under such division of a unit's vote.
(3) Motions
(A) In general
Except as provided in subparagraph (B), a motion shall carry if approved by a simple majority of members of the Board casting votes.
(B) Roll call votes
Any member of the Board may call for a roll call vote on any motion. Except as otherwise provided in the bylaws adopted by the Board, whenever a roll call vote is conducted, the motion shall carry only if it is approved by a simple majority of all votes cast and a simple majority of all units voting (with the vote of each unit determined by a simple majority of all votes cast by members in that unit).
(4) Committee votes
In any vote conducted by a committee of the Board, each member of the committee shall have one vote.
(5) Proxies
A member may not cast votes by proxy.
(e) Budgets
(1) In general
The order shall provide that the Board shall develop budgets on a fiscal year basis of anticipated expenses and disbursements under the order, including probable costs of administration and promotion, research, consumer information, and industry information projects. The Board shall submit such budgets or any substantial modification thereof to the Secretary for the Secretary's approval.
(2) Limitation
No expenditure of funds may be made by the Board unless such expenditure is authorized under a budget or modification approved by the Secretary.
(f) Plans and projects
The order shall provide that the Board shall review or, on its own initiative, develop plans or projects of promotion, research, consumer information, and industry information, to be paid for with funds received by the Board. Such plans or projects shall not become effective until approved by the Secretary.
(g) Soybean Program Coordinating Committee
(1) Establishment
The order may authorize the Board to establish a Soybean Program Coordinating Committee to assist in the administration of the order, as provided in this subsection.
(2) Membership
(A) Composition
The Committee shall be composed of members such that—
(i) not less than two-thirds of the Committee shall be members of the Board, including—
(I) the Chairperson and Treasurer of the Board; and
(II) additional members of the Board elected by the Board; and
(ii) not more than one-third of the Committee shall be producers elected by the national, nonprofit soybean producer-governed organization that conducts activities on behalf of State soybean boards and that, on November 28, 1990, conducts activities to promote soybeans and soybean products as a cooperator with the Foreign Agricultural Service of the Department.
(B) Certification
To serve on the Committee, each producer elected by the national, nonprofit soybean producer-governed organization shall be certified by the Secretary as a producer who is duly elected by such organization as a representative to the Committee.
(3) Terms
Terms of appointment to the Committee shall be for 1 year. No person may serve on the Committee for more than 6 consecutive terms.
(4) Compensation
Committee members shall serve without compensation, but shall be reimbursed for their reasonable expenses incurred in performing duties for the Committee.
(5) Chairperson
The Chairperson of the Board shall serve as Chairperson of the Committee.
(6) Quorum
A quorum of the Committee shall consist of the number of members of the Committee equal to three-fourths of the total membership of the Committee.
(h) Powers and duties of Committee
The order shall define the powers and duties that the Board may assign to the Committee, which may include the following:
(1) Budgets
The Board may assign to the Committee the power to develop and submit to the Board, for approval, budgets on a fiscal year basis, as provided for in subsection (e). The Board shall review and approve, reject, modify, or substitute a budget proposed by the Committee, and submit budgets to the Secretary for the Secretary's approval under subsection (e).
(2) Plans and projects
The Board may assign to the Committee the power to review, or on its own initiative develop, plans or projects for promotion, research, consumer information, and industry information activities, to be paid for with funds received by the Board as provided for in subsection (f). Each such plan or project shall be presented to the Board for approval.
(3) Voting
A recommendation to be presented to the Board relating to proposed budgets or proposed plans and projects shall require the concurring vote of at least two-thirds of the members present at a meeting of the Committee.
(i) Administration
(1) Expenses
The order shall provide that the Board shall be responsible for all expenses of the Board.
(2) Staff
(A) In general
The order shall provide that the Board may establish an administrative staff or facilities of its own or contract for the use of the staff and facilities of national, nonprofit, producer-governed organizations that represent producers of soybeans.
(B) Limitation on salaries
If the Board establishes an administrative staff of its own, the Board is authorized to expend for administrative staff salaries and benefits an amount not to exceed one percent of the projected level of assessments to be collected by the Board, net of any refunds to be made under subsection (l)(2), for that fiscal year.
(C) Reimbursement of organization
If the staff of national, nonprofit, producer-governed organizations that represent producers of soybeans are used by the Board, the staff of such organizations shall not receive compensation directly from the Board, but such organizations shall be reimbursed for the reasonable expenses of their staffs, including salaries, incurred in performing staff duties on behalf of, and authorized by, the Board.
(3) Limitation on administrative costs
The order shall provide that costs incurred by the Board in administering the order (including the cost of staff but not including administrative costs incurred by the Secretary) during any fiscal year shall not exceed 5 percent of the projected level of assessments to be collected by the Board, net of any refunds to be made under subsection (l)(2) of this section, for that fiscal year.
(j) Contracts and agreements
(1) Authority
To ensure coordination and efficient use of funds, the order shall provide that the Board may enter into contracts or agreements for the implementation and carrying out of the activities authorized by this chapter with national, nonprofit, producer-governed organizations that represent producers of soybeans, and for the payment thereof with funds received by the Board under the order.
(2) Coordination
To enhance coordination, the Board, when entering into contracts or agreements for the implementation and carrying out of activities authorized by this chapter, shall ensure that all plans or projects implemented for consumer information, industry information, promotion, or research are each implemented by a single entity. There shall not be in force, at any one time, more than one contract or agreement for implementation of plans or projects for consumer information, for industry information, for promotion, or for research, except that, upon approval of the Secretary, the Board may contract with qualified State soybean boards to implement plans or projects within their respective States.
(3) Terms
Any contract or agreement entered into under this subsection shall provide that—
(A) the contracting party shall develop and submit to the Board a plan or project together with a budget or budgets that shall show estimated costs to be incurred for such plan or project;
(B) the plan or project shall not become effective until it has been approved by the Secretary; and
(C) the contracting party shall keep accurate records of all of its transactions, account for funds received and expended, including staff time, salaries, and expenses expended on behalf of Board activities, make periodic reports to the Board of activities conducted, and make such other reports as the Board or the Secretary may require.
(4) Communications to producers
The order may provide that—
(A) the Board may enter into contracts or agreements with qualified State soybean boards that apply therefor and agree to the terms thereof, for the implementation of plans or projects to coordinate and facilitate communications to producers regarding the conduct of activities under the order and for the payment of the costs of the plans or projects with funds received by the Board under the order; and
(B) to facilitate the funding of plans or projects described in subparagraph (A), if the order does not authorize the payment of refunds, the Board shall allocate for such funding each year an amount not less than the cumulative amount of all producer contributions to qualified State soybean boards during the previous year that the State boards were unable to retain, and forwarded to the Board, because producers received refunds on such State contributions, as determined by the Board based on information submitted by the qualified State soybean boards.
(5) Apportionment of funds to qualified State soybean boards
(A) In general
In using the funds allocated each year under paragraph (4)(B) for payment of the costs of contracts or agreements described in paragraph (4)(A), subject to subparagraph (B), the Board shall apportion such allocated funds among States so that each qualified State soybean board receives an amount equal to the amount of such allocated funds attributable to refunds in the State during the previous year, as determined by the Board based on information submitted by the qualified State soybean boards.
(B) Exception
The Board shall not be required to apportion funds to a qualified State soybean board, as provided in subparagraph (A), if—
(i) the qualified State soybean board has not entered into a contract or agreement with the Board for the implementation of plans or projects described in paragraph (4)(A); or
(ii) the amount to be apportioned to the qualified State soybean board is less than the cost to the Board of overseeing the use of such apportionment during the year involved, and the contract or agreement shall so provide.
(k) Books and records of Board
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) prepare and submit to the Secretary, from time to time, such reports as the Secretary may prescribe; and
(3) account for the receipt and disbursement of all funds entrusted to the Board.
The Board shall cause its books and records to be audited by an independent auditor at the end of each fiscal year and a report of such audit to be submitted to the Secretary. The Secretary shall make such report available to the public upon request.
(l) Assessments
(1) In general
(A) First purchasers
(i) Collection
The order shall provide that each first purchaser of soybeans from a producer shall collect, in the manner prescribed by the order, an assessment from the producer and remit the assessment to the Board. The Board shall use qualified State soybean boards to collect such assessments in States in which such boards operate.
(ii) Rate
The rate of assessment prescribed by the order shall be one-half of 1 percent of the net market price of soybeans sold by the producer to the first purchaser.
(iii) One assessment
No more than one assessment shall be made on any soybeans.
(B) Direct processing
The order shall provide that any person processing soybeans of that person's own production and marketing such soybeans or soybean products made from such soybeans shall remit to the Board or the qualified State soybean board, in the manner prescribed by the order, an assessment established at a rate equivalent to the rate provided for in subparagraph (A)(ii).
(2) Refunds
(A) Refunds prior to initial referendum
(i) In general
The order shall provide that, during the period prior to the approval of the continuation of the initial order in the referendum provided for in section 6305(a) of this title, as determined by the Secretary, each producer shall have the right to demand and receive from the Board a refund of any assessment collected from such producer if—
(I) such producer is responsible for paying the assessment; and
(II) such producer does not support the programs, projects, or activities implemented under the order.
(ii) By Board
During the period referred to in clause (i), refunds shall be provided equally from the Board and, where applicable, the qualified State soybean board, as determined by the Secretary.
(B) Administration
Subject to subparagraph (C)(i), any demand by a producer for a refund of an assessment under this paragraph shall be made in accordance with regulations, on a form, and within the time period (not to exceed 90 days) prescribed by the Board.
(C) Submission of refund demands
(i) In general
In each State in which a qualified State soybean board collects assessments, as provided in paragraph (1)(A)(i), producers shall submit demands for refunds of assessments to the qualified State soybean board. Such board shall provide notice to producers, in a manner prescribed by the Board, of their right to such refunds, and shall process such submissions under procedures established by State law applicable to refunds of assessments on soybeans, except that if no refunds are allowed under State law, such submissions shall be processed under procedures established under this paragraph.
(ii) No qualified State soybean board
In each State in which there is no qualified State soybean board, producers shall submit demands for refunds of assessments directly to the Board.
(D) Time limit for making refund
Subject to subparagraph (C)(i), each refund to a producer of an assessment under this paragraph shall be made as soon as practicable, but in no event more than 60 days, after submission of proof satisfactory to the qualified State soybean board or the Board that the producer paid the assessment for which refund is demanded.
(E) Order not favored
If the Secretary determines that producers do not favor the continuation of the order in the referendum provided for in section 6305(a) of this title, refunds shall be made under this paragraph on collected assessments until such collections are terminated, as provided in section 6305(a) of this title.
(F) Refunds after the initial referendum
(i) In general
The order shall contain provisions relating to refunds after the approval of the order in the initial referendum under section 6305(a) of this title as required in this subparagraph.
(ii) Availability
Effective for the period beginning on the date the Secretary determines the result of the initial referendum under section 6305(a) of this title and ending on a date (not later than 18 months thereafter) established by the Secretary, the qualified State soybean board and, where no qualified State soybean board exists, the Board shall make refunds available to soybean producers at the end of the fiscal year from escrowed funds, as provided for in clause (vii). Such refunds shall be made available, under the procedures specified in subparagraphs (A) through (D) to the extent not inconsistent with this subparagraph, to producers who have requested refunds during such period.
(iii) Poll
Not later than the end of the period provided for in clause (ii), the Secretary shall conduct a poll of soybean producers, using the procedures provided for in section 6305(b)(3) of this title, to determine if producers support the conduct of a referendum on the continuance of the payment of refunds under the order.
(iv) Referendum
If the Secretary determines, based on the poll conducted under clause (iii), that the conduct of a referendum is supported by at least 20 percent of the producers (not in excess of one-fifth of which may be producers in any one State) who, during a representative period, have been engaged in the production of soybeans, the Secretary shall conduct a referendum among all such producers for the purpose of determining whether such producers favor the continuation of the payment of refunds under the order. Such referendum shall be conducted, under the procedures provided for in section 6305 of this title, not later than 1 year after the Secretary determines, based on the poll, that the referendum is required.
(v) Continued refunds
If the Secretary conducts a referendum under clause (iv), the qualified State soybean board and, where no qualified State soybean board exists, the Board shall continue to make refunds available to producers as provided for in clause (ii) during the period prior to the conduct of the referendum, which shall be payable at the end of the period from the escrowed funds, as provided in clause (vii).
(vi) Continuation or cessation of refunds
If the Secretary determines, in the referendum conducted under clause (iv), that continuation of the payment of refunds is favored by a majority of the producers voting in such referendum, the qualified State soybean board and, where no qualified State soybean board exists, the Board shall continue to make refunds available to producers as provided for in clause (ii) for each 1-year period that follows until such time as soybean producers approve an amendment to the order to eliminate such refunds. Such refunds shall be payable at the end of each such 1-year period from escrowed funds, as provided in clause (vii). If the Secretary determines in the referendum that continuation of such refunds is not favored by a majority of producers voting in the referendum, the right to such refunds shall cease immediately.
(vii) Escrow accounts
(I) Establishment
The qualified State soybean board and, for producers in States where no qualified State soybean board exists, the Board shall establish escrow accounts to be used to pay refunds under clause (ii) and, if necessary, clauses (v) and (vi).
(II) Separate accounts
The qualified State soybean board and, where no qualified State soybean board exists, the Board shall establish separate escrow accounts for each State from which producer assessments are collected for the purpose of making refunds under clauses (ii), (v), and (vi), respectively.
(III) Deposits
The qualified State soybean board and, where no qualified State soybean board exists, the Board shall deposit into its escrow account for refunds under clause (ii), (v), or (vi), as appropriate, 10 percent of the total assessment collected by the qualified State soybean board and, where no qualified State soybean board exists, the Board (including the assessment provided under paragraph (2) and contributions by producers to qualified State soybean boards under paragraph (4)), during the time period involved.
(IV) Refunds made from escrow account
Refunds requested by producers from a State under clause (ii) (or if refunds are available under clause (v) or (vi)) during the time period involved shall be made from the escrow account that is applicable to that clause for such State.
(V) Proration
If the funds deposited in a State account established under subclause (I) for purposes described under clauses (ii), (v), and (vi) are not sufficient to honor all requests for refunds made by producers from that State during the time period involved, the qualified State soybean board and, where no qualified State soybean board exists, the Board shall prorate the amount of such refunds from the State's account among all producers from that State that request refunds.
(VI) Surplus funds
Any funds not refunded to producers in a State under this clause shall be divided equally between the Board and the qualified State soybean board of such State. Such funds shall be used to carry out programs under this chapter.
(VII) Refund period
In applying this clause to refunds under clause (vi), each annual refund period shall be treated separately.
(3) Use
The assessments (net of any refunds under paragraph (2)) shall be used for—
(A) payment of the expenses incurred in implementation and administration of the order;
(B) the establishment of a reasonable reserve; and
(C) reimbursement to the Secretary of administrative costs incurred by the Secretary to implement and administer the order, other than one-half of the cost incurred for the referendum conducted under paragraph (2)(F).
(4) Credit for contributions to qualified State soybean boards
A producer who can establish that such producer is contributing to a qualified State soybean board shall receive credit, in determining the assessment due to the Board from such producer, for contributions to the qualified State soybean board of up to one-quarter of 1 percent of the net market price of soybeans or the equivalent thereof. For purposes of this chapter, there shall be only one qualified State soybean board in each State. A producer may receive a credit under this paragraph only if the contribution is to the qualified State soybean board in the State in which the soybeans are produced, except that the Board, with the approval of the Secretary, may authorize exceptions to such State-of-origin rule as are appropriate to ensure effective coordination of collection procedures among States.
(5) Single process of assessment
The procedures in the order for the collection of assessments shall ensure, to the extent practicable, that such soybeans are subject to a single process of assessment under the order.
(m) Credit for certain costs to States
The order shall provide that the Board may provide a credit to each qualified State soybean board of an amount not to exceed one-half of any fees paid to State governmental agencies or first purchasers for collection of the assessments if the payment of such fees by the qualified State soybean board is required by State law enacted prior to November 28, 1990, except that the Board may not provide a credit to any qualified State soybean board of an amount that exceeds 2.5 percent of the amount of assessments collected and remitted to the Board under subsection (l).
(n) Minimum level of assessments to States
(1) Pre-referendum period
The order shall contain provisions to ensure that, during the period prior to the conduct of the referendum provided for in section 6305(a) of this title, each qualified State soybean board receives annually an amount of funds equal to the average amount that the State board collected from assessments during each of the State board's fiscal years 1984 through 1988 (excluding the year in which such collections were the highest and the year in which such collections were the lowest), as determined by the Secretary and subject to paragraph (3).
(2) Post-referendum period
The order shall provide, effective after the conduct of the referendum provided for in section 6305(a) of this title, subject to paragraph (3), that the Board annually shall provide a credit to each qualified State soybean board of an amount by which—
(A) the amount equal to 1 cent times the average number of bushels of soybeans produced in the State during each of the preceding 5 years (excluding the year in which the production is the highest and the year in which the production is the lowest); exceeds
(B) the total amount collected by the qualified State soybean board from assessments on producers minus the amount of assessments remitted to the Board during such year under subsection (l).
(3) Limitation
The total amount of credits under paragraph (1) or (2) and assessments retained by the qualified State soybean board for a year may not exceed the total amount of assessments collected in that State under subsection (l) (net of any refunds made under paragraph (2) of subsection (l)) in that year.
(o) Investment of funds
(1) In general
The order shall provide that the Board, with the approval of the Secretary, may invest assessment funds collected by the Board under the order, pending their disbursement, only in—
(A) obligations of the United States or any agency thereof;
(B) general obligations of any State or any political subdivision thereof;
(C) any interest-bearing account or certificate of deposit of a bank that is a member of the Federal Reserve System; or
(D) obligations fully guaranteed as to principal and interest by the United States.
(2) Income
Income from any such investment may be used for any purpose for which the invested funds may be used.
(p) Prohibition on use of funds to influence governmental action
(1) In general
Except as otherwise provided in paragraph (2), the order shall prohibit any funds collected by the Board under the order from being used in any manner for the purpose of influencing legislation or governmental action or policy.
(2) Exceptions
Paragraph (1) shall not apply to—
(A) the development and recommendation of amendments to the order;
(B) the communication to appropriate government officials of information relating to the conduct, implementation, or results of promotion, research, consumer information, or industry information activities under the order; or
(C) any action designed to market soybeans or soybean products directly to a foreign government or political subdivision thereof.
(q) Books and records of first purchasers and certain producers
(1) Recordkeeping
(A) In general
The order shall require that each first purchaser of soybeans and any person processing soybeans of that person's own production maintain and make available for inspection by the Board or the Secretary 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. The order shall exempt small producers processing soybeans of their own production from such recordkeeping and reporting requirements if they are not required to pay assessments under the order.
(B) "Small producer" defined
The order shall define the term "small producer" as such term is used in subparagraph (A).
(2) Use of information
(A) In general
Information maintained under paragraph (1) shall be made available to the Secretary as is appropriate for the administration or enforcement of this chapter, or any order or regulation issued under this chapter.
(B) Other information
The Secretary shall authorize the use under this chapter of information regarding first purchasers that is accumulated under a law or regulation other than this chapter or regulations under this chapter.
(3) Confidentiality
(A) In general
Except as otherwise provided in this chapter, commercial or financial information that is obtained under paragraph (1) or (2) and that is privileged or confidential shall be kept confidential by all officers and employees of the Department, members of the Board, and agents of the Board.
(B) Permitted uses
Information obtained under the authority of this chapter shall be made available to any agency or officer of the Federal Government for—
(i) the implementation of this chapter;
(ii) any investigatory or enforcement action necessary for the implementation of this chapter; or
(iii) any civil or criminal law enforcement activity if the activity is authorized by law.
(C) Other exceptions
Nothing in subparagraph (A) may be deemed to prohibit—
(i) the issuance of general statements, based on the reports, of the number of persons subject to an order or statistical data collected therefrom, which 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, together with a statement of the particular provisions of the order violated by such person.
(4) Penalty
Any person who willfully violates the provisions of this subsection, upon conviction, shall be subject to a fine of not more than $1,000, or to imprisonment for not more than one year, or both, and, if a member or an agent of the Board or an officer or employee of the Department, shall be removed from office.
(r) Incidental terms and conditions
The order shall provide terms and conditions, not inconsistent with the provisions of this chapter, as necessary to effectuate the provisions of the order, including provisions for the assessment of a penalty for each late payment of assessments under subsection (l).
Any order issued under this chapter shall contain the terms and conditions specified in this section.
(b) Establishment and membership of United Soybean Board
(1) In general
The order shall provide for the establishment of, and appointment of members to, a United Soybean Board to administer the order. Members of the Board shall be soybean producers appointed by the Secretary, on a geographic basis, from State or combined units, as provided in this subsection. The cumulative number of seats on the Board shall be the total number of seats to which all the units are entitled.
(2) Seats
The Secretary shall establish State units and combined units and seats on the Board for such units, as follows:
(A) State units
Except as provided in subparagraph (B), each State shall be considered as a unit.
(B) Combined units
A State in which average annual soybean production is less than 3,000,000 bushels shall be grouped with other States into a combined unit. To the extent practicable, each State with average annual soybean production of less than 3,000,000 bushels shall be grouped with other States with average annual soybean production of less than 3,000,000 bushels into a combined unit, in a manner prescribed in the order, and each combined unit shall consist of geographically contiguous States. To the extent practicable, each combined unit shall have an average annual production of soybeans of at least 3,000,000 bushels.
(C) Number of seats per unit
Subject to subparagraph (F), each unit, as established under subparagraph (A) or (B)—
(i) if its average annual soybean production is less than 15,000,000 bushels, shall be entitled to one seat on the Board;
(ii) if its average annual soybean production is 15,000,000 bushels or more but less than 70,000,000 bushels, shall be entitled to 2 seats on the Board;
(iii) if its average annual soybean production is 70,000,000 bushels or more but less than 200,000,000 bushels, shall be entitled to 3 seats on the Board; and
(iv) if its average annual soybean production is 200,000,000 bushels or more, shall be entitled to 4 seats on the Board.
(D) Determination of average annual soybean production
For purposes of subparagraphs (A), (B), (C), and (F), the Secretary shall determine average annual soybean production applicable to a crop year by using the average of the 5 previous crops of soybeans, excluding the crop in which production was the highest and the crop in which production was the lowest.
(E) Reapportionment of seats
At the end of each 3 year period beginning with the 3 year period starting on the effective date of the order, the Secretary, if necessary, shall adjust any unit to conform with subparagraphs (A) and (B). If the Secretary makes such an adjustment, the Secretary shall reapportion the seats on the Board to conform with subparagraph (C) and any modifications made under subparagraph (F). If payment of refunds following the initial referendum conducted under section 6305(a) of this title is authorized by producers, in making such adjustments, the Secretary shall exclude, from each State's annual soybean production, those bushels of soybeans on which such refunds are paid.
(F) Adjustment of levels of production
At the end of each 3 year period beginning with the 3 year period starting on the effective date of the order, the Board may recommend to the Secretary, to the extent it determines appropriate, changes in the levels of production used in subparagraphs (A), (B), and (C) to determine per-unit representation on the Board. The Secretary may amend the order to make such changes in levels of production used to determine per-unit representation. Any such amendment to the order shall not be subject to a referendum of producers. A unit may not, as a result of any modification under this subparagraph, lose Board seats to which it is entitled at the time the order is initially issued unless its average annual production, as determined under subparagraph (D), declines below the levels required for representation, as specified in subparagraphs (A), (B), and (C).
(3) Nominations
(A) In general
The Secretary shall appoint soybean producers to seats established under paragraph (2) from nominations submitted by each unit. Each unit shall submit to the Secretary at least two nominations for each appointment to the Board to which the unit is entitled, as determined under paragraph (2).
(B) Method for obtaining nominations
(i) Initially-established Board
(I) State units
The Secretary shall solicit nominations for each seat on the initially-established Board to which a State unit is entitled from the State soybean board in the State that submits satisfactory evidence to the Secretary that such board meets the criteria of subparagraph (A) or (B) of section 6302(14) of this title. If no such organization exists in the unit, the Secretary shall solicit nominations for appointments in such manner as the Secretary determines appropriate.
(II) Combined units
The Secretary shall solicit nominations for each seat on the initially-established Board to which a combined unit is entitled in such manner as the Secretary determines appropriate, taking into consideration the recommendations of any State soybean board operating in the unit that submits to the Secretary satisfactory evidence that such board meets the criteria described in subparagraph (A) or (B) of section 6302(14) of this title.
(ii) Subsequent appointment
(I) State units
Nominations for each subsequent appointment to a seat on the Board to which a State unit is entitled shall be made by the qualified State soybean board in the unit. If no such organization exists in the unit, the Secretary shall solicit nominations for such appointment in such manner as the Secretary determines appropriate.
(II) Combined units
The Secretary shall solicit nominations for each subsequent appointment to the Board to which a combined unit is entitled in such manner as the Secretary determines appropriate, taking into consideration the recommendations of any qualified State soybean board operating in the unit.
(iii) Rejection
The Secretary may reject any nomination submitted by a unit under this paragraph. If there are insufficient nominations from which to appoint members to the Board as a result of the Secretary rejecting the nominations submitted by a unit, the unit shall submit additional nominations, as provided in this paragraph.
(4) Terms
Each appointment to the Board shall be for a term of 3 years, except that appointments to the initially-established Board shall be proportionately for 1-year, 2-year, and 3-year terms. No person may serve more than three consecutive 3-year terms.
(5) Compensation
Board members shall serve without compensation, but shall be reimbursed for their reasonable expenses incurred in performing their duties as members of the Board.
(6) Temporary appointments
(A) Appointment
Notwithstanding paragraphs (1) through (5), the Secretary, under procedures established by the Secretary, shall appoint to the initially-established Board up to three temporary members to serve in addition to the members appointed as otherwise provided in this subsection, as the Secretary determines appropriate for transition purposes under the criteria set out in subparagraph (B). Each such temporary member shall be appointed for a single term not to exceed 3 years.
(B) Representation of certain States
The Secretary shall make temporary appointments to the initially-established Board to ensure, to the extent practicable, that each State with a State soybean board that, prior to November 28, 1990, was contributing State soybean promotion and research assessment funds to national soybean promotion and research efforts has representation on the initially-established Board that reflects the relative contributions of such State to the national soybean promotion and research effort.
(7) Meetings
The order shall provide for at least one meeting of the Board annually and specify the circumstances under which additional special meetings of the Board may be held.
(c) Powers and duties of Board
The order shall define the powers and duties of the Board and shall include the power and duty—
(1) to administer the order in accordance with the terms and provisions of the order;
(2) to make regulations to effectuate the terms and provisions of the order;
(3) if the Board exercises its authority to establish the Committee described in subsection (g)—
(A) to elect members of the Board to serve on the Committee; and
(B) if the Board assigns to the Committee the power to develop and submit budgets as provided for in subsection (h)(1), to approve, modify, or reject budgets submitted by the Committee;
(4) to submit budgets to the Secretary for the approval or disapproval of the Secretary;
(5) to contract with appropriate persons to implement plans or projects;
(6) to contract with qualified State soybean boards to implement programs in their States;
(7) to receive, investigate, and report to the Secretary complaints of violations of the order;
(8) to recommend to the Secretary amendments to the order;
(9) to provide the Secretary with prior notice of meetings of the Board and meetings of committees of the Board to permit the Secretary, or a designated representative, to attend such meetings; and
(10) to provide not less than annually a report to producers accounting for funds and describing programs implemented, and such reports shall be made available to the public on request.
(d) Board voting procedures
(1) In general
The order shall establish procedures for the conduct of voting by the Board, as provided in this subsection. On or after the end of the 3-year period beginning on the effective date of the order, the Board may recommend to the Secretary changes in the voting procedures of the Board and the Secretary may amend the order to make such changes. Such changes shall not be subject to a referendum of producers.
(2) Number of votes per member
Each member of the Board shall be entitled, in any vote conducted by the Board, to cast the number of votes determined under the following rules:
(A) In general
Each member shall be entitled to cast one vote unless a roll call vote is conducted. On a roll call vote, each member shall be entitled to cast such additional votes as are assigned to the member under subparagraph (B).
(B) Additional votes
The additional votes that each member is assigned for roll call votes shall be computed as follows:
(i) Assessment level
Except as provided in clause (ii), each unit shall be allotted one vote for each percent, or portion of a percent, of the total amount of assessments remitted to the Board that was remitted from the unit (net of any refunds made under subsection (l)(2)), on the average, during each of the 3 previous fiscal years of the Board.
(ii) First three fiscal years
(I) First fiscal year
During the first fiscal year of the Board, each unit shall be allotted one vote for each percent, or portion of a percent, of the total production of soybeans in the United States that was produced in the unit, on the average, during each of the 3 immediately preceding crop years.
(II) Second and third fiscal years
The order shall provide appropriate adjustments of the procedure for the allotment of votes under clause (i) to apply to allotments of votes during the second and third fiscal years of the Board.
(iii) Division of votes within units
A unit's total votes under clause (i) or (ii) shall be divided equally among all the members present and voting representing that unit. The procedures established by the order shall provide for the equitable disposition of fractional votes assigned to a member under such division of a unit's vote.
(3) Motions
(A) In general
Except as provided in subparagraph (B), a motion shall carry if approved by a simple majority of members of the Board casting votes.
(B) Roll call votes
Any member of the Board may call for a roll call vote on any motion. Except as otherwise provided in the bylaws adopted by the Board, whenever a roll call vote is conducted, the motion shall carry only if it is approved by a simple majority of all votes cast and a simple majority of all units voting (with the vote of each unit determined by a simple majority of all votes cast by members in that unit).
(4) Committee votes
In any vote conducted by a committee of the Board, each member of the committee shall have one vote.
(5) Proxies
A member may not cast votes by proxy.
(e) Budgets
(1) In general
The order shall provide that the Board shall develop budgets on a fiscal year basis of anticipated expenses and disbursements under the order, including probable costs of administration and promotion, research, consumer information, and industry information projects. The Board shall submit such budgets or any substantial modification thereof to the Secretary for the Secretary's approval.
(2) Limitation
No expenditure of funds may be made by the Board unless such expenditure is authorized under a budget or modification approved by the Secretary.
(f) Plans and projects
The order shall provide that the Board shall review or, on its own initiative, develop plans or projects of promotion, research, consumer information, and industry information, to be paid for with funds received by the Board. Such plans or projects shall not become effective until approved by the Secretary.
(g) Soybean Program Coordinating Committee
(1) Establishment
The order may authorize the Board to establish a Soybean Program Coordinating Committee to assist in the administration of the order, as provided in this subsection.
(2) Membership
(A) Composition
The Committee shall be composed of members such that—
(i) not less than two-thirds of the Committee shall be members of the Board, including—
(I) the Chairperson and Treasurer of the Board; and
(II) additional members of the Board elected by the Board; and
(ii) not more than one-third of the Committee shall be producers elected by the national, nonprofit soybean producer-governed organization that conducts activities on behalf of State soybean boards and that, on November 28, 1990, conducts activities to promote soybeans and soybean products as a cooperator with the Foreign Agricultural Service of the Department.
(B) Certification
To serve on the Committee, each producer elected by the national, nonprofit soybean producer-governed organization shall be certified by the Secretary as a producer who is duly elected by such organization as a representative to the Committee.
(3) Terms
Terms of appointment to the Committee shall be for 1 year. No person may serve on the Committee for more than 6 consecutive terms.
(4) Compensation
Committee members shall serve without compensation, but shall be reimbursed for their reasonable expenses incurred in performing duties for the Committee.
(5) Chairperson
The Chairperson of the Board shall serve as Chairperson of the Committee.
(6) Quorum
A quorum of the Committee shall consist of the number of members of the Committee equal to three-fourths of the total membership of the Committee.
(h) Powers and duties of Committee
The order shall define the powers and duties that the Board may assign to the Committee, which may include the following:
(1) Budgets
The Board may assign to the Committee the power to develop and submit to the Board, for approval, budgets on a fiscal year basis, as provided for in subsection (e). The Board shall review and approve, reject, modify, or substitute a budget proposed by the Committee, and submit budgets to the Secretary for the Secretary's approval under subsection (e).
(2) Plans and projects
The Board may assign to the Committee the power to review, or on its own initiative develop, plans or projects for promotion, research, consumer information, and industry information activities, to be paid for with funds received by the Board as provided for in subsection (f). Each such plan or project shall be presented to the Board for approval.
(3) Voting
A recommendation to be presented to the Board relating to proposed budgets or proposed plans and projects shall require the concurring vote of at least two-thirds of the members present at a meeting of the Committee.
(i) Administration
(1) Expenses
The order shall provide that the Board shall be responsible for all expenses of the Board.
(2) Staff
(A) In general
The order shall provide that the Board may establish an administrative staff or facilities of its own or contract for the use of the staff and facilities of national, nonprofit, producer-governed organizations that represent producers of soybeans.
(B) Limitation on salaries
If the Board establishes an administrative staff of its own, the Board is authorized to expend for administrative staff salaries and benefits an amount not to exceed one percent of the projected level of assessments to be collected by the Board, net of any refunds to be made under subsection (l)(2), for that fiscal year.
(C) Reimbursement of organization
If the staff of national, nonprofit, producer-governed organizations that represent producers of soybeans are used by the Board, the staff of such organizations shall not receive compensation directly from the Board, but such organizations shall be reimbursed for the reasonable expenses of their staffs, including salaries, incurred in performing staff duties on behalf of, and authorized by, the Board.
(3) Limitation on administrative costs
The order shall provide that costs incurred by the Board in administering the order (including the cost of staff but not including administrative costs incurred by the Secretary) during any fiscal year shall not exceed 5 percent of the projected level of assessments to be collected by the Board, net of any refunds to be made under subsection (l)(2) of this section, for that fiscal year.
(j) Contracts and agreements
(1) Authority
To ensure coordination and efficient use of funds, the order shall provide that the Board may enter into contracts or agreements for the implementation and carrying out of the activities authorized by this chapter with national, nonprofit, producer-governed organizations that represent producers of soybeans, and for the payment thereof with funds received by the Board under the order.
(2) Coordination
To enhance coordination, the Board, when entering into contracts or agreements for the implementation and carrying out of activities authorized by this chapter, shall ensure that all plans or projects implemented for consumer information, industry information, promotion, or research are each implemented by a single entity. There shall not be in force, at any one time, more than one contract or agreement for implementation of plans or projects for consumer information, for industry information, for promotion, or for research, except that, upon approval of the Secretary, the Board may contract with qualified State soybean boards to implement plans or projects within their respective States.
(3) Terms
Any contract or agreement entered into under this subsection shall provide that—
(A) the contracting party shall develop and submit to the Board a plan or project together with a budget or budgets that shall show estimated costs to be incurred for such plan or project;
(B) the plan or project shall not become effective until it has been approved by the Secretary; and
(C) the contracting party shall keep accurate records of all of its transactions, account for funds received and expended, including staff time, salaries, and expenses expended on behalf of Board activities, make periodic reports to the Board of activities conducted, and make such other reports as the Board or the Secretary may require.
(4) Communications to producers
The order may provide that—
(A) the Board may enter into contracts or agreements with qualified State soybean boards that apply therefor and agree to the terms thereof, for the implementation of plans or projects to coordinate and facilitate communications to producers regarding the conduct of activities under the order and for the payment of the costs of the plans or projects with funds received by the Board under the order; and
(B) to facilitate the funding of plans or projects described in subparagraph (A), if the order does not authorize the payment of refunds, the Board shall allocate for such funding each year an amount not less than the cumulative amount of all producer contributions to qualified State soybean boards during the previous year that the State boards were unable to retain, and forwarded to the Board, because producers received refunds on such State contributions, as determined by the Board based on information submitted by the qualified State soybean boards.
(5) Apportionment of funds to qualified State soybean boards
(A) In general
In using the funds allocated each year under paragraph (4)(B) for payment of the costs of contracts or agreements described in paragraph (4)(A), subject to subparagraph (B), the Board shall apportion such allocated funds among States so that each qualified State soybean board receives an amount equal to the amount of such allocated funds attributable to refunds in the State during the previous year, as determined by the Board based on information submitted by the qualified State soybean boards.
(B) Exception
The Board shall not be required to apportion funds to a qualified State soybean board, as provided in subparagraph (A), if—
(i) the qualified State soybean board has not entered into a contract or agreement with the Board for the implementation of plans or projects described in paragraph (4)(A); or
(ii) the amount to be apportioned to the qualified State soybean board is less than the cost to the Board of overseeing the use of such apportionment during the year involved, and the contract or agreement shall so provide.
(k) Books and records of Board
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) prepare and submit to the Secretary, from time to time, such reports as the Secretary may prescribe; and
(3) account for the receipt and disbursement of all funds entrusted to the Board.
The Board shall cause its books and records to be audited by an independent auditor at the end of each fiscal year and a report of such audit to be submitted to the Secretary. The Secretary shall make such report available to the public upon request.
(l) Assessments
(1) In general
(A) First purchasers
(i) Collection
The order shall provide that each first purchaser of soybeans from a producer shall collect, in the manner prescribed by the order, an assessment from the producer and remit the assessment to the Board. The Board shall use qualified State soybean boards to collect such assessments in States in which such boards operate.
(ii) Rate
The rate of assessment prescribed by the order shall be one-half of 1 percent of the net market price of soybeans sold by the producer to the first purchaser.
(iii) One assessment
No more than one assessment shall be made on any soybeans.
(B) Direct processing
The order shall provide that any person processing soybeans of that person's own production and marketing such soybeans or soybean products made from such soybeans shall remit to the Board or the qualified State soybean board, in the manner prescribed by the order, an assessment established at a rate equivalent to the rate provided for in subparagraph (A)(ii).
(2) Refunds
(A) Refunds prior to initial referendum
(i) In general
The order shall provide that, during the period prior to the approval of the continuation of the initial order in the referendum provided for in section 6305(a) of this title, as determined by the Secretary, each producer shall have the right to demand and receive from the Board a refund of any assessment collected from such producer if—
(I) such producer is responsible for paying the assessment; and
(II) such producer does not support the programs, projects, or activities implemented under the order.
(ii) By Board
During the period referred to in clause (i), refunds shall be provided equally from the Board and, where applicable, the qualified State soybean board, as determined by the Secretary.
(B) Administration
Subject to subparagraph (C)(i), any demand by a producer for a refund of an assessment under this paragraph shall be made in accordance with regulations, on a form, and within the time period (not to exceed 90 days) prescribed by the Board.
(C) Submission of refund demands
(i) In general
In each State in which a qualified State soybean board collects assessments, as provided in paragraph (1)(A)(i), producers shall submit demands for refunds of assessments to the qualified State soybean board. Such board shall provide notice to producers, in a manner prescribed by the Board, of their right to such refunds, and shall process such submissions under procedures established by State law applicable to refunds of assessments on soybeans, except that if no refunds are allowed under State law, such submissions shall be processed under procedures established under this paragraph.
(ii) No qualified State soybean board
In each State in which there is no qualified State soybean board, producers shall submit demands for refunds of assessments directly to the Board.
(D) Time limit for making refund
Subject to subparagraph (C)(i), each refund to a producer of an assessment under this paragraph shall be made as soon as practicable, but in no event more than 60 days, after submission of proof satisfactory to the qualified State soybean board or the Board that the producer paid the assessment for which refund is demanded.
(E) Order not favored
If the Secretary determines that producers do not favor the continuation of the order in the referendum provided for in section 6305(a) of this title, refunds shall be made under this paragraph on collected assessments until such collections are terminated, as provided in section 6305(a) of this title.
(F) Refunds after the initial referendum
(i) In general
The order shall contain provisions relating to refunds after the approval of the order in the initial referendum under section 6305(a) of this title as required in this subparagraph.
(ii) Availability
Effective for the period beginning on the date the Secretary determines the result of the initial referendum under section 6305(a) of this title and ending on a date (not later than 18 months thereafter) established by the Secretary, the qualified State soybean board and, where no qualified State soybean board exists, the Board shall make refunds available to soybean producers at the end of the fiscal year from escrowed funds, as provided for in clause (vii). Such refunds shall be made available, under the procedures specified in subparagraphs (A) through (D) to the extent not inconsistent with this subparagraph, to producers who have requested refunds during such period.
(iii) Poll
Not later than the end of the period provided for in clause (ii), the Secretary shall conduct a poll of soybean producers, using the procedures provided for in section 6305(b)(3) of this title, to determine if producers support the conduct of a referendum on the continuance of the payment of refunds under the order.
(iv) Referendum
If the Secretary determines, based on the poll conducted under clause (iii), that the conduct of a referendum is supported by at least 20 percent of the producers (not in excess of one-fifth of which may be producers in any one State) who, during a representative period, have been engaged in the production of soybeans, the Secretary shall conduct a referendum among all such producers for the purpose of determining whether such producers favor the continuation of the payment of refunds under the order. Such referendum shall be conducted, under the procedures provided for in section 6305 of this title, not later than 1 year after the Secretary determines, based on the poll, that the referendum is required.
(v) Continued refunds
If the Secretary conducts a referendum under clause (iv), the qualified State soybean board and, where no qualified State soybean board exists, the Board shall continue to make refunds available to producers as provided for in clause (ii) during the period prior to the conduct of the referendum, which shall be payable at the end of the period from the escrowed funds, as provided in clause (vii).
(vi) Continuation or cessation of refunds
If the Secretary determines, in the referendum conducted under clause (iv), that continuation of the payment of refunds is favored by a majority of the producers voting in such referendum, the qualified State soybean board and, where no qualified State soybean board exists, the Board shall continue to make refunds available to producers as provided for in clause (ii) for each 1-year period that follows until such time as soybean producers approve an amendment to the order to eliminate such refunds. Such refunds shall be payable at the end of each such 1-year period from escrowed funds, as provided in clause (vii). If the Secretary determines in the referendum that continuation of such refunds is not favored by a majority of producers voting in the referendum, the right to such refunds shall cease immediately.
(vii) Escrow accounts
(I) Establishment
The qualified State soybean board and, for producers in States where no qualified State soybean board exists, the Board shall establish escrow accounts to be used to pay refunds under clause (ii) and, if necessary, clauses (v) and (vi).
(II) Separate accounts
The qualified State soybean board and, where no qualified State soybean board exists, the Board shall establish separate escrow accounts for each State from which producer assessments are collected for the purpose of making refunds under clauses (ii), (v), and (vi), respectively.
(III) Deposits
The qualified State soybean board and, where no qualified State soybean board exists, the Board shall deposit into its escrow account for refunds under clause (ii), (v), or (vi), as appropriate, 10 percent of the total assessment collected by the qualified State soybean board and, where no qualified State soybean board exists, the Board (including the assessment provided under paragraph (2) and contributions by producers to qualified State soybean boards under paragraph (4)), during the time period involved.
(IV) Refunds made from escrow account
Refunds requested by producers from a State under clause (ii) (or if refunds are available under clause (v) or (vi)) during the time period involved shall be made from the escrow account that is applicable to that clause for such State.
(V) Proration
If the funds deposited in a State account established under subclause (I) for purposes described under clauses (ii), (v), and (vi) are not sufficient to honor all requests for refunds made by producers from that State during the time period involved, the qualified State soybean board and, where no qualified State soybean board exists, the Board shall prorate the amount of such refunds from the State's account among all producers from that State that request refunds.
(VI) Surplus funds
Any funds not refunded to producers in a State under this clause shall be divided equally between the Board and the qualified State soybean board of such State. Such funds shall be used to carry out programs under this chapter.
(VII) Refund period
In applying this clause to refunds under clause (vi), each annual refund period shall be treated separately.
(3) Use
The assessments (net of any refunds under paragraph (2)) shall be used for—
(A) payment of the expenses incurred in implementation and administration of the order;
(B) the establishment of a reasonable reserve; and
(C) reimbursement to the Secretary of administrative costs incurred by the Secretary to implement and administer the order, other than one-half of the cost incurred for the referendum conducted under paragraph (2)(F).
(4) Credit for contributions to qualified State soybean boards
A producer who can establish that such producer is contributing to a qualified State soybean board shall receive credit, in determining the assessment due to the Board from such producer, for contributions to the qualified State soybean board of up to one-quarter of 1 percent of the net market price of soybeans or the equivalent thereof. For purposes of this chapter, there shall be only one qualified State soybean board in each State. A producer may receive a credit under this paragraph only if the contribution is to the qualified State soybean board in the State in which the soybeans are produced, except that the Board, with the approval of the Secretary, may authorize exceptions to such State-of-origin rule as are appropriate to ensure effective coordination of collection procedures among States.
(5) Single process of assessment
The procedures in the order for the collection of assessments shall ensure, to the extent practicable, that such soybeans are subject to a single process of assessment under the order.
(m) Credit for certain costs to States
The order shall provide that the Board may provide a credit to each qualified State soybean board of an amount not to exceed one-half of any fees paid to State governmental agencies or first purchasers for collection of the assessments if the payment of such fees by the qualified State soybean board is required by State law enacted prior to November 28, 1990, except that the Board may not provide a credit to any qualified State soybean board of an amount that exceeds 2.5 percent of the amount of assessments collected and remitted to the Board under subsection (l).
(n) Minimum level of assessments to States
(1) Pre-referendum period
The order shall contain provisions to ensure that, during the period prior to the conduct of the referendum provided for in section 6305(a) of this title, each qualified State soybean board receives annually an amount of funds equal to the average amount that the State board collected from assessments during each of the State board's fiscal years 1984 through 1988 (excluding the year in which such collections were the highest and the year in which such collections were the lowest), as determined by the Secretary and subject to paragraph (3).
(2) Post-referendum period
The order shall provide, effective after the conduct of the referendum provided for in section 6305(a) of this title, subject to paragraph (3), that the Board annually shall provide a credit to each qualified State soybean board of an amount by which—
(A) the amount equal to 1 cent times the average number of bushels of soybeans produced in the State during each of the preceding 5 years (excluding the year in which the production is the highest and the year in which the production is the lowest); exceeds
(B) the total amount collected by the qualified State soybean board from assessments on producers minus the amount of assessments remitted to the Board during such year under subsection (l).
(3) Limitation
The total amount of credits under paragraph (1) or (2) and assessments retained by the qualified State soybean board for a year may not exceed the total amount of assessments collected in that State under subsection (l) (net of any refunds made under paragraph (2) of subsection (l)) in that year.
(o) Investment of funds
(1) In general
The order shall provide that the Board, with the approval of the Secretary, may invest assessment funds collected by the Board under the order, pending their disbursement, only in—
(A) obligations of the United States or any agency thereof;
(B) general obligations of any State or any political subdivision thereof;
(C) any interest-bearing account or certificate of deposit of a bank that is a member of the Federal Reserve System; or
(D) obligations fully guaranteed as to principal and interest by the United States.
(2) Income
Income from any such investment may be used for any purpose for which the invested funds may be used.
(p) Prohibition on use of funds to influence governmental action
(1) In general
Except as otherwise provided in paragraph (2), the order shall prohibit any funds collected by the Board under the order from being used in any manner for the purpose of influencing legislation or governmental action or policy.
(2) Exceptions
Paragraph (1) shall not apply to—
(A) the development and recommendation of amendments to the order;
(B) the communication to appropriate government officials of information relating to the conduct, implementation, or results of promotion, research, consumer information, or industry information activities under the order; or
(C) any action designed to market soybeans or soybean products directly to a foreign government or political subdivision thereof.
(q) Books and records of first purchasers and certain producers
(1) Recordkeeping
(A) In general
The order shall require that each first purchaser of soybeans and any person processing soybeans of that person's own production maintain and make available for inspection by the Board or the Secretary 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. The order shall exempt small producers processing soybeans of their own production from such recordkeeping and reporting requirements if they are not required to pay assessments under the order.
(B) "Small producer" defined
The order shall define the term "small producer" as such term is used in subparagraph (A).
(2) Use of information
(A) In general
Information maintained under paragraph (1) shall be made available to the Secretary as is appropriate for the administration or enforcement of this chapter, or any order or regulation issued under this chapter.
(B) Other information
The Secretary shall authorize the use under this chapter of information regarding first purchasers that is accumulated under a law or regulation other than this chapter or regulations under this chapter.
(3) Confidentiality
(A) In general
Except as otherwise provided in this chapter, commercial or financial information that is obtained under paragraph (1) or (2) and that is privileged or confidential shall be kept confidential by all officers and employees of the Department, members of the Board, and agents of the Board.
(B) Permitted uses
Information obtained under the authority of this chapter shall be made available to any agency or officer of the Federal Government for—
(i) the implementation of this chapter;
(ii) any investigatory or enforcement action necessary for the implementation of this chapter; or
(iii) any civil or criminal law enforcement activity if the activity is authorized by law.
(C) Other exceptions
Nothing in subparagraph (A) may be deemed to prohibit—
(i) the issuance of general statements, based on the reports, of the number of persons subject to an order or statistical data collected therefrom, which 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, together with a statement of the particular provisions of the order violated by such person.
(4) Penalty
Any person who willfully violates the provisions of this subsection, upon conviction, shall be subject to a fine of not more than $1,000, or to imprisonment for not more than one year, or both, and, if a member or an agent of the Board or an officer or employee of the Department, shall be removed from office.
(r) Incidental terms and conditions
The order shall provide terms and conditions, not inconsistent with the provisions of this chapter, as necessary to effectuate the provisions of the order, including provisions for the assessment of a penalty for each late payment of assessments under subsection (l).
7 U.S.C. § 6304 (Required terms in orders) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.
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Source Credit
History
(Pub. L. 101–624, title XIX, §1969, Nov. 28, 1990, 104 Stat. 3884; Pub. L. 102–237, title VIII, §806(1), Dec. 13, 1991, 105 Stat. 1883.)
Editorial Notes
Editorial Notes
Amendments
1991—Subsec. (g)(2)(A)(ii). Pub. L. 102–237, §806(1)(A), substituted "Agricultural" for "Argicultural".
Subsec. (l)(2)(F)(vii)(V). Pub. L. 102–237, §806(1)(B), substituted "that request" for "that requests".
Subsec. (q)(4). Pub. L. 102–237, §806(1)(C), inserted a comma after "and" and struck out semicolon after "Board".
Amendments
1991—Subsec. (g)(2)(A)(ii). Pub. L. 102–237, §806(1)(A), substituted "Agricultural" for "Argicultural".
Subsec. (l)(2)(F)(vii)(V). Pub. L. 102–237, §806(1)(B), substituted "that request" for "that requests".
Subsec. (q)(4). Pub. L. 102–237, §806(1)(C), inserted a comma after "and" and struck out semicolon after "Board".