II

104TH CONGRESS

1ST SESSION S. 897

To provide for a nationally coordinated program of research, promotion,

and consumer information regarding kiwifruit for the purpose of expanding domestic and foreign markets for kiwifruit.

IN THE SENATE OF THE UNITED STATES

JUNE 8 (legislative day, JUNE 5), 1995

Mrs. FEINSTEIN introduced the following bill; which was read twice and

referred to the Committee on Agriculture, Nutrition, and Forestry

A BILL

To provide for a nationally coordinated program of research,

promotion, and consumer information regarding kiwifruit

for the purpose of expanding domestic and foreign markets for kiwifruit.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE AND TABLE OF CONTENTS.

4 (a) SHORT TITLE.—This Act may be cited as the

5 ‘‘National Kiwifruit Research, Promotion, and Consumer

6 Information Act’’.

7 (b) TABLE OF CONTENTS.—The table of contents for

8 this Act is as follows:
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Sec. 1. Short title and table of contents.

Sec. 2. Findings and purposes.

Sec. 3. Definitions.

Sec. 4. Issuance of Kiwifruit Research, Promotion, and Consumer Information

Order.

Sec. 5. National Kiwifruit Board.

Sec. 6. Required terms in order.

Sec. 7. Permissive terms in order.

Sec. 8. Incorporation of petition and review, enforcement, and investigation provisions by reference.

Sec. 9. Referenda.

Sec. 10. Suspension and termination of order by Secretary.

Sec. 11. Authorization of appropriations.

Sec. 12. Regulations.

1 SEC. 2. FINDINGS AND PURPOSES.

2 (a) FINDINGS.—Congress finds that—

3 (1) domestically produced kiwifruit are grown

4 by many individual producers;

5 (2) virtually all domestically produced kiwifruit

6 are grown in the State of California, although there

7 is potential for production in many other areas of

8 the United States;

9 (3) kiwifruit move in interstate and foreign

10 commerce, and kiwifruit that do not move in such

11 channels of commerce directly burden or affect inter12 state commerce;

13 (4) in recent years, large quantities of kiwifruit

14 have been imported into the United States;

15 (5) the maintenance and expansion of existing

16 domestic and foreign markets for kiwifruit, and the

17 development of additional and improved markets for

18 kiwifruit, are vital to the welfare of kiwifruit produc-
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1 ers and other persons concerned with producing,

2 marketing, and processing kiwifruit;

3 (6) a coordinated program of research, pro4 motion, and consumer information regarding

5 kiwifruit is necessary for the maintenance and devel6 opment of such markets; and

7 (7) kiwifruit producers, handlers, and importers

8 are unable to implement and finance such a program

9 without cooperative action.

10 (b) PURPOSES.—The purposes of this Act are—

11 (1) to authorize the establishment of an orderly

12 procedure for the development and financing

13 (through an assessment) of an effective and coordi14 nated program of research, promotion, and

15 consumer information regarding kiwifruit;

16 (2) to use such program to strengthen the posi17 tion of the kiwifruit industry in domestic and foreign

18 markets and maintain, develop, and expand markets

19 for kiwifruit; and

20 (3) to treat domestically produced kiwifruit and

21 imported kiwifruit equitably.

22 SEC. 3. DEFINITIONS.

23 As used in this Act:
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1 (1) BOARD.—The term ‘‘Board’’ means the Na2 tional Kiwifruit Board, as provided for under section

3 5.

4 (2) CONSUMER INFORMATION.—The term

5 ‘‘consumer information’’ means any action taken to

6 provide information to, and broaden the understand7 ing of, the general public regarding the consumption,

8 use, nutritional attributes, and care of kiwifruit.

9 (3) EXPORTER.—The term ‘‘exporter’’ means

10 any person from outside the United States who ex11 ports kiwifruit into the United States.

12 (4) HANDLER.—The term ‘‘handler’’ means

13 any person, excluding a common carrier, engaged in

14 the business of buying and selling, packing, market15 ing, or distributing kiwifruit as specified in the

16 order.

17 (5) IMPORTER.—The term ‘‘importer’’ means

18 any person who imports kiwifruit into the United

19 States.

20 (6) KIWIFRUIT.—The term ‘‘kiwifruit’’ means

21 all varieties of fresh kiwifruit grown or imported in

22 the United States.

23 (7) MARKETING.—The term ‘‘marketing’’

24 means the sale or other disposition of kiwifruit into

25 interstate, foreign, or intrastate commerce by buy-
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1 ing, marketing, distribution or otherwise placing

2 kiwifruit into commerce.

3 (8) ORDER.—The term ‘‘order’’ means a

4 kiwifruit research, promotion, and consumer infor5 mation order issued by the Secretary under section

6 4.

7 (9) PERSON.—The term ‘‘person’’ means any

8 individual, group of individuals, partnership, cor9 poration, association, cooperative, or other legal en10 tity.

11 (10) PROCESSING.—The term ‘‘processing’’

12 means canning, fermenting, distilling, extracting,

13 preserving, grinding, crushing, or in any manner

14 changing the form of kiwifruit for the purposes of

15 preparing it for market or marketing the kiwifruit.

16 (11) PRODUCER.—The term ‘‘producer’’ means

17 any person who grows kiwifruit in the United States

18 for sale in commerce.

19 (12) PROMOTION.—The term ‘‘promotion’’

20 means any action taken under this Act (including

21 paid advertising) to present a favorable image for

22 kiwifruit to the general public for the purpose of im23 proving the competitive position of kiwifruit and

24 stimulating the sale of kiwifruit.
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1 (13) RESEARCH.—The term ‘‘research’’ means

2 any type of research relating to the use, nutritional

3 value, and marketing of kiwifruit conducted for the

4 purpose of advancing the image, desirability, mar5 ketability, or quality of kiwifruit.

6 (14) SECRETARY.—The term ‘‘Secretary’’

7 means the Secretary of Agriculture.

8 (15) UNITED STATES.—The term ‘‘United

9 States’’ means the 50 States of the United States,

10 the District of Columbia, and the Commonwealth of

11 Puerto Rico. (7 U.S.C. 6202.)

12 SEC. 4. ISSUANCE OF KIWIFRUIT RESEARCH, PROMOTION,

13 AND CONSUMER INFORMATION ORDER.

14 (a) ISSUANCE.—To effectuate the declared purposes

15 of this Act, the Secretary shall issue an order applicable

16 to producers, handlers, and importers of kiwifruit. Any

17 such order shall be national in scope. Not more than one

18 order shall be in effect under this Act at any one time.

19 (b) PROCEDURE.—

20 (1) PROPOSAL FOR ISSUANCE OF ORDER.—Any

21 person that will be affected by this Act may request

22 the issuance of, and submit a proposal for, an order

23 under this Act.

24 (2) PROPOSED ORDER.—Not later than 90 days

25 after the receipt of a request and proposal for an
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1 order, the Secretary shall publish a proposed order

2 and give due notice and opportunity for public com3 ment on the proposed order.

4 (3) ISSUANCE OF ORDER.—After notice and op5 portunity for public comment are given, as provided

6 in paragraph (2), the Secretary shall issue an order,

7 taking into consideration the comments received and

8 including in the order provisions necessary to ensure

9 that the order is in conformity with the require10 ments of this Act.

11 (c) AMENDMENTS.—The Secretary may amend any

12 order issued under this section. The provisions of this Act

13 applicable to orders shall be applicable to amendments to

14 orders.

15 SEC. 5. NATIONAL KIWIFRUIT BOARD.

16 (a) MEMBERSHIP.—An order issued by the Secretary

17 under section 4 shall provide for the establishment of a

18 National Kiwifruit Board, to consist of 11 members as

19 follows:

20 (1) Six members who are producers (or their

21 representatives) and who are not exempt from an as22 sessment under section 6(b).

23 (2) Four members who are importers (or their

24 representatives) and who are not exempt from an as-
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1 sessment under section 6(b) or are exporters (or

2 their representatives).

3 (3) One member appointed from the general

4 public.

5 (b) ADJUSTMENT OF MEMBERSHIP.—Subject to the

6 11-member limit, the Secretary may adjust membership

7 on the Board to accommodate changes in production and

8 import levels of kiwifruit, so long as producers comprise

9 not less than 51 percent of the membership of the Board.

10 (c) APPOINTMENT AND NOMINATION.—

11 (1) APPOINTMENT.—The Secretary shall ap12 point the members of the Board from nominations

13 submitted in accordance with this subsection.

14 (2) PRODUCERS.—The members referred to in

15 subsection (a)(1) shall be appointed from individuals

16 nominated by producers.

17 (3) IMPORTERS AND EXPORTERS.—The mem18 bers referred to in subsection (a)(2) shall be ap19 pointed from individuals nominated by importers or

20 exporters.

21 (4) PUBLIC REPRESENTATIVE.—The public rep22 resentative shall be appointed from nominations sub23 mitted by other members of the Board.

24 (5) FAILURE TO NOMINATE.—If producers, im25 porters, and exporters fail to nominate individuals
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1 for appointment, the Secretary may appoint mem2 bers on a basis provided for in the order. If the

3 Board fails to nominate a public representative, such

4 member may be appointed by the Secretary without

5 a nomination.

6 (d) ALTERNATES.—The Secretary shall appoint an

7 alternate for each member of the Board. An alternate

8 shall—

9 (1) be appointed in the same manner as the

10 member for whom such individual is an alternate;

11 and

12 (2) serve on the Board if such member is ab13 sent from a meeting or is disqualified under sub14 section (f).

15 (e) TERMS.—Members of the Board shall be ap16 pointed for a term of three years. No member may serve

17 more than two consecutive three-year terms. However, of

18 the members first appointed—

19 (1) five members shall be appointed for a term

20 of two years; and

21 (2) six members shall be appointed for a term

22 of three years.

23 (f) REPLACEMENT.—If a member or alternate of the

24 Board who was appointed as a producer, importer, ex25 porter, or public representative member ceases to belong
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1 to the group for which such member was appointed, such

2 member or alternate shall be disqualified from serving on

3 the Board.

4 (g) COMPENSATION.—Members and alternates of the

5 Board shall serve without pay.

6 (h) GENERAL POWERS AND DUTIES.—The Board

7 shall—

8 (1) administer orders issued by the Secretary

9 under section 4, and amendments to such orders, in

10 accordance with their terms and provisions and con11 sistent with this Act;

12 (2) prescribe rules and regulations to effectuate

13 the terms and provisions of such orders;

14 (3) meet, organize, and select from among

15 members of the Board a chairperson, other officers,

16 and committees and subcommittees, as the Board

17 determines appropriate;

18 (4) receive, investigate, and report to the Sec19 retary accounts of violations of such orders;

20 (5) make recommendations to the Secretary

21 with respect to amendments that should be made to

22 such orders; and

23 (6) employ or contract with a manager and

24 staff to assist in administering such orders, except

25 that, in order to reduce administrative costs and in-
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1 crease efficiency, the Board shall seek, to the extent

2 possible, to employ or contract with personnel who

3 are already associated with State chartered organi4 zations involved in promoting kiwifruit.

5 SEC. 6. REQUIRED TERMS IN ORDER.

6 (a) BUDGETS AND PLANS.—An order issued under

7 section 4 shall provide for periodic budgets and plans as

8 follows:

9 (1) BUDGETS.—The Board shall prepare and

10 submit to the Secretary a budget prior to the begin11 ning of the fiscal year of the anticipated expenses

12 and disbursements of the Board in the administra13 tion of the order, including probable costs of re14 search, promotion, and consumer information. A

15 budget shall take effect upon a two-thirds vote of a

16 quorum of the Board and approval by the Secretary.

17 (2) PLANS.—Each budget shall include a plan

18 for research, promotion, and consumer information

19 regarding kiwifruit. A plan under this paragraph

20 shall take effect upon approval by the Secretary.

21 The Board may enter into contracts and agree22 ments, upon approval by the Secretary, for—

23 (A) the development and carrying out of

24 such plan; and
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1 (B) the payment of the cost of such plan,

2 with funds collected pursuant to this Act.

3 (b) ASSESSMENTS.—Such order shall provide for the

4 imposition and collection of assessments with regard to the

5 production and importation of kiwifruit as follows:

6 (1) RATE.—The assessment rate shall be rec7 ommended by a two-thirds vote of a quorum of the

8 Board, approved by the Secretary, but shall not ex9 ceed $0.10 per seven pound tray of kiwifruit or

10 equivalent.

11 (2) COLLECTION BY FIRST HANDLERS.—Except

12 as provided in paragraph (4), the first handler of

13 kiwifruit shall—

14 (A) be responsible for the collection from

15 the producer, and payment to the Board, of as16 sessments under this subsection; and

17 (B) maintain a separate record of the

18 kiwifruit of each producer whose kiwifruit are

19 so handled, including the kiwifruit owned by the

20 handler.

21 (3) IMPORTERS.—The assessment on imported

22 kiwifruit shall be paid by the importer to the United

23 States Customs Service at the time of entry into the

24 United States and shall be remitted to the Board.
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1 (4) EXEMPTION FROM ASSESSMENT.—The fol2 lowing persons or activities are exempt from an as3 sessment under this subsection:

4 (A) A producer who produces less than

5 500 pounds of kiwifruit per year.

6 (B) An importer who imports less than

7 10,000 pounds of kiwifruit per year.

8 (C) Sales of kiwifruit made directly from

9 the producer to a consumer for a purpose other

10 than resale.

11 (D) The production or importation of

12 kiwifruit for processing.

13 (5) CLAIM OF EXEMPTION.—To claim an ex14 emption under paragraph (4) for a particular year,

15 a person shall—

16 (A) submit an application to the Board

17 stating the basis for the exemption and certify18 ing that the person will not exceed any pound19 age limitation required for the exemption in

20 such year; or

21 (B) be on a list of approved processors de22 veloped by the Board.

23 (c) USE OF ASSESSMENTS.
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1 (1) AUTHORIZED USES.—Such order shall pro2 vide that funds paid to the Board as assessments

3 under subsection (b) may be used by the Board—

4 (A) to pay for research, promotion, and

5 consumer information described in the budget

6 of the Board under subsection (a) and for other

7 expenses incurred by the Board in the adminis8 tration of an order;

9 (B) to pay such other expenses for the ad10 ministration, maintenance, and functioning of

11 the Board, including any enforcement efforts

12 for the collection of assessments as may be au13 thorized by the Secretary, including interest

14 and penalties for late payments; and

15 (C) to fund a reserve established under

16 section 7(d).

17 (2) REQUIRED USES.—Such order shall provide

18 that funds paid to the Board as assessments under

19 subsection (b) shall be used by the Board—

20 (A) to pay the expenses incurred by the

21 Secretary, including salaries and expenses of

22 Government employees, in implementing and

23 administering the order; and
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1 (B) to reimburse the Secretary for any ex2 penses incurred by the Secretary in conducting

3 referenda under this Act.

4 (3) LIMITATION ON USE OF ASSESSMENTS.—

5 Except for the first year of operation of the Board,

6 expenses for the administration, maintenance, and

7 functioning of the Board may not exceed 30 percent

8 of the budget.

9 (d) FALSE CLAIMS.—Such order shall provide that

10 any promotion funded with assessments collected under

11 subsection (b) may not make—

12 (1) any false claims on behalf of kiwifruit; and

13 (2) any false statements with respect to the at14 tributes or use of any product that competes with

15 kiwifruit for sale in commerce.

16 (e) PROHIBITION ON USE OF FUNDS.—Such order

17 shall provide that funds collected by the Board under this

18 Act through assessments may not, in any manner, be used

19 for the purpose of influencing legislation or governmental

20 policy or action, except for making recommendations to

21 the Secretary as provided for in this Act.

22 (f) BOOKS, RECORDS, AND REPORTS.—

23 (1) BY THE BOARD.—Such order shall require

24 the Board—
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1 (A) to maintain books and records with re2 spect to the receipt and disbursement of funds

3 received by the Board;

4 (B) to submit to the Secretary from time

5 to time such reports as the Secretary may re6 quire for appropriate accounting; and

7 (C) to submit to the Secretary at the end

8 of each fiscal year a complete audit report by

9 an independent auditor regarding the activities

10 of the Board during such fiscal year.

11 (2) BY OTHERS.—So that information and data

12 will be available to the Board and the Secretary that

13 is appropriate or necessary for the effectuation, ad14 ministration, or enforcement of this Act (or any

15 order or regulation issued under this Act), such

16 order shall require handlers and importers who are

17 responsible for the collection, payment, or remittance

18 of assessments under subsection (b)—

19 (A) to maintain and make available for in20 spection by the employees of the Board and the

21 Secretary such books and records as may be re22 quired by the order; and

23 (B) to file, at the times and in the manner

24 and content prescribed by the order, reports re-
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1 garding the collection, payment, or remittance

2 of such assessments.

3 (g) CONFIDENTIALITY.—

4 (1) IN GENERAL.—Such order shall require

5 that all information obtained pursuant to subsection

6 (f)(2) be kept confidential by all officers and employ7 ees of the Department and of the Board. Only such

8 information as the Secretary considers relevant shall

9 be disclosed to the public and only in a suit or ad10 ministrative hearing, brought at the request of the

11 Secretary or to which the Secretary or any officer of

12 the United States is a party, involving the order

13 with respect to which the information was furnished

14 or acquired.

15 (2) LIMITATIONS.—Nothing in this subsection

16 prohibits—

17 (A) issuance of general statements based

18 on the reports of a number of handlers and im19 porters subject to an order, if the statements do

20 not identify the information furnished by any

21 person; or

22 (B) the publication by direction of the Sec23 retary of the name of any person violating an

24 order issued under section 4(a), together with a
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1 statement of the particular provisions of the

2 order violated by such person.

3 (3) PENALTY.—Any person who willfully vio4 lates the provisions of this subsection, upon convic5 tion, shall be subject to a fine of not more than

6 $1,000, or to imprisonment for not more than one

7 year, or both, and, if a member, officer, or agent of

8 the board or an employee of the Department, shall

9 be removed from office.

10 (h) WITHHOLDING INFORMATION.—Nothing in this

11 Act shall be construed to authorize the withholding of in12 formation from Congress.

13 SEC. 7. PERMISSIVE TERMS IN ORDER.

14 (a) PERMISSIVE TERMS.—On the recommendation of

15 the Board, and with the approval of the Secretary, an

16 order issued under section 4 may include the authorities

17 specified in this section and such additional terms and

18 conditions as the Secretary considers necessary to effec19 tuate the other provisions of the order and are incidental

20 to, and not inconsistent with, the terms and conditions

21 required by this Act.

22 (b) ALTERNATIVE PAYMENT AND REPORTING

23 SCHEDULES.—Such order may authorize the Board to

24 designate different handler payment and reporting sched-
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1 ules to recognize differences in marketing practices and

2 procedures.

3 (c) WORKING GROUPS.—Such order may authorize

4 the Board to convene working groups drawn from produc5 ers, handlers, importers, exporters, or the general public

6 and utilize the expertise of such groups to assist in the

7 development of research and marketing programs for

8 kiwifruit.

9 (d) RESERVE FUNDS.—Such order may authorize the

10 Board to accumulate reserve funds from assessments col11 lected pursuant to section 6(b) to permit an effective and

12 continuous coordinated program of research, promotion,

13 and consumer information in years in which production

14 and assessment income may be reduced. However, any re15 serve fund so established may not exceed the amount

16 budgeted for operation of this Act for one year.

17 (e) PROMOTION ACTIVITIES OUTSIDE UNITED

18 STATES.—Such order may authorize the Board to use,

19 with the approval of the Secretary, funds collected under

20 section 6(b) for the development and expansion of sales

21 in foreign markets of kiwifruit produced in the United

22 States.
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1 SEC. 8. INCORPORATION OF PETITION AND REVIEW, EN2 FORCEMENT, AND INVESTIGATION PROVI3 SIONS BY REFERENCE.

4 The following provisions of the Lime Research, Pro5 motion, and Consumer Information Act of 1990 (subtitle

6 D of title XIX of Public Law 101–624) shall apply to this

7 Act and any order or regulation issued under this Act:

8 (1) Section 1957 (7 U.S.C. 6206), relating to

9 petitions filed by persons subject to an order issued

10 under this Act and review of administrative rulings

11 on such petitions.

12 (2) Section 1958 (7 U.S.C. 6207), relating to

13 violations of any order or regulation issued under

14 this Act.

15 (3) Section 1959 (7 U.S.C. 6208), relating to

16 the authority of the Secretary to make investiga17 tions, administer oaths and affirmations, and issue

18 subpoenas in connection with inquiries under this

19 Act.

20 SEC. 9. REFERENDA.

21 (a) INITIAL REFERENDUM.—

22 (1) REFERENDUM REQUIRED.—During the 60-

23 day period immediately preceding the proposed effec24 tive date of an order issued under section 4, the Sec25 retary shall conduct a referendum among kiwifruit

26 producers and importers who will be subject to as-
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1 sessments under the order, to ascertain whether pro2 ducers and importers approve of the implementation

3 of the order.

4 (2) APPROVAL OF ORDER.—The order shall be5 come effective, as provided in section 4, if the Sec6 retary determines that the order has been approved

7 by a majority of the producers and importers voting

8 in the referendum and these producers and import9 ers produce and import more than 50 percent of the

10 total volume of kiwifruit produced and imported by

11 persons voting in the referendum.

12 (b) SUBSEQUENT REFERENDA.—The Secretary may

13 periodically conduct a referendum to determine if kiwifruit

14 producers and importers favor the continuation, termi15 nation, or suspension of any order issued under section

16 4 and in effect at the time of the referendum.

17 (c) REQUIRED REFERENDA.—The Secretary shall

18 hold a referendum under subsection (b)—

19 (1) at the end of the six-year period beginning

20 on the effective date of the order and at the end of

21 every six-year period thereafter;

22 (2) at the request of the Board; and

23 (3) if not less than 40 percent of the kiwifruit

24 producers and importers subject to assessments
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1 under the order submit a petition requesting such a

2 referendum.

3 (d) VOTE.—Upon completion of a referendum under

4 subsection (b), the Secretary shall suspend or terminate

5 the order that was subject to the referendum at the end

6 of the marketing year if—

7 (1) the suspension or termination of the order

8 is favored by not less than a majority of the produc9 ers and importers voting in the referendum; and

10 (2) these producers and importers produce and

11 import more than 50 percent of the total volume of

12 kiwifruit produced and imported by persons voting

13 in the referendum.

14 (e) CONFIDENTIALITY.—The ballots and other infor15 mation or reports that reveal, or tend to reveal, the vote

16 of any person under this Act as well as the voting list

17 shall be held strictly confidential and shall not be dis18 closed.

19 SEC. 10. SUSPENSION AND TERMINATION OF ORDER BY

20 SECRETARY.

21 (a) UPON FINDING.—If the Secretary finds that an

22 order issued under section 4, or a provision of such an

23 order, obstructs or does not tend to effectuate the pur24 poses of this Act, the Secretary shall terminate or suspend

25 the operation of such order or provision.
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1 (b) LIMITATION.—The termination or suspension of

2 any order, or any provision thereof, shall not be considered

3 an order within the meaning of this Act.

4 SEC. 11. AUTHORIZATION OF APPROPRIATIONS.

5 There are authorized to be appropriated for each fis6 cal year such funds as are necessary to carry out this Act.

7 SEC. 12. REGULATIONS.

8 The Secretary may issue such regulations as are nec9 essary to carry out this Act.

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