H. R. 2854—176
(2) to determine whether any person has engaged or is
engaging in an act that constitutes a violation of this subtitle,
or an order, rule, or regulation issued under this subtitle.
(b) SUBPOENAS, OATHS, AND AFFIRMATIONS.—
(1) IN GENERAL.—For the purpose of an investigation under
subsection (a), the Secretary may administer oaths and affirma-
tions, subpoena witnesses, take evidence, and issue subpoenas
to require the production of any records that are relevant
to the inquiry. The attendance of witnesses and the production
of records may be required from any place in the United States.
(2) ADMINISTRATIVE
HEARINGS.—For the purpose of an
administrative hearing held under section 538 or 539, the
presiding officer is authorized to administer oaths and affirma-
tions, subpoena and compel the attendance of witnesses, take
evidence, and require the production of any records that are
relevant to the inquiry. The attendance of witnesses and the
production of records may be required from any place in the
United States.
(c) AID OF COURTS.—In the case of contumacy by, or refusal
to obey a subpoena issued to, any person, the Secretary may invoke
the aid of any court of the United States within the jurisdiction
of which the investigation or proceeding is carried on, or where
the person resides or carries on business, in order to enforce a
subpoena issued by the Secretary under subsection (b). The court
may issue an order requiring the person to comply with the sub-
poena.
(d) CONTEMPT.—A failure to obey an order of the court under
this section may be punished by the court as contempt of the
court.
(e) PROCESS.—Process may be served on a person in the judicial
district in which the person resides or carries on business or wher-
ever the person may be found.
(f) HEARING SITE.—The site of a hearing held under section
538 or 539 shall be in the judicial district where the person affected
by the hearing resides or has a principal place of business.
SEC. 541. SUSPENSION OR TERMINATION.
The Secretary shall, whenever the Secretary finds that an
order or a provision of an order obstructs or does not tend to
effectuate the declared policy of this subtitle, suspend or terminate
the operation of the order or provision. The suspension or termi-
nation of an order shall not be considered an order within the
meaning of this subtitle.
SEC. 542. REGULATIONS.
The Secretary may issue such regulations as are necessary
to carry out this subtitle.
SEC. 543. AUTHORIZATION OF APPROPRIATIONS.
(a) IN GENERAL.—There are authorized to be appropriated for
each fiscal year such sums as are necessary to carry out this
subtitle.
(b) ADMINISTRATIVE EXPENSES.—Funds appropriated under sub-
section (a) shall not be available for payment of the expenses
or expenditures of the Board in administering a provision of an
order issued under this subtitle.
H. R. 2854—177
Subtitle D—Kiwifruit
SEC. 551. SHORT TITLE.
This subtitle may be cited as the ‘‘National Kiwifruit Research,
Promotion, and Consumer Information Act’’.
SEC. 552. FINDINGS AND PURPOSES.
(a) FINDINGS.—Congress finds that—
(1) domestically produced kiwifruit are grown by many
individual producers;
(2) virtually all domestically produced kiwifruit are grown
in the State of California, although there is potential for produc-
tion in many other areas of the United States;
(3) kiwifruit move in interstate and foreign commerce, and
kiwifruit that do not move in channels of commerce directly
burden or affect interstate commerce;
(4) in recent years, large quantities of kiwifruit have been
imported into the United States;
(5) the maintenance and expansion of existing domestic
and foreign markets for kiwifruit, and the development of addi-
tional and improved markets for kiwifruit, are vital to the
welfare of kiwifruit producers and other persons concerned
with producing, marketing, and processing kiwifruit;
(6) a coordinated program of research, promotion, and
consumer information regarding kiwifruit is necessary for the
maintenance and development of the markets; and
(7) kiwifruit producers, handlers, and importers are unable
to implement and finance such a program without cooperative
action.
(b) PURPOSES.—The purposes of this subtitle are—
(1) to authorize the establishment of an orderly procedure
for the development and financing (through an assessment)
of an effective and coordinated program of research, promotion,
and consumer information regarding kiwifruit;
(2) to use the program to strengthen the position of the
kiwifruit industry in domestic and foreign markets and main-
tain, develop, and expand markets for kiwifruit; and
(3) to treat domestically produced kiwifruit and imported
kiwifruit equitably.
SEC. 553. DEFINITIONS.
In this subtitle (unless the context otherwise requires):
(1) BOARD.—The term ‘‘Board’’ means the National
Kiwifruit Board established under section 555.
(2) 
CONSUMER
INFORMATION.—The 
term 
‘‘consumer
information’’ means any action taken to provide information
to, and broaden the understanding of, the general public regard-
ing the consumption, use, nutritional attributes, and care of
kiwifruit.
(3) EXPORTER.—The term ‘‘exporter’’ means any person
from outside the United States who exports kiwifruit into the
United States.
(4) HANDLER.—The term ‘‘handler’’ means any person,
excluding a common carrier, engaged in the business of buying
and selling, packing, marketing, or distributing kiwifruit as
specified in the order.
H. R. 2854—178
(5) IMPORTER.—The term ‘‘importer’’ means any person who
imports kiwifruit into the United States.
(6) KIWIFRUIT.—The term ‘‘kiwifruit’’ means all varieties
of fresh kiwifruit grown in or imported into the United States.
(7) MARKETING.—The term ‘‘marketing’’ means the sale
or other disposition of kiwifruit into interstate, foreign, or intra-
state commerce by buying, marketing, distribution, or otherwise
placing kiwifruit into commerce.
(8) ORDER.—The term ‘‘order’’ means a kiwifruit research,
promotion, and consumer information order issued by the Sec-
retary under section 554.
(9) PERSON.—The term ‘‘person’’ means any individual,
group of individuals, partnership, corporation, association,
cooperative, or other legal entity.
(10) PROCESSING.—The term ‘‘processing’’ means canning,
fermenting, distilling, extracting, preserving, grinding, crush-
ing, or in any manner changing the form of kiwifruit for the
purpose of preparing the kiwifruit for market or marketing
the kiwifruit.
(11) PRODUCER.—The term ‘‘producer’’ means any person
who grows kiwifruit in the United States for sale in commerce.
(12) PROMOTION.—The term ‘‘promotion’’ means any action
taken under this subtitle (including paid advertising) to present
a favorable image of kiwifruit to the general public for the
purpose of improving the competitive position of kiwifruit and
stimulating the sale of kiwifruit.
(13) RESEARCH.—The term ‘‘research’’ means any type of
research relating to the use, nutritional value, and marketing
of kiwifruit conducted for the purpose of advancing the image,
desirability, marketability, or quality of kiwifruit.
(14) SECRETARY.—The term ‘‘Secretary’’ means the Sec-
retary of Agriculture.
(15) UNITED STATES.—The term ‘‘United States’’ means the
50 States of the United States, the District of Columbia, and
the Commonwealth of Puerto Rico.
SEC. 554. ISSUANCE OF ORDERS.
(a) ISSUANCE.—To effectuate the purposes of this subtitle speci-
fied in section 552(b), the Secretary shall issue an order applicable
to producers, handlers, and importers of kiwifruit. Any such order
shall be national in scope. Not more than 1 order shall be in
effect under this subtitle at any 1 time.
(b) PROCEDURE.—
(1) PROPOSAL FOR ISSUANCE OF ORDER.—Any person that
will be affected by this subtitle may request the issuance of,
and submit a proposal for, an order under this subtitle.
(2) PROPOSED ORDER.—Not later than 90 days after the
receipt of a request and proposal for an order, the Secretary
shall publish a proposed order and give due notice and oppor-
tunity for public comment on the proposed order.
(3) ISSUANCE OF ORDER.—After notice and opportunity for
public comment are provided under paragraph (2), the Secretary
shall issue an order, taking into consideration the comments
received and including in the order provisions necessary to
ensure that the order is in conformity with this subtitle.
H. R. 2854—179
(c) AMENDMENTS.—The Secretary may amend any order issued
under this section. The provisions of this subtitle applicable to
an order shall be applicable to an amendment to an order.
SEC. 555. NATIONAL KIWIFRUIT BOARD.
(a) MEMBERSHIP.—An order issued by the Secretary under sec-
tion 554 shall provide for the establishment of a National Kiwifruit
Board that consists of the following 11 members:
(1) 6 members who are producers (or representatives of
producers) and who are not exempt from an assessment under
section 556(b).
(2) 4 members who are importers (or representatives of
importers) and who are not exempt from an assessment under
section 556(b) or are exporters (or representatives of exporters).
(3) 1 member appointed from the general public.
(b) ADJUSTMENT OF MEMBERSHIP.—
(1) IN GENERAL.—Subject to the 11-member limit and to
paragraph (2), the Secretary may adjust membership on the
Board to accommodate changes in production and import levels
of kiwifruit.
(2) NUMBER OF PRODUCER MEMBERS.—Producers shall com-
prise not less than 51 percent of the membership of the Board.
(c) APPOINTMENT AND NOMINATION.—
(1) APPOINTMENT.—The Secretary shall appoint the mem-
bers of the Board from nominations submitted in accordance
with this subsection.
(2) PRODUCERS.—The members referred to in subsection
(a)(1) shall be appointed from individuals nominated by produc-
ers.
(3) IMPORTERS AND EXPORTERS.—The members referred to
in subsection (a)(2) shall be appointed from individuals nomi-
nated by importers or exporters.
(4) PUBLIC
REPRESENTATIVE.—The public representative
shall be appointed from nominations submitted by other mem-
bers of the Board.
(5) FAILURE TO NOMINATE.—If producers, importers, and
exporters fail to nominate individuals for appointment, the
Secretary may appoint members and alternates on a basis
provided for in the order. If the Board fails to nominate a
public representative, the member may be appointed by the
Secretary without a nomination.
(d) ALTERNATES.—The Secretary shall appoint an alternate for
each member of the Board. An alternate shall—
(1) be appointed in the same manner as the member for
whom the individual is an alternate; and
(2) serve on the Board if the member is absent from a
meeting or is disqualified under subsection (f).
(e) TERMS.—A member of the Board shall be appointed for
a term of 3 years. No member may serve more than 2 consecutive
3-year terms, except that of the members first appointed—
(1) 5 members shall be appointed for a term of 2 years;
and
(2) 6 members shall be appointed for a term of 3 years.
(f) DISQUALIFICATION.—If a member or alternate of the Board
who was appointed as a producer, importer, exporter, or public
representative member ceases to belong to the group for which
H. R. 2854—180
the member was appointed, the member or alternate shall be dis-
qualified from serving on the Board.
(g) COMPENSATION.—A member or alternate of the Board shall
serve without pay.
(h) GENERAL POWERS AND DUTIES.—The Board shall—
(1) administer an order issued by the Secretary under
section 554, and an amendment to the order, in accordance
with the order and amendment and this subtitle;
(2) prescribe rules and regulations to carry out the order;
(3) meet, organize, and select from among members of
the Board a chairperson, other officers, and committees and
subcommittees, as the Board determines appropriate;
(4) receive, investigate, and report to the Secretary accounts
of violations of the order;
(5) make recommendations to the Secretary with respect
to an amendment that should be made to the order; and
(6) employ or contract with a manager and staff to assist
in administering the order, except that, to reduce administra-
tive costs and increase efficiency, the Board shall seek, to
the extent practicable, to employ or contract with personnel
who are already associated with organizations involved in
promoting kiwifruit that are chartered by a State, the District
of Columbia, or the Commonwealth of Puerto Rico.
SEC. 556. REQUIRED TERMS IN ORDER.
(a) BUDGETS AND PLANS.—
(1) IN GENERAL.—An order issued under section 554 shall
provide for periodic budgets and plans in accordance with this
subsection.
(2) BUDGETS.—The Board shall prepare and submit to the
Secretary a budget prior to the beginning of the fiscal year
of the anticipated expenses and disbursements of the Board
in the administration of the order, including probable costs
of research, promotion, and consumer information. A budget
shall become effective on a 2⁄3-vote of a quorum of the Board
and approval by the Secretary.
(3) PLANS.—Each budget shall include a plan for research,
promotion, and consumer information regarding kiwifruit. A
plan under this paragraph shall become effective on approval
by the Secretary. The Board may enter into contracts and
agreements, on approval by the Secretary, for—
(A) the development and carrying out of the plan;
and
(B) the payment of the cost of the plan, with funds
collected pursuant to this subtitle.
(b) ASSESSMENTS.—
(1) IN GENERAL.—The order shall provide for the imposition
and collection of assessments with regard to the production
and importation of kiwifruit in accordance with this subsection.
(2) RATE.—The assessment rate shall be the rate that
is recommended by a 2⁄3-vote of a quorum of the Board and
approved by the Secretary, except that the rate shall not exceed
$0.10 per 7-pound tray of kiwifruit or an equivalent rate.
(3) COLLECTION BY FIRST HANDLERS.—Except as provided
in paragraph (5), the first handler of kiwifruit shall—
H. R. 2854—182
tion, maintenance, and functioning of the Board may not exceed
30 percent of the budget for a year.
(d) FALSE CLAIMS.—The order shall provide that any promotion
funded with assessments collected under subsection (b) may not
make—
(1) any false claims on behalf of kiwifruit; and
(2) any false statements with respect to the attributes
or use of any product that competes with kiwifruit for sale
in commerce.
(e) PROHIBITION ON USE OF FUNDS.—The order shall provide
that funds collected by the Board under this subtitle through assess-
ments may not, in any manner, be used for the purpose of influenc-
ing legislation or governmental policy or action, except for making
recommendations to the Secretary as provided for under this sub-
title.
(f) BOOKS, RECORDS, AND REPORTS.—
(1) BOARD.—The order shall require the Board—
(A) to maintain books and records with respect to
the receipt and disbursement of funds received by the
Board;
(B) to submit to the Secretary from time to time such
reports as the Secretary may require for appropriate
accounting; and
(C) to submit to the Secretary at the end of each
fiscal year a complete audit report by an independent audi-
tor regarding the activities of the Board during the fiscal
year.
(2) OTHERS.—To make information and data available to
the Board and the Secretary that is appropriate or necessary
for the effectuation, administration, or enforcement of this sub-
title (or any order or regulation issued under this subtitle),
the order shall require handlers and importers who are respon-
sible for the collection, payment, or remittance of assessments
under subsection (b)—
(A) to maintain and make available for inspection by
the employees and agents of the Board and the Secretary
such books and records as may be required by the order;
and
(B) to file, at the times and in the manner and content
prescribed by the order, reports regarding the collection,
payment, or remittance of the assessments.
(g) CONFIDENTIALITY.—
(1) IN GENERAL.—The order shall require that all informa-
tion obtained pursuant to subsection (f)(2) be kept confidential
by all officers, employees, and agents of the Department of
Agriculture and of the Board. Only such information as the
Secretary considers relevant shall be disclosed to the public
and only in a suit or administrative hearing, brought at the
request of the Secretary or to which the Secretary or any
officer of the United States is a party, involving the order
with respect to which the information was furnished or
acquired.
(2) LIMITATIONS.—Nothing in this subsection prohibits—
(A) the issuance of general statements based on the
reports of a number of handlers and importers subject
to an order, if the statements do not identify the informa-
tion furnished by any person; or
H. R. 2854—183
(B) the publication, by direction of the Secretary, of
the name of any person violating an order issued under
section 554(a), together with a statement of the particular
provisions of the order violated by the person.
(3) PENALTY.—Any person who willfully violates this sub-
section, on conviction, shall be subject to a fine of not more
than $1,000 or to imprisonment for not more than 1 year,
or both, and, if the person is a member, officer, or agent
of the Board or an employee of the Department of Agriculture,
shall be removed from office.
(h) WITHHOLDING OF INFORMATION.—Nothing in this subtitle
authorizes the withholding of information from Congress.
SEC. 557. PERMISSIVE TERMS IN ORDER.
(a) PERMISSIVE TERMS.—On the recommendation of the Board
and with the approval of the Secretary, an order issued under
section 554 may include the terms and conditions specified in this
section and such additional terms and conditions as the Secretary
considers necessary to effectuate the other provisions of the order
and are incidental to, and not inconsistent with, this subtitle.
(b) ALTERNATIVE PAYMENT AND REPORTING SCHEDULES.—The
order may authorize the Board to designate different handler pay-
ment and reporting schedules to recognize differences in marketing
practices and procedures.
(c) WORKING GROUPS.—The order may authorize the Board
to convene working groups drawn from producers, handlers, import-
ers, exporters, or the general public and utilize the expertise of
the groups to assist in the development of research and marketing
programs for kiwifruit.
(d) RESERVE FUNDS.—The order may authorize the Board to
accumulate reserve funds from assessments collected pursuant to
section 556(b) to permit an effective and continuous coordinated
program of research, promotion, and consumer information in years
in which production and assessment income may be reduced, except
that any reserve fund may not exceed the amount budgeted for
operation of this subtitle for 1 year.
(e) PROMOTION ACTIVITIES OUTSIDE UNITED STATES.—The order
may authorize the Board to use, with the approval of the Secretary,
funds collected under section 556(b) and funds from other sources
for the development and expansion of sales in foreign markets
of kiwifruit produced in the United States.
SEC. 558. PETITION AND REVIEW.
(a) PETITION.—
(1) IN GENERAL.—A person subject to an order may file
with the Secretary a petition—
(A) stating that the order, a provision of the order,
or an obligation imposed in connection with the order is
not in accordance with law; and
(B) requesting a modification of the order or an exemp-
tion from the order.
(2) HEARINGS.—A person submitting a petition under para-
graph (1) shall be given an opportunity for a hearing on the
petition, in accordance with regulations issued by the Secretary.
(3) RULING.—After the hearing, the Secretary shall issue
a ruling on the petition which shall be final if the petition
is in accordance with law.
H. R. 2854—184
(4) LIMITATION ON PETITION.—Any petition filed under this
subtitle challenging an order, or any obligation imposed in
connection with an order, shall be filed not later than 2 years
after the effective date of the order or imposition of the obliga-
tion.
(b) REVIEW.—
(1) COMMENCEMENT OF ACTION.—The district court of the
United States for any district in which the person who is
a petitioner under subsection (a) resides or carries on business
is vested with jurisdiction to review the ruling on the petition
of the person, if a complaint for that purpose is filed not
later than 20 days after the date of the entry of a ruling
by the Secretary under subsection (a).
(2) PROCESS.—Service of process in the proceedings shall
be conducted in accordance with the Federal Rules of Civil
Procedure.
(3) REMANDS.—If the court determines that the ruling is
not in accordance with law, the court shall remand the matter
to the Secretary with directions—
(A) to make such ruling as the court shall determine
to be in accordance with law; or
(B) to take such further action as, in the opinion of
the court, the law requires.
(4) 
ENFORCEMENT.—The 
pendency 
of 
a 
proceeding
instituted pursuant to subsection (a) shall not impede, hinder,
or delay the Attorney General or the Secretary from obtaining
relief pursuant to section 559.
SEC. 559. ENFORCEMENT.
(a) JURISDICTION.—A district court of the United States shall
have jurisdiction specifically to enforce, and to prevent and restrain
any person from violating, any order or regulation made or issued
by the Secretary under this subtitle.
(b) REFERRAL TO ATTORNEY GENERAL.—A civil action authorized
to be brought under this section shall be referred to the Attorney
General for appropriate action, except that the Secretary is not
required to refer to the Attorney General a violation of this subtitle,
or any order or regulation issued under this subtitle, if the Secretary
believes that the administration and enforcement of this subtitle
would be adequately served by administrative action under sub-
section (c) or suitable written notice or warning to the person
committing the violation.
(c) CIVIL PENALTIES AND ORDERS.—
(1) CIVIL
PENALTIES.—Any person who willfully violates
any provision of any order or regulation issued by the Secretary
under this subtitle, or who fails or refuses to pay, collect,
or remit any assessment or fee duly required of the person
under the order or regulation, may be assessed a civil penalty
by the Secretary of not less than $500 nor more than $5,000
for each such violation. Each violation shall be a separate
offense.
(2) CEASE-AND-DESIST ORDERS.—In addition to or in lieu
of the civil penalty, the Secretary may issue an order requiring
the person to cease and desist from continuing the violation.
(3) NOTICE AND HEARING.—No order assessing a civil pen-
alty or cease-and-desist order may be issued by the Secretary
under this subsection unless the Secretary gives the person
H. R. 2854—185
against whom the order is issued notice and opportunity for
a hearing on the record before the Secretary with respect to
the violation.
(4) FINALITY.—The order of the Secretary assessing a pen-
alty or imposing a cease-and-desist order shall be final and
conclusive unless the person against whom the order is issued
files an appeal of the order in the appropriate district court
of the United States, in accordance with subsection (d).
(d) REVIEW BY UNITED STATES DISTRICT COURT.—
(1) COMMENCEMENT OF ACTION.—Any person against whom
a violation is found and a civil penalty assessed or cease-
and-desist order issued under subsection (c) may obtain review
of the penalty or cease-and-desist order in the district court
of the United States for the district in which the person resides
or carries on business, or the United States District Court
for the District of Columbia, by—
(A) filing a notice of appeal in the court not later
than 30 days after the date on which the penalty is assessed
or cease-and-desist order issued; and
(B) simultaneously sending a copy of the notice by
certified mail to the Secretary.
(2) RECORD.—The Secretary shall promptly file in the court
a certified copy of the record on which the Secretary found
that the person committed the violation.
(3) STANDARD OF REVIEW.—A finding of the Secretary shall
be set aside only if the finding is found to be unsupported
by substantial evidence.
(e) FAILURE TO OBEY CEASE-AND-DESIST ORDERS.—Any person
who fails to obey a cease-and-desist order issued by the Secretary
after the cease-and-desist order has become final and unappealable,
or after the appropriate United States district court has entered
a final judgment in favor of the Secretary, shall be subject to
a civil penalty assessed by the Secretary, after opportunity for
a hearing and for judicial review under the procedures specified
in subsections (c) and (d), of not more than $500 for each offense.
Each day during which the failure continues shall be considered
a separate violation of the cease-and-desist order.
(f) FAILURE TO PAY PENALTIES.—If a person fails to pay an
assessment of a civil penalty after the assessment has become
a final and unappealable order issued by the Secretary, or after
the appropriate United States district court has entered final judg-
ment in favor of the Secretary, the Secretary shall refer the matter
to the Attorney General for recovery of the amount assessed in
the district court of the United States for any district in which
the person resides or carries on business. In an action for recovery,
the validity and appropriateness of the final order imposing the
civil penalty shall not be subject to review.
SEC. 560. INVESTIGATIONS AND POWER TO SUBPOENA.
(a) IN GENERAL.—The Secretary may make such investigations
as the Secretary considers necessary—
(1) for the effective carrying out of the responsibilities
of the Secretary under this subtitle; or
(2) to determine whether a person subject to this subtitle
has engaged or is engaging in any act that constitutes a viola-
tion of this subtitle, or any order, rule, or regulation issued
under this subtitle.