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(6) CLAIM OF EXEMPTION.—To claim an exemp-
tion under paragraph (5) for a particular year, a
person shall—
(A) submit an application to the Board
stating the basis for the exemption and certifying
that the quantity of kiwifruit produced, im-
ported, or sold by the person will not exceed any
poundage limitation required for the exemption
in the year; or
(B) be on a list of approved processors de-
veloped by the Board.
(c) USE OF ASSESSMENTS.
(1) AUTHORIZED USES.—The order shall provide
that funds paid to the Board as assessments under
subsection (b) may be used by the Board—
(A) to pay for research, promotion, and
consumer information described in the budget of
the Board under subsection (a) and for other ex-
penses incurred by the Board in the administra-
tion of an order;
(B) to pay such other expenses for the ad-
ministration, maintenance, and functioning of
the Board, including any enforcement efforts for
the collection of assessments as may be author-
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ized by the Secretary, including interest and
penalties for late payments; and
(C) to fund a reserve established under sec-
tion 947(d).
(2) REQUIRED USES.—The order shall provide
that funds paid to the Board as assessments under
subsection (b) shall be used by the Board—
(A) to pay the expenses incurred by the Sec-
retary, including salaries and expenses of Fed-
eral Government employees, in implementing
and administering the order; and
(B) to reimburse the Secretary for any ex-
penses incurred by the Secretary in conducting
referenda under this subtitle.
(3) LIMITATION ON USE OF ASSESSMENTS.—Ex-
cept for the first year of operation of the Board, ex-
penses for the administration, 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 sub-
section (b) may not make—
(1) any false claims on behalf of kiwifruit; and
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(2) any false statements with respect to the at-
tributes 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 assessments may not, in any manner, be used for
the purpose of influencing legislation or governmental pol-
icy or action, except for making recommendations to the
Secretary as provided for under this subtitle.
(f) BOOKS, RECORDS, AND REPORTS.—
(1) 
BOARD.—The 
order 
shall 
require 
the
Board—
(A) to maintain books and records with re-
spect to the receipt and disbursement of funds re-
ceived 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 auditor 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 ap-
propriate or necessary for the effectuation, adminis-
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tration, or enforcement of this subtitle (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 as-
sessments under subsection (b)—
(A) to maintain and make available for in-
spection 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 re-
garding the collection, payment, or remittance of
the assessments.
(g) CONFIDENTIALITY.—
(1) IN GENERAL.—The order shall require that
all information obtained pursuant to subsection (f)(2)
be kept confidential by all officers and employees and
agents of the Department and of the Board. Only such
information as the Secretary considers relevant shall
be disclosed to the public and only in a suit or ad-
ministrative 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 ac-
quired.
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(2) LIMITATIONS.—Nothing in this subsection
prohibits—
(A) issuance of general statements based on
the reports of a number of handlers and import-
ers subject to an order, if the statements do not
identify the information furnished by any per-
son; or
(B) the publication, by direction of the Sec-
retary, of the name of any person violating an
order issued under section 944(a), together with
a statement of the particular provisions of the
order violated by the person.
(3) PENALTY.—Any person who willfully violates
this subsection, 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 em-
ployee of the Department, shall be removed from of-
fice.
(h) WITHHOLDING INFORMATION.—Nothing in this
subtitle authorizes the withholding of information from
Congress.
SEC. 947. PERMISSIVE TERMS IN ORDER.
(a) PERMISSIVE TERMS.—On the recommendation of
the Board and with the approval of the Secretary, an order
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issued under section 944 may include the terms and condi-
tions specified in this section and such additional terms
and conditions as the Secretary considers necessary to effec-
tuate the other provisions of the order and are incidental
to, and not inconsistent with, this subtitle.
(b) ALTERNATIVE PAYMENT AND REPORTING SCHED-
ULES.—The order may authorize the Board to designate
different handler payment and reporting schedules to recog-
nize differences in marketing practices and procedures.
(c) WORKING GROUPS.—The order may authorize the
Board to convene working groups drawn from producers,
handlers, importers, exporters, or the general public and
utilize the expertise of the groups to assist in the develop-
ment of research and marketing programs for kiwifruit.
(d) RESERVE FUNDS.—The order may authorize the
Board to accumulate reserve funds from assessments col-
lected pursuant to section 946(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 re-
serve fund may not exceed the amount budgeted for oper-
ation 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
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946(b) and funds from other sources for the development
and expansion of sales in foreign markets of kiwifruit pro-
duced in the United States.
SEC. 948. 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 exemption from the order.
(2) HEARINGS.—A person submitting a petition
under paragraph (1) shall be given an opportunity
for a hearing on the petition, in accordance with reg-
ulations issued by the Secretary.
(3) RULING.—After the hearing, the Secretary
shall make a ruling on the petition which shall be
final if the petition is in accordance with law.
(4) LIMITATION
ON
PETITION.—Any petition
filed under this subtitle challenging an order, or any
obligation imposed in connected with an order, shall
be filed not later than 2 years after the effective date
of the order or obligation.
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SEC. 949. 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 ac-
tion authorized to be brought under this section shall be
referred to the Attorney General for appropriate action, ex-
cept that the Secretary is not required to refer to the Attor-
ney General a violation of this subtitle, or any order or
regulation issued under this subtitle, if the Secretary be-
lieves that the administration and enforcement of this sub-
title would be adequately served by administrative action
under subsection (c) or suitable written notice or warning
to any person committing the violation.
(c) CIVIL PENALTIES AND ORDERS.—
(1) CIVIL PENALTIES.—Any person who willfully
violates any provision of any order or regulation is-
sued 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 reg-
ulation, may be assessed a civil penalty by the Sec-
retary of not less than $500 nor more than $5,000 for
each such violation. Each violation shall be a separate
offense.
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(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 penalty or cease-and-desist order may be issued
by the Secretary under this subsection unless the Sec-
retary gives the person against whom the order is is-
sued notice and opportunity for a hearing on the
record before the Secretary with respect to the viola-
tion.
(4) FINALITY.—The order of the Secretary assess-
ing a penalty or imposing a cease-and-desist order
shall be final and conclusive unless the person against
whom the order is issued files an appeal from the
order with the appropriate district court of the Unit-
ed 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 pen-
alty assessed or cease-and-desist order issued under
subsection (c) may obtain review of the penalty or
order in the district court of the United States for the
district in which the person resides or does business,
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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 of the order;
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 had committed a
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 ORDERS.—Any person who fails
to obey a cease-and-desist order issued by the Secretary
after the 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 oppor-
tunity for a hearing and for judicial review under the pro-
cedures specified in subsections (c) and (d), of not more
than $500 for each offense. Each day during which the fail-
ure continues shall be considered a separate violation of the
order.
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(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 judgment 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 in any district in which the person re-
sides or conducts business. In the action, the validity and
appropriateness of the final order imposing the civil pen-
alty shall not be subject to review.
SEC. 950. INVESTIGATIONS AND POWER TO SUBPOENA.
(a) IN GENERAL.—The Secretary may make such in-
vestigations as the Secretary considers necessary—
(1) for the effective carrying out of the respon-
sibilities 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 violation of this subtitle, or any order,
rule, or regulation issued under this subtitle.
(b) POWER TO SUBPOENA.—
(1) INVESTIGATIONS.—For the purpose of an in-
vestigation made under subsection (a), the Secretary
may administer oaths and affirmations and may
issue subpoenas to require the production of any
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records that are relevant to the inquiry. The produc-
tion of any such records may be required from any
place in the United States.
(2) ADMINISTRATIVE HEARINGS.—For the pur-
pose of an administrative hearing held under section
948 or 949, the presiding officer is authorized to ad-
minister oaths and affirmations, subpoena witnesses,
compel the attendance of witnesses, take evidence, and
require the production of any records that are rel-
evant to the inquiry. The attendance of witnesses and
the production of any such 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 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 busi-
ness, to enforce a subpoena issued by the Secretary under
subsection (b). The court may issue an order requiring the
person to comply with the subpoena.
(d) CONTEMPT.—Any failure to obey the order of the
court may be punished by the court as a contempt of the
order.
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(e) PROCESS.—Process in any such case may be served
in the judicial district of which the person resides or con-
ducts business or wherever the person may be found.
(f) HEARING SITE.—The site of any hearing held
under section 948 or 949 shall be within the judicial district
where the person is an inhabitant or has a principal place
of business.
SEC. 951. REFERENDA.
(a) INITIAL REFERENDUM.—
(1) REFERENDUM REQUIRED.—During the 60-
day period immediately preceding the proposed effec-
tive date of an order issued under section 944, the
Secretary shall conduct a referendum among kiwifruit
producers and importers who will be subject to assess-
ments under the order, to ascertain whether producers
and importers approve the implementation of the
order.
(2) APPROVAL OF ORDER.—The order shall be-
come effective, as provided in section 944, if the Sec-
retary determines that—
(A) the order has been approved by a ma-
jority of the producers and importers voting in
the referendum; and
(B) the producers and importers produce
and import more than 50 percent of the total