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ASSEMBLY, No. 3851

STATE OF NEW JERSEY

211th LEGISLATURE

INTRODUCED MARCH 1, 2005

Sponsored by:

Assemblyman WILFREDO CARABALLO

District 29 (Essex and Union)n)

SYNOPSIS

    Regulates certain rental-purchase agreements.

CURRENT VERSION OF TEXT

    As introduced.

An Act concerning rental-purchase agreements and supplementing P.L.1960, c.39 (C.56:8-1 et seq.).

    Be It Enacted by the Senate and General Assembly of the State of New Jersey:

    1. This act shall be known and may be cited as the "New Jersey Rental-Purchase Consumer Protection Act."

    2. The Legislature finds and declares:

    a. There is a need for consumers to be able to rent personal property for personal, family and household purposes, with the option of returning the property at the end of any rental period or acquiring ownership of the property after renting it for a period of time.

    b. Consumers who are interested in entering into rental-purchase agreements are entitled to know the terms and conditions on which the property is being offered and, to that end, appropriate disclosures regarding the nature, cost and other terms of these transactions should be required in advertisements, on price cards and in rental-purchase agreements.

    c. Consumers who choose to enter into rental-purchase agreements are further entitled to certain substantive rights, services and protections as part of that transaction, including the right to reduced rental payments if the consumer's income is reduced, the right to maintenance and service of the property during the rental term, grace periods for late payments and the right to reinstate terminated agreements without losing the benefit of rental payments previously made.

    d. Consumers and merchants alike will benefit from legislation clarifying their respective rights and responsibilities in rental-purchase transactions.

    3. As used in this act:

    "Advertisement" means a commercial message in any medium that aids, promotes or assists, directly or indirectly, in the consummation of a rental-purchase agreement. This term does not include price tags, window signs or other in-store merchandising aids.

    "Cash price" means the price for which the merchant would sell the rented property to a consumer for cash on the date of the rental-purchase agreement. The cash price of rented property shall be subject to the limits established in section 11 of this act.

    "Consumer" means a natural person who rents personal property under a rental-purchase agreement.

    "Director" means the Director of the Division of Consumer Affairs in the Department of Law and Public Safety.

    "Merchant" means a person who regularly provides the use of property through rental-purchase agreements and to whom rental payments are initially payable on the face of the rental-purchase agreement.

    "Rental-purchase agreement" means an agreement between a merchant and a consumer for the use of personal property primarily for personal, family or household purposes, for an initial period of four months or less, that is automatically renewable with each payment after the initial rental period, and which permits but does not obligate the consumer to renew the agreement beyond the initial term or to acquire ownership of the property. A rental-purchase agreement shall not be construed to be, nor governed by the laws relating to:

    (1) A retail installment contract as defined in subsection (b) of section 1 of P.L.1960, c.40 (C.17:16C-1);

    (2) A retail charge account as defined in subsection (r) of section 1 of P.L.1960, c.40 (C.17:16C-1);

    (3) A retail installment sale of goods or retail installment contract for the sale of goods pursuant to P.L.1968, c.223 (C.17:16C-61.1 et seq.);

    (4) A security interest as defined in subsection (37) of N.J.S. 12A:1-201;

    (5) A loan of money or other property, a forbearance of debt, an extension of credit, or any other transaction governed under N.J.S. 2C:21-19; or

    (6) A loan of money or other property, a forbearance of debt, an extension of credit, or any other transaction governed under R.S. 31:1-1 et seq.

    4. For each rental-purchase agreement, the merchant shall disclose the following items, as applicable, in the agreement:

    a. The name and address of the consumer, the name, business address and telephone number of the merchant, and the date on which the agreement is executed;

    b. A brief description of the rented property, sufficient to identify the property to the consumer and the merchant, including an identification number, if applicable;

    c. Whether the rented property is new or previously rented;

    d. The amount of any initial payment required of the consumer at the time the agreement is executed or the rented property is delivered, whichever is later, including any application or processing charge or fee, insurance premium or liability waiver fee, or fees for other optional services agreed to by the consumer and any applicable tax;

    e. The periodic rental rate for the rented property;

    f. The cash price of the rented property;

    g. The total number, total dollar amount and timing of all periodic payments necessary to acquire ownership of the rented property;

    h. The difference between the cash price of the rented property and the total dollar amount of all periodic payments necessary to acquire ownership of the rented property, which amount shall be denominated "cost of lease services";

    i. A statement that the total dollar amount of periodic payments necessary to acquire ownership of the rented property does not include other charges that a consumer may incur, such as late payment fees, processing fees, default, pickup and reinstatement fees or charges and applicable taxes, which charges shall be separately identified in the rental-purchase agreement, and the dollar amount of each such charge disclosed;

    j. A statement that the consumer will not acquire ownership of the rented property unless the consumer has paid the total dollar amount of periodic payments necessary to acquire ownership of the rented property or has exercised the consumer's early purchase option;

    k. A statement that the consumer may have cash or credit purchase options that may result in a lower cost to acquire ownership of the rented goods;

    l. A statement clearly explaining the consumer's options for acquiring ownership of the rented property, including a statement that the consumer has the right to exercise an early purchase option pursuant to section 12 of this act. The statement shall include a clear summary of the terms of the early purchase option and shall be accompanied by a statement or a chart showing the amount required to exercise the consumer's early purchase option after each periodic payment is made pursuant to the rental-purchase agreement;

    m. Whether the consumer is liable for loss or damage to the merchandise and, if so, the maximum amount for which the consumer may be liable, which in the case of loss shall in no event be greater than the amount the consumer would have paid to exercise an early purchase option pursuant to section 12 of this act. In the case of damage to the merchandise, other than normal wear and tear, the consumer shall be liable for the lesser of the amount the consumer would have paid to exercise an early purchase option pursuant to section 12 of this act or the cost of the repair as determined by the merchant;

    n. A statement identifying the merchant as the party responsible for maintaining and servicing the rented property while it is being rented, a description of that responsibility, and a statement that, if any part of a manufacturer's express warranty covers the rented property at the time the consumer acquires ownership, it shall be transferred to the consumer if permitted by the terms of the warranty;

    o. A statement that the consumer may terminate the rental-purchase agreement at any time without penalty by voluntarily surrendering or returning the rented property to the merchant in good repair, fair wear and tear excepted, upon the expiration of any rental term, along with the payment of any past due rental payments and accrued fees or charges;

    p. The consumer's right to reinstate a terminated agreement pursuant to section 10 of this act; and

    q. The grace periods and late payment fees that may apply to late payments pursuant to section 9 of this act.

    5. a. A merchant shall disclose the information required by section 4 of this act to the consumer at or prior to the time the rental-purchase agreement is executed by the consumer.

    b. The disclosures required by section 4 of this act shall be made in writing, on a form, the format and wording of which may be prescribed by the director by regulation, consistent with and limited to the requirements of section 4 of this act. A merchant may, at its option, disclose more information than is required by section 4 of this act, so long as the additional disclosures are made clearly and conspicuously in writing as part of the rental-purchase agreement.

    c. In a transaction involving more than one merchant, only one merchant shall make the disclosures required by section 4 of this act, but all merchants involved in a rental-purchase agreement shall be bound by those disclosures.

    6. a. The merchant shall deliver to the consumer a copy of the completed rental-purchase agreement and all of the documents that the merchant requests the consumer to sign at the time that they are signed by the consumer. The rental-purchase agreement shall not be enforceable against the consumer until the consumer has received a signed copy.

    b. If a merchant advertises in a language other than English, or if a language other than English is used in any oral sales presentation or in negotiations leading to the execution of a rental-purchase agreement, the merchant shall, at the request of a consumer, offer a rental-purchase agreement written in the language used in the advertisement, oral sales presentation or negotiations.

    c. Except as otherwise required by this section, a rental-purchase agreement shall be written in plain English.

    7. During the term of any rental-purchase agreement, a merchant shall:

    a. Upon request by a consumer, provide a written receipt for each payment made by cash or money order;

    b. Upon request by a consumer, provide a written statement of account within seven days of the consumer's request;

    c. Maintain the rented property in good working condition. If a necessary repair cannot be completed within a reasonable time, the merchant shall provide replacement property for the consumer to use until the original property can be repaired. A merchant is not required to repair or replace property that has been damaged as a result of improper use or a negligent or intentional act of the consumer. All replacement property shall be comparable in quality, age, condition, and warranty coverage to the replaced property; and

    d. Upon written request by a consumer, during the term of a rental-purchase agreement and for a period of 12 months after the consumer made the last payment, provide a copy of the consumer's payment history to a financial institution, consumer credit reporting agency or other third person designated by the consumer.

    8. a. If a consumer experiences an interruption or reduction of 25% or more of income due to involuntary job loss, involuntary reduced employment, illness, pregnancy or disability, the merchant shall reduce the amount of each rental payment by the same percentage that the consumer's income has been diminished, up to 50% of the rental payment, for the period during which the consumer's income is interrupted or reduced, but only if:

    (1) The rental payments actually made by the consumer are equal to or greater than one-half the total of payments necessary to acquire ownership of the rented property; and

    (2) The consumer requests the reduction in rental payment amount and provides the merchant with reasonable evidence as to the amount and cause of the interruption or reduction in income.

    b. If the amount of each rental payment is reduced pursuant to this section, the number of payments necessary to acquire ownership may be increased, provided that the total dollar amount of payments necessary to acquire ownership of the rented property shall not be increased and the rights and duties of the consumer and merchant shall not otherwise be affected.

    c. If the consumer's income is restored, the merchant may increase the amount of each rental payment, but in no event shall the amount of a rental payment or the total dollar amount of payments necessary to acquire ownership of the rented property exceed the amounts disclosed in the rental-purchase agreement. At reasonable intervals following the initial reduction in rental payments pursuant to this section, the merchant may require the consumer to provide evidence of the consumer's income, and that the cause of the interruption or reduction in income still exists.

    9. A merchant may require a consumer to pay a late fee if, at the end of any rental term, the consumer fails to voluntarily surrender or return the rented property to the merchant or renew the rental-purchase agreement for an additional term, subject to the following limitations:

    a. For rental-purchase agreements with weekly renewal terms, no late fee shall be assessed until the payment is made more than two calendar days past due;

    b. For rental-purchase agreements with renewal terms longer than one week, no late fee shall be assessed until the payment is more than five calendar days past due;

    c. Late fees assessed pursuant to this section shall not exceed $5;

    d. Only one late fee may be assessed on each renewal payment, regardless of how long the payment remains past due;

    e. Payments received shall be applied first to the payment of the past due renewal payment, then to applicable late fees and other charges; and

    f. A late fee may be collected at the time it accrues, or at any time thereafter.

    10. a. A consumer who has terminated a rental-purchase agreement and voluntarily surrendered or returned the property to the merchant shall have the right to reinstate the terminated agreement without losing any rights or options previously acquired if the following conditions are met:

    (1) The consumer voluntarily surrendered or returned the property to the merchant within seven days of the termination of the agreement; and

    (2) Not more than 90 days have passed since the property was voluntarily surrendered or returned to the merchant; except that if the consumer has paid an amount equal to or greater than one-half of the total amount of payments necessary to acquire ownership of the rented property, the reinstatement period shall be extended to one year following voluntary surrender or return of the property.

    b. The merchant may require the payment of all past due renewal payments, any applicable late fees, other accrued fees or charges, and a reinstatement fee not to exceed $5, prior to reinstatement pursuant to subsection a. of this section.

    c. Nothing in this section shall prevent a merchant from bringing an action to recover possession of the property, but such an action may not be brought until more than seven days after termination of the rental-purchase agreement. A consumer's right to reinstate an agreement shall not expire because of the action to recover possession.

    d. Upon reinstatement, the merchant shall provide the consumer with the same property, if available, and in the same condition as when it was voluntarily surrendered or returned to the merchant, or with substitute property of comparable quality and condition.

    e. If the property is returned to the merchant during the applicable reinstatement period, other than through judicial process, the right to reinstate shall be extended for a period of not less than thirty days after the date of the return of the property.

    11. a. The cash price of new rented property offered under a rental-purchase agreement shall not exceed the greater of the following:

    (1) The manufacturer's list or suggested retail price;

    (2) The published or advertised selling price of the same property in the same trade area; or

    (3) The merchant cost, including freight costs, multiplied by the following factors;

    (a) For appliances, the applicable factor shall be 1.75;

    (b) For electronics, other than computers, having a merchant cost of less than $150, the applicable factor shall be 1.75;

    (c) For electronics, other than computers, having a merchant cost of greater than or equal to $150, the applicable factor shall be 2.00;

    (d) For computers, the applicable factor shall be 1.85;

    (e) For furniture, the applicable factor shall be 2.25; and

    (f) For items not listed in subparagraphs (a) through (e) of this paragraph, the applicable factor shall be 2.00.

    b. The cash price of used rented property offered pursuant to a rental-purchase agreement shall not exceed the maximum permitted cash price of the rented property when new, as determined pursuant to subsection a. of this section, and shall be decreased in accordance with an adjustment for the following relevant factors:

    (1) The frequency and duration of prior rentals and whether the rented property has been repaired one or more times; and

    (2) The condition of the rented property.

    12. a. A merchant shall not offer a rental purchase agreement in which the total dollar amount of payments necessary to acquire ownership of the rented property exceeds twice the cash price of the property. Upon payment of the total dollar amount of payments necessary to acquire ownership of the rented property, the consumer shall automatically acquire ownership of the rented property, the rental-purchase transaction shall terminate, and the merchant shall provide the consumer with written acknowledgment of the transfer of ownership to the consumer. Any rental payments made to the merchant that exceed the total amount of payments necessary to acquire ownership of the rented property shall be refunded to the consumer.

    b. At any time after the initial rental payment, a consumer may purchase the rented property that is the subject of the rental-purchase agreement by tendering an amount equal to the original cash price of the rented property, minus at least 50% of all rental payments previously made by the consumer.

    13. A rental-purchase agreement may not contain a provision:

    a. Requiring a confession of judgment;

    b. Requiring a garnishment of wages;

    c. Granting the merchant a security interest, or other claim to a property interest, in any property except the rented property delivered by the merchant pursuant to the rental-purchase agreement;

    d. Authorizing a merchant or an agent of a merchant to commit a breach of the peace during recovery of possession of the property;

    e. Waiving a defense, counterclaim, or right the consumer may have against a merchant or an agent of a merchant;

    f. Requiring a balloon payment in addition to regular rental payments in order to acquire ownership of the rented property, or requiring payments in excess of the total of payments necessary to acquire ownership of the rented property as disclosed in the rental-purchase agreement;

    g. Requiring the purchase of insurance or liability waiver from the merchant to cover the rented property;

    h. Waiving any provision of this act or the regulations that may be promulgated hereunder;

    i. Requiring a consumer to pay attorneys fees and costs; or

    j. Stating that mere failure to return the rented property constitutes probable cause for a criminal action.

    14. a. A merchant in communication with any person other than the consumer for the purpose of acquiring information as to the location of a consumer shall:

    (1) Identify the merchant and state that the merchant is confirming or correcting location information concerning the consumer;

    (2) Not communicate by postcard;

    (3) Not use any language or symbol on any envelope or in the contents of any communication that indicates that the communication relates to the recovery or repossession of the property; and

    (4) Not communicate with any person other than the consumer's attorney, after the merchant knows the consumer is represented by an attorney with regard to the rental-purchase agreement and has knowledge of, or can readily ascertain, the attorney's name and address, unless the attorney consents to direct communication from the merchant to the consumer.

    b. Without the prior consent of the consumer given directly to the merchant or the express permission of a court of competent jurisdiction, a merchant shall not communicate with a consumer in connection with the recovery or repossession of property:

    (1) At the consumer's place of employment; or

    (2) At any unusual time or place or a time or place known or which should have been known to be inconvenient to the consumer. In the absence of knowledge of circumstances to the contrary, a merchant shall assume that the convenient time for communicating with a consumer is after 8:00 a.m. or before 9:00 p.m., local time, at the consumer's location.

    c. A merchant shall not communicate in connection with a rental-purchase agreement with any person other than the consumer, the consumer's attorney, or the merchant's attorney, except as reasonably necessary to acquire the location information concerning the consumer as provided under subsection a. of this section, or upon express permission of a court of competent jurisdiction, or as reasonably necessary to effectuate a postjudgment judicial remedy.

    d. If a consumer notifies the merchant in writing that the consumer wishes the merchant to cease further communication with the consumer, the merchant shall not communicate further with the consumer with respect to the rental-purchase agreement, except:

    (1) To advise the consumer that the merchant's further efforts are being terminated;

    (2) To notify the consumer that the merchant shall invoke specified remedies available by law which are ordinarily invoked by the merchant; or

    (3) To effectuate, where necessary, any postjudgment judicial remedy.

    e. A merchant may not harass, oppress, or abuse any person in connection with a rental-purchase agreement. The following conduct is a violation of this section:

    (1) The use or threat of violence or any criminal means to harm the physical person, reputation or property of any person;

    (2) The use of obscene, profane or abusive language;

    (3) Causing a telephone to ring, or engaging any person in telephone conversation repeatedly or continuously with intent to annoy, abuse, or harass the person; and

    (4) The placement of telephone calls without disclosure of the caller's identity.

    15. a. A renegotiation occurs when an existing rental-purchase agreement is satisfied and replaced by a new agreement undertaken by the same merchant and consumer. A renegotiation shall be considered a new agreement requiring new disclosures pursuant to this act. The following events are not renegotiations and do not require new disclosures:

    (1) The addition or return of property in a multiple-item agreement, or the substitution of property, so long as the periodic rental payment allocable to the rental term is not changed by more than 25%;

    (2) A deferral or extension of one or more renewal payments or portions thereof;

    (3) A reduction in the charges in an agreement; and

    (4) An agreement involved in a court proceeding.

    b. No new disclosures are required for any extension of a rental-purchase agreement effectuated by an automatic renewal upon payments made after the initial term.

    16. a. If an advertisement for a rental-purchase agreement refers to or states the dollar amount of any payment and the right to acquire ownership of any one specific item, the advertisement shall also clearly and conspicuously disclose the following information, as applicable:

    (1) That the advertised transaction is a rental-purchase agreement;

    (2) The cash price of the advertised property;

    (3) The total number and total dollar amount of payments necessary to acquire ownership of the rented property;

    (4) The cost of lease services;

    (5) A statement that the consumer will not acquire ownership of the advertised property unless the total amount of payments necessary to acquire ownership of the rented property is paid; and

    (6) Whether the property is new or used.

    b. Any personal property displayed or offered under a rental-purchase agreement shall bear a tag that clearly and conspicuously discloses the following information:

    (1) The cash price of the displayed property;

    (2) The dollar amount of periodic payment and the payment period;

    (3) The total dollar amount of payments necessary to acquire ownership of the property;

    (4) The cost of lease services; and

    (5) Whether the displayed property is new or used.

    c. An owner or agent of any medium in which an advertisement for a rental-purchase agreement appears or is disseminated shall not be liable under this act.

    d. The disclosure requirements of subsection a. of this section do not apply to any advertisement that does not refer to or state the amount of any periodic payment, or that is published in the business pages of a telephone directory, or in any similar directory of businesses.

    e. Notwithstanding the provisions of this section, a merchant may make the required disclosures in the form of a list or catalogue that is readily available to consumers if displaying a price tag would be impractical due to the size or nature of the merchandise.

    f. An advertisement for a rental-purchase agreement shall not state that a specific lease of any property at specific amounts or terms is available unless the merchant usually and customarily leases or will lease the property at those amounts or terms.

    17. a. A merchant creates an express warranty to a consumer by any of the following:

    (1) Any affirmation of fact or promise made by the dealer to the consumer which relates to the property creates an express warranty that the property will conform to the affirmation or promise;

    (2) Any description of the property creates an express warranty that the property will conform to the description; or

    (3) Any sample or model exhibited to the consumer by the merchant creates an express warranty that the property actually delivered to the consumer will conform to the sample or model.

    b. A warranty that the property will be merchantable is implied in every rental-purchase contract. For property to be merchantable, the property shall be at least such as:

    (1) Pass without objection in the trade under the description in the rental-purchase agreement;

    (2) Are fit for the ordinary purposes for which property of that type is used; and

    (3) Conform to any promises or affirmation of fact made on the property, container or label.

    c. In addition to any other implied warranties provided by law or by this act, a merchant creates an implied warranty that property will be fit for the purpose for which it is intended, if at the time the rental-purchase agreement is made, the merchant knows or reasonably should have known that the consumer is relying on the merchant's skill or judgment to select or furnish suitable property.

    d. Any exclusion, modification or limitation of a warranty, express or implied, shall be void.

    18. a. If a court as a matter of law finds a rental-purchase agreement or any clause of a rental-purchase agreement to be unconscionable, the court may:

    (1) Refuse to enforce the rental-purchase agreement;

    (2) Enforce the remainder of the rental-purchase agreement without the unconscionable clause; or

    (3) Limit the application of any unconscionable clause to avoid an unconscionable result.

    b. If it is claimed or appears to the court that a rental-purchase agreement or any clause of the rental-purchase agreement may be unconscionable, the parties shall be afforded a reasonable opportunity to present evidence as to the agreement's setting, purpose and effect to aid the court in the determination.

    c. For the purpose of the section, a rental payment, charge or practice expressly permitted by this act is not in itself unconscionable.

    19. a. A merchant that fails to comply with the requirements of this act shall be liable to a consumer actually damaged by a violation of this act in an amount equal to the greater of the following:

    (1) The actual damages sustained by the consumer as the result of the merchant's failure to comply with this act; or

    (2) (a) In the case of an individual action, 25% of the total of payments necessary to acquire ownership, but not less than $100 nor more than $1,000.

    (b) In the case of a class action, the amount the court determines to be appropriate, except that as to each member of the class no minimum recovery is applicable.

    A merchant found liable under this act shall also be liable to the consumer for the costs of the action and reasonable attorneys' fees, as determined by the court.

    b. No consumer shall offset any amount for which a merchant is potentially liable under this section against any amount owed by the consumer, unless the amount of the merchant's liability has been determined by judgment of a court of competent jurisdiction in an action in which the merchant was a party. The provisions of this subsection do not bar a consumer then in default under the terms of a rental-purchase agreement from asserting a violation of this act as an original action, or as a defense or counterclaim to an action brought by the merchant.

    c. An action under this section shall not be brought in any court of competent jurisdiction more than four years after the date of the occurrence of a violation that is the subject of the suit.

    d. If a merchant assigns or transfers a rental-purchase agreement to a third party, all of the consumer's rights created by the rental-purchase agreement and this act are preserved.

    e. It is an unlawful practice and a violation of P.L.1960, c.39 (C.56:8-1 et seq.) to violate any provision of this act.

    f. A consumer shall not recover damages under both subsections a. and e. of this section, in the same action brought for a violation of a provision of this act.

    20. The director may promulgate rules and regulations pursuant to the "Administrative Procedure Act," P.L.1968, c.410 (C.52:14B-1 et seq.), as may be necessary to effectuate the purposes of this act.

    21. This act shall take effect on the 90th day after enactment.

STATEMENT

    This bill protects consumers and clarifies the rights and responsibilities of consumers and merchants by defining and regulating rental-purchase agreements involving personal property used for personal, family or household purposes. The bill further defines rental-purchase agreements by providing that rental-purchase agreements are not governed by certain other statutes, including usury statutes.

    The bill requires a merchant to disclose in writing certain items at or prior to the time the rental-purchase agreement is executed by the consumer. These disclosures include the cash price of the rented property and the total dollar amount of payments necessary for the consumer to acquire ownership of the property.

    The bill prohibits the inclusion of certain provisions in rental-purchase agreements. The bill also provides, in certain instances, for a consumer's right to reinstatement of the rental-purchase agreement; provides for a lowering of payments if a consumer suffers an involuntary loss of or reduction in income under certain circumstances; regulates permissible late fees; and defines renegotiations of rental-purchase agreements.

    In addition, the bill prohibits a merchant from offering a rental-purchase agreement in which the total payments necessary to acquire ownership of the rented property exceed twice the property's cash price. As defined in the bill, cash price means the price for which the merchant would sell the rented property to a consumer for cash on the date of the rental-purchase agreement, subject to certain limitations applicable to new rented property and used rented property, as provided in the bill.

    During the term of the rental-purchase agreement, the bill requires merchants to maintain the rented property in good condition, provide written receipts for cash or money order payments and provide comparable replacement property in certain circumstances.

    The bill also regulates a merchant's debt collection and repossession practices, creates express and implied warranties as to the rental property and provides that a court can find all or part of a rental-purchase agreement to be unconscionable and unenforceable.

    The bill provides options for recovery in damages for a consumer who suffers a loss due to a violation of the bill's provisions, including individual actions and class actions, and recovery under the "consumer fraud act." Finally, the bill requires the Director of the Division of Consumer Affairs to promulgate regulations necessary to effectuate the purposes of the act.

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