§ 4906. — Required terms in plans.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 7USC4906]
TITLE 7--AGRICULTURE
CHAPTER 80--WATERMELON RESEARCH AND PROMOTION
Sec. 4906. Required terms in plans
(a) Description of terms and provisions
Any plan issued under this chapter shall contain the terms and
provisions described in this section.
(b) Establishment and powers of National Watermelon Promotion Board
The plan shall provide for the establishment by the Secretary of the
National Watermelon Promotion Board and for defining its powers and
duties, which shall include the powers to--
(1) administer the plan in accordance with its terms and
conditions;
(2) make rules and regulations to effectuate the terms and
conditions of the plan;
(3) receive, investigate, and report to the Secretary complaints
of violations of the plan; and
(4) recommend to the Secretary amendments to the plan.
(c) Membership of Board; representation of interests; appointment;
nomination; eligibility of producers; importer representation
(1) The plan shall provide that the Board shall be composed of
representatives of producers and handlers, and one representative of the
public, appointed by the Secretary from nominations submitted in
accordance with this subsection. An equal number of representatives of
producers and handlers shall be nominated by producers and handlers, and
the representative of the public shall be nominated by the other members
of the Board, in such manner as may be prescribed by the Secretary. If
producers and handlers fail to select nominees for appointment to the
Board, the Secretary may appoint persons on the basis of representation
as provided for in the plan. If the Board fails to nominate a public
representative, the Secretary shall choose such representative for
appointment.
(2) A producer shall be eligible to serve on the Board only as a
representative of handlers, and not as a representative of producers,
if--
(A) the producer purchases watermelons from other producers, in
a combined total volume that is equal to 25 percent or more of the
producer's own production; or
(B) the combined total volume of watermelons handled by the
producer from the producer's own production and purchases from other
producers' production is more than 50 percent of the producer's own
production.
(3)(A) If importers are subject to the plan, the Board shall also
include 1 or more representatives of importers, who shall be appointed
by the Secretary from nominations submitted by importers in such manner
as may be prescribed by the Secretary.
(B) Importer representation on the Board shall be proportionate to
the percentage of assessments paid by importers to the Board, except
that at least 1 representative of importers shall serve on the Board.
(C) If importers are subject to the plan and fail to select nominees
for appointment to the Board, the Secretary may appoint any importers as
the representatives of importers.
(D) Not later than 5 years after the date that importers are
subjected to the plan, and every 5 years thereafter, the Secretary shall
evaluate the average annual percentage of assessments paid by importers
during the 3-year period preceding the date of the evaluation and
adjust, to the extent practicable, the number of importer
representatives on the Board.
(d) Compensation and expenses of Board
The plan shall provide that all Board members shall serve without
compensation, but shall be reimbursed for reasonable expenses incurred
in performing their duties as members of the Board.
(e) Budget on fiscal period basis
The plan shall provide that the Board shall prepare and submit to
the Secretary for the Secretary's approval a budget, on a fiscal period
basis, of its anticipated expenses and disbursements in the
administration of the plan, including probable costs of research,
development, advertising, and promotion.
(f) Assessments; payments; notice
The plan shall provide for the fixing by the Secretary of
assessments to cover costs incurred under the budgets provided for in
subsection (e) of this section, and under section 4907(f) of this title,
based on the Board's recommendation as to the appropriate rate of
assessment, and for the payment of the assessments to the Board..\1\ In
fixing or changing the rate of assessment pursuant to the plan, the
Secretary shall comply with the notice and comment procedures
established under section 553 of title 5. Sections 556 and 557 of such
title shall not apply with respect to fixing or changing the rate of
assessment.
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(g) Scope of expenditures; restrictions; assessments on per-unit basis;
importers
The plan shall provide the following:
(1) Funds received by the Board shall be used for research,
development, advertising, or promotion of watermelons and such other
expenses for the administration, maintenance, and functioning of the
Board as may be authorized by the Secretary, including any
referendum and administrative costs incurred by the Department of
Agriculture under this chapter.
(2) No advertising or sales promotion program under this chapter
shall make any reference to private brand names nor use false or
unwarranted claims in behalf of watermelons or their products or
false or unwarranted statements with respect to attributes or use of
any competing products.
(3) No funds received by the Board shall in any manner be used
for the purpose of influencing governmental policy or action, except
as provided by subsections (b)(4) and (f) of this section.
(4) Assessments shall be made on watermelons produced by
producers and watermelons handled by handlers, and the rate of such
assessments in the case of producers and handlers shall be the same,
on a per-unit basis, for producers and handlers. If a person
performs both producing and handling functions, both assessments
shall be paid by such person.
(5) If importers are subject to the plan, an assessment shall
also be made on watermelons imported into the United States by the
importers. The rate of assessment for importers who are subject to
the plan shall be equal to the combined rate for producers and
handlers.
(h) Refunds
(1) Except as provided in paragraph (2), the plan shall provide
that, notwithstanding any other provisions of this chapter, any
watermelon producer or handler (or importer who is subject to the plan)
against whose watermelons an assessment is made and collected under this
chapter and who is not in favor of supporting the research, development,
advertising, and promotion program provided for under this chapter shall
have the right to demand a refund of the assessment from the Board,
under regulations, and on a form and within a time period (not less than
90 days), prescribed by the Board and approved by the Secretary. A
producer or handler (or importer who is subject to the plan) who timely
makes demand in accord with the regulations, on submission of proof
satisfactory to the Board that the producer, handler, or importer paid
the assessment for which the refund is sought, shall receive such refund
within 60 days after demand therefor.
(2) If approved in the referendum required by section 4914(b) of
this title relating to the elimination of the assessment refund under
paragraph (1), the Secretary shall amend the plan that is in effect on
the day before December 14, 1993, to eliminate the refund provision.
(3)(A) Notwithstanding paragraph (2) and subject to subparagraph
(B), if importers are subject to the plan, the plan shall provide that
an importer of less than 150,000 pounds of watermelons per year shall be
entitled to apply for a refund that is based on the rate of assessment
paid by domestic producers.
(B) The Secretary may adjust the quantity of the weight exemption
specified in subparagraph (A) on the recommendation of the Board after
an opportunity for public notice and opportunity for comment in
accordance with section 553 of title 5, and without regard to sections
556 and 557 of such title, to reflect significant changes in the 5-year
average yield per acre of watermelons produced in the United States.
(i) Submission of programs or projects; approval by Secretary
The plan shall provide that the Board, subject to the provisions of
subsections (e), (f), and (g) of this section, shall develop and submit
to the Secretary, for the Secretary's approval, any research,
development, advertising, or promotion program or project, and that a
program or project must be approved by the Secretary before becoming
effective.
(j) Contract authority
The plan shall provide the Board with authority to enter into
contracts or agreements, with the approval of the Secretary, for the
development and carrying out of research, development, advertising, or
promotion programs or projects, and the payment of the cost thereof with
funds collected under this chapter.
(k) Recordkeeping; accounting and audit reports
The plan shall provide that the Board shall (1) maintain books and
records, (2) prepare and submit to the Secretary such reports from time
to time as may be prescribed for appropriate accounting with respect to
the receipt and disbursement of funds entrusted to it, and (3) cause a
complete audit report to be submitted to the Secretary at the end of
each fiscal period.
(l) Certification
The plan shall provide that the Board shall have the authority to
establish rules for certifying whether a person meets the definition of
a producer under section 4902(5) of this title.
(Pub. L. 99-198, title XVI, Sec. 1647, Dec. 23, 1985, 99 Stat. 1624;
Pub. L. 103-189, Secs. 4-7, 8(d)-(f), (k)(4), 9(b), Dec. 14, 1993, 107
Stat. 2260-2262, 2264.)
Amendments
1993--Subsec. (c). Pub. L. 103-189, Secs. 4, 8(d), designated
existing provisions as par. (1), substituted ``other members of the
Board'' for ``producer and handler members of the Board'' in second
sentence, and added pars. (2) and (3).
Subsec. (f). Pub. L. 103-189, Secs. 5(1), 6, substituted ``payment
of the assessments to the Board.'' for ``collection of the assessments
by the Board'' and inserted at end ``In fixing or changing the rate of
assessment pursuant to the plan, the Secretary shall comply with the
notice and comment procedures established under section 553 of title 5.
Sections 556 and 557 of such title shall not apply with respect to
fixing or changing the rate of assessment.''
Subsec. (g). Pub. L. 103-189, Sec. 8(k)(4)(A), substituted ``the
following:'' for ``that--'' in introductory provisions.
Subsec. (g)(1). Pub. L. 103-189, Secs. 5(2), 8(k)(4)(B), substituted
``Funds received'' for ``funds collected'' and a period for semicolon at
end.
Subsec. (g)(2). Pub. L. 103-189, Sec. 8(k)(4)(C), substituted ``No''
for ``no'' and a period for semicolon at end.
Subsec. (g)(3). Pub. L. 103-189, Secs. 5(2), 8(k)(4)(D), substituted
``No'' for ``no'', ``received'' for ``collected'', and a period for ``;
and'' at end.
Subsec. (g)(4). Pub. L. 103-189, Sec. 8(e)(1), substituted
``Assessments'' for ``assessments'' and inserted ``in the case of
producers and handlers'' after ``such assessments''.
Subsec. (g)(5). Pub. L. 103-189, Sec. 8(e)(2), added par. (5).
Subsec. (h). Pub. L. 103-189, Secs. 7, 8(f), designated existing
provisions as par. (1), substituted ``Except as provided in paragraph
(2), the'' for ``The'', inserted ``(or importer who is subject to the
plan)'' after ``or handler'' the first two places appearing, substituted
``, handler, or importer paid the assessment'' for ``or handler paid the
assessment'', and added pars. (2) and (3).
Subsec. (l). Pub. L. 103-189, Sec. 9(b), added subsec. (l).
Section Referred to in Other Sections
This section is referred to in sections 4902, 4907, 4908 of this
title.
