
From the U.S. Code Online via GPO Access
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[Laws in effect as of January 2, 2001]
[Document not affected by Public Laws enacted between
  January 2, 2001 and January 28, 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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    \1\ So in original.
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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.
