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U.S. Code as of:
01/03/05
Section 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.
(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.
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