7 U.S.C. § 4906 — Required terms in plans

Page 1731 TITLE 7—AGRICULTURE § 4906 Pars. (1), (2). Pub. L. 103–189, § 8(k)(3)(B), (C), sub- stituted ‘‘The term’’ for ‘‘the term’’ and a period for semicolon at end. Par. (3). Pub. L. 103–189, § 8(a)(1), (k)(3)(B), substituted ‘‘The term’’ for ‘‘the term’’ and ‘‘or imported into the United States.’’ for the semicolon at end. Pub. L. 103–189, § 3(a)(1), struck out ‘‘the forty-eight contiguous States of’’ after ‘‘by producers in’’. Par. (4). Pub. L. 103–189, § 8(k)(3)(B), (C), substituted ‘‘The term’’ for ‘‘the term’’ and a period for semicolon at end. Par. (5). Pub. L. 103–189, § 9(a), substituted ‘‘10’’ for ‘‘five’’. Pub. L. 103–189, § 8(k)(3)(B), (C), substituted ‘‘The term’’ for ‘‘the term’’ and a period for semicolon at end. Pars. (6), (7). Pub. L. 103–189, § 8(a)(2), (3), added pars. (6) and (7) and redesignated former pars. (6) and (7) as (8) and (9), respectively. Par. (8). Pub. L. 103–189, § 8(a)(2), (k)(3)(D), redesig- nated par. (6) as (8) and substituted ‘‘The term’’ for ‘‘the term’’ and a period for ‘‘; and’’ at end. Par. (9). Pub. L. 103–189, § 8(a)(2), (k)(3)(E), redesig- nated par. (7) as (9) and substituted ‘‘The term’’ for ‘‘the term’’ and ‘‘4906’’ for ‘‘4903’’. Par. (10). Pub. L. 103–189, § 3(a)(2), added par. (10). § 4903. Issuance of plans To effectuate the declared policy of this chap- ter, the Secretary shall, under the provisions of this chapter, issue, and from time to time may amend, orders (applicable to producers, han- dlers, and importers of watermelons) author- izing the collection of assessments on water- melons under this chapter and the use of such funds to cover the costs of research, develop- ment, advertising, and promotion with respect to watermelons under this chapter. Any plan shall be applicable to watermelons produced in the United States or imported into the United States. (Pub. L. 99–198, title XVI, § 1644, Dec. 23, 1985, 99 Stat. 1623; Pub. L. 103–189, §§ 3(b), 8(b), Dec. 14, 1993, 107 Stat. 2259, 2261.) Editorial Notes AMENDMENTS 1993—Pub. L. 103–189, in first sentence, substituted ‘‘, handlers, and importers’’ for ‘‘and handlers’’, struck out after first sentence ‘‘Any order issued by the Sec- retary under this chapter shall hereinafter in this chap- ter be referred to as a ‘plan’.’’, and in last sentence, struck out ‘‘the forty-eight contiguous States of’’ after ‘‘watermelons produced in’’, and inserted ‘‘or imported into the United States’’ before period at end. § 4904. Notice and hearings (a) When sufficient evidence, as determined by the Secretary, is presented to the Secretary by watermelon producers, handlers, and importers, or whenever the Secretary has reason to believe that a plan will tend to effectuate the declared policy of this chapter, the Secretary shall give due notice and opportunity for a hearing on a proposed plan. Such hearing may be requested by watermelon producers, handlers, or importers or by any other interested person, including the Secretary, when the request for such hearing is accompanied by a proposal for a plan. (b) After notice and opportunity for hearing as provided in subsection (a) of this section, the Secretary shall issue a plan if the Secretary finds, and sets forth in such plan, on the evi- dence introduced at the hearing that the issuance of the plan and all the terms and condi- tions thereof will tend to effectuate the declared policy of this chapter. (Pub. L. 99–198, title XVI, § 1645, Dec. 23, 1985, 99 Stat. 1623; Pub. L. 103–189, § 8(c), Dec. 14, 1993, 107 Stat. 2261.) Editorial Notes AMENDMENTS 1993—Subsec. (a). Pub. L. 103–189 substituted ‘‘, handlers, and importers’’ for ‘‘and handlers’’ and ‘‘, handlers, or importers’’ for ‘‘or handlers’’. § 4905. Regulations The Secretary may issue such regulations as may be necessary to carry out the provisions of this chapter and the powers vested in the Sec- retary under this chapter. (Pub. L. 99–198, title XVI, § 1646, Dec. 23, 1985, 99 Stat. 1624.) § 4906. Required terms in plans (a) Description of terms and provisions Any plan issued under this chapter shall con- tain the terms and provisions described in this section. (b) Establishment and powers of National Water- melon 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 in- terests; 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 pub- lic 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 rep- resentative, the Secretary shall choose such rep- resentative 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 vol- Page 1732 TITLE 7—AGRICULTURE § 4906 1 So in original. ume that is equal to 25 percent or more of the producer’s own production; or (B) the combined total volume of water- melons handled by the producer from the pro- ducer’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 representa- tives of importers, who shall be appointed by the Secretary from nominations submitted by im- porters in such manner as may be prescribed by the Secretary. (B) Importer representation on the Board shall be proportionate to the percentage of assess- ments 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 pre- ceding 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 Sec- retary’s approval a budget, on a fiscal period basis, of its anticipated expenses and disburse- ments in the administration of the plan, includ- ing probable costs of research, development, ad- vertising, 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), and under section 4907(f) of this title, based on the Board’s recommendation as to the appro- priate 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 sec- tion 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; assess- ments 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 pro- motion of watermelons and such other ex- penses for the administration, maintenance, and functioning of the Board as may be au- thorized by the Secretary, including any ref- erendum and administrative costs incurred by the Department of Agriculture under this chapter. (2) No advertising or sales promotion pro- gram under this chapter shall make any ref- erence 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 influ- encing governmental policy or action, except as provided by subsections (b)(4) and (f). (4) Assessments shall be made on water- melons produced by producers and water- melons 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 per- forms 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 im- porters. 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 water- melon 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 pro- motion 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 ap- proved by the Secretary. A producer or handler (or importer who is subject to the plan) who timely makes demand in accord with the regula- tions, 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 elimi- nation 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 sub- ject to subparagraph (B), if importers are sub- ject to the plan, the plan shall provide that an importer of less than 150,000 pounds of water- melons 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 oppor- tunity for comment in accordance with section 553 of title 5, and without regard to sections 556 Page 1733 TITLE 7—AGRICULTURE § 4907 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), shall develop and submit to the Secretary, for the Secretary’s approval, any research, develop- ment, advertising, or promotion program or project, and that a program or project must be approved by the Secretary before becoming ef- fective. (j) Contract authority The plan shall provide the Board with author- ity to enter into contracts or agreements, with the approval of the Secretary, for the develop- ment 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 sub- mit to the Secretary such reports from time to time as may be prescribed for appropriate ac- counting with respect to the receipt and dis- bursement 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 certi- fying whether a person meets the definition of a producer under section 4902(5) of this title. (Pub. L. 99–198, title XVI, § 1647, Dec. 23, 1985, 99 Stat. 1624; Pub. L. 103–189, §§ 4–7, 8(d)–(f), (k)(4), 9(b), Dec. 14, 1993, 107 Stat. 2260–2262, 2264.) Editorial Notes AMENDMENTS 1993—Subsec. (c). Pub. L. 103–189, §§ 4, 8(d), designated existing provisions as par. (1), substituted ‘‘other mem- bers 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, §§ 5(1), 6, substituted ‘‘pay- ment 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 as- sessment.’’ Subsec. (g). Pub. L. 103–189, § 8(k)(4)(A), substituted ‘‘the following:’’ for ‘‘that—’’ in introductory provi- sions. Subsec. (g)(1). Pub. L. 103–189, §§ 5(2), 8(k)(4)(B), sub- stituted ‘‘Funds received’’ for ‘‘funds collected’’ and a period for semicolon at end. Subsec. (g)(2). Pub. L. 103–189, § 8(k)(4)(C), substituted ‘‘No’’ for ‘‘no’’ and a period for semicolon at end. Subsec. (g)(3). Pub. L. 103–189, §§ 5(2), 8(k)(4)(D), sub- stituted ‘‘No’’ for ‘‘no’’, ‘‘received’’ for ‘‘collected’’, and a period for ‘‘; and’’ at end. Subsec. (g)(4). Pub. L. 103–189, § 8(e)(1), substituted ‘‘Assessments’’ for ‘‘assessments’’ and inserted ‘‘in the case of producers and handlers’’ after ‘‘such assess- ments’’. Subsec. (g)(5). Pub. L. 103–189, § 8(e)(2), added par. (5). Subsec. (h). Pub. L. 103–189, §§ 7, 8(f), designated exist- ing provisions as par. (1), substituted ‘‘Except as pro- vided in paragraph (2), the’’ for ‘‘The’’, inserted ‘‘(or importer who is subject to the plan)’’ after ‘‘or han- dler’’ 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, § 9(b), added subsec. (l). § 4907. Permissive terms in plans (a) Description of terms and provisions; prohibi- tion Any plan issued under this chapter may con- tain one or more of the terms and provisions de- scribed in this section, but except as provided in section 4906 of this title no others. (b) Exemptions The plan may provide for the exemption, from the provisions of the plan, of watermelons used for nonfood uses, and authority for the Board to establish satisfactory safeguards against im- proper use of such exemption. (c) Designation of different handler payment and reporting schedules for assessments The plan may provide for the designation of different handler payment and reporting sched- ules with respect to assessments, as provided for in sections 4906 and 4908 of this title, to recog- nize differences in marketing practices and pro- cedures used in different production areas. (d) Advertising and sales promotion programs or projects The plan may provide for the establishment, issuance, effectuation, and administration of ap- propriate programs or projects for the adver- tising and other sales promotion of watermelons and for the disbursement of necessary funds for such purposes. Any such program or project shall be directed toward increasing the general demand for watermelons, and promotional ac- tivities shall comply with the provisions of sec- tion 4906(g) of this title. (e) Marketing objectives of research and devel- opment projects and studies The plan may provide for establishing and car- rying out research and development projects and studies to the end that the marketing and use of watermelons may be encouraged, expanded, im- proved, or made more efficient, and for the dis- bursement of necessary funds for such purposes. (f) Reserve funds; limitation The plan may provide authority for the accu- mulation of reserve funds from assessments col- lected under this chapter, to permit an effective and continuous coordinated program of re- search, development, advertising, and promotion in years when watermelon production and as- sessment income may be reduced, except that the total reserve fund may not exceed the amount budgeted for two years operation. (g) Foreign market sales The plan may provide for the use of funds from assessments collected under this chapter, with the approval of the Secretary, for the develop- ment and expansion of sales of watermelons in foreign markets.