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

(a) Description of terms and provisions. Every plan^* issued under this chapter must contain the terms and provisions described in this section.

(b) National Watermelon^* Promotion^* Board^*. The plan must require the Secretary^* to establish the National Watermelon Promotion Board and define its powers and duties. Those powers must include:

(1) administering the plan according to its terms and conditions;
(2) making rules and regulations to carry out those terms and conditions;
(3) receiving, investigating, and reporting to the Secretary complaints that the plan was violated; and
(4) recommending plan amendments to the Secretary.

(c) Board membership and representation.

(1) The Board must have representatives of producers and handlers and one public representative. The Secretary appoints them from nominations made under this subsection. Producers and handlers must nominate equal numbers of representatives. The other Board members must nominate the public representative, in the way the Secretary prescribes. If producers or handlers do not choose nominees, the Secretary may appoint people according to the representation provided in the plan. If the Board does not nominate a public representative, the Secretary must choose one.

(2) A producer^* may serve only as a handler^* representative, not a producer representative, if:

(A) the producer buys watermelons from other producers in a combined amount equal to at least 25 percent of the producer’s own production; or
(B) the total watermelons the producer handles from the producer’s own production and purchases from others is more than 50 percent of the producer’s own production.

(3) If importers are subject to the plan:

(A) the Board must also include one or more importer^* representatives appointed by the Secretary from importer nominations made as the Secretary prescribes;
(B) importer representation must match, in proportion, the percentage of assessments importers pay, but there must be at least one importer representative;
(C) if importers do not choose nominees, the Secretary may appoint importers as their representatives; and
(D) no later than five years after importers become subject to the plan, and every five years afterward, the Secretary must review the average yearly percentage of assessments paid by importers during the preceding three years and adjust the number of importer representatives as far as practicable.

(d) Compensation and expenses. Board members serve without compensation, but must be repaid for reasonable expenses they incur in performing Board duties.

(e) Budget. The Board must prepare and submit to the Secretary for approval a budget for each fiscal period. The budget must cover expected expenses and payments to administer the plan, including likely research, development, advertising, and promotion costs.

(f) Assessments, payment, and notice. The plan must provide for the Secretary to set assessments to cover costs under subsection (e) and section 4907(f), based on the Board’s recommendation of the proper rate, and for the assessments to be paid to the Board. When setting or changing the rate, the Secretary must follow the notice-and-comment procedures in section 553 of title 5. Sections 556 and 557 of title 5 do not apply to setting or changing the rate.

(g) Spending and assessment rules. The plan must provide that:

(1) The Board may use its funds for watermelon research, development, advertising, and promotion, and for other Secretary-authorized costs of administering, maintaining, and operating the Board, including Department of Agriculture referendum and administrative costs under this chapter.

(2) An advertising or sales-promotion program may not refer to private brand names, make false or unjustified claims for watermelons or their products, or make false or unjustified statements about the attributes or use of competing products.

(3) Board funds may not be used to influence government policy or action, except as subsections (b)(4) and (f) allow.

(4) Assessments must be imposed on watermelons produced by producers and handled by handlers. Producers and handlers must pay the same rate per unit. A person^* who both produces and handles watermelons must pay both assessments.

(5) If importers are subject to the plan, importers must also be assessed on watermelons imported into the United States^*. Their rate must equal the combined producer and handler rate.

(h) Refunds.

(1) Except as paragraph (2) provides, a producer or handler, or an importer subject to the plan, whose watermelons were assessed and whose assessment was collected, may demand a refund if that person does not support the research, development, advertising, and promotion program. The demand must follow Board regulations, use the Board’s form, and be made within the period the Board sets, which may not be less than 90 days. The Secretary must approve the regulations, form, and period. A person who makes a timely demand and proves to the Board’s satisfaction that the person paid the assessment must receive the refund within 60 days after demanding it.

(2) If the referendum required by section 4914(b) approves eliminating the refund under paragraph (1), the Secretary must amend the plan in effect on December 13, 1993, to remove the refund provision.

(3) Despite paragraph (2), and subject to subparagraph (B), if importers are subject to the plan, an importer of fewer than 150,000 pounds of watermelons per year may apply for a refund based on the assessment rate paid by domestic producers. The Secretary may, on the Board’s recommendation and after public notice and comment under section 553 of title 5, adjust that weight threshold to reflect significant changes in the five-year average yield per acre of United States-grown watermelons. Sections 556 and 557 of title 5 do not apply to that adjustment.

(i) Programs and projects. Subject to subsections (e), (f), and (g), the Board must develop and submit each research, development, advertising, or promotion program or project to the Secretary for approval. A program or project cannot take effect until the Secretary approves it.

(j) Contracts. With the Secretary’s approval, the Board may enter contracts or agreements to develop and carry out research, development, advertising, or promotion programs or projects and pay their costs with funds collected under this chapter.

(k) Records, accounting, and audits. The Board must maintain books and records, prepare and submit reports as prescribed from time to time for proper accounting of entrusted funds received and paid out, and have a complete audit report submitted to the Secretary at the end of each fiscal period.

(l) Certification. The Board may establish rules for certifying whether a person meets the definition of “producer” under section 4902(5). This section does not define “producer.”