[Federal Register Volume 60, Number 39 (Tuesday, February 28, 1995)]
[Rules and Regulations]
[Pages 10795-10801]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-4736]



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  Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / 
Rules and Regulations  
[[Page 10795]]

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 1210

[FV-93-706FR-A]
RIN 0581-AB21


Watermelon Research and Promotion Plan; Amendments to the Plan, 
Rules and Regulations, and Rules of Practice for Petitions

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: This final rule amends the Watermelon Research and Promotion 
Plan (Plan) to: eliminate the refund provision of the Plan; assess 
watermelon importers and add importer member(s) to the Plan; exempt 
from assessments producers with less than 10 acres of watermelons 
rather than 5 acres and importers of less than 150,000 pounds; cover 
all 50 States by the Plan; and revise the criteria for determining the 
eligibility of producers to serve on the Board. In addition, conforming 
changes would be made to the rules and regulations issued under the 
Plan and the rules of practice for petitions.

EFFECTIVE DATE: February 28, 1995.

FOR FURTHER INFORMATION CONTACT: Sonia N. Jimenez, Research and 
Promotion Branch, Fruit and Vegetable Division, AMS, USDA, P.O. Box 
96456, Room 2535-S, Washington, DC 20090-6456; telephone (202) 720-
9916.

SUPPLEMENTARY INFORMATION: This final rule amends the Watermelon 
Research and Promotion Plan [7 CFR part 1210], hereinafter referred as 
the Plan. The Plan is effective under the Watermelon Research and 
Promotion Act, as amended by the Watermelon Research and Promotion 
Improvement Act of 1993, [7 U.S.C. 4901-4916] hereinafter referred as 
the Act.
    The Department of Agriculture (Department) is issuing this rule in 
conformance with Executive Order 12866.
    This rule has been reviewed under Executive Order 12778, Civil 
Justice Reform. It is not intended to have retroactive effect. This 
rule will not preempt any State or local laws, regulations, or 
policies, unless they present an irreconcilable conflict with this 
rule.
    The Act provides that administrative proceedings must be exhausted 
before parties may file suit in court. Under Sec. 1650 of the Act, a 
person subject to the Plan may file a petition with the Secretary 
stating that the Plan or any provision of the Plan, or any obligation 
imposed in connection with the Plan, is not in accordance with law and 
requesting a modification of the Plan or an exemption from the Plan. 
The petitioner is afforded the opportunity for a hearing on the 
petition. After such hearing, the Secretary will make a ruling on the 
petition. The Act provides that the district courts of the United 
States in any district in which a person who is a petitioner resides or 
carries on business are vested with jurisdiction to review the 
Secretary's ruling on the petition, if a complaint for that purpose is 
filed within 20 days after the date of the entry of the ruling.

Regulatory Flexibility Act

    Pursuant to requirements set forth in the Regulatory Flexibility 
Act (RFA), the Administrator of the Agricultural Marketing Service 
(AMS) has considered the economic impact of this rule on small 
entities.
    The purpose of the RFA is to fit regulatory actions to the scale of 
business subject to such actions in order that small businesses will 
not be unduly or disproportionately burdened.
    There are approximately 750 watermelon handlers and 5,000 
watermelon producers in the United States who are subject to the Plan. 
There are approximately 140 importers of watermelons. Small 
agricultural service firms are defined by the Small Business 
Administration [13 CFR 121.601] as those having annual receipts of less 
than $5 million and small agricultural producers are defined as those 
having annual receipts of less than $500,000. The majority of 
watermelon handlers, producers, and importers may be classified as 
small entities.
    The changes in the Plan, rules and regulations, and rules of 
practice for petitions reflect amendments to the Act. The overall 
economic impact of these changes is not expected to be significant. 
Including all 50 States and the District of Columbia under the Plan 
will have little impact. The producer exemption from assessments is 
being increased from 5 acres to 10 acres. This change will benefit 
small producers because it will increase the exemption level, and small 
producers will not have to pay the assessment. The eligibility criteria 
for determining if a person is a handler or a producer will not have 
any economic impact. The elimination of refunds may have some impact on 
a small amount of producers and handlers who are currently entitled to 
refunds. There will also be a new burden on importers caused by the 
assessment of imports, but importers are currently benefiting from the 
activities which promote watermelons without paying assessments. The 
research and promotion program is expected to continue to benefit 
producers, handlers, and importers subject to the Plan by expanding and 
maintaining new and existing markets. Accordingly, the Administrator of 
AMS has determined that this rule will not have a significant economic 
impact on a substantial number of small entities.

Paperwork Reduction

    In accordance with the Paperwork Reduction Act of 1980 [40 U.S.C. 
Chapter 35], the information collection requirements contained in the 
Plan have previously been approved by the Office of Management and 
Budget (OMB) and assigned OMB number 0581-0093. There will be a new 
reporting burden on importers, but the burden has been already approved 
by the OMB and assigned OMB control number 0581-0093. This action adds 
no additional reporting burden.

Background

    Under the Plan, the National Watermelon Promotion Board (Board) 
administers a nationally coordinated program of research, development, 
advertising, and promotion designed to strengthen the watermelon's 
position in the market place and to establish, maintain, and expand 
markets for domestic watermelons. In the past, this program was 
financed by assessments [[Page 10796]] on all producers, except those 
persons engaged in the growing of less than five acres of watermelons, 
and handlers of watermelons. The Plan specifies that handlers are 
responsible for collecting and submitting both the producer and handler 
assessments to the Board, reporting their handling of watermelons, and 
maintaining records necessary to verify their reporting.
    U.S. production of watermelons is estimated through the use of U.S. 
shipment statistics. Shipments of U.S.-produced watermelons totaled 
about 1,895.6 million pounds in 1993, 7 percent less than in 1992. 
Imports of watermelons in 1993 totalled 343.5 million pounds, an 
increase of 12 percent. Therefore, domestic production is about six 
times as great as the volume of imports.
    A referendum was conducted in 1989 to determine if majority of 
watermelon growers and handlers favored the passage of an industry 
funded research and promotion program for watermelons. The Plan was 
intended to collect assessments for research and promotion of 
watermelons. At that time, any individual not favoring the program 
could request a refund of the assessments paid by that individual. 
Procedures to request a refund of assessments were explained in the 
Plan.
    A proposed rule was published in the Federal Register on April 14, 
1994 [59 FR 17739]. That rule contained the proposed amendments to the 
Plan, rules and regulations, rules of practice for petitions, and 
referendum procedures. In order to have the referendum procedures in 
place for the referendum, the Department decided to separately make 
final the referendum procedures. A final rule was published in the 
Federal Register on August 30, 1994 [59 FR 44613] containing the 
referendum procedures. A proposed rule containing the proposed 
amendments to the Plan, rules and regulations, rules of practice for 
petitions, and ordering that a referendum be conducted was published 
separately on August 30, 1994 [59 FR 44646].
    The deadline for comments on the proposed amendments published on 
April 14 was May 16, 1994. Twenty-one comments were received. The 
comments were addressed in the rules published on August 30, 1994.
    A referendum was conducted in November 1994 among watermelon 
producers, handlers, and importers to determine whether they favor: (1) 
eliminating the provisions for assessment refunds and (2) implementing 
assessments on imported watermelons and adding importer member(s) to 
the Board.
    The voting period was from November 1 through November 30, 1994. 
Ballots were mailed to all known eligible watermelon producers, 
handlers, and importers on October 14, 1994.
    Sonia N. Jimenez and Martha B. Ransom were designated as the 
referendum agents of the Secretary of Agriculture to conduct this 
referendum. The Procedure for the Conduct of Referenda in Connection 
with the Watermelon Research and Promotion Plan were used to conduct 
the referendum.
    The results of the referendum indicate that 61 percent of those who 
voted in the referendum favor elimination of refunds of assessments 
under the program and that 81 percent of those who voted in the 
referendum favor assessing watermelon imports and adding watermelon 
importers to the Board.
    A simple majority of votes was required to approve each of the two 
changes.
    The amendments to the Act authorize an assessment on watermelons 
imported into the United States and the addition of importer members to 
the Board. Watermelon imports enter the country primarily during the 
winter season. Imports of watermelons in 1993 totalled 343.5 million 
pounds. The assessment rate for imports will be the combined total 
assessment rate paid by producers and handlers of domestic watermelons. 
The current assessment rate for producers is 2 cents per hundredweight 
and for handlers is 2 cents per hundredweight. The combined assessment 
rate for importers, therefore, will be 4 cents per hundredweight. 
Assessments will be paid at the time the watermelons enter the country. 
The collection of assessments on imported watermelons will be expected 
to generate an additional $137,400 per year in revenue to the Board. In 
order to make these changes, this rule amends sections 1210.305, 
1210.320, 1210.321, 1210.328, 1210.341, 1210.350, 1210.351, 1210.352, 
1210.363, and 1210.364 of the Plan; sections 1210.402 and 1210.405 of 
the nomination procedures; and sections 1210.515, 1210.518, 1210.519, 
1210.521, 1210.530, 1210.531, and 1210.532 of the rules and 
regulations. In addition, a new section 1210.314 will be added to the 
Plan.
    To facilitate the collection of assessments on imported 
watermelons, the Secretary proposes that the Customs Service of the 
Department of the Treasury be designated as the collecting agency for 
assessments levied on such imports. Other commodity research and 
promotion programs utilize the Customs Service as a means of collecting 
assessments on imported products, and the Customs Service is agreeable 
to collecting these watermelon assessments. An agreement between the 
USDA and the Customs Service will be entered into to implement this 
action. In order to make this change, this rule would amend section 
1210.518 of the Rules and Regulations.
    The importer representation on the Board will be proportionate to 
the percentage of assessments paid by importers to the Board, except 
that at least one representative of importers will serve on the Board 
if importers are subject to the Plan. This representation will enable 
importers to participate in developing the Board's programs, plans, and 
projects, and express their views and concerns on how Board funds are 
used if imports are assessed under the Plan. Importers will nominate 
individuals to serve as importer members on the Board, and as required 
for other members of the Board, two nominees would be submitted to the 
Secretary for each vacancy. The Act requires the number of importers 
members to be proportionate to the assessments paid by importers. It is 
necessary to calculate the number of initial importer members on the 
volume of imports because imports are not currently being assessed. 
There are currently 14 producers and 14 handlers on the Board. This is 
the equivalent of one domestic industry member for every 67.7 million 
pounds of domestic production. Based on the average annual volume of 
imports during the last 3-year period (323.1 hundredweight), four 
importers would be added to the current Board. In order to make this 
change, this rule would amend sections 1210.320, 1210.321, and 
1210.401.
    The Act provides for the elimination of refunds of assessments 
after passed in the referendum. The refund provision has been in effect 
since the beginning of the program. Refunds have been increasing every 
year from 9 percent in 1990 to almost 29 percent in 1993. The 
elimination of the refund provision from the Plan is estimated to 
provide the Board with additional $250,000 per year for research and 
promotion activities. In order to make this change, this rule amends 
sections 1210.343 and 1210.520.
    The Act increases the acreage for exempt producers from ``less than 
5 acres'' to ``less than 10 acres'' of watermelons. Importers of less 
than 150,000 pounds of watermelons per year will be entitled to apply 
for a refund which will be the producer equivalent of the import 
assessments. The 150,000- [[Page 10797]] pound exemption level for 
importers is the level determined to be equivalent to 10 acres of 
watermelons for domestic producers. In addition, the Act provides that 
the Board has the authority to establish rules for producers to certify 
whether they are exempt from the assessments. In order to make these 
changes, this rule amends sections 1210.341, 1210.342, 1210.518, and 
1210.521.
    The Act also increases applicability of the law from the 48 
contiguous States to the 50 States and the District of Columbia. This 
amendment would expand the Plan to cover producers, handlers, and 
importers in Hawaii, Alaska, and the District of Columbia. In order to 
make these changes, this rule amends section 1210.305 and would add a 
new section 1210.315.
    Section 1647(f) of the Act permits changes in the assessment rate 
through notice and comment rulemaking. No change to the Plan is 
necessary to implement this amendment to the Act because section 
1210.341 of the Plan states that assessment rates shall be fixed by the 
Secretary in accordance with section 1647(f) of the Act.
    The Act provides that a producer is eligible to serve on the Board 
as a representative of handlers (1) if a 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 (2) if the combined 
total volume of watermelons handled by the producer from the producer's 
own production and purchases from other producer's production is more 
than 50 percent of the producer's own production. This provision 
facilitates the eligibility of producers and handlers to serve on the 
Board as representatives of their specific group. In order to make 
these changes, this rule amends sections 1210.321, 1210.363, 1210.368, 
and 1210.402.
    The Act also provides that all future promulgation and amendment 
referenda do not have to be conducted at Extension Service county 
offices. This procedure proved to be expensive and difficult to 
administer. The Act now allows referenda to be conducted by mail ballot 
which reduces the costs involved in conducting referenda and 
facilitates a more timely tabulation of the results. In order to make 
this change, this rule amends section 1210.363.
    In addition, the Act changes the criteria for determining the 
outcome of referenda. The Act previously provided that the Plan should 
not be effective unless approved by not less than two-thirds of the 
producers and handlers voting in the referendum, or producers and 
handlers of not less than two-thirds of the watermelons produced and 
handled during the representative period by producers and handlers 
voting in the referendum, and by not less than a majority of the 
producers and a majority of the handlers voting in the referendum. The 
Act now specifies that the determination of the results of a referendum 
should be on the basis of a simple majority of the producers, handlers, 
and importers voting in the referendum. In order to make this change, 
this rule amends section 1210.363.
    Furthermore, section 1210.252 will be revised to correct a wording 
error made during the promulgation of the Plan and section 1210.322 
will be revised to delete obsolete language.
    In addition, section 1210.325 will be changed to reflect a change 
in the number of Board members that constitute a majority. This 
revision reflects the addition of importer members to the Board.
    Section 1210.505 will be amended to reflect the fact that the 
Department issues user fee bills to the Board monthly rather than 
quarterly.
    In addition, miscellaneous conforming changes will be made to 
sections 1210.251, 1210.302, 1210.328, 1210.340, and 1210.362.
    Minor changes are made in this final rule for the purpose of 
clarity.
    After consideration of all relevant material presented, it is found 
that this regulation, as set forth herein, tends to effectuate the 
declared policy of the Act.
    Pursuant to 5 U.S.C. 553, it is also found and determined that good 
cause exists for not postponing the effective date of this action until 
30 days after publication in the Federal Register because: (1) This 
rule amends the Plan and the Rules and Regulations issued thereunder, 
in accordance with the provisions of the Act as amended by the 
Watermelon Research and Promotion Improvement Act of 1993; (2) 
watermelon producers, handlers, and importers voted in November 1994 to 
implement two of the major changes; and (3) no useful purpose will be 
served in delaying the effective date until 30 days after publication 
of this final rule. Therefore, this final rule will be effective on the 
date of publication in the Federal Register.

List of Subjects in 7 CFR Part 1210

    Agricultural promotion, Agricultural research, Market development, 
Reporting and recordkeeping requirements, Watermelons.

    For the reasons set forth in the preamble, part 1210, chapter XI of 
title 7 is amended as follows:

PART 1210--WATERMELON RESEARCH AND PROMOTION PLAN

    1. The authority citation for 7 CFR part 1210 continues to read as 
follows:

    Authority: 7 U.S.C. 4901-4916.

Subpart--Rules of Practice Governing Proceedings on Petitions To 
Modify or To Be Exempted From Plans


Sec. 1210.251  [Amended]

    2. In Section 1210.251, paragraph (a) is amended by removing ``;'' 
and adding in its place ``, as amended;''.


Sec. 1210.252  [Amended]

    3. In Section 1210.252, paragraph (b)(3) is amended by removing the 
word ``order'' and adding in its place ``Plan''.

Subpart--Watermelon Research and Promotion Plan


Sec. 1210.302  [Amended]

    4. Section 1210.302 is amended by adding ``, as amended'' at the 
end of the sentence.
    5. Section 1210.305 is revised to read as follows:


Sec. 1210.305  Watermelon.

    ``Watermelon'' means all varieties of the Family Curcubitaceae; 
Genus and Species; Citrullus Lanatus, popularly referred to as 
watermelon grown by producers in the United States or imported into the 
United States.


Sec. 1210.306  [Amended]

    6. Section 1210.306 is amended by removing the word ``five'' and 
adding in its place ``10''.
    7. A new Sec. 1210.314 is added to read as follows:


Sec. 1210.314  Importer.

    ``Importer'' means any person who imports watermelons into the 
United States as a principal or as an agent, broker, or consignee for 
any person who produces watermelons outside of the United States for 
sale in the United States.
    8. A new section 1210.315 is added to read as follows:


Sec. 1210.315  United States.

    ``United States'' means each of the several States and the District 
of Columbia.
    9. Section 1210.320 is amended by revising paragraph (a) and adding 
new paragraphs (d), (e), and (f) to read as follows:


Sec. 1210.320  Establishment and membership.

    (a) There is hereby established a National Watermelon Promotion 
Board, hereinafter called the ``Board.'' The [[Page 10798]] Board shall 
be composed of producers, handlers, importers, and one public 
representative appointed by the Secretary. An equal number of producer 
and handler representatives shall be nominated by producers and 
handlers pursuant to Sec. 1210.321. The Board shall also include one or 
more representatives of importers, who shall be nominated in such 
manner as may be prescribed by the Secretary. The public representative 
shall be nominated by the Board members in such manner as may be 
prescribed by the Secretary. If producers, handlers, and importers fail 
to select nominees for appointment to the Board, the Secretary may 
appoint persons on the basis of representation as provided in 
Sec. 1210.324. If the Board fails to adhere to procedures prescribed by 
the Secretary for nominating a public representative, the Secretary 
shall appoint such representative.
* * * * *
    (d) Importer representation on the Board shall be proportionate to 
the percentage of assessments paid by importers to the Board, except 
that at least one representative of importers shall serve on the Board.
    (e) Not later than 5 years after the date that importers are 
subject 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.
    (f) The Board consists of 14 producers, 14 handlers, at least one 
importer, and one public member appointed by the Secretary.
    10. Section 1210.321 is amended by redesignating paragraphs (a), 
(b), and (c) as (b), (c), and (e) respectively; redesignating paragraph 
(d) as paragraph (f); removing new paragraph (f)(1) and redesignating 
new paragraphs (f)(2) and (f)(3) as paragraphs (f)(1) and (f)(2); 
revising new paragraphs (b) introductory text, (b)(1), (b)(4), (e), (f) 
introductory text, and (f)(1); removing in new paragraph (c) the word 
``positions'' and adding in its place the phrase ``producer and handler 
positions''; and adding new paragraphs (a) and (d) to read as follows:


Sec. 1210.321  Nominations and selection.

* * * * *
    (a) There shall be two individuals nominated for each vacant 
position.
    (b) The Board shall issue a call for nominations by February first 
of each year in which an election is to be held. The call shall include 
at a minimum, the following information:
    (1) A list of the vacancies and qualifications as to producers and 
handlers by district and to importers nationally for which nominees may 
be submitted.
* * * * *
    (4) The date, time, and location of any next scheduled meeting of 
the Board, national and State producer or handler associations, 
importers, and district conventions, if any.
* * * * *
    (d) Nominations for importers positions that become vacant may be 
made by mail ballot, nomination conventions, or by other means 
prescribed by the Secretary. The Board shall provide notice of such 
vacancies and the nomination process to all importers through press 
releases and any other available means as well as direct mailing to 
known importers. All importers may participate in the nomination 
process: Provided, That a person who both imports and handles 
watermelons may vote for importer members and serve as an importer 
member if that person imports 50 percent or more of the combined total 
volume of watermelons handled and imported by that person.
    (e) All producers and handlers within the district may participate 
in the convention: Provided, That a person that produces and handles 
watermelons may vote for handler members only if the producer purchased 
watermelons from other producers, in a combined total volume that is 
equal to 25 percent or more of the producer's own production; or the 
combined total volume of watermelon handled by the producer from the 
producer's own production and purchases from other producer's 
production is more than 50 percent of the producer's own production; 
and provided further, That if a producer or handler is engaged in the 
production or handling of watermelons in more than one State or 
district, the producer or handler shall participate within the State or 
district in which the producer or handler so elects in writing to the 
Board and such election shall remain controlling until revoked in 
writing to the Board.
    (f) The district convention chairperson shall conduct the selection 
process for the nominees in accordance with procedures to be adopted at 
each such convention, subject to requirements set in Sec. 1210.321(e).
    (1) No State in Districts 3, 4, 5, and 7 as currently constituted 
shall have more than three producers and handlers representatives 
concurrently on the Board.
* * * * *
    11. Section 1210.322 is amended by revising paragraphs (a), (b), 
and (d) to read as follows:


Sec. 1210.322  Term of office.

    (a) The term of office of Board members shall be three years.
    (b) Except in the case of mid-term vacancies, the term of office 
shall begin on January 1, or such other date as may be recommended by 
the Board and approved by the Secretary.
* * * * *
    (d) No person shall serve more than two successive terms of office.
    12. Section 1210.325 is amended by revising paragraph (a) to read 
as follows:


Sec. 1210.325  Procedure.

    (a) A simple majority of Board members shall constitute a quorum 
and any action of the Board shall require the concurring votes of a 
majority of those present and voting. At assembled meetings all votes 
shall be cast in person.
* * * * *


Sec. 1210.328  [Amended]

    13. Section 1210.328 is amended by removing in paragraphs (d) and 
(g) the word ``collected'' and adding in its place ``received''; 
removing in paragraphs (g), (i), and (m) the phrase ``and handlers'' 
and adding in its place ``, handlers, and importers''; removing in 
paragraph (k) the phrase ``or handler'' and adding in its place ``, 
handler or importer''; and removing in paragraph (n) the word 
``handlers'' and adding in its place ``handlers, importers,''.


Sec. 1210.340  [Amended]

    14. Section 1210.340 is amended by removing in paragraph (b) the 
word ``collected'' and adding in its place ``received''.
    15. Section 1210.341 is amended by revising paragraphs (a), and 
(b); redesignating paragraphs (d) through (i) as (e) through (j); 
revising redesignated paragraph (e); adding a new paragraph (d); 
removing in redesignated paragraphs (f) and (g) the word ``handler'' 
wherever it appears and adding in its place ``handler or importer''; 
removing in redesignated paragraph (h) the word ``handlers'' wherever 
it appears and adding in its place ``handlers and importers''; and 
removing redesignated in paragraph (f) the letter ``(d)'' and adding in 
its place ``(e)'' to read as follows:


Sec. 1210.341  Assessments.

    (a) During the effective period of this subpart, assessments shall 
be levied on all watermelons produced and first handled in the United 
States and all [[Page 10799]] watermelons imported into the United 
States for consumption as human food. No more than one assessment on a 
producer, handler, or importer shall be made on any lot of watermelons. 
The handler shall be assessed an equal amount on a per unit basis as 
the producer. If a person performs both producing and handling 
functions on any same lot of watermelons, both assessments shall be 
paid by such person. In the case of an importer, the assessment shall 
be equal to the combined rate for domestic producers and handlers and 
shall be paid by the importer at the time of entry of the watermelons 
into the United States.
    (b) Assessment rates shall be fixed by the Secretary in accordance 
with section 1647(f) of the Act. No assessments shall be levied on 
watermelons grown by producers of less than 10 acres of watermelons.
* * * * *
    (d) Each importer shall be responsible for payment of the 
assessment to the Board on watermelons imported into the United States 
through the U.S. Customs Service or in such other manner as may be 
established by rules and regulations approved by the Secretary.
    (e) Producer-handlers and handlers shall pay assessments to the 
Board at such time and in such manner as the Board, with the 
Secretary's approval, directs, pursuant to regulations issued under 
this part. Such regulations may provide for different handlers or 
classes of handlers and different handler payment and reporting 
schedules to recognize differences in marketing practices or procedures 
used in any State or production area.
* * * * *
    16. Section 1210.342 is amended by designating the existing text as 
paragraph (a) and adding new paragraphs (b), (c), and (d) to read as 
follows:


Sec. 1210.342  Exemption from assessment.

* * * * *
    (b) Importers of less than 150,000 pounds of watermelons per year 
shall be entitled to apply for a refund that is equal to the rate of 
assessment paid by domestic producers.
    (c) The Secretary may adjust the quantity of the weight exemption 
specified in paragraph (b) of this section on the recommendation of the 
Board after an opportunity for public notice and comment to reflect 
significant changes in the 5-year average yield per acre of watermelons 
produced in the United States.
    (d) The Board shall have the authority to establish rules, with the 
approval of the Secretary, for certifying whether a person meets the 
definition of a producer under section 1210.306.


Sec. 1210.343  [Removed and Reserved]

    17. Section 1210.343 is removed and reserved.
    18. Section 1210.350 is amended by redesignating paragraphs (a) 
through (d) as (a) (1) through (4); designating the introductory 
paragraph as paragraph (a) introductory text; and adding new paragraphs 
(b) and (c) to read as follows:


Sec. 1210.350  Reports.

* * * * *
    (b) Each importer of watermelons shall maintain a separate record 
that includes a record of:
    (1) the total quantity of watermelons imported into the United 
States that are included under the terms of this Plan;
    (2) the total quantity of watermelons that are exempt from the 
Plan; and
    (3) such other information as may be prescribed by the Board.
    (c) Each importer shall report to the Board at such times and in 
such manner as it may prescribe such information as may be necessary 
for the Board to perform its duties under this part.


Sec. 1210.351  [Amended]

    19. Section 1210.351 is amended by removing the word ``handler'' 
and adding in its place ``handler and importer'' and removing the word 
``two'' and adding in its place ``2''.


Sec. 1210.352  [Amended]

    20. Section 1210.352 is amended by removing in paragraph (a)(1) the 
word ``handlers'' and adding in its place ``handlers or importers''.


Sec. 1210.362  [Amended]

    21. Section 1210.362 is amended by removing the word ``collected'' 
and adding in its place ``received''; and removing the word ``plan'' 
and adding in its place ``Plan''.
    22. Section 1210.363 is amended by revising paragraph (b) to read 
as follows:


Sec. 1210.363  Suspension or termination.

* * * * *
    (b) The Secretary may conduct a referendum at any time and shall 
hold a referendum on request of the Board or at least 10 percent of the 
combined total of the watermelon producers, handlers, and importers to 
determine if watermelon producers, handlers, and importers favor 
termination or suspension of this Plan. The Secretary shall suspend or 
terminate this Plan at the end of the marketing year whenever the 
Secretary determines that the suspension or termination is favored by a 
majority of the watermelon producers, handlers, and importers voting in 
such referendum who, during a representative period determined by the 
Secretary, have been engaged in the production, handling, or importing 
of watermelons and who produced, handled, or imported more than 50 
percent of the combined total of the volume of watermelons produced, 
handled, or imported by those producers, handlers, and importers voting 
in the referendum. For purposes of this section, the vote of a person 
who both produces and handles watermelons will be counted as a handler 
vote if the producer purchased watermelons from other producers, in a 
combined total volume that is equal to 25 percent or more of the 
producer's own production; or the combined total volume of watermelon 
handled by the producer from the producer's own production and 
purchases from other producer's production is more than 50 percent of 
the producer's own production. Provided, That the vote of a person who 
both imports and handles watermelons will be counted as an importer 
vote if that person imports 50 percent or more of the combined total 
volume of watermelons handled and imported by that person. Any such 
referendum shall be conducted by mail ballot.


Sec. 1210.364  [Amended]

    23. Section 1210.364 is amended by removing in paragraph (d) the 
phrase ``and handlers'' and adding in its place ``, handlers and 
importers''.
    24. The subpart heading ``Subpart--Procedures for Nominating 
Producer and Handler Members to the National Watermelon Promotion 
Board'' is revised; and a new undesignated center heading is added to 
read as follows:

Subpart--Procedures for Nominating Members to the National 
Watermelon Promotion Board

Producer and Handler Members

    25. In Section 1210.401, paragraph (b) is revised to read as 
follows:


Sec. 1210.401  District conventions.

* * * * *
    (b) District conventions are to be held to nominate producers and 
handlers as candidates for membership on the National Watermelon 
Promotion Board. Each district, as defined in Sec. 1210.501, is 
entitled to two producer and two handler members on the Board.
* * * * *
    26. Section 1210.402 is amended by revising paragraph (a); removing 
in paragraph (b) the phrase ``or first handling'' and adding in its 
place ``, first handling or importing''; and removing [[Page 10800]] in 
paragraph (b) the phrase ``Sec. 1210.403'' and adding in its place 
``Sec. 1210.403 and Sec. 1210.404'' to read as follows:


Sec. 1210.402  Voter and board member nominee eligibility.

    (a) All producers and handlers within a district may participate in 
their district convention for the purpose of nominating candidates for 
appointment to the Board: Provided, That a producer who both produces 
and handles watermelons may vote for handler member nominees and serve 
as a handler member nominee only if the producer purchased watermelons 
from other producers, in a combined total volume that is equal to 25 
percent or more of the producer's own production or the combined total 
volume of watermelons handled by the producer from the producer's own 
production and purchases from other producer's production is more than 
50 percent of the producer's own production; and Provided further, That 
if a producer or handler is engaged in the production or handling of 
watermelons in more than one State or district, the producer or handler 
shall participate within the State or district in which the producer or 
handler so elects in writing to the Board and such election shall 
remain controlling until revoked in writing to the Board. For the 
purpose of participation in initial nominating conventions, such 
election shall be made in writing, at the address provided, to the 
Department official identified in the call for a district convention.
* * * * *
    27. A new undesignated center heading and section 1210.404 are 
added to read as follows:

Importer Members


Sec. 1210.404  Importer member nomination and selection.

    (a) The Board shall include one or more representatives of 
importers, who shall be appointed by the Secretary from nominations 
submitted by watermelon importers. Importers' representation on the 
Board shall be proportionate to the percentage of assessments paid by 
importers to the Board, except that at least one representative of 
importers shall serve on the Board if importers are subject to the 
Plan. Nominations for importer positions that become vacant shall be 
made by importers at nomination conventions or by mail ballot.
    (b) The initial nomination of importer members shall be made not 
later than 90 days after the Plan is amended.
    (c) There shall be two individuals nominated for each vacant 
position. The importer receiving the highest number of votes for a 
vacancy shall be the first choice nominee, and the importer receiving 
the second highest number of votes shall be the second choice nominee 
submitted to the Secretary.
    (d) Any individual, group of individuals, partnership, corporation, 
association, cooperative or any other entity which is engaged in the 
production, first handling or importing of watermelons is considered a 
person and as such is entitled to only one vote, except that such 
person may cast proxy votes as provided in paragraph (e)(1) of this 
section.
    (e) Nomination Conventions. If nominations are made by nomination 
conventions, the Board shall widely publicize such conventions and 
provide importers and the Secretary at least 10 days notice prior to 
each convention.
    (1) Proxy voting by importers shall be permitted at all 
conventions. Any person wanting to cast proxy votes must demonstrate 
authorization to do so. Authority to cast a proxy vote on behalf of 
another person shall be demonstrated through documentation containing:
    (i) The proxy voter's name, address, and telephone number;
    (ii) Signature and date signed;
    (iii) A certification identifying the proxy voter as an importer; 
and
    (iv) A statement identifying the person being given authority by 
the proxy voter to cast the proxy vote.
    (2) The Board shall provide to the Secretary a typed copy of each 
convention's minutes and shall arrange for completion of qualification 
statements and other specified information by each nominee and forward 
such to the Secretary within 14 calendar days of completion of a 
convention.
    (f) Mail balloting. If nominations are conducted by mail ballot, 
the Board shall request importers to submit nominations of eligible 
importers. It is the importer's responsibility to prove the 
individual's eligibility. After the names of nominees are received, the 
Board shall print ballots and ask eligible importers to vote to 
nominate their candidates. After the vote is received, the Board shall 
tabulate the results and shall send to the Department the nominees in 
order of preference. The Board shall provide the Secretary with a 
report on the results, number of importers participating in the vote, 
and the volume of imports, and shall arrange for completion of 
qualification statements and other specified information by each 
nominee and forward such to the Secretary within 14 calendar days of 
receiving the ballots.
    (g) Any individual who both imports and handles watermelons will be 
considered an importer if that person imports 50 percent or more of the 
combined total volume of watermelons handled and imported by that 
person.


Sec. 1210.503  [Redesignated as Sec. 1210.405]

    28. Section 1210.503 is redesignated as Sec. 1210.405, the first 
sentence of paragraph (a) is revised, and a new undesignated center 
heading is added to read as follows:

Public Member


Sec. 1210.405  Public member nominations and selection.

    (a) The public member shall be nominated by the other members of 
the Board. * * *
* * * * *

Subpart--Rules and Regulations


Sec. 1210.505  [Amended]

    29. Section 1210.505 is amended by removing the word ``quarterly'' 
and adding in its place ``monthly''.
    30. Section 1210.515 is amended by revising paragraph (a); 
redesignating paragraph (b) as (c); and adding a new paragraph (b) to 
read as follows:


Sec. 1210.515  Levy of assessments.

    (a) An assessment of two cents per hundredweight shall be levied on 
all watermelons produced for ultimate consumption as human food, and an 
assessment of two cents per hundredweight shall be levied on all 
watermelons first handled for ultimate consumption as human food. An 
assessment of four cents per hundredweight shall be levied on all 
watermelons imported into the United States for ultimate consumption as 
human food at the time of entry in the United States.
    (b) The import assessment shall be uniformly applied to imported 
watermelons that are identified by the numbers 0807.10.30007 and 
0807.10.40005 in the Harmonized Tariff Schedule of the United States or 
any other number used to identify fresh watermelons for consumption as 
human food. The U.S. Customs Service (USCS) will collect assessments on 
such watermelons at the time of entry and will forward such assessment 
as per the agreement between USCS and USDA. Any importer or agent who 
is exempt from payment of assessments may submit the Board adequate 
proof of the volume handled by such importer for the exemption to be 
granted.
* * * * *
    31. Section 1210.518 is amended by revising paragraphs (a) and (b); 
[[Page 10801]] removing in paragraph (c)(1) the letter ``(e)'' and 
adding in its place ``(b) and (e)'' and removing the word ``handler'' 
and adding in its place ``handler and importer''; removing in paragraph 
(c)(2)(viii) the word ``five'' and adding in its place ``10''; and 
removing in paragraph (d)(1) the word ``handler'' wherever it appears 
and adding in its place ``handler and importer'' to read as follows:


Sec. 1210.518  Payment of assessments.

    (a) Time of payment. The assessment on domestically produced 
watermelons shall become due at the time the first handler handles the 
watermelons for non-exempt purposes. The assessment on imported 
watermelons shall become due at the time of entry, or withdrawal, into 
the United States.
    (b) Responsibility for payment.
    (1) The first handler is responsible for payment of both the 
producer's and the handler's assessment. The handler may collect the 
producer's assessment from the producer or deduct such producer's 
assessment from the proceeds paid to the producer on whose watermelons 
the producer assessment is made. Any such collection or deduction of 
producer assessment shall be made not later than the time when the 
first handler handles the watermelons.
    (2) The U.S. Customs Service shall collect assessments on imported 
watermelons from importers and forward such assessments under an 
agreement between the U.S. Customs Service and the U.S. Department of 
Agriculture. Importers shall be responsible for payment of assessments 
directly to the Board of any assessments due but not collected by the 
U.S. Customs Service at the time of entry, or withdrawal, on 
watermelons imported into the United States for human consumption.
* * * * *


Sec. 1210.519  [Amended]

    32. Section 1210.519 is amended by removing in the introductory 
paragraph the word ``handler'' and adding in its place ``handler and 
importer''; by removing in paragraph (a) the word ``handler's'' and 
adding in its place ``handler's and importer's''; and removing the word 
``Watermelon'' from the introductory paragraph and paragraphs (a) and 
(b).
    33. Section 1210.520 is revised to read as follows:


Sec. 1210.520  Refunds.

    Each importer of less than 150,000 pounds of watermelons during any 
calendar year shall be entitled to apply for a refund of the 
assessments paid in an amount equal to the amount paid by domestic 
producers.
    (a) Application form. The Board shall make available to all 
importers a refund application form.
    (b) Submission of refund application to the Board. The refund 
application form shall be submitted to the Board within 90 days of the 
last day of the year the watermelons were actually imported. The refund 
application form shall contain the following information:
    (1) Importer's name and address;
    (2) Number of hundredweight of watermelon on which refund is 
requested;
    (3) Total amount to be refunded;
    (4) Proof of payment as described below; and
    (5) Importer's signature.
    (c) Proof of payment of assessment. Evidence of payment of 
assessments satisfactory to the Board shall accompany the importer's 
refund application. An importer must submit a copy of the importer's 
report or a cancelled check. Evidence submitted with a refund 
application shall not be returned to the applicant.
    (d) Payment of refund. Immediately after receiving the properly 
executed application for refund, the Board shall make remittance to the 
applicant.

    34. Section 1210.521 is revised to read as follows:


Sec. 1210.521  Reports of disposition of exempted watermelons.

    The Board may require reports by handlers or importers on the 
handling/importing and disposition of exempted watermelons and/or on 
the handling of watermelons for persons engaged in growing less than 10 
acres of watermelons or in the case of importers, the importing of less 
than 150,000 pounds per year. Authorized employees of the Board or the 
Secretary may inspect such books and records as are appropriate and 
necessary to verify the reports on such disposition.


Sec. 1210.530  [Amended]

    35. Section 1210.530 is amended by removing the word ``handler'' 
from the introductory text and adding in its place ``handler and 
importer''.


Sec. 1210.531  [Amended]

    36. Section 1210.531 is amended by removing the word ``handler'' 
and adding in its place ``handler and importer''.
    37. Section 1210.532 is revised to read as follows:


Sec. 1210.532  Confidential books, records, and reports.

    All information obtained from the books, records, and reports of 
handlers and importers and all information with respect to refunds of 
assessments made to importers shall be kept confidential in the manner 
and to the extent provided for in Sec. 1210.352.

    Dated: February 21, 1995.
Lon Hatamiya,
Administrator.
[FR Doc. 95-4736 Filed 2-27-95; 8:45 am]
BILLING CODE 3410-02-P