This section of the FEDERAL REGISTER

contains regulatory documents having general

applicability and legal effect, most of which

are keyed to and codified in the Code of

Federal Regulations, which is published under

50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by

the Superintendent of Documents. Prices of

new books are listed in the first FEDERAL

REGISTER issue of each week.

Rules and Regulations Federal Register

10795

Vol. 60, No. 39

Tuesday, February 28, 1995

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

§ 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
10796 Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Rules and Regulations

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-
Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Rules and Regulations 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 twothirds 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

§ 1210.251 [Amended]

2. In Section 1210.251, paragraph (a)

is amended by removing ‘‘;’’ and adding

in its place ‘‘, as amended;’’.

§ 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

§ 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:

§ 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.

§ 1210.306 [Amended]

6. Section 1210.306 is amended by

removing the word ‘‘five’’ and adding in

its place ‘‘10’’.

7. A new § 1210.314 is added to read

as follows:

§ 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:

§ 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:

§ 1210.320 Establishment and

membership.

(a) There is hereby established a

National Watermelon Promotion Board,

hereinafter called the ‘‘Board.’’ The
10798 Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Rules and Regulations

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 § 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 § 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:

§ 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 § 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:

§ 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:

§ 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.

* * * * *

§ 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,’’.

§ 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:

§ 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
Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Rules and Regulations 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:

§ 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.

§ 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:

§ 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.

§ 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’’.

§ 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’’.

§ 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:

§ 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.

§ 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:

§ 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 § 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
10800 Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Rules and Regulations

in paragraph (b) the phrase ‘‘§ 1210.403’’

and adding in its place ‘‘§ 1210.403 and

§ 1210.404’’ to read as follows:

§ 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

§ 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.

§ 1210.503 [Redesignated as § 1210.405]

28. Section 1210.503 is redesignated

as § 1210.405, the first sentence of

paragraph (a) is revised, and a new

undesignated center heading is added to

read as follows:

Public Member

§ 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

§ 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:

§ 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);
Federal Register / Vol. 60, No. 39 / Tuesday, February 28, 1995 / Rules and Regulations 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:

§ 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.

* * * * *

§ 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:

§ 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:

§ 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.

§ 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’’.

§ 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:

§ 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 § 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

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 39

[Docket No. 94–NM–128–AD; Amendment

39–9146; AD 95–03–09]

Airworthiness Directives; Fokker

Model F28 Mark 0100 Series Airplanes

AGENCY: Federal Aviation

Administration, DOT.

ACTION: Final rule.

SUMMARY: This amendment adopts a

new airworthiness directive (AD),

applicable to all Fokker F28 Mark 0100

series airplanes, that requires inspecting

the teleflex cable of the landing gear to

detect corrosion, moisture, or improper

greasing, and replacing discrepant

teleflex cables with serviceable parts.

This amendment is prompted by reports

of difficulties with the operation of the

selector handle of the landing gear when

‘‘gear down’’ is selected, due to

improper greasing of the teleflex cable

of the landing gear during production.

The actions specified by this AD are

intended to prevent moisture from

accumulating on the teleflex cable,

which could result in corrosion of the

teleflex cable that could inhibit

operation of the selector handle of the

landing gear.

DATES: Effective March 30, 1995.

The incorporation by reference of

certain publications listed in the

regulations is approved by the Director

of the Federal Register as of March 30,

1995.

ADDRESSES: The service information

referenced in this AD may be obtained

from Fokker Aircraft USA, Inc., 1199

North Fairfax Street, Alexandria,

Virginia 22314. This information may be

examined at the Federal Aviation

Administration (FAA), Transport

Airplane Directorate, Rules Docket,

1601 Lind Avenue, SW., Renton,

Washington; or at the Office of the

Federal Register, 800 North Capitol

Street, NW., suite 700, Washington, DC.

FOR FURTHER INFORMATION CONTACT: