(a) Requests for records of the Consumer and Marketing Service, pursuant to 5 U.S.C. 522 (a) (3), shall be made in writing to the Director of the Division responsible for the program (32 F.R. 11741, Aug. 15, 1967), Consumer and Marketing Service, U.S. Department of Agriculture, Washington, D.C. 20250. Each record sought must be identified with reasonable specificity. The Consumer and Marketing Service is under no obligation to produce records for examination which cannot be reasonably identified nor is it obligated to create records to specification in response to a request. Requests may be submitted in person or by mail. If in person, requests shall be submitted between 9 a.m. and 5:30 p.m., Monday through Friday, except holidays.

(b) Certain records of the Consumer and Marketing Service are scattered among sev

eral hundred field offices, each field office having only the records it has generated. Requests for such material will be filled either by copying the records in each field office and consolidating the material at the headquarters office or by asking each field office to copy the records and furnish them directly, whichever method appears most expeditious to the headquarters Division involved. In such cases, the fee for searching and copying will be collected at the headquarters office. The above does not preclude persons from requesting such material in person, or in writing, directly from a field office, if it has been customary to obtain the information in this manner and the request is made during the local working hours of the office involved.

[32 F.R. 9610, July 4, 1967, as amended at 32 F.R. 12992, Sept. 13, 1967]

§ 900.511 Delegation of authority.

Subject to § 900.515, the Director of the Division responsible for the records is authorized to act, on behalf of the Consumer and Marketing Service, on all such requests in accordance with 5 U.S.C. 552, as implemented by this subpart.

§ 900.512 Available records.

The Consumer and Marketing Service will promptly make available all Consumer and Marketing Service records requested in accordance with § 900.510 except exempt records as described in § 900.513.

§ 900.513 Exempt records.

Exempt records of the Consumer and Marketing Service include but are not limited to the following:

(a) Matters specifically required by Executive order to be kept secret.

(b) Matters related solely to the internal personnel rules and practices of the Consumer and Marketing Service. Among such records are warehouse examiners' handbooks and other handbooks describing records of tolerances applied in laboratory examination of products and in testing for various purposes.

(c) Matters specifically exempted from disclosure by statute.

(d) Matters that are trade secrets and commercial or financial information obtained from any person and privileged or confidential. Among records of the Consumer and Marketing Service in this category are blueprints and similar records revealing individual physical or operating characteristics of meat or poultry slaughtering or other food processing plants; data concerning product formulations, packaging, labeling, methods of manufacture, and chemical additives, provided by industry in connection with the Department's registration, inspection, grading, and other regulatory and service functions; information furnished voluntarily by persons relating to their farm or business operations for use in making statistical analyses as a foundation

for official estimates and reports, for use in developing inspection or other required staffing, financial or program plans, or for official purposes; inspection, grading, and classing certificates or reports and worksheets and other background material, including condemnation reports, plant sanitation records and reports and laboratory test results; fee bills and other documents relating to inspection, grading and classing work which would indicate quantity, quality, or other characteristics of an individual business, plant, or operation; information and reports obtained from individual dealers, manufacturers, associations, or others covering quantities of commodities processed, condemned, purchased, or sold during prescribed periods, or on hand at particular times, or the prices paid or received therefor; producers' referendum or other ballots filed pursuant to law, and other records developed for the conduct and final execution of referenda or the determination of producer approval, such as producer lists, handler lists, plant receipts, and utilization in the representative period, and similar records relating to marketing order referenda; information furnished pursuant to marketing agreements and orders; financial information and examination reports relating to licensees and applicants for licenses under the U.S. Warehouse Act; laboratory reports, such as pathological, residue, and bacteriological, involving individual food processing plants or establishments; data concerning individual reviews of nonfederally inspected plants using or requesting Federal Meat Grading Service; results of analyses of samples of meat and poultry products produced under State or local inspection systems, for example, specie determination and residues of pesticides.

(e) Interagency or intra-agency memorandums or letters which would not be available by law to a party other than the agency in litigation with the Department. This includes, but is not limited to, communications with States concerning matching fund programs, minutes of Matching Fund Program Advisory Committee meetings, the Department Matching Fund Marketing Service Committee, and the Consumer and Marketing Service Matching Fund Working Group; State matching fund audit reports by the Office of the Inspector General, field reviews covering visits of matching fund personnel to States for the purpose of reviewing matching fund activities; documents discussing or recommending the formulation of the Departmental position in freight rate matters, and action notices to the Transportation Rates Review Group and minutes of Group meetings; information relating to policy determinations, the advance disclosure of which would give an undue advantage to some or disadvantage to others or would improperly affect a pending action; analyses and data being prepared for release prior to actual release; reports and correspondence relating to evaluations of foreign meat in

spection systems; and those intra- and interagency communications applicable to the formulation of a Consumer and Marketing Service order, instruction, regulation, or decision.

(f) Personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy. This includes, but is not limited to, individual personnel and medical files and related records, including such record material on licensed persons; mailing lists in connection with registration or other regulatory or service functions or for dissemination of market news or other publications.

(g) Investigatory files compiled for law enforcement purposes except to the extent available by law to a party other than the agency. This includes, but is not limited to, charges, complaints and other processes in connection with and prior to being filed in administrative or judicial proceedings; Office of Inspector General reports of investigation and all related correspondence; reports and related correspondence of the Compliance and Evaluation Staff of the Consumer and Marketing Service; and all other investigative, inspection, and accounting reports and supporting data assembled by the Consumer and Marketing Service and pertaining to compliance with laws or regulations.

§ 900.514 Determinations.

The appropriate Division Director shall make promptly available any Consumer and Marketing Service record requested in accordance with § 900.510, unless he determines that the record is exempt under the provisions of § 900.513. If he determines that the requested record should be withheld from public inspection, he shall give prompt written notice of any such determination together with the reasons therefor. § 900.515

Appeals.

A denial by a Division Director of any request for a Consumer and Marketing Service record or records for which that Director is responsible may be appealed by the person who made the request to the Administrator, Consumer and Marketing Service. The appeal shall be made in writing within 15 days of the date of the Director's notice of his action. The administrator will give written notice of Consumer and Marketing Service's final determination.

§ 900.516 Inspection and copies.

A person who has requested available records shall be promptly notified that, upon payment of applicable fees, he may inspect and copy such records (or copies), and purchase copies or extracts thereof, in the office of the Director of the Division responsible for the records, on business days from 9 a.m. to 5:30 p.m. Copies of such records may also be purchased by mail. The applicable fees are prescribed by the Office of Plant and Operations, U.S. Department of Agriculture.

The following terms shall have the following meanings as used in the order:

(a) Act. "Act" means Public Act No. 10, 73d Congress, as amended and as reenacted and amended by the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601 et seq.).

(b) Order. "Order" means the applicable part of Title 7 of the Code of Federal Regulations issued pursuant to section 8c of the Act as a Federal milk marketing order (as amended).

(c) Department. "Department" means the U.S. Department of Agriculture.

(d) Secretary. "Secretary" means the Secretary of Agriculture of the United States or any officer or employee of the Department to whom authority has heretofore been delegated, or to whom authority may hereafter be delegated to act in his stead.

(e) Person. "Person" means any individual, partnership, corporation, association, other business unit.

or

(a) Designation. The agency for the administration of the order shall be a market administrator selected by the Secretary and subject to removal at the Secretary's discretion. The market administrator shall be entitled to compensation determined by the Secretary.

(b) Powers. The market administrator shall have the following powers with respect to each order under his administration:

(1) Administer the order in accordance with its terms and provisions;

(2) Make rules and regulations to effectuate the terms and provisions of the order;

(3) Receive, investigate, and report complaints of violations to the Secretary; and (4) Recommend amendments to the Secretary.

(c) Duties. The market administrator shall perform all the duties necessary to administer the terms and provisions of each order under his administration, including, but not limited to, the following:

(1) Execute and deliver to the Secretary a bond covering himself and a bond covering any person designated by the Secretary to act in his stead. The respective bond shall be:

(i) Delivered within 45 days after he (or the acting market administrator) enters upon his duties;

(ii) Effective as of the date he (or the acting market administrator) enters upon his duties;

(iii) Conditioned upon the faithful performance of the market administrator's duties; and

(iv) In an amount and with surety thereon satisfactory to the Secretary;

(2) Employ and fix the compensation of persons necessary to enable him to exercise his powers and perform his duties;

(3) Pay out of funds provided by the administrative assessment, except expenses associated with functions for which the order provides a separate charge, all expenses necessarily incurred in the maintenance and functioning of his office and in the performance of his duties, including his own bond and compensation and the necessary bonds of his employees;

(4) Keep records which will clearly reflect the transactions provided for in the order, and upon request by the Secretary, surrender the records to his successor or such other person as the Secretary may designate;

(iii) Made available records and facilities as required pursuant to § 1000.5;

(7) Prescribe reports required of each handler under the order. Verify such reports and the payments required by the order by examining records (including such papers as copies of income tax reports, fiscal and product accounts, correspondence, contracts, documents or memoranda of the handler, and the records of any other persons that are relevant to the handler's obligation under the order), by examining such handler's milk handling facilities; and by such other investigation as the market administrator deems necessary for the purpose of ascertaining the correctness of any report or any obligation under the order. Reclassify skim milk and butterfat received by any handler if such examination and investigation discloses that the original classification was incorrect.

(8) Furnish each regulated handler a written statement of such handler's accounts with the market administrator promptly each month. Furnish a corrected statement to such handler if verification discloses that the original statement was incorrect; and

(9) Prepare and disseminate publicly for the benefit of producers, handlers, and consumers such statistics and other information concerning operation of the order and facts relevant to the provisions thereof (or proposed provisions) as do not reveal confidential information.

§ 1000.4 Continuity and separability of

provisions.

(a) Effective time. The provisions of the order or any amendment to the order shall become effective at such time as the Secretary may declare and shall continue in force until suspended or terminated.

(b) Suspension or termination. The Secretary shall suspend or terminate any or all of the provisions of the order whenever he finds that such provision(s) obstructs or does not tend to effectuate the declared policy of the Act. The order shall terminate whenever the provisions of the Act authorizing it cease to be in effect.

(c) Continuing obligations. If upon the suspension or termination of any or all of the provisions of the order, there are any obligations arising under the order, the final accrual or ascertainment of which requires acts by any handler, by the market administrator, or by any other person, the power and duty

to perform such further acts shall continue notwithstanding such suspension or termina

tion.

(d) Liquidation. (1) Upon the suspension or termination of any or all provisions of the order, the market administrator, or such other liquidating agent designated by the Secretary, shall if so directed by the Secretary liquidate the business of the market administrator's office, dispose of all property in his possession or control, including accounts receivable and execute and deliver all assignments or other instruments necessary or appropriate to effectuate any such disposition; and

(2) If a liquidating agent is so designated, all assets and records of the market administrator shall be transferred promptly to such liquidating agent. If, upon such liquidation, the funds on hand exceed the amounts required to pay outstanding obligations of the office of the market administrator and to pay necessary expenses of liquidation and distribution, such excess shall be distributed to contributing handlers and producers in an equitable manner.

(e) Separability of provisions. If any provision of the order or its application to any person or circumstances is held invalid, the application of such provision and of the remaining provisions of the order to other persons or circumstances shall not be affected thereby.

§ 1000.5

Handler responsibility for records and facilities.

Each handler shall maintain and retain records of his operations and make such records and his facilities available to the market administrator. If adequate records of a handler, or of any other persons, that are relevant to the obligation of such handler are not maintained and made available, any skim milk and butterfat required to be reported by such handler for which adequate records are not available shall not be considered accounted for or established as used in a class other than the highest priced class.

(a) Records to be maintained. (1) Each handler shall maintain records of his operations (including, but not limited to, records of purchases, sales, processing, packaging, and disposition) as are necessary to verify whether such handler has any obligation under the order, and if so, the amount of such obligation. Such records shall be such as to establish for each plant or other receiving point for each month:

(1) The quantities of skim milk and butterfat contained in, or represented by, products received in any form, including inventories on hand at the beginning of the month, according to form, time, and source of each receipt;

(ii) The utilization of all skim milk and butterfat showing the respective quantities of such skim milk and butterfat in each form disposed of or on hand at the end of the month; and

(iii) Payments to producers, dairy farmers and cooperative associations, including the amount and nature of any deductions and the disbursement of money so deducted.

(2) Each handler shall keep such other specific records as the market administrator deems necessary to verify or establish such handler's obligation under the order.

(b) Availability of records and facilities. Each handler shall make available all records pertaining to such handler's operations and all facilities the market administrator finds are necessary for such market administrator to verify the information required to be reported by the order and/or to ascertain such handler's reporting, monetary or other obligation under the order. Each handler shall permit the market administrator to weigh, sample, and test milk and milk products and observe plant operations and equipment and make available to the market administrator such facilities as are necessary to carry out his duties.

(c) Retention of records. All records required under the order to be made available to the market administrator shall be retained by the handler for a period of 3 years to begin at the end of the month to which such records pertain. If, within such 3-year period, the market administrator notifies the handler in writing that the retention of such records, or of specified records, is necessary in connection with a proceeding under section 8c (15) (A) of the Act or a court action specified in such notice, the handler shall retain such records, or specified records, until further written notification from the market administrator. The market administrator shall give further written notification to the handler promptly upon the termination of the litigation or when the records are no longer necessary in connection therewith.

§ 1000.6

Termination of obligations.

The provisions of this section shall apply to any obligation under the order for the payment of money:

(a) Except as provided in paragraphs (b) and (c) of this section, the obligation of any handler to pay money required to be paid under the terms of the order shall terminate 2 years after the last day of the month during which the market administrator receives the handler's report of receipts and utilization on which such obligation is based, unless within such 2-year period, the market administrator notifies the handler in writing that such money is due and payable. Service of such written notice shall be complete upon mailing to the handler's last known address and it shall contain but need not be limited to the following information:

(1) The amount of the obligation; (2) The month(s) on which such obligaticn is based; and

(3) If the obligation is payable to one or more producers or to a cooperative association (except an obligation to be prorated to producers under an individual handler pool),

the name of such producer(s) or such cooperative association, or if the obligation is payable to the market administrator, the account for which it is to be paid;

(b) If a handler fails or refuses, with respect to any obligation under the order, to make available to the market administrator all records required by the order to be made available, the market administrator may notify the handler in writing, within the 2-year period provided for in paragraph (a) of this section, of such failure or refusal. If the market administrator so notifies a handler, the said 2-year period with respect to such obligation shall not begin to run until the first day of the month following the month during which all such records pertaining to such obligation are made available to the market administrator;

(c) Notwithstanding the provisions of paragraphs (a) and (b) of this section, a handler's obligation under the order to pay money shall not be terminated with respect to any transaction involving fraud or willful concealment of a fact, material to the obligation, on the part of the handler against whom the obligation is sought to be imposed; and

(d) Unless the handler files a petition pursuant to section 8c (15) (A) of the Act and the applicable rules and regulations (7 CFR 900.50 et seq.) within the applicable 2-year period indicated below, the obligation of the market administrator:

(1) To pay a handler any money which such handler claims to be due him under the terms of the order shall terminate 2 years after the end of the month during which the skim milk and butterfat involved in the claim were received; or

(2) To refund any payment made by a handler (including a deduction or offset by the market administrator) shall terminate 2 years after the end of the month during which payment was made by the handler.