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ceived, to examine all books, documents, tives of the association and of the Govern. papers, records, files and facilities of the as- ment, and such other persons as either the sociation, to verify any of the information association or the Government desires to have submitted and to procure such other infor- appear for purposes of submitting informamation as may be required to determine tion or as counsel. whether the association is qualified in (c) Conduct of hearing. The Director or accordance with its application.
Acting Director of the Dairy Division, or a $ 900.355 Annual reporting.
person designated by him, shall preside at
the hearing. The hearing shall be conducted Determinations of qualification for privi- in such manner as will be most conducive leges and exemptions are subject to amend
to the proper disposition of the matter. ment, termination or suspension if the
Written statements or briefs may be filed association does not currently meet the qual- by the association within the time specified ification standards. An association found by the presiding officer. to be qualified pursuant to the Act is re
(d) Preliminary report. The presiding offiquired to file an annual report after its an
cer shall prepare a preliminary report setting nual meeting has been held following the forth a recommendation as to what action close of its fiscal year. Form DA-24 is used shall be taken and the basis for such action. for this purpose. The report form is available
A copy of said report shall be served upon the at the Dairy Division, Consumer and Market- association by mail or in person. The assoing Service, U.S. Department of Agriculture, ciation may file exceptions to said report Washington, D.C. 20250. The association is
within 10 days after service thereof. required to file a copy of its report with the (e) Final report. After due consideration Dairy Division at Washington and with the of all the facts and the exceptions, if any, the market administrator of each order under
Director of the Dairy Division shall issue a which it operates.
final report setting forth the action to be $ 900.356 Listing of qualified associa
taken and the basis for such action.. tions.
Subpart - Procedure for the Conduct of Referenda A copy of each determination of qualifi- in Connection with Marketing Orders for Fruits, cation is furnished to the respective asso- Vegetables, and Nuts Pursuant to the Agriculciation. Copies are also filed in the Dairy tural Marketing Agreement Act of 1937, Division, Consumer and Marketing Service, Amended and with the Hearing Clerk, Office of the
AUTHORITY: $$ 900.400 to 900.407 issued Secretary, U.S. Department of Agriculture,
under secs, 1-19, 48 Stat. 31, as amended;. 7. Washington, D.C. 20250, where they are avail
U.S.C. 601-674. able for public inspection. A list of qualified associations engaged in marketing milk under
SOURCE: $$ 900.400 to 900.407 appear" at a particular milk marketing order is main- 30 F.R. 15414, Dec. 15, 1965, unless othertained at the office of the market adminis
wise noted. trator of the order.
$ 900.400 General. $ 900.357 Denial of application; sus- Referenda for the purpose of ascertaining pension or revocation of determina
whether the issuance by the Secretary of tion of qualification.
Agriculture of a marketing order to regulate Any cooperative association whose appli- the handling of any fruit, vegetable, or nut, cation has been wholly or partially denied, or product thereof, or the continuance or or whose determination of qualification has
termination of such an order, is approved or been wholly or partly revoked or suspended, favored by producers or processors shall, unmay petition the Secretary for a review of less supplemented or modified by the Secsuch action. Such petition shall state facts retary, be conducted in accordance with this relevant to the matter for which review is subpart. sought. After due notice to such cooperative
$ 900.401 Definitions. association, the Director of the Dairy Division, or in his absence the Acting Director,
(a) “Act” means Public Act No. 10, 73d shall hold, in the manner hereinafter speci
Congress (48 Stat. 31), as amended, and as ned, an informal hearing.
reenacted and amended by the Agricultural (a) Notice. Notice shall be given in writing
Marketing Agreement Act of 1937 (50 Stat. and shall be mailed to the last known ad
246), as amended (7 U.S.C. 601-674), dress of the association, or of an officer
(b) "Secretary" means the Secretary of thereof, at least 3 days before the date set
Agriculture of the United States, or any offor a hearing. Such notice shall contain: a
ficer or employee of the Department to statement of the time and place of the hear
whom authority has heretofore been deleing, said place to be as convenient to the
gated, or to whom authority may hereafter association as can reasonably be arranged,
be delegated, to act in his stead; and “Deand may contain a statement of the reason
partment” means the United States Departfor calling the hearing and the nature of the
ment of Agriculture. questions upon which evidence is desired or
(c) "Administrator" means the Adminisupon which argument may be presented.
trator of the Consumer and Marketing Serv(b) Parties. Hearings are not to be public ice, with power to redelegate, or any officer and are to be attended only by representa- or employee of the Department to whom que
thority has been delegated or may hereafter be delegated to act in his stead.
(d) "Order" means the marketing order (including an amendatory order) with respect to which the Secretary has directed that a referendum be conducted.
(e) "Referendum agent” means the individual or individuals designated by the Secretary to conduct the referendum.
(f) "Representative period” means the period designated by the Secretary pursuant to section 8c of the act (7 U.S.C. 608c).
(g) "Person" means any individual, partnership, corporation, association, or other business unit. For the purpose of this definition, the term “partnership” includes (1) a husband and wife who have title to, or leasehold interest in, land as tenants in common, joint tenants, tenants by the entirety, or, under community property laws, as community property, and (2) so-called "joint ventures," wherein one or more parties to the agreement, informal or otherwise, contributed capital and others contribute labor, management, equipment, or other services, or any variation of such contributions by two or more parties, so that it results in the growing of the commodity for market and the authority to transfer title to the commodity so produced.
(h) “Producer" means any person defined as a producer in the order who: (1) Owns and farms land, resulting in his ownership of the commodity produced thereon; (2) rents and farms land, resulting in his ownership of all or a portion of the commodity produced thereon; or (3) owns land which he does not farm and, as rental for such land, obtains the ownership of a portion of the commodity produced thereon. Ownership of, or leasehold interest in, land and the acquisition, in any manner other than as hereinbefore set forth, of legal title to the commodity grown thereon shall not be deemed to result in such owners or lessees becoming producers. $ 900.402 Voting.
(a) Each person who is a producer, as defined in this subpart, at the time of the referendum and who also was a producer during the representative period, shall be entitled to only one vote in the referendum, except that: (1) In à landlord-tenant relaţionship, wherein each of the parties is a producer, each such producer shall be entitled to one vote in the referendum; and (2) a cooperative association of producers, bona fide engaged in marketing the commodity or product thereof proposed to be regulated, or in rendering services for or advancing the interest of the producers of such commodity or product, may, if it elects to do so, vote, both by number and total volume, for the producers who are members of, stockholders in, or under contract with such association.
(b) Whenever, as required by the act, processors vote on the issuance of an order, each processor who is engaged in canning or freezing within the production area of
the commodity covered by the order shall be entitled to vote in the referendum the quantity of such commodity canned or frozen within the production area for market by him during the representative period determined by the Secretary.
(c) Proxy voting is not authorized but an officer or employee of a corporate producer, processor or cooperative association, or an administrator, executor or trustee of a producing estate may cast a ballot on behalf of such producer, processor, estate, or cooperative association. Any individual so voting in a referendum shall certify that he is an officer or employee of the producer, processor, or cooperative association, or an administrator, executor, or trustee of a producing estate, and that he has the authority to take such action. Upon request of the referendum agent, the individual shall submit adequate evidence of such authority.
(d) Each producer, cooperative association of producers, and processor entitled to vote in a referendum shall be entitled to cast one ballot in the referendum. Each producer, cooperative association of producers, and processor casting more than one ballot with conflicting votes shall thereby invalidate all ballots cast by such producer, cooperative association of producers, or processor in such referendum. $ 900.403 Instructions.
The referendum agent shall conduct the referendum, in the manner herein provided, under supervision of the Administrator. The Administrator may prescribe additional instructions, not inconsistent with the provisions hereof, to govern the procedure to be followed by the referendum agent. Such agent shall:
(a) Determine the time of commencement and termination of the period of the referendum, and the time prior to which all ballots must be cast.
(b) Determine whether ballots may be cast by mail, at polling places, at meetings of producers or processors, or by any combination of the foregoing.
(c) Provide baliots and related material to be used in the referendum. Ballot material shall provide for recording essential information for ascertaining (1) whether the person voting, or on whose behalf the vote is cast, is an eligible voter, and (2) the total volume (1) produced for market during the representative period, or (11) canned or frozen for market' during the representative period.
(d) Give reasonable advance notice of the referendum (1) by utilizing without advertising expense available media of public information (including, but not being limited to, press and radio facilities) serving the production area, announcing the dates, places, or methods of voting, eligibility requirements, and other pertinent information, and (2) by such other means as said agent may deem advisable.
(e) Make available to producers and the aforesaid cooperative associations which in
$ 900.405 Ballots.
The referendum agent and his appointees shall accept all ballots cast; but, should they, or any of them, deem that a ballot should be challenged for any reason, said agent or appointee shall endorse above his signature, on said ballot, a statement to the effect that such ballot was challenged, by whom challenged, the reasons therefor, the results of any investigations made with respect thereto, and the disposition thereof. Invalid ballots shall not be counted. $ 900.406 Referendum report.
Except as otherwise directed, the Administrator shall prepare and submit to the Secretary a report on results of the referendum, the manner in which it was conducted, the extent and kind of public notice given, and other information pertinent to analysis of the referendum and its results. $ 900.407 Confidential information.
All ballots cast and the contents thereat (whether or not relating to the identity of any person who voted or the manner in which any person voted) and all information furnished to, compiled by, or in possession of, the referendum agent shall be treated as confidential.
dicate to the agent their intentions to vote, and to processors when required, instructions on voting, appropriate ballot and certification forms, and, except in the case of a referendum on the termination or continuance of an order, the text of the proposed order and a summary of its terms and conditions: Provided, That no person who claims to be qualified to vote shall be refused a ballot.
(f) If ballots are to be cast by mail, cause all the material specified in paragraph (e) of this section to be mailed to each producer (and processor when required) whose name and address is known to the referendum agent.
(g) If ballots are to be cast at polling places or meetings, determine the necessary number of polling or meeting places, designate them, announce the time of each meeting or the hours during which each polling place will be open, provide the material specified in paragraph (e) of this section, and provide for appropriate custody of ballot forms and delivery to the referendum agent of ballots cast.
(h) At the conclusion of the referendum, canvass the ballots, tabulate the results, and, except as otherwise directed, report the outcome to the Administrator and promptly thereafter submit the following:
(1) All ballots received by the agent and appointees, together with a certificate to the effect that the ballots forwarded are all of the ballots cast and received by such persons during the referendum period;
(2) A list of all challenged ballots deemed to be invalid; and
(3) A tabulation of the results of the referendum and a report thereon, including a detalled statement explaining the method used in giving publicity to the referendum and showing other information pertinent to the manner in which the referendum was conducted. 8 900.404 Subagents.
The referendum agent may appoint any person or persons deemed necessary or desirable to assist said agent in performing his functions hereunder. Each person so appointed may be authorized by said agent to perform, in accordance with the requirements herein set forth, any or all of the following functions (which, in the absence of such appointment, shall be performed by said agent):
(a) Give public notice of the referendum in the manner specified herein;
(b) Preside at a meeting where ballots are to be cast or as poll officer at a polling place;
(c) Distribute ballots and the aforesaid texts to producers (and to processors when required) and receive any ballots which are cast; and
(d) Record the name and address of each person receiving a ballot from, or casting a ballot with, said subagent and inquire into the eligibility of such person to vote in the referendum.
Subpart Public Information AUTHORITY: $$ 900.500 to 300.516 issued under 5 U.S.C. 552, 559.
SOURCE: $ $ 900.500 to 900.516 appear at 32 F.R. 9610, July 4, 1967, unless otherwise noted. AVAILABILITY OT PROGRAM INFORMATION,
STAFT MANUALS AND INSTRUCTIONS, AND
RELATID MATERIAL $ 900.500 Sources of program informa
tion. A description of the central and field organization of the Consumer and Marketing Service is published in 32 F.R. 11741, August 15, 1967. Any revision or amendment will be published in the FEDERAL REGISTER as will any revision or amendment of this subpart. (32 F.R. 9610, July 4, 1967, as amended at 32 F.R. 12992, Sept. 13, 1967) $ 900.501 Availability of program infor
mation. (a) Certain program information such as handbooks, forms, instructions, and FEDERAL REGISTER reprints (if copies are available and it has been customary to distribute such documents) will be made available free to Federal or Federal-State cooperative employees; licensed inspectors, graders, and samplers; cooperators under signed cooperative agreements; plants under inspection or grading contracts; and others with whom tibe Consumer and Marketing Service is doing business and who may be involved in carrying out assigned program functions. Such program information will also be indexed
and available for public inspection and eral hundred field ofices, each field omice copying.
having only the records it has generated. (b) Material which is purely informational Requests for such material will be filled in nature and is issued by the Consumer either by copying the records in each field and Marketing Service as a public service office and consolidating the material at the or to provide information about Consumer headquarters office or by asking each field and Marketing Service programs will be ofice to copy the records and furnish them made available free. Such material includes
directly, whichever method appears most market news releases, plentiful foods bul- expeditious to the headquarters Division letins, and pamphlets or leaflets explaining involved. In such cases, the fee for searchC&MS programs.
ing and copying will be collected at the $ 900.502 Staff manuals and instruc
headquarters office. The above does not pretions.
clude persons from requesting such material
in person, or in writing, directly from a field The Consumer and Marketing Service will office, if it has been customary to obtain the make available for public inspection and information in this manner and the request copying its administrative staff manuals and
is made during the local working hours of the instructions to staff affecting any member of office involved. the public except those manuals and instructions exempt from disclosure pursuant to
[32 F.R. 9610, July 4, 1967, as amended at 32 the provisions of 5 U.S.C. 552(b).
F.R. 12992, Sept. 13, 1967] $ 900.503 Index.
$ 900.511 Delegation of authority. The headquarters office of each Division of Subject to $ 900.515, the Director of the the Consumer and Marketing Service will
Division responsible for the records is aumaintain and make available for public in
thorized to act, on behalf of the Consumer spection and copying a current index pro- and Marketing Service, on all such requests viding identifying information for the public in accordance with 5 U.S.C. 552, as impleas to staff manuals, and instructions and mented by this subpart. other matters issued, adopted, or promulgated with respect to programs for which it
& 900.512 Available records. has responsibility, and which are required to The Consumer and Marketing Service will be made available pursuant to 5 U.S.C. promptly make available all Consumer and 522(a) (2).
Marketing Service records requested in ac
cordance with $ 900.510 except exempt rec$ 900.504 Facilities for inspection;
ords as described in $ 900.513. copies. No central facilities for public inspection
$ 900.513 Exempt records. and copying of materials will be provided. Exempt records of the Consumer and MarCopies of materials listed in the index of a keting Service include but are not limited to Division of the Consumer and Marketing the following: Service may be inspected and copied at the (a) Matters specifically required by Execheadquarters office. Copies of such materials utive order to be kept secret. may also be obtained in person or by mail, (b) Matters related solely to the internal when requested in writing, and upon pay- personnel rules and practices of the Conment of applicable fees prescribed by the sumer and Marketing Service. Among such Office of Plant and Operations, U.S. Depart- records are warehouse examiners' handbooks ment of Agriculture,
and other handbooks describing records of DISCLOSURE OF IDENTIFIABLE RECORDS
tolerances applied in laboratory examina
tion of products and in testing for various $ 900.510 Requests.
purposes. (a) Requests for records of the Consumer (c) Matters specifically exempted from and Marketing Service, pursuant to 5 U.S.C. disclosure by statute. 522(a) (3), shall be made in writing to the (d) Matters that are trade secrets and Director of the Division responsible for the
commercial or financial information obprogram (32 F.R. 11741, Aug. 15, 1967), Con- tained from any person and privileged or sumer and Marketing Service, U.S. Depart- confidential. Among records of the Conment of Agriculture, Washington, D.C, 20250. sumer and Marketing Service in this cateEach record sought must be identified with gory are blueprints and similar records rereasonable specificity. The Consumer and vealing individual physical or operating Marketing Service is under no obligation to
characteristics of meat or poultry slaughterproduce records for examination which can- ing or other food processing plants; data connot be reasonably identified nor is it obli- cerning product formulations, packaging, gated to create records to specification in labeling methods of manufacture, and response to a request. Requests may be sub- chemical additives, provided by industry in mitted in person or by mail. If in person, connection with the Department's registrarequests shall be submitted between 9 a.m. tion, inspection, grading, and other regulaand 5:30 p.m., Monday through Friday, ex- tory and service functions; information furcept holidays.
nished voluntarily by persons relating to (b) Certain records of the Consumer and their farm or business operations for use in Marketing Service are scattered among sev- 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.