ceived, to examine all books, documents, papers, records, files and facilities of the association, to verify any of the information submitted and to procure such other information as may be required to determine whether the association is qualified in accordance with its application.

§ 900.355 Annual reporting.

Determinations of qualification for privileges and exemptions are subject to amendment, termination or suspension if the association does not currently meet the qualification standards. An association found to be qualified pursuant to the Act is required to file an annual report after its annual meeting has been held following the close of its fiscal year. Form DA-24 is used for this purpose. The report form is available at the Dairy Division, Consumer and Marketing Service, U.S. Department of Agriculture, Washington, D.C. 20250. The association is required to file a copy of its report with the Dairy Division at Washington and with the market administrator of each order under which it operates.

§ 900.356 Listing of qualified associations.

A copy of each determination of qualification is furnished to the respective association. Copies are also filed in the Dairy Division, Consumer and Marketing Service, and with the Hearing Clerk, Office of the Secretary, U.S. Department of Agriculture, Washington, D.C. 20250, where they are availaple for public inspection. A list of qualified associations engaged in marketing milk under a particular milk marketing order is maintained at the office of the market administrator of the order.

§ 900.357

Denial of application; suspension or revocation of determination of qualification.

Any cooperative association whose application has been wholly or partially denied, or whose determination of qualification has been wholly or partly revoked or suspended, may petition the Secretary for a review of such action. Such petition shall state facts relevant to the matter for which review is sought. After due notice to such cooperative association, the Director of the Dairy Division, or in his absence the Acting Director, shall hold, in the manner hereinafter specified, an informal hearing.

(a) Notice. Notice shall be given in writing and shall be mailed to the last known address of the association, or of an officer thereof, at least 3 days before the date set for a hearing. Such notice shall contain: a statement of the time and place of the hearing, said place to be as convenient to the association as can reasonably be arranged, and may contain a statement of the reason for calling the hearing and the nature of the questions upon which evidence is desired or upon which argument may be presented.

(b) Parties. Hearings are not to be public and are to be attended only by representa

tives of the association and of the Government, and such other persons as either the association or the Government desires to have appear for purposes of submitting information or as counsel.

(c) Conduct of hearing. The Director or Acting Director of the Dairy Division, or a person designated by him, shall preside at the hearing. The hearing shall be conducted in such manner as will be most conducive to the proper disposition of the matter. Written statements or briefs may be filed by the association within the time specified by the presiding officer.

(d) Preliminary report. The presiding officer shall prepare a preliminary report setting forth a recommendation as to what action shall be taken and the basis for such action. A copy of said report shall be served upon the association by mail or in person. The association may file exceptions to said report within 10 days after service thereof.

(e) Final report. After due consideration of all the facts and the exceptions, if any, the Director of the Dairy Division shall issue a final report setting forth the action to be taken and the basis for such action.. Subpart-Procedure for the Conduct of Referenda in Connection With Marketing Orders for Fruits, Vegetables, and Nuts Pursuant to the Agricultural Marketing Agreement Act of 1937, as Amended

AUTHORITY: §§ 900.400 to 900.407 issued under secs. 1-19, 48 Stat. 31, as amended; 7U.S.C. 601-674.

SOURCE: §§ 900.400 to 900.407 appear at 30 F.R. 15414, Dec. 15, 1965, unless otherwise noted.

(a) "Act" means Public Act No. 10, 73d Congress (48 Stat. 31), as amended, and as reenacted and amended by the Agricultural Marketing Agreement Act of 1937 (50 Stat. 246), as amended (7 U.S.C. 601-674).

(b) "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; and "Department" means the United States Department of Agriculture.

(c) "Administrator" means the Administrator of the Consumer and Marketing Service, with power to redelegate, or any officer or employee of the Department to whom au

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.

the

(f) "Representative period" means 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.

(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 a landlord-tenant relationship, 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.

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 ballots 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 (ii) 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

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 detailed 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.

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.

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 thereof (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.

Subpart Public Information AUTHORITY: §§ 900.500 to 900.516 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 OF PROGRAM INFORMATION, STAFF MANUALS AND INSTRUCTIONS, AND RELATED MATERIAL

§ 900.500 Sources of program information.

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 the 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 copying.

(b) Material which is purely informational in nature and is issued by the Consumer and Marketing Service as a public service or to provide information about Consumer and Marketing Service programs will be made available free. Such material includes market news releases, plentiful foods bulletins, and pamphlets or leaflets explaining C&MS programs.

§ 900.502 Staff manuals and instruc tions.

The Consumer and Marketing Service will make available for public inspection and copying its administrative staff manuals and instructions to staff affecting any member of the public except those manuals and instructions exempt from disclosure pursuant to the provisions of 5 U.S.C. 552(b).

The headquarters office of each Division of the Consumer and Marketing Service will maintain and make available for public inspection and copying a current index providing identifying information for the public as to staff manuals, and instructions and other matters issued, adopted, or promulgated with respect to programs for which it has responsibility, and which are required to be made available pursuant to 5 U.S.C. 522(a)(2).

§ 900.504 Facilities for inspection; copies.

No central facilities for public inspection and copying of materials will be provided. Copies of materials listed in the index of a Division of the Consumer and Marketing Service may be inspected and copied at the headquarters office. Copies of such materials may also be obtained in person or by mail, when requested in writing, and upon payment of applicable fees prescribed by the Office of Plant and Operations, U.S. Department of Agriculture.

DISCLOSURE OF IDENTIFIABLE RECORDS

(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.

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.

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.