[Title 7 CFR ]
[Code of Federal Regulations (annual edition) - January 1, 2001 Edition]
[From the U.S. Government Printing Office]
[[Page i]]
7
Parts 900 to 999
Revised as of January 1, 2001
Agriculture
Containing a codification of documents of general
applicability and future effect
As of January 1, 2001
With Ancillaries
Published by:
Office of the Federal Register
National Archives and Records
Administration
A Special Edition of the Federal Register
[[Page ii]]
U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 2001
For sale by the Superintendent of Documents, U.S. Government Printing
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[[Page iii]]
Table of Contents
Page
Explanation................................................. v
Title 7:
Subtitle B--Regulations of the Department of Agriculture
(Continued):
Chapter IX--Agricultural Marketing Service
(Marketing Agreements and Orders; Fruits,
Vegetables, Nuts), Department of Agriculture (Parts
900 to 999) 3
Finding Aids:
Material Approved for Incorporation by Reference........ 799
Table of CFR Titles and Chapters........................ 801
Alphabetical List of Agencies Appearing in the CFR...... 819
List of CFR Sections Affected........................... 829
[[Page iv]]
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Cite this Code: CFR
To cite the regulations in
this volume use title,
part and section number.
Thus, 7 CFR 900.1 refers
to title 7, part 900,
section 1.
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[[Page v]]
EXPLANATION
The Code of Federal Regulations is a codification of the general and
permanent rules published in the Federal Register by the Executive
departments and agencies of the Federal Government. The Code is divided
into 50 titles which represent broad areas subject to Federal
regulation. Each title is divided into chapters which usually bear the
name of the issuing agency. Each chapter is further subdivided into
parts covering specific regulatory areas.
Each volume of the Code is revised at least once each calendar year
and issued on a quarterly basis approximately as follows:
Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1
The appropriate revision date is printed on the cover of each
volume.
LEGAL STATUS
The contents of the Federal Register are required to be judicially
noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie
evidence of the text of the original documents (44 U.S.C. 1510).
HOW TO USE THE CODE OF FEDERAL REGULATIONS
The Code of Federal Regulations is kept up to date by the individual
issues of the Federal Register. These two publications must be used
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To determine whether a Code volume has been amended since its
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Sections Affected (LSA),'' which is issued monthly, and the ``Cumulative
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the daily Federal Register. These two lists will identify the Federal
Register page number of the latest amendment of any given rule.
EFFECTIVE AND EXPIRATION DATES
Each volume of the Code contains amendments published in the Federal
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inserted following the text.
OMB CONTROL NUMBERS
The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires
Federal agencies to display an OMB control number with their information
collection request.
[[Page vi]]
Many agencies have begun publishing numerous OMB control numbers as
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requirements.
OBSOLETE PROVISIONS
Provisions that become obsolete before the revision date stated on
the cover of each volume are not carried. Code users may find the text
of provisions in effect on a given date in the past by using the
appropriate numerical list of sections affected. For the period before
January 1, 1986, consult either the List of CFR Sections Affected, 1949-
1963, 1964-1972, or 1973-1985, published in seven separate volumes. For
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INCORPORATION BY REFERENCE
What is incorporation by reference? Incorporation by reference was
established by statute and allows Federal agencies to meet the
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to materials already published elsewhere. For an incorporation to be
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if it were published in full in the Federal Register (5 U.S.C. 552(a)).
This material, like any other properly issued regulation, has the force
of law.
What is a proper incorporation by reference? The Director of the
Federal Register will approve an incorporation by reference only when
the requirements of 1 CFR part 51 are met. Some of the elements on which
approval is based are:
(a) The incorporation will substantially reduce the volume of
material published in the Federal Register.
(b) The matter incorporated is in fact available to the extent
necessary to afford fairness and uniformity in the administrative
process.
(c) The incorporating document is drafted and submitted for
publication in accordance with 1 CFR part 51.
Properly approved incorporations by reference in this volume are
listed in the Finding Aids at the end of this volume.
What if the material incorporated by reference cannot be found? If
you have any problem locating or obtaining a copy of material listed in
the Finding Aids of this volume as an approved incorporation by
reference, please contact the agency that issued the regulation
containing that incorporation. If, after contacting the agency, you find
the material is not available, please notify the Director of the Federal
Register, National Archives and Records Administration, Washington DC
20408, or call (202) 523-4534.
CFR INDEXES AND TABULAR GUIDES
A subject index to the Code of Federal Regulations is contained in a
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and Finding Aids. This volume contains the Parallel Table of Statutory
Authorities and Agency Rules (Table I). A list of CFR titles, chapters,
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also included in this volume.
An index to the text of ``Title 3--The President'' is carried within
that volume.
The Federal Register Index is issued monthly in cumulative form.
This index is based on a consolidation of the ``Contents'' entries in
the daily Federal Register.
A List of CFR Sections Affected (LSA) is published monthly, keyed to
the revision dates of the 50 CFR titles.
[[Page vii]]
REPUBLICATION OF MATERIAL
There are no restrictions on the republication of material appearing
in the Code of Federal Regulations.
INQUIRIES
For a legal interpretation or explanation of any regulation in this
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Raymond A. Mosley,
Director,
Office of the Federal Register.
January 1, 2001.
[[Page ix]]
THIS TITLE
Title 7--Agriculture is composed of fifteen volumes. The parts in
these volumes are arranged in the following order: parts 1-26, 27-52,
53-209, 210-299, 300-399, 400-699, 700-899, 900-999, 1000-1199, 1200-
1599, 1600-1899, 1900-1939, 1940-1949, 1950-1999, and part 2000 to end.
The contents of these volumes represent all current regulations codified
under this title of the CFR as of January 1, 2001.
The Food and Nutrition Service current regulations in the volume
containing parts 210-299, include the Child Nutrition Programs and the
Food Stamp Program. The regulations of the Federal Crop Insurance
Corporation are found in the volume containing parts 400-699.
All marketing agreements and orders for fruits, vegetables and nuts
appear in the one volume containing parts 900-999. All marketing
agreements and orders for milk appear in the volume containing parts
1000-1199. Part 900--General Regulations is carried as a note in the
volume containing parts 1000-1199, as a convenience to the user.
Redesignation tables appear in the Finding Aids section of the
volumes containing parts 210-299 and parts 1600-1899.
[[Page x]]
[[Page 1]]
TITLE 7--AGRICULTURE
(This book contains parts 900 to 999)
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SUBTITLE B--Regulations of the Department of Agriculture--(Continued):
Part
chapter ix--Agricultural Marketing Service (Marketing
Agreements and Orders; Fruits, Vegetables, Nuts),
Department of Agriculture................................. 900
[[Page 3]]
CHAPTER IX--AGRICULTURAL MARKETING SERVICE (Marketing Agreements and
Orders; Fruits, Vegetables, Nuts), DEPARTMENT OF AGRICULTURE
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Part Page
900 General regulations......................... 5
905 Oranges, grapefruit, tangerines, and
tangelos grown in Florida............... 41
906 Oranges and grapefruit grown in Lower Rio
Grande Valley in Texas.................. 62
911 Limes grown in Florida...................... 78
915 Avocados grown in south Florida............. 98
916 Nectarines grown in California.............. 116
917 Fresh pears and peaches grown in California. 135
920 Kiwifruit grown in California............... 160
922 Apricots grown in designated counties in
Washington.............................. 174
923 Sweet cherries grown in designated counties
in Washington........................... 186
924 Fresh prunes grown in designated counties in
Washington and in Umatilla County,
Oregon.................................. 198
925 Grapes grown in a designated area of
southeastern California................. 210
927 Winter pears grown in Oregon and Washington. 221
928 Papayas grown in Hawaii..................... 237
929 Cranberries grown in States of
Massachusetts, Rhode Island,
Connecticut, New Jersey, Wisconsin,
Michigan, Minnesota, Oregon, Washington,
and Long Island in the State of New York 251
930 Tart cherries grown in the States of
Michigan, New York, Pennsylvania,
Oregon, Utah, Washington, and Wisconsin. 272
931 Fresh Bartlett pears grown in Oregon and
Washington.............................. 297
932 Olives grown in California.................. 308
944 Fruits; import regulations.................. 337
[[Page 4]]
945 Irish potatoes grown in certain designated
counties in Idaho, and Malheur County,
Oregon.................................. 351
946 Irish potatoes grown in Washington.......... 368
947 Irish potatoes grown in Modoc and Siskiyou
Counties, Calif., and in all counties in
Oregon, except Malheur County........... 385
948 Irish potatoes grown in Colorado............ 401
953 Irish potatoes grown in Southeastern States. 420
955 Vidalia onions grown in Georgia............. 432
956 Sweet onions grown in the Walla Walla Valley
of southeast Washington and northeast
Oregon.................................. 441
958 Onions grown in certain designated counties
in Idaho, and Malheur County, Oregon.... 454
959 Onions grown in South Texas................. 469
966 Tomatoes grown in Florida................... 484
967 Celery grown in Florida..................... 503
979 Melons grown in South Texas................. 522
980 Vegetables; import regulations.............. 538
981 Almonds grown in California................. 546
982 Hazelnuts grown in Oregon and Washington.... 570
984 Walnuts grown in California................. 590
985 Marketing order regulating the handling of
spearmint oil produced in the Far West.. 607
987 Domestic dates produced or packed in
Riverside County, California............ 620
989 Raisins produced from grapes grown in
California.............................. 645
993 Dried prunes produced in California......... 708
997 Provisions regulating the quality of
domestically produced peanuts handled by
persons not subject to the peanut
marketing agreement..................... 746
998 Marketing agreement regulating the quality
of domestically produced peanuts........ 755
999 Specialty crops; import regulations......... 773
[[Page 5]]
PART 900--GENERAL REGULATIONS--Table of Contents
Subpart--Rules of Practice and Procedure Governing Proceedings To
Formulate Marketing Agreements and Marketing Orders
Sec.
900.1 Words in the singular form.
900.2 Definitions.
900.3 Proposals.
900.4 Institution of proceeding.
900.5 Docket number.
900.6 Judges.
900.7 Motions and requests.
900.8 Conduct of the hearing.
900.9 Oral and written arguments.
900.10 Certification of the transcript.
900.11 Copies of the transcript.
900.12 Administrator's recommended decision.
900.13 Submission to Secretary.
900.13a Decision by Secretary.
900.14 Execution and issuance of marketing agreements and marketing
orders.
900.15 Filing; extensions of time; effective date of filing; and
computation of time.
900.16 Ex parte communications.
900.17 Additional documents to be filed with hearing clerk.
900.18 Hearing before Secretary.
Subpart--Rules of Practice Governing Proceedings on Petitions To Modify
or To Be Exempted From Marketing Orders
900.50 Words in the singular form.
900.51 Definitions.
900.52 Institution of proceeding.
900.52a Answer to petition.
900.52b Amended pleadings.
900.53 Withdrawal of petition.
900.54 Docket number.
900.55 Judges.
900.56 Consolidated hearings.
900.57 Intervention.
900.58 Prehearing conferences.
900.59 Motions and requests.
900.60 Oral hearings before judge.
900.61 Depositions.
900.62 Subpenas.
900.63 Fees and mileage.
900.64 The Administrative Law Judge's decision.
900.65 Appeals to Secretary: Transmittal of record.
900.66 Consideration of appeal by the Secretary and issuance of final
order.
900.68 Applications for reopening hearings; for rehearings or
rearguments of proceedings; or for reconsideration of orders.
900.69 Filing; service; extensions of time; effective date of filing;
and computation of time.
900.70 Applications for interim relief.
900.71 Hearing before Secretary.
Subpart--Supplemental Rules of Practice for Marketing Orders, Marketing
Agreements, and Requirements Issued Pursuant to 7 U.S.C. 608b(b) and 7
U.S.C. 608e Covering Fruits, Vegetables, and Nuts
900.80 Words in the singular form.
900.81 Definitions.
900.82 Stipulation procedures.
Subpart--Procedure Governing Meetings To Arbitrate and Mediate Disputes
Relating to Sales of Milk or Its Products
900.100 Words in the singular form.
900.101 Definitions.
900.102 Filing of applications for mediation or arbitration.
900.103 Application for mediation.
900.104 Inquiry by the Administrator.
900.105 Notification.
900.106 Assignment of mediator.
900.107 Meetings.
900.108 Mediator's report.
900.109 Mediation agreement.
900.110 Application for arbitration.
900.111 Inquiry by the Administrator.
900.112 Notification.
900.113 Submission.
900.114 Designation of arbitrator.
900.115 Hearing.
900.116 Award.
900.117 Approval of award.
900.118 Costs.
Subpart--Miscellaneous Regulations
900.200 Definitions.
900.201 Investigation and disposition of alleged violations.
900.210 Disclosures of information.
900.211 Penalties.
Subpart--Procedure for Conduct of Referenda To Determine Producer
Approval of Milk Marketing Orders To Be Made Effective Pursuant to
Agricultural Marketing Agreement Act of 1937, as Amended
900.300 General.
900.301 Definitions.
900.302 Associations eligible to vote.
900.303 Conduct of referendum.
900.304 Who may vote.
900.305 Duties of referendum agent.
900.306 Notice of the referendum.
900.307 Time for voting.
900.308 Tabulation of ballots.
900.309 Confidential information.
900.310 Supplementary instructions.
900.311 Submittals or requests.
[[Page 6]]
Subpart--Procedure for Determining the Qualification of Cooperative Milk
Marketing Associations
900.350 General statement.
900.351 Applications for qualification.
900.352 Confidential information.
900.353 Qualification standards.
900.354 Inspection and investigation.
900.355 Annual reporting.
900.356 Listing of qualified associations.
900.357 Denial of application; suspension or revocation of
determination of qualification.
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
900.400 General.
900.401 Definitions.
900.402 Voting.
900.403 Instructions.
900.404 Subagents.
900.405 Ballots.
900.406 Referendum report.
900.407 Confidential information.
Subpart--Public Information
Availability of Program Information, Staff Manuals and Instructions, and
Related Material
900.500 General.
900.501 Public inspection and copying.
900.502 Indexes.
900.503 Request for records.
900.504 Appeals.
Subpart--Information Collection
900.600 General.
900.601 OMB control numbers assigned pursuant to the Paperwork
Reduction Act.
Source: 25 FR 5907, June 28, 1960, unless otherwise noted.
Subpart--Rules of Practice and Procedure Governing Proceedings To
Formulate Marketing Agreements and Marketing Orders
Authority: Sec. 10, 48 Stat. 37, as amended; 7 U.S.C. 610.
Sec. 900.1 Words in the singular form.
Words in this subpart in the singular form shall be deemed to import
the plural, and vice versa, as the case may demand.
Sec. 900.2 Definitions.
As used in this subpart, the terms as defined in the act shall apply
with equal force and effect. In addition, unless the context otherwise
requires:
(a) The term Act means Public Act No. 10, 73 Congress (48 Stat. 31),
as amended and as reenacted and amended by the Agricultural Marketing
Agreement Act of 1937 (50 Stat. 246), as amended.
(b) The term Department means the United States Department of
Agriculture.
(c) The term 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.
(d) The terms Administrative Law Judge or Judge means any
administrative law judge appointed pursuant to 5 U.S.C. 3105, and
assigned to conduct the proceeding.
(e) The term Administrator means the Administrator of the
Agricultural Marketing Service, with power to redelegate, or any officer
or employee of the Department to whom authority has been delegated or
may hereafter be delegated to act in his stead.
(f) [Reserved]
(g) The term Federal Register means the publication provided for by
the act of July 26, 1935 (49 Stat. 500), and acts supplementary thereto
and amendatory thereof.
(h) The term hearing means that part of the proceeding which
involves the submission of evidence.
(i) The term marketing agreement means any marketing agreement or
any amendment thereto which may be entered into pursuant to section 8b
of the act.
(j) The term marketing order means any order or any amendment
thereto which may be issued pursuant to section 8c of the act, and after
notice and hearing as required by said section.
(k) The term proceeding means a proceeding upon the basis of which a
marketing agreement may be entered into or a marketing order may be
issued.
[[Page 7]]
(l) The term hearing clerk means the hearing clerk, United States
Department of Agriculture, Washington, DC.
[25 FR 5907, June 28, 1960, as amended at 26 FR 7796, Aug. 22, 1961; 28
FR 579, Jan. 23, 1963; 37 FR 8059, Apr. 25, 1972; 38 FR 29798, Oct. 29,
1973]
Sec. 900.3 Proposals.
(a) A marketing agreement or a marketing order may be proposed by
the Secretary or by any other person. If any person other than the
Secretary proposes a marketing agreement or marketing order, he shall
file with the Administrator a written application, together with at
least four copies of the proposal, requesting the Secretary to hold a
hearing upon the proposal. Upon receipt of such proposal, the
Administrator shall cause such investigation to be made and such
consideration thereof to be given as, in his opinion, are warranted. If
the investigation and consideration lead the Administrator to conclude
that the proposed marketing agreement or marketing order will not tend
to effectuate the declared policy of the act, or that for other proper
reasons a hearing should not be held on the proposal, he shall deny the
application, and promptly notify the applicant of such denial, which
notice shall be accompanied by a brief statement of the grounds for the
denial.
(b) If the investigation and consideration lead the Administrator to
conclude that the proposed marketing agreement or marketing order will
tend to effectuate the declared policy of the act, or if the Secretary
desires to propose a marketing agreement or marketing order, he shall
sign and cause to be served a notice of hearing, as provided in this
subpart.
Sec. 900.4 Institution of proceeding.
(a) Filing and contents of the notice of hearing. The proceeding
shall be instituted by filing the notice of hearing with the hearing
clerk. The notice of hearing shall contain a reference to the authority
under which the marketing agreement or marketing order is proposed;
shall define the scope of the hearing as specifically as may be
practicable; shall contain either the terms or substance of the proposed
marketing agreement or marketing order or a description of the subjects
and issues involved and shall state the industry, area, and class of
persons to be regulated, the time and place of such hearing, and the
place where copies of such proposed marketing agreement or marketing
order may be obtained or examined. The time of the hearing shall not be
less than 15 days after the date of publication of the notice in the
Federal Register, as provided in this subpart, unless the Administrator
shall determine that an emergency exists which requires a shorter period
of notice, in which case the period of notice shall be that which the
Administrator may determine to be reasonable in the circumstances:
Provided, That, in the case of hearings on amendments to marketing
agreements or marketing orders, the time of the hearing may be less than
15 days but shall not be less than 3 days after the date of publication
of the notice in the Federal Register.
(b) Giving notice of hearing and supplemental publicity. (1) The
Administrator shall give or cause to be given notice of hearing in the
following manner:
(i) By publication of the notice of hearing in the Federal Register;
(ii) By mailing a true copy of the notice of hearing to each of the
persons known to the Administrator, to be interested therein;
(iii) By issuing a press release containing the complete text or a
summary of the contents of the notice of hearing and making the same
available to such newspapers in the area proposed to be subjected to
regulation as reasonably will tend to bring the ntoice to the attention
of the persons interested therein;
(iv) By forwarding copies of the notice of hearing addressed to the
governors of such of the several States of the United States and to
executive heads of such of the Territories and possessions of the United
States as the Administrator, having due regard for the subject matter of
the proposal and the public interest, shall determine, should be
notified.
(2) Legal notice of the hearing shall be deemed to be given if
notice is given in the manner provided by paragraph (b)(1)(i) of this
section; and failure to give notice in the manner provided in
[[Page 8]]
paragraph (b)(1)(ii), (iii), and (iv) of this section shall not affect
the legality of the notice.
(c) Record of notice and supplemental publicity. There shall be
filed with the hearing clerk or submitted to the judge at the hearing an
affidavit or certificate of the person giving the notice provided in
paragraph (b)(1) (iii) and (iv) of this section. In regard to the
provisions relating to mailing in paragraph (b)(1)(ii) of this section,
a determination by the Administrator that such provisions have been
complied with shall be filed with the hearing clerk or submitted to the
judge at the hearing. In the alternative, if notice is not given in the
manner provided in paragraph (b)(1)(ii), (iii), and (iv) of this section
there shall be filed with the hearing clerk or submitted to the judge at
the hearing a determination by the Administrator that such notice is
impracticable, unnecessary, or contrary to the public interest with a
brief statement of the reasons for such determination. Determinations by
the Administrator as herein provided shall be final.
Sec. 900.5 Docket number.
Each proceeding, immediately following its institution, shall be
assigned a docket number by the hearing clerk and thereafter the
proceeding may be referred to by such number.
Sec. 900.6 Judges.
(a) Assignment. No judge who has any pecuniary interest in the
outcome of a proceeding shall serve as judge in such proceeding.
(b) Powers of judges. Subject to review by the Secretary, as
provided elsewhere in this subpart, the judge, in any proceeding, shall
have power to:
(1) Rule upon motions and requests;
(2) Change the time and place of hearing, and adjourn the hearing
from time to time or from place to place;
(3) Administer oaths and affirmations and take affidavits;
(4) Examine and cross-examine witnesses and receive evidence;
(5) Admit or exclude evidence;
(6) Hear oral argument on facts or law;
(7) Do all acts and take all measures necessary for the maintenance
of order at the hearing and the efficient conduct of the proceeding.
(c) Who may act in absence of judge. In case of the absence of the
judge or his inability to act, the powers and duties to be performed by
him under this part in connection with a proceeding may, without
abatement of the proceeding unless otherwise ordered by the Secretary,
be assigned to any other judge.
(d) Disqualification of judge. The judge may at any time withdraw as
judge in a proceeding if he deems himself to be disqualified. Upon the
filing by an interested person in good faith of a timely and sufficient
affidavit of personal bias or disqualification of a judge, the Secretary
shall determine the matter as a part of the record and decision in the
proceeding, after making such investigation or holding such hearings, or
both, as he may deem appropriate in the circumstances.
Sec. 900.7 Motions and requests.
(a) General. All motions and requests shall be filed with the
hearing clerk, except that those made during the course of the hearing
may be filed with the judge or may be stated orally and made a part of
the transcript. Except as provided in Sec. 900.15(b) such motions and
requests shall be addressed to, and ruled on by, the presiding officer
if made prior to his certification of the transcript pursuant to
Sec. 900.10 or by the Secretary if made thereafter.
(b) Certification to Secretary. The judge may in his discretion
submit or certify to the Secretary for decision any motion, request,
objection, or other question addressed to the judge.
Sec. 900.8 Conduct of the hearing.
(a) Time and place. The hearing shall be held at the time and place
fixed in the notice of hearing, unless the judge shall have changed the
time or place, in which event the judge shall file with the hearing
clerk a notice of such change, which notice shall be given in the same
manner as provided in Sec. 900.4 (relating to the giving of notice of
the hearing): Provided, That, if the change in time or place of hearing
is made less than 5 days prior to the date previously fixed for the
hearing, the judge, either in addition to or in lieu of causing the
notice of the change to be given, shall
[[Page 9]]
announce, or cause to be announced, the change at the time and place
previously fixed for the hearing.
(b) Appearances--(1) Right to appear. At the hearing, any interested
person shall be given an opportunity to appear, either in person or
through his authorized counsel or representative, and to be heard with
respect to matters relevant and material to the proceeding. Any
interested person who desires to be heard in person at any hearing under
these rules shall, before proceeding to testify, state his name,
address, and occupation. If any such person is appearing through a
counsel or representative, such person or such counsel or representative
shall, before proceeding to testify or otherwise to participate in the
hearing, state for the record the authority to act as such counsel or
representative, and the names and addresses and occupations of such
person and such counsel or representative. Any such person or such
counsel or representative shall give such other information respecting
his appearance as the judge may request.
(2) Debarment of counsel or representative. Wherever, while a
proceeding is pending before him, the judge finds that a person, acting
as counsel or representative for any person participating in the
proceeding, is guilty of unethical or unprofessional conduct, the judge
may order that such person be precluded from further acting as counsel
or representative in such proceeding. An appeal to the Secretary may be
taken from any such order, but the proceeding shall not be delayed or
suspended pending disposition of the appeal: Provided, That the judge
may suspend the proceeding for a reasonable time for the purpose of
enabling the client to obtain other counsel or other representative. In
case the judge has ordered that a person be precluded from further
acting as counsel or representative in the proceeding, the presiding
officer, within a reasonable time thereafter shall submit to the
Secretary a report of the facts and circumstances surrounding such order
and shall recommend what action the Secretary should take respecting the
appearance of such person as counsel or representative in other
proceedings before the Secretary. Thereafter the Secretary may, after
notice and an opportunity for hearing, issue such order, respecting the
appearance of such person as counsel or representative in proceedings
before the Secretary, as the Secretary finds to be appropriate.
(3) Failure to appear. If any interested person fails to appear at
the hearing, he shall be deemed to have waived the right to be heard in
the proceeding.
(c) Order of procedure. (1) The judge shall, at the opening of the
hearing prior to the taking of testimony, have noted as part of the
record the notice of hearing as filed with the Office of the Federal
Register and the affidavit or certificate of the giving of notice or the
determination provided for in Sec. 900.4(c).
(2) Evidence shall then be received with respect to the matters
specified in the notice of the hearing in such order as the judge shall
announce.
(d) Evidence--(1) In general. The hearing shall be publicly
conducted, and the testimony given at the hearing shall be reported
verbatim.
(i) Every witness shall, before proceeding to testify, be sworn or
make affirmation. Cross-examination shall be permitted to the extent
required for a full and true disclosure of the facts.
(ii) When necessary, in order to prevent undue prolongation of the
hearing, the judge may limit the number of times any witness may testify
to the same matter or the amount of corroborative or cumulative
evidence.
(iii) The judge shall, insofar as practicable, exclude evidence
which is immaterial, irrelevant, or unduly repetitious, or which is not
of the sort upon which responsible persons are accustomed to rely.
(2) Objections. If a party objects to the admission or rejection of
any evidence or to any other ruling of the judge during the hearing, he
shall state briefly the grounds of such objection, whereupon an
automatic exception will follow if the objection is overruled by the
judge. The transcript shall not include argument or debate thereon
except as ordered by the judge. The ruling of the judge on any objection
shall be a part of the transcript. Only objections made before the judge
may subsequently be relied upon in the proceeding.
[[Page 10]]
(3) Proof and authentication of official records or documents. An
official record or document, when admissible for any purpose, shall be
admissible as evidence without the production of the person who made or
prepared the same. Such record or document shall, in the discretion of
the judge, be evidenced by an official publication thereof or by a copy
attested by the person having legal custody thereof and accompanied by a
certificate that such person has the custody.
(4) Exhibits. All written statements, charts, tabulations, or
similar data offered in evidence at the hearing shall, after
identification by the proponent and upon satisfactory showing of the
authenticity, relevancy, and materiality of the contents thereof, be
numbered as exhibits and received in evidence and made a part of the
record. Such exhibits shall be submitted in quadruplicate and in
documentary form. In case the required number of copies is not made
available, the judge shall exercise his discretion as to whether said
exhibits shall, when practicable, be read in evidence or whether
additional copies shall be required to be submitted within a time to be
specified by the judge. If the testimony of a witness refers to a
statute, or to a report or document (including the record of any
previous hearing) the judge, after inquiry relating to the
identification of such statute, report, or document, shall determine
whether the same shall be produced at the hearing and physically be made
a part of the evidence as an exhibit, or whether it shall be
incorporated into the evidence by reference. If relevant and material
matter offered in evidence is embraced in a report or document
(including the record of any previous hearing) containing immaterial or
irrelevant matter, such immaterial or irrelevant matter shall be
excluded and shall be segregated insofar as practicable, subject to the
direction of the presiding officer.
(5) Official notice. Official notice may be taken of such matters as
are judicially noticed by the courts of the United States and of any
other matter of technical, scientific or commercial fact of established
character: Provided, That interested persons shall be given adequate
notice, at the hearing or subsequent thereto, of matters so noticed and
shall be given adequate opportunity to show that such facts are
inaccurate or are erroneously noticed.
(6) Offer of proof. Whenever evidence is excluded from the record,
the party offering such evidence may make an offer of proof, which shall
be included in the transcript. The offer of proof shall consist of a
brief statement describing the evidence to be offered. If the evidence
consists of a brief oral statement or of an exhibit, it shall be
inserted into the transcript in toto. In such event, it shall be
considered a part of the transcript if the Secretary decides that the
judge's ruling in excluding the evidence was erroneous. The judge shall
not allow the insertion of such evidence in toto if the taking of such
evidence will consume a considerable length of time at the hearing. In
the latter event, if the Secretary decides that the judge erred in
excluding the evidence, and that such error was substantial, the hearing
shall be reopened to permit the taking of such evidence.
[25 FR 5907, June 28, 1960, as amended at 37 FR 1103, Jan. 25, 1972]
Sec. 900.9 Oral and written arguments.
(a) Oral argument before judge. Oral argument before the judge shall
be in the discretion of the judge. Such argument, when permitted, may be
limited by the judge to any extent that he finds necessary for the
expeditious disposition of the proceeding and shall be reduced to
writing and made part of the transcript.
(b) Briefs, proposed findings and conclusions. The judge shall
announce at the hearing a reasonable period of time within which
interested persons may file with the hearing clerk proposed findings and
conclusions, and written arguments or briefs, based upon the evidence
received at the hearing, citing, where practicable, the page or pages of
the transcript of the testimony where such evidence appears. Factual
material other than that adduced at the hearing or subject to official
notice shall not be alluded to therein, and, in any case, shall not be
considered in the formulation of the marketing agreement or marketing
[[Page 11]]
order. If the person filing a brief desires the Secretary to consider
any objection made by such person to a ruling of the judge, as provided
in Sec. 900.8(d), he shall include in the brief a concise statement
concerning each such objection, referring where practicable, to the
pertinent pages of the transcript.
Sec. 900.10 Certification of the transcript.
The judge shall notify the hearing clerk of the close of a hearing
as soon as possible thereafter and of the time for filing written
arguments, briefs, proposed findings and proposed conclusions, and shall
furnish the hearing clerk with such other information as may be
necessary. As soon as possible after the hearing, the judge shall
transmit to the hearing clerk an original and three copies of the
transcript of the testimony and the original and all copies of the
exhibits not already on file in the office of the hearing clerk. He
shall attach to the original transcript of testimony his certificate
stating that, to the best of his knowledge and belief, the transcript is
a true transcript of the testimony given at the hearing except in such
particulars as he shall specify; and that the exhibits transmitted are
all the exhibits as introduced at the hearing with such exceptions as he
shall specify. A copy of such certificate shall be attached to each of
the copies of the transcript of testimony. In accordance with such
certificate the hearing clerk shall note upon the official record copy,
and cause to be noted on other copies, of the transcript each correction
detailed therein by adding or crossing out (but without obscuring the
text as originally transcribed) at the appropriate place any words
necessary to make the same conform to the correct meaning, as certified
by the judge. The hearing clerk shall obtain and file certifications to
the effect that such corrections have been effected in copies other than
the official record copy.
Sec. 900.11 Copies of the transcript.
(a) During the period in which the proceeding has an active status
in the Department, a copy of the transcript and exhibits shall be kept
on file in the office of the hearing clerk, where it shall be available
for examination during official hours of business. Thereafter said
transcript and exhibits shall be made available by the hearing clerk for
examination during official hours of business after prior request and
reasonable notice to the hearing clerk.
(b) If a personal copy of the transcript is desired, such copy may
be obtained upon written application filed with the reporter and upon
payment of fees at the rate (if any) provided in the contract between
the reporter and the Secretary.
Sec. 900.12 Administrator's recommended decision.
(a) Preparation. As soon as practicable following the termination of
the period allowed for the filing of written arguments or briefs and
proposed findings and conclusions the Administrator shall file with the
hearing clerk a recommended decision.
(b) Contents. The Administrator's recommended decision shall
include: (1) A preliminary statement containing a description of the
history of the proceedings, a brief explanation of the material issues
of fact, law, or discretion presented on the record, and proposed
findings and conclusions with respect to such issues as well as the
reasons or basis therefor; (2) a ruling upon each proposed finding or
conclusion submitted by interested persons, and (3) an appropriate
proposed marketing agreement or marketing order effectuating his
recommendations.
(c) Exceptions to recommended decision. Immediately following the
filing of his recommended decision, the Administrator shall give notice
thereof, and opportunity to file exceptions thereto by publication in
the Federal Register. Within a period of time specified in such notice
any interested person may file with the hearing clerk exceptions to the
Administrator's proposed marketing agreement or marketing order, or
both, as the case may be, and a brief in support of such exceptions.
Such exceptions shall be in writing, shall refer, where practicable, to
the related pages of the transcript and may suggest appropriate changes
in the proposed marketing agreement or marketing order.
(d) Omission of recommended decision. The procedure provided in this
section may be omitted only if the Secretary
[[Page 12]]
finds on the basis of the record that due and timely execution of his
functions imperatively and unavoidably requires such omission.
Sec. 900.13 Submission to Secretary.
Upon the expiration of the period allowed for filing exceptions or
upon request of the Secretary, the hearing clerk shall transmit to the
Secretary the record of the proceeding. Such record shall include: All
motions and requests filed with the hearing clerk and rulings thereon;
the certified transcript; any proposed findings or conclusions or
written arguments or briefs that may have been filed; the
Administrator's recommended decision, if any, and such exceptions as may
have been filed.
Sec. 900.13a Decision by Secretary.
After due consideration of the record, the Secretary shall render a
decision. Such decision shall become a part of the record and shall
include: (a) A statement of his findings and conclusions, as well as the
reasons or basis therefor, upon all the material issues of fact, law or
discretion presented on the record, (b) a ruling upon each proposed
finding and proposed conclusion not previously ruled upon in the record,
(c) a ruling upon each exception filed by interested persons and (d)
either (1) a denial of the proposal to issue a marketing agreement or
marketing order or (2) a marketing agreement and, if the findings upon
the record so warrant, a marketing order, the provisions of which shall
be set forth directly or by reference, regulating the handling of the
commodity or product in the same manner and to the same extent as such
marketing agreement, which order shall be complete except for its
effective date and any determinations to be made under Sec. 900.14(b) or
Sec. 900.14(c): Provided, That such marketing order shall not be
executed, issued, or made effective until and unless the Secretary
determines that the requirements of Sec. 900.14(b) or Sec. 900.14(c)
have been met.
Sec. 900.14 Execution and issuance of marketing agreements and marketing orders.
(a) Execution and issuance of marketing agreement. If the Secretary
has approved a marketing agreement, as provided in Sec. 900.13a, the
Administrator shall cause copies thereof to be distributed for execution
by the handlers eligible to become parties thereto. If and when such
number of the handlers as the Secretary shall deem sufficient shall have
executed the agreement, the Secretary shall execute the agreement. After
execution of a marketing agreement, such agreement shall be filed with
the hearing clerk, and notice thereof, together with notice of the
effective date, shall be given by publication in the Federal Register.
The marketing agreement shall not become effective less than 30 days
after its publication in the Federal Register, unless the Secretary,
upon good cause found and published with the agreement, fixes an earlier
effective date therefor: Provided, That no marketing agreement shall
become effective as to any person signatory thereto before either (1) it
has been filed with the Office of the Federal Register, or (2) such
person has received actual notice that the Secretary has executed the
agreement and the effective date of the marketing agreement.
(b) Issuance of marketing order with marketing agreement. Whenever,
as provided in paragraph (a) of this section, the Secretary executes a
marketing agreement, and handlers also have executed the same as
provided in section 8c(8) of the Act, he shall, if he finds that it will
tend to effectuate the purposes of the Act, issue and make effective the
marketing order, if any, which was filed as a part of his decision
pursuant to Sec. 900.13a: Provided, That the issuance of such order
shall have been approved or favored by producers as required by section
8c(8) of the act.
(c) Issuance of marketing order without marketing agreement. If,
despite the failure or refusal of handlers to sign the marketing
agreement, as provided in section 8c(8) of the Act, the Secretary makes
the determinations required
[[Page 13]]
under section 8c(9) of the Act, the Secretary shall issue and make
effective the marketing order, if any, which was filed as a part of his
decision pursuant to Sec. 900.13a.
(d) Effective date of marketing order. No marketing order shall
become effective less than 30 days after its publication in the Federal
Register, unless the Secretary, upon good cause found and published with
the order, fixes an earlier effective date therefor: Provided, That no
marketing order shall become effective as to any person sought to be
charged thereunder before either (1) it has been filed with the Office
of the Federal Register, or (2) such person has received actual notice
of the issuance and terms of the marketing order.
(e) Notice of issuance. After issuance of a marketing order, such
order shall be filed with the hearing clerk, and notice therof, together
with notice of the effective date, shall be given by publication in the
Federal Register. (7 U.S.C. 610(c).)
[25 FR 5907, June 28, 1960, as amended at 53 FR 15659, May 3, 1988]
Sec. 900.15 Filing; extensions of time; effective date of filing; and computation of time.
(a) Filing, number of copies. Except as is provided otherwise in
this subpart, all documents or papers required or authorized by the
foregoing provisions of this subpart to be filed with the hearing clerk
shall be filed in quadruplicate. Any document or paper, so required or
authorized to be filed with the hearing clerk, shall, during the course
of an oral hearing, be filed with the presiding officer. The provisions
of this subpart concerning filing with the hearing clerk of hearing
notices, recommended and final decisions, marketing agreements and
orders, and all documents described in Sec. 900.17 shall be met by
filing a true copy thereof with the hearing clerk.
(b) Extensions of time. The time for the filing of any document or
paper required or authorized by the foregoing provisions of this subpart
to be filed may be extended by the judge before the record is certified
by the judge or by the Administrator (after the record is so certified
by the judge but before it is transmitted to the Secretary), or by the
Secretary (after the record is transmitted to the Secretary) upon
request filed, and if, in the judgment of the judge, Administrator, or
the Secretary, as the case may be, there is good reason for the
extension. All rulings made pursuant to this paragraph shall be filed
with the hearing clerk.
(c) Effective date of filing. Any document or paper required or
authorized by the foregoing provisions of this subpart to be filed shall
be deemed to be filed when it is postmarked or when it is received by
the hearing clerk.
(d) Computation of time. Sundays and Federal holidays shall be
included in computing the time allowed for the filing of any document or
paper: Provided, That, when such time expires on a Sunday or legal
holiday, such period shall be extended to include the next following
business day.
[25 FR 5907, June 28, 1960, as amended at 30 FR 254, Jan. 9, 1965]
Sec. 900.16 Ex parte communications.
(a) At no stage of the proceeding following the issuance of a notice
of hearing and prior to the issuance of the Secretary's decision therein
shall an employee of the Department who is or may reasonably be expected
to be involved in the decisional process of the proceeding discuss ex
parte the merits of the proceeding with any person having an interest in
the proceeding or with any representative of such person: Provided, That
procedural matters and status reports shall not be included within this
limitation; and Provided further, That an employee of the Department who
is or may reasonably be expected to be involved in the decisional
process of the proceeding may discuss the merits of the proceeding with
such a person if all parties known to be interested in the proceeding
have been given notice and an opportunity to participate. A memorandum
of any such discussion shall be included in the record of the
proceeding.
(b) No person interested in the proceeding shall make or knowingly
cause to be made to an employee of the Department who is or may
reasonably be expected to be involved in the decisional process of the
proceeding an
[[Page 14]]
ex parte communication relevant to the merits of the proceeding except
as provided in paragraph (a) of this section.
(c) If an employee of the Department who is or may reasonably be
expected to be involved in the decisional process of the proceeding
receives or makes a communication prohibited by this section, the
Department shall place on the public record of the proceeding:
(1) All such written communications;
(2) Memoranda stating the substance of all such oral communications;
and
(3) All written responses, and memoranda stating the substance of
all oral responses thereto.
(d) Upon receipt of a communication knowingly made or knowingly
caused to be made by a party in violation of this section, the
Department may, to the extent consistent with the interest of justice
and the policy of the underlying statute, take whatever steps are deemed
necessary to nullify the effect of such communication.
(e) For the purposes of this section, ex parte communication means
an oral or written communication not on the public record with respect
to which reasonable prior notice to all interested parties is not given,
but which shall not include requests for status reports (including
requests on procedural matters) on any proceeding.
[42 FR 10833, Feb. 24, 1977]
Sec. 900.17 Additional documents to be filed with hearing clerk.
In addition to the documents or papers required or authorized by the
foregoing provisions of this subpart to be filed with the hearing clerk,
the hearing clerk shall receive for filing and shall have custody of all
papers, reports, records, orders, and other documents which relate to
the administration of any marketing agreement or marketing order and
which the Secretary is required to issue or to approve.
Sec. 900.18 Hearing before Secretary.
The Secretary may act in the place and stead of a judge in any
proceeding under this subpart. When he so acts the hearing clerk shall
transmit the record to the Secretary at the expiration of the period
provided for the filing of proposed findings of fact, conclusions and
orders, and the Secretary shall thereupon, after due consideration of
the record, issue his final decision in the proceeding: Provided, That
he may issue a tentative decision in which event the parties shall be
afforded an opportunity to file exceptions before the issuance of the
final decision.
Subpart--Rules of Practice Governing Proceedings on Petitions To Modify
or To Be Exempted From Marketing Orders
Authority: Sec. 5, 49 Stat. 753, as amended; 7 U.S.C. 608c.
Sec. 900.50 Words in the singular form.
Words in this subpart in the singular form shall be deemed to import
the plural, and vice versa, as the case may demand.
Sec. 900.51 Definitions.
As used in this subpart, the terms as defined in the act shall apply
with equal force and effect. In addition, unless the context otherwise
requires:
(a) The term 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. and Sup. 601);
(b) The term Department means the United States Department of
Agriculture;
(c) The term 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;
(d) The terms administrative law judge or judge means any
Administrative Law Judge, appointed pursuant to 5 U.S.C. 3105, and
assigned to the proceeding involved;
(e) The term Administrator means the Administrator of the
Agricultural Marketing Service, with power to redelegate, or any officer
or employee of the Department to whom authority has been delegated or
may hereafter be delegated to act in his stead.
(f) [Reserved]
[[Page 15]]
(g) The term Federal Register means the publication provided for by
the act of July 26, 1935 (49 Stat. 500), and acts supplementary thereto
and amendatory thereof;
(h) The term marketing order means any order or any amendment
thereto which may be issued pursuant to section 8c of the act;
(i) The term handler means any person who, by the terms of a
marketing order, is subject thereto, or to whom a marketing order is
sought to be made applicable;
(j) The term proceeding means a proceeding before the Secretary
arising under subsection (15)(A) of section 8c of the act;
(k) The term hearing means that part of the proceeding which
involves the submission of evidence;
(l) The term party includes the Department;
(m) The term hearing clerk means the hearing clerk, United States
Department of Agriculture, Washington, D.C.;
(n) [Reserved]
(o) The term decision means the judge's initial decision in
proceedings subject to 5 U.S.C. 556 and 557, and includes the judge's
(1) findings of fact and conclusions with respect to all material issues
of fact, law or discretion as well as the reasons or basis thereof, (2)
order, and (3) rules on findings, conclusions and orders submitted by
the parties;
(p) The term petition includes an amended petition.
[25 FR 5907, June 28, 1960, as amended at 26 FR 7796, Aug. 22, 1961; 28
FR 579, Jan. 23, 1963; 37 FR 8059, Apr. 25, 1972; 38 FR 29798, Oct. 29,
1973]
Sec. 900.52 Institution of proceeding.
(a) Filing and service of petition. Any handler desiring to complain
that any marketing order or any provision of any such order or any
obligation imposed in connection therewith is not in accordance with
law, shall file with the hearing clerk, in quadruplicate, a petition in
writing addressed to the Secretary. Promptly upon receipt of the
petition, the hearing clerk shall transmit a true copy thereof to the
Administrator and the General Counsel, respectively.
(b) Contents of petition. A petition shall contain:
(1) The correct name, address, and principal place of business of
the petitioner. If petitioner is a corporation, such fact shall be
stated, together with the name of the State of incorporation, the date
of incorporation, and the names, addresses, and respective positions
held by its officers; if an unincorporated association, the names and
addresses of its officers, and the respective positions held by them; if
a partnership, the name and address of each partner;
(2) Reference to the specific terms or provisions of the order, or
the interpretation or application thereof, which are complained of;
(3) A full statement of the facts (avoiding a mere repetition of
detailed evidence) upon which the petition is based, and which it is
desired that the Secretary consider, setting forth clearly and concisely
the nature of the petitioner's business and the manner in which
petitioner claims to be affected by the terms or provisions of the
order, or the interpretation or application thereof, which are
complained of;
(4) A statement of the grounds on which the terms or provisions of
the order, or the interpretation or application thereof, which are
complained of, are challenged as not in accordance with law;
(5) Prayers for the specific relief which the petitioner desires the
Secretary to grant;
(6) An affidavit by the petitioner, or, if the petitioner is not an
individual, by an officer of the petitioner having knowledge of the
facts stated in the petition, verifying the petition and stating that it
is filed in good faith and not for purposes of delay.
(c) Motion to dismiss petition--(1) Filing, contents, and responses
thereto. If the Administrator is of the opinion that the petition, or
any portion thereof, does not substantially comply, in form or content,
with the act or with the requirements of paragraph (b) of this section,
or is not filed in good faith, or is filed for purposes of delay, he
may, within thirty days after the filing of the petition, file with the
Hearing Clerk a motion to dismiss the petition, or any portion thereof,
on one
[[Page 16]]
or more of the grounds stated in this paragraph. Such motion shall
specify the grounds of objection to the petition and if based, in whole
or in part, on an allegation of fact not appearing on the face of the
petition, shall be accompanied by appropriate affidavits or documentary
evidence substantiating such allegations of fact. The motion may be
accompanied by a memorandum of law. Upon receipt of such motion, the
Hearing Clerk shall cause a copy thereof to be served upon the
petitioner, together with a notice stating that all papers to be
submitted in opposition to such motion including any memorandum of law,
must be filed by the petitioner with the hearing clerk not later than 20
days after the service of such notice upon the petitioner. Upon the
expiration of the time specified in such notice, or upon receipt of such
papers from the petitioner, the hearing clerk shall transmit all papers
which have been filed in connection with the motion to the Judge for his
consideration.
(2) Decision by Administrative Law Judge. The Judge, after due
consideration, shall render a decision upon the motion stating the
reasons for his action. Such decision shall be in the form of an order
and shall be filed with the hearing clerk who shall cause a copy thereof
to be served upon the petitioner and a copy thereof to be transmitted to
the Administrator. Any such order shall be final unless appealed
pursuant to Sec. 900.65: Provided, That within 20 days following the
service upon the petitioner of a copy of the order of the Judge
dismissing the petition, or any portion thereof, on the ground that it
does not substantially comply in form and content with the act or with
paragraph (b) of this section, the petitioner shall be permitted to file
an amended petition.
(3) Oral argument. Unless a written application for oral argument is
filed by a party with the hearing clerk not later than the time fixed
for filing papers in opposition to the motion, it shall be considered
that the party does not desire oral argument. The granting of a request
to make oral argument shall rest in the discretion of the Judge.
[25 FR 5907, June 28, 1960, as amended at 38 FR 29798, Oct. 29, 1973]
Sec. 900.52a Answer to petition.
(a) Time of filing. Within 30 days after the filing of the petition,
the Administrator shall file an answer thereto: Provided, That if a
motion to dismiss the petition, in whole or in part, is made pursuant to
Sec. 900.52(c), the answer shall be filed within 15 days after the
filing of an order of the administrative law judge denying the motion or
granting the motion with respect to only a portion of the petition. The
answer shall be filed with the hearing clerk who shall cause a copy
thereof to be served promptly upon the petitioner.
(b) Contents. The answer shall specify which of the material
allegations of fact or of law in the petition are controverted and which
are not controverted. The answer also may contain affirmative
allegations of fact constituting separate defenses and statements of
objections to the sufficiency of the whole or any part of the petition.
[25 FR 5907, June 28, 1960, as amended at 38 FR 29798, Oct. 29, 1973]
Sec. 900.52b Amended pleadings.
At any time before the close of the hearing the petition or answer
may be amended, but the hearing shall, at the request of the adverse
party, be adjourned or recessed for such reasonable time as the judge
may determine to be necessary to protect the interests of the parties.
Amendments subsequent to the first amendment or subsequent to the filing
of an answer may be made only with leave of the judge or with the
written consent of the adverse party.
Sec. 900.53 Withdrawal of petition.
If, at any time after the petition is filed, the petitioner desires
to withdraw the same, he shall file with the hearing clerk (or, if filed
during the course of a hearing, with the judge) a written request for
permission to withdraw. The judge may, in his discretion, thereupon
dismiss the petition without further procedure: Provided, That, if the
request to withdraw is filed after a hearing has been opened, permission
to withdraw shall be granted only in exceptional circumstances.
[[Page 17]]
Sec. 900.54 Docket number.
Each proceeding, immediately following its institution, shall be
assigned a docket number by the hearing clerk and thereafter the
proceeding may be referred to by such number.
Sec. 900.55 Judges.
(a) Assignment. No judge who has any pecuniary interest in the
outcome of the proceeding, or who has participated in any investigation
preceding the institution of the proceeding, shall serve as judge in
such proceeding.
(b) Conduct. The judge shall conduct the proceeding in a fair and
impartial manner and shall not discuss ex parte the merits of the
proceeding with any person who is or who has been connected in any
manner with the proceeding in an advocative or investigative capacity.
(c) Powers of judges. Subject to review by the Secretary, as
provided elsewhere in this subpart, the judge shall have power to:
(1) Rule upon motions and requests;
(2) Adjourn the hearing from time to time, and change the time and
place of hearing;
(3) Administer oaths and affirmations and take affidavits;
(4) Issue subpenas, under the facsimile signature of the Secretary,
requiring the attendance and testimony of witnesses and the production
of books, records, contracts, papers, and other documentary evidence;
(5) Examine witnesses and receive evidence;
(6) Take or order, under the facsimile signature of the Secretary,
the taking of depositions;
(7) Admit or exclude evidence;
(8) Hear oral argument on facts or law;
(9) Consolidate hearings upon two or more petitions pertaining to
the same order;
(10) Do all acts and take all measures necessary for the maintenance
of order at the hearing and the efficient conduct of the proceeding.
(d) Who may act in absence of judge. In case of the absence of the
judge or his inability to act, the powers and duties to be performed by
him under these rules of practice in connection with a proceeding may,
without abatement of the proceeding unless otherwise ordered by the
Secretary, be assigned to any other judge.
(e) Disqualification of judge. The judge may at any time withdraw as
judge in a proceeding if he deems himself to be disqualified. Upon the
filing by an interested person in good faith of a timely and sufficient
affidavit of personal bias or disqualification of a judge, the Secretary
shall determine the matter as a part of the record and decision in the
proceeding, after making such investigation or holding such hearings, or
both, as he may deem appropriate in the circumstances.
Sec. 900.56 Consolidated hearings.
At the discretion of the judge, hearings upon two or more petitions
pertaining to the same order may be consolidated, and the evidence taken
at such consolidated hearing may be embodied in a single record.
Sec. 900.57 Intervention.
Intervention in proceedings subject to this subpart shall not be
allowed, except that, in the discretion of the Secretary or the judge,
any person (other than the petitioner) showing a substantial interest in
the outcome of a proceeding shall be permitted to participate in the
oral argument and to file a brief.
Sec. 900.58 Prehearing conferences.
In any proceeding in which it appears that such procedure will
expedite the proceeding, the judge, at any time prior to the
commencement of or during the course of the hearing, may request the
parties or their counsel to appear at a conference before him to
consider (a) the simplification of issues; (b) the possibility of
obtaining stipulations of fact and of documents which will avoid
unnecessary proof; (c) the limitation of the number of expert or other
witnesses; and (d) such other matters as may expedite and aid in the
disposition of the proceeding. No transcript of such conference shall be
made, but the judge shall prepare and file for the record a written
summary of the action taken at the conference, which shall incorporate
any written stipulations or agreements made by
[[Page 18]]
the parties at the conference or as a result of the conference. If the
circumstances are such that a conference is impracticable, the judge may
request the parties to correspond with him for the purpose of
accomplishing any of the objects set forth in this section. The judge
shall forward copies of letters and documents to the parties as the
circumstances require. Correspondence in such negotiations shall not be
a part of the record, but the judge shall submit a written summary for
the record if any action is taken.
Sec. 900.59 Motions and requests.
(a) General. (1) All motions and requests shall be filed with the
hearing clerk, except that those made during the course of an oral
hearing may be filed with the judge or may be stated orally and made a
part of the transcript.
(2) The judge is authorized to rule upon all motions and requests
filed or made prior to the transmittal by the hearing clerk to the
Secretary of the record as provided in this subpart. The Secretary shall
rule upon all motions and requests filed after that time.
(b) Certification of motions. The submission or certification of any
motion, request, objection, or other question to the Secretary, as
provided in this subpart, shall be in the discretion of the judge.
[25 FR 5907, June 28, 1960, as amended at 38 FR 29798, Oct. 29, 1973]
Sec. 900.60 Oral hearings before judge.
(a) Time and place. The judge shall set a time and place for hearing
and shall file with the hearing clerk a notice stating the time and
place of hearing. If any change in the time or place of hearing becomes
necessary, it shall be made by the judge, who, in such event, shall file
with the hearing clerk a notice of the change. Such notice shall be
served upon the parties, unless it is made during the course of an oral
hearing and made a part of the transcript.
(b) Appearances--(1) Representation. In any proceeding under the
act, the parties may appear in person or by counsel or other
representative. The Department, if represented by counsel, shall be
represented by an attorney assigned by the General Counsel of the
Department, and such attorney shall present or supervise the
presentation of the position of the Department.
(2) Debarment of counsel or representative. Whenever, while a
proceeding is pending before him, the judge finds that a person acting
as counsel or representative for any party to the proceeding is guilty
of unethical or unprofessional conduct, the judge may order that such
person be precluded from further acting as counsel or representative in
such proceeding. An appeal to the Secretary may be taken from any such
order, but the proceeding shall not be delayed or suspended pending
disposition of the appeal: Provided, That the judge may suspend the
proceeding for a reasonable time for the purpose of enabling the client
to obtain other counsel or representative. In case the judge has issued
an order precluding a person from further acting as counsel or
representative in the proceeding, the judge, within a reasonable time
thereafter, shall submit to the Secretary a report of the facts and
circumstances surrounding the issuance of the order and shall recommend
what action the Secretary should take respecting the appearance of such
person as counsel or representative in other proceedings before the
Secretary. Thereafter, the Secretary may, after notice and an
opportunity for hearing, issue such order respecting the appearance of
such person as counsel or representative in proceedings before the
Secretary as the Secretary finds to be appropriate.
(3) Failure to appear. If the petitioner, after being duly notified,
fails to appear at the hearing, he shall be deemed to have authorized
the dismissal of the proceeding, without further procedure, and with or
without prejudice as the judge may determine. In the event that the
petitioner appears at the hearing and no representative of the
Department appears, the judge shall proceed ex parte to hear the
evidence of the petitioner. Provided, That failure on the part of such
representative of the Department to appear at a hearing shall not be
deemed to be waiver of the Department's right to file suggested findings
of fact, conclusions and order; to
[[Page 19]]
be served with a copy of the judge's initial decision and to appeal to
the Secretary with respect thereto.
(c) Order of proceeding. Except as may be determined otherwise by
the judge, the petitioner shall proceed first at the hearing.
(d) Evidence--(1) In general. The hearing shall be publicly
conducted, and the testimony given at the hearing shall be reported
verbatim.
(i) The testimony of witnesses at a hearing shall be upon oath or
affirmation and subject to cross-examination.
(ii) Any witness may, in the discretion of the judge, be examined
separately and apart from all other witnesses except those who may be
parties to the proceeding.
(iii) The judge shall exclude, insofar as practicable, evidence
which is immaterial, irrelevant, or unduly repetitious, or which is not
of the sort upon which responsible persons are accustomed to rely.
(2) Objections. If a party objects to the admission or rejection of
any evidence or to the limitation of the scope of any examination or
cross-examination, or any other ruling of the judge, he shall state
briefly the grounds of such objection, whereupon an automatic exception
will follow which may be pursued in an appeal pursuant to Sec. 900.65 by
the party adversely affected by the judge's ruling.
(3) Depositions. The deposition of any witness shall be admitted, in
the manner hereinafter provided in and subject to the provisions of
Sec. 900.61.
(4) Affidavits. Except as is otherwise provided in this subpart,
affidavits may be admitted only if the evidence is otherwise admissible
and the parties agree (which may be determined by their failure to make
timely objections) that affidavits may be used.
(5) Proof and authentication of official records or documents. An
official record or document, when admissible for any purpose, shall be
admissible in evidence without the production of the person who made or
prepared the same. Such record or document shall, in the discretion of
the judge, be evidenced by an official publication thereof or by a copy
attested by the person having legal custody thereof and accompanied by a
certificate that such person has the custody.
(6) Exhibits. All written statements, charts, tabulations, or
similar data offered in evidence at the hearing shall, after
identification by the proponent and upon a satisfactory showing of the
admissibility of the contents thereof, be numbered as exhibits and
received in evidence and made a part of the record. Except where the
judge finds that the furnishing of copies is impracticable, a copy of
each exhibit, in addition to the original, shall be filed with the judge
for the use of each other party to the proceeding. The judge shall
advise the parties as to the exact number of copies which will be
required to be filed and shall make and have noted on the record the
proper distribution of the copies. If the testimony of a witness refers
to a statute, or to a report, document, or transcript, the judge, after
inquiry relating to the identification of such statute, report,
document, or transcript, shall determine whether the same shall be
produced at the hearing and physically be made a part of the evidence as
an exhibit, or whether it shall be incorporated into the evidence by
reference. If relevant and material matter offered in evidence is
embraced in a report, document, or transcript containing immaterial or
irrelevant matter, such immaterial or irrelevant matter shall be
excluded and shall be segregated insofar as practicable, subject to the
direction of the judge.
(7) Official notice. Official notice will be taken of such matters
as are judicially noticed by the courts of the United States and of any
other matter of technical, scientific, or commercial fact of established
character: Provided, That the parties shall be given adequate notice, at
the hearing or by reference in the judge's report or the tentative order
or otherwise, of matters so noticed, and (except where official notice
is taken, for the first time in the proceeding, in the final order)
shall be given adequate opportunity to show that such facts are
erroneously noticed.
(8) Offer of proof. Whenever evidence is excluded from the record,
the party offering such evidence may make an offer of proof, which shall
be included
[[Page 20]]
in the transcript. The offer of proof shall consist of a brief statement
describing the evidence to be offered. If the evidence consists of a
brief oral statement or of an exhibit, it shall be inserted into the
transcript in toto. In such event, it shall be considered a part of the
transcript if the Secretary decides that the judge's ruling in excluding
the evidence was erroneous. The judge shall not allow the insertion of
such evidence in toto if the taking of such evidence will consume a
considerable length of time at the hearing. In the latter event, if on
appeal the Secretary decides that the judge erred in excluding the
evidence, and that such error was substantial, the hearing shall be
reopened to permit the taking of such evidence.
(e) [Reserved]
(f) Transcript. (1) During the period in which the proceeding has an
active status the transcript and exhibits shall be kept on file in the
office of the hearing clerk, where it shall be available for examination
during official hours of business. Thereafter said transcript and
exhibits shall be made available by the hearing clerk for examination
during official hours of business after prior request and reasonable
notice to the hearing clerk.
(2) If a personal copy of the transcript is desired, such copy may
be obtained upon written application filed with the reporter, and upon
payment of fees at the rate (if any) provided in the contract between
the reporter and the Secretary.
[25 FR 5907, June 28, 1960, as amended at 38 FR 29798, Oct. 29, 1973]
Sec. 900.61 Depositions.
(a) Procedure in lieu of deposition. Before any party may have
testimony taken by deposition, said party shall, if practicable, submit
to the other party an affidavit which shall set forth the facts to which
the witness would testify, if the deposition should be taken. If, after
examination of such affidavit, the other party agrees, or (within 10
days after submission of the affidavit) fails to object, that the
affidavit may be used in lieu of the deposition, the judge shall admit
the affidavit in evidence and shall not order the deposition to be
taken.
(b) Application for taking deposition. Upon the application of a
party to the proceeding, the judge may, at any time after the filing of
the moving paper, order, under the facsimile signature of the Secretary,
the taking of testimony by deposition. The application shall be in
writing and shall be filed with the hearing clerk and shall set forth:
(1) The name and address of the proposed deponent; (2) the name and
address of the person (referred to hereinafter in this section as the
judge), qualified under the rules in this part to take depositions,
before whom the proposed examination is to be made; (3) the proposed
time and place of the examination, which shall be at least 15 days after
the date of the mailing of the application; and (4) the reasons why such
deposition should be taken.
(c) Judge's order for taking deposition. If, after the examination
of the application, the judge is of the opinion that the deposition
should be taken, he shall order its taking. The order shall be filed
with the hearing clerk and shall be served upon the parties and shall
state: (1) The time and place of the examination (which shall not be
less than 10 days after the filing of the order); (2) the name of the
judge before whom the examination is to be made; (3) the name of the
deponent. The judge and the time and place need not be the same as those
suggested in the application.
(d) Qualifications of judge. The deposition shall be taken before
the judge, or before a judge authorized by the law of the United States
or by the law of the place of the examination to administer oaths, or
before a judge authorized by the Secretary to administer oaths.
(e) Procedure on examination. (1) The deponent shall be examined
under oath or affirmation and shall be subject to cross-examination. The
testimony of the deponent shall be recorded by the judge or by some
person under his direction and in his presence. In lieu of oral
examination, parties may transmit written interrogatories to the judge
prior to the examination and the judge shall propound such
interrogatories to the deponent.
(2) The applicant must arrange for the examination of the witness
either
[[Page 21]]
by oral examination or by written interrogatories. If it is found by the
judge, upon the protest of a party to the proceeding, that such party
has his residence and his place of business more than 100 miles from the
place of the examination and that it would constitute an undue hardship
upon such party to be represented at the examination, the applicant will
be required to conduct the examination by means of interrogatories. When
the examination is conducted by means of interrogatories, copies of the
interrogatories shall be served upon the other parties to the proceeding
at least five days prior to the date set for the examination, and the
other parties shall be afforded an opportunity to file with the judge
cross-interrogatories at any time prior to the time of the examination.
(f) Certification by judge. The judge shall certify on the
deposition that the deponent was duly sworn by him and that the
deposition is a true record of the deponent's testimony. He shall then
securely seal the deposition, together with two copies thereof, in an
envelope and mail the same by registered mail to the hearing clerk.
(g) Use of depositions. A deposition ordered and taken in accord
with the provisions of this section may be used in a proceeding under
the act if the judge finds that the evidence is otherwise admissible and
(1) that the witness is dead; or (2) that the witness is at a distance
greater than 100 miles from the place of hearing, unless it appears that
the absence of the witness was procured by the party offering the
deposition; or (3) that the witness is unable to attend or testify
because of age, sickness, infirmity, or imprisonment; or (4) that the
party offering the deposition has endeavored to procure the attendance
of the witness by subpena but has been unable to do so; or (5) that such
exceptional circumstances exist as to make it desirable, in the
interests of justice, to allow the deposition to be used. If a
deposition has been taken, and the party upon whose application it was
taken refuses to offer it in evidence, the other party may offer the
deposition, or any part thereof, in evidence.
Sec. 900.62 Subpenas.
(a) Issuance of subpenas. The attendance of witnesses and the
production of documentary evidence from any place in the United States
on behalf of any party to the proceeding may, by subpena, be required at
any designated place of hearing. Subpenas may be issued by the Secretary
or by the judge, under the facsimile signature of the Secretary, upon a
reasonable showing by the applicant of the grounds, necessity, and
reasonable scope thereof.
(b) Application for subpena duces tecum. Subpenas for the production
of documentary evidence, unless issued by the judge upon his own motion,
shall be issued only upon a certified written application. Such
application shall specify, as exactly as possible, the documents desired
and shall show their competency, relevancy, and materiality and the
necessity for their production.
(c) Service of subpenas. Subpenas may be served (1) by a United
States Marshal or his deputy, or (2) by any other person who is not less
than 18 years of age, or (3) by registering and mailing a copy of the
subpena addressed to the person to be served at his or its last known
residence or principal place of business or residence. Proof of service
may be made by the return of service on the subpena by the United States
Marshal or his deputy; or, if served by an individual other than a
United States Marshal or his deputy, by an affidavit of such person
stating that he personally served a copy of the subpena upon the person
named therein; or, if service was by registered mail, by an affidavit
made by the person mailing the subpena that it was mailed as provided in
this paragraph and by the signed return postoffice receipt: Provided,
That, if the subpena is issued on behalf of the Department, the return
receipt without an affidavit of mailing shall be sufficient proof of
service. In making personal service, the person making service shall
leave a copy of the subpena with the person subpenaed; the original,
bearing or accompanied by the required proof of service, shall be
returned to the official who issued the same.
[[Page 22]]
Sec. 900.63 Fees and mileage.
Witnesses who are subpenaed and who appear in such proceeding,
including witnesses whose depositions are taken, shall be paid the same
fees and mileage that are paid witnesses in the courts of the United
States, and persons taking depositions shall be entitled to the same
fees as are paid for like services in the courts of the United States,
to be paid by the party at whose request the deposition is taken.
Witness fees and mileage shall be paid by the party at whose instance
the witnesses appear, and claims therefor, as to witnesses subpenaed on
behalf of the Department, shall be proved before the person issuing the
subpena, and, as to witnesses subpenaed on behalf of any other party,
shall be presented to such party.
Sec. 900.64 The Administrative Law Judge's decision.
(a) Corrections to and certification of transcript. (1) At such time
as the judge may specify, but not later than the time fixed for filing
proposed findings of fact, conclusions and order, or briefs, as the case
may be, the parties may file with the judge proposed corrections to the
transcript.
(2) As soon as practicable after the filing of proposed findings of
fact, conclusions and order, or briefs, as the case may be, the judge
shall file with the hearing clerk his certificate indicating any
corrections to be made in the transcript, and stating that, to the best
of his knowledge and belief, the transcript, as corrected, is a true,
correct, and complete transcript of the testimony given at the hearing,
and that the exhibits are all the exhibits properly a part of the
hearing record. The original of such certificate shall be attached to
the original transcript and a copy of such certificate shall be served
upon each of the parties by the hearing clerk who shall also enter onto
the transcript (without obscuring the text) any correction noted in the
certification.
(b) Proposed findings of fact, conclusions, and orders. Within 10
days (unless the judge shall have announced at the hearing a shorter or
longer period of time) after the transcript has been filed with the
hearing clerk, as provided in paragraph (a) of this section, each party
may file with the hearing clerk proposed findings of fact, conclusions,
and order, based solely upon the evidence of record, and briefs in
support thereof.
(c) Administrative Law Judge's Decision. The judge, within a
reasonable time after the termination of the period allowed for the
filing of proposed findings of fact, conclusions,and orders, and briefs
in support thereof, shall prepare upon the basis of the record, and
shall file with the hearing clerk, his initial decision, a copy of which
shall be served by the hearing clerk, upon each of the parties. Such
decision shall become final without further proceedings 35 days after
the date of service thereof, unless there is an appeal to the Secretary
by a party to the proceeding: Provided, however, That no decision shall
be final for the purpose of judicial review except a final decision
issued by the Secretary pursuant to an appeal by a party to the
proceeding.
[25 FR 5907, June 28, 1960, as amended at 38 FR 29799, Oct. 29, 1973]
Sec. 900.65 Appeals to Secretary: Transmittal of record.
(a) Filing of appeal. Any party who disagrees with a judge's
decision or any part thereof, may appeal the decision to the Secretary
by transmitting an appeal petition to the hearing clerk within 30 days
after service of said decision upon said party. Each issue set forth in
the appeal, and the arguments thereon, shall be separately numbered;
shall be plainly and concisely stated; and shall contain detailed
citations of the record, statutes, regulations and authorities being
relied upon in support thereof. The appeal petition shall be served upon
the other party to the proceeding by the hearing clerk.
(b) Argument before Secretary--(1) Oral argument. A party bringing
an appeal may request within the prescribed time period for filing such
appeal, an opportunity for oral argument before the Secretary. Failure
to make such request in writing, within the prescribed time period,
shall be deemed a waiver of oral argument. The Secretary, in his
discretion, may grant, refuse or limit any request for oral argument on
appeal.
[[Page 23]]
(2) Scope of argument. Argument to be heard on appeal, whether oral
or in a written brief, shall be limited to the issues raised by the
appeal, except that if the Secretary determines that additional issues
should be argued, the parties shall be given reasonable notice of such
determination, so as to permit preparation of adequate arguments on all
the issues to be argued.
(c) Response. Within 20 days after service of an appeal brought by a
party to the proceeding, any other party may file a response in support
of or in opposition to such appeal.
(d) Transmittal of record. Whenever an appeal is filed by a party to
the proceeding, the hearing clerk shall transmit to the Secretary the
record of the proceeding. Such record shall include: The pleadings; any
motions and requests filed, and the rulings thereon; the transcript of
the testimony taken at the hearing, as well as the exhibits filed in
connection therewith; any statements filed under the shortened
procedure; any documents or papers filed in connection with prehearing
conferences; such proposed findings of fact, conclusions, and orders,
and briefs in support thereof, as may have been filed in connection with
the hearing; the judge's initial decision; and the appeal petition;
briefs in support thereof, and responses thereto as may have been filed
in the proceeding.
[38 FR 29799, Oct. 29, 1973]
Sec. 900.66 Consideration of appeal by the Secretary and issuance of final order.
(a) Consideration of appeal. As soon as practicable after the
receipt of the record from the hearing clerk, or, in case oral argument
was had, as soon as practicable thereafter, the Secretary, upon the
basis of and after due consideration of the record, shall rule on the
appeal. If the Secretary decides that no change or modification of the
judge's decision is warranted, he may adopt the Judge's decision as the
final order of the Secretary, preserving any right of the party bringing
the appeal to seek judicial review of such decision in the proper forum.
At no stage of the proceeding between its institution and the issuance
of the order shall the Secretary discuss ex parte the merits of the
proceeding with any person who is connected with the proceeding in an
advocative or an investigative capacity, or with any representative of
such person: Provided, however, That the Secretary may discuss the
merits of the proceeding with such a person if all parties to the
proceeding, or their representatives, have been given an opportunity to
be present. If, notwithstanding the foregoing provisions of this
section, a memorandum or other communication from any party, or from any
person acting on behalf of any party, which relates to the merits of the
proceeding, receives the personal attention of the Secretary (or, if an
official other than the Secretary is to issue the order, then of such
other official) during the pendency of the proceeding, such memorandum
or communication shall be regarded as argument made in the proceeding
and shall be filed with the hearing clerk, who shall serve a copy
thereof upon the opposite party to file a reply thereto.
(b) Issuance of final order. A final order issued by the Secretary
shall be filed with the hearing clerk, who shall serve it upon the
parties: Provided, That, if the terms of the order differ substantially
from those proposed in the decision of the judge, the Secretary shall,
if he deems it advisable to do so, direct that a copy of the order be
served upon the parties as a tentative order; and, in such event,
opportunity shall be given the parties to file exceptions thereto and
written arguments or briefs in support of such exceptions. In such case,
if exceptions are filed within a period of time (to be fixed by the
Secretary but not to exceed 20 days) following the service of the
tentative order, the Secretary shall give consideration, to and shall
make such changes in the tentative order as he deems to be appropriate;
otherwise, the tentative order shall become final, as of the day
following the date of expiration of the period fixed for the filing of
exceptions.
[38 FR 29799, Oct. 29, 1973]
[[Page 24]]
Sec. 900.68 Applications for reopening hearings; for rehearings or rearguments of proceedings; or for reconsideration of orders.
(a) Petition requisite--(1) Filing; service. An application for
reopening the hearing to take further evidence, or for rehearing or
reargument of the proceeding, or for reconsideration of the order shall
be made by petition addressed to the Secretary and filed with the
hearing clerk, who immediately shall notify and serve a copy thereof
upon the other party to the proceeding. Every such petition shall state
specifically the grounds relied upon.
(2) Petitions to reopen hearings. A petition to reopen the hearing
for the purpose of taking additional evidence may be filed at any time
prior to the issuance of the final order. Every such petition shall
state briefly the nature and purpose of the evidence to be adduced,
shall show that such evidence is not merely cumulative, and shall set
forth a good reason why such evidence was not adduced at the hearing.
(3) Petitions to rehear or reargue proceedings, or to reconsider
orders. A petition to rehear or reargue the proceeding or to reconsider
the final order shall be filed within 15 days after the date of the
service of such order. Every such petition shall state specifically the
matters claimed to have been erroneously decided, and alleged errors
must be briefly stated.
(b) Procedure for disposition of petitions. Within 10 days following
the service of any petition provided for in this section, the other
party to the proceeding shall file with the hearing clerk an answer
thereto. As soon as practicable thereafter, the Secretary shall announce
the decision granting or denying the petition. Unless the Secretary
shall determine otherwise, the issuance or operation of the order shall
not be stayed pending the decision of the Secretary upon the petition.
In the event that any such petition is granted by the Secretary, the
applicable rules of practice, as set out elsewhere in this subpart,
shall be followed.
Sec. 900.69 Filing; service; extensions of time; effective date of filing; and computation of time.
(a) Filing; number of copies. Except as provided otherwise herein,
all documents or papers required or authorized in this subpart to be
filed with the hearing clerk shall be filed in quadruplicate: Provided,
That, if there are more than two parties to the proceeding, a sufficient
number of additional copies shall be filed so as to provide for service
upon all the parties to the proceeding. Any document or paper, required
or authorized in this subpart to be filed with the hearing clerk, shall,
during the course of an oral hearing, be filed with the judge.
(b) Service; proof of service. Copies of all such papers shall be
served upon the parties by the hearing clerk, by the judge, or by some
other employee of the Department or by a United States Marshal or his
deputy. Service shall be made either (1) by delivering a copy of the
document or paper to the individual to be served or to a member of the
partnership to be served or to the president, secretary, or other
executive officer or any director of the corporation, organization, or
association to be served, or to the attorney or agent of record of such
individual, partnership, corporation, organization, or association; or
(2) by leaving a copy of the document or paper at the principal office
or place of business of such individual, partnership, corporation,
organization, or association, or of his or its attorney or agent of
record; or (3) by registering and mailing a copy of the document or
paper, addressed to such individual, partnership, corporation,
organization, or association, or to his or its attorney or agent of
record, at his or its last known principal office, place of business, or
residence. Proof of service hereunder shall be made by the affidavit of
the person who actually made the service. The affidavit contemplated
herein shall be filed with the hearing clerk, and the fact of filing
thereof shall be noted on the docket of the proceeding.
(c) Extensions of time. The time for the filing of any documents or
papers required or authorized in this subpart
[[Page 25]]
to be filed may be extended upon (1) a written stipulation between the
parties, or (2) upon the request of a party, by the judge before the
transmittal of the record to the Secretary, or by the Secretary at any
other time if, in the judgment of the Secretary or the judge, as the
case may be, there is good reason for the extension.
(d) Effective date of filing. Any document or paper, except a
petition filed pursuant to Sec. 900.52, required or authorized under
these rules to be filed shall be deemed to have been filed when it is
postmarked, or when it is received by the hearing clerk. Any petition
filed under Sec. 900.52 shall be deemed to be filed when it is received
by the hearing clerk.
(e) Computation of time. Sundays and Federal holidays shall be
included in computing the time allowed for the filing of any document or
paper: Provided, That, when such time expires on a Sunday or legal
holiday, such time shall be extended to include the next following
business day.
Sec. 900.70 Applications for interim relief.
(a) Filing the application. A person who has filed a petition
pursuant to Sec. 900.52 may by separate application filed with the
hearing clerk apply to the Secretary or an order postponing the
effective date of, or suspending the application of, the marketing order
or any provision thereof, or any obligation imposed in connection
therewith, pending final determination of the proceeding.
(b) Contents of the application. The application shall contain a
statement of the facts upon which the relief is requested, including any
facts showing irreparable injury. The application must be signed and
sworn to by the petitioner and any facts alleged therein which are not
within his personal knowledge shall be supported by affidavits of a
person or persons having personal knowledge of such facts or by proper
documentary evidence thereof.
(c) Answer to application. Immediately upon receipt of the
application, the hearing clerk shall transmit a copy thereof, together
with all supporting papers, to the Administrator, who shall, within 20
days, or such other time fixed by the Secretary, after the filing of the
application file an answer thereto with the hearing clerk.
(d) Contents of answer. The answer shall contain a statement of the
objections, if any, of the Administrator to the application for interim
relief, and may be supported by affidavits and documentary evidence.
(e) Transmittal to Secretary. Upon receiving the answer of the
Administrator or upon the expiration of the time for filing the answer,
the hearing clerk shall transmit to the Secretary for his decision all
papers filed in connection with the application.
(f) Hearing and oral argument. The Secretary may, in his discretion,
permit oral argument or the taking of testimony in connection with such
application. However, unless written request therefor is filed with the
hearing clerk prior to the transmittal of the papers to the Secretary,
the parties shall be deemed to have waived oral argument and the taking
of testimony.
(g) Decision by Secretary. The Secretary may grant or deny the
application. Any action taken by the Secretary shall be in the form of
an order filed with the hearing clerk and shall contain a brief
statement of the reasons for the action taken. The hearing clerk shall
cause copies of the order to be served upon the parties.
Sec. 900.71 Hearing before Secretary.
The Secretary may act in the place and stead of a judge in any
proceeding hereunder. When he so acts the hearing clerk shall transmit
the record to the Secretary at the expiration of the period provided for
the filing of proposed findings of fact, conclusions and orders, and the
Secretary shall thereupon, after due consideration of the record, issue
his final order in the proceeding: Provided, That he may issue a
tentative order in which event the parties shall be afforded an
opportunity to file exceptions before the issuance of the final order.
[[Page 26]]
Subpart--Supplemental Rules of Practice for Marketing Orders, Marketing
Agreements, and Requirements Issued Pursuant to 7 U.S.C. 608b(b) and 7
U.S.C. 608e Covering Fruits, Vegetables, and Nuts
Authority: 7 U.S.C. 601-674.
Source: 61 FR 20717, May 8, 1996, unless otherwise noted.
Sec. 900.80 Words in the singular form.
Words in this subpart in the singular form shall be deemed to import
the plural, and vice versa, as the case may demand.
Sec. 900.81 Definitions.
As used in this subpart, the terms as defined in the act shall apply
with equal force and effect. In addition, unless the context otherwise
requires:
(a) The term Act means Public Act No. 10, 73 Congress (48 Stat. 31)
as amended and as reenacted and amended by the Agricultural Marketing
Agreement Act of 1937 (50 Stat. 246), as amended.
(b) The term Department means the United States Department of
Agriculture.
(c) The term 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.
(d) The term Administrator means the Administrator of the
Agricultural Marketing Service, with power to redelegate, or any officer
or employee of the Department to whom authority has been delegated or
may hereafter be delegated to act in his stead.
(e) The term proceeding means a proceeding before the Secretary
arising under sections 8a, 8b(b), 8c(14), 8e, 10(c) and 10(h).
(f) The term hearing means that part of the proceeding which
involves the submission of evidence.
(g) The term marketing agreement means any marketing agreement or
any amendment thereto which may be entered into pursuant to section 8b
of the act.
(h) The term marketing order means any order or any amendment
thereto which may be issued pursuant to section 8c of the act, and after
notice and hearing as required by said section.
(i) The term handler means any person who, by the terms of a
marketing order or marketing agreement, is subject thereto, or to whom a
marketing order or marketing agreement is sought to be made applicable.
(j) The term importer means any person who, by the terms of section
8e of the act, is subject thereto.
(k) The term person means any individual, corporation, partnership,
association, or any other business unit.
Sec. 900.82 Stipulation procedures.
The Administrator, or the Administrator's representative, may, at
any time before the issuance of a complaint seeking a civil penalty
under the Act, enter into a stipulation with any handler or importer in
accordance with the following procedures:
(a) The Administrator, or the Administrator's representative, shall
give the handler or importer notice of the alleged violation of the
applicable marketing order or marketing agreement, or the requirements
issued pursuant to 7 U.S.C. 608b(b) and 7 U.S.C. 608e, and an
opportunity for a hearing thereon as provided by the Act;
(b) In agreeing to the proposed stipulation, the handler or importer
expressly waives the opportunity for a hearing and agrees to pay a
specified civil penalty within a designated time;
(c) The Administrator, or the Administrator's representative, agrees
to accept the specified civil penalty in settlement of the particular
matter involved if it is paid within the designated time;
(d) In cases where the handler or importer does not pay the
specified civil penalty within the designated time, or the handler or
importer does not agree to the stipulation, the Administrator may issue
an administrative complaint; and
(e) The civil penalty that the Administrator may have proposed in a
stipulation agreement shall have no bearing on the civil penalty amount
that the Department may seek in a formal administrative proceeding
against the
[[Page 27]]
same handler or importer for the same alleged violation.
Subpart--Procedure Governing Meetings To Arbitrate and Mediate Disputes
Relating to Sales of Milk or Its Products
Authority: Sec. 3, 50 Stat. 248; 7 U.S.C. 671.
Sec. 900.100 Words in the singular form.
Words in this subpart in the singular form shall be deemed to import
the plural, and vice versa, as the case may demand.
Sec. 900.101 Definitions.
As used in this subpart, the terms as defined in the act shall apply
with equal force and effect. In addition, unless the context otherwise
requires:
(a) The term act means section 3 of the Agricultural Marketing
Agreement Act of 1937, as amended (50 Stat. 248, as amended; 7 U.S.C.
671);
(b) The term Department means the United States Department of
Agriculture;
(c) The term 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;
(d) The term General Counsel means the General Counsel of the
Department;
(e) The term Administrator means the Administrator of the
Agricultural Marketing Service, with power to redelegate, or any officer
or employee of the Department to whom authority has been delegated or
may hereafter be delegated to act in his stead;
(f) The term Service means the Agricultural Marketing Service;
(g) The term Division means the Dairy Division of the Service;
(h) The term cooperative means any association, incorporated or
otherwise, which is in good faith owned or controlled by producers, or
organizations thereof, of milk or its products, and which is bona fide
engaged in the collective processing or preparing for market or handling
or marketing, in the current of interstate or foreign commerce, of milk
or its products;
(i) The term arbitrator means any officer or employee of the Service
designated by the Administrator, pursuant to the act, to arbitrate a
bona fide dispute with reference to the terms and conditions of the sale
of milk or its products between a producer cooperative and purchasers,
handlers, processors, or distributors of milk or its products;
(j) The term mediator means any officer or employee of the Service
designated by the Administrator, pursuant to the act, to mediate a bona
fide dispute with reference to terms and conditions of the sale of milk
or its products between a producer cooperative and purchasers, handlers,
processors, or distributors of milk or its products;
(k) The term hearing clerk means the hearing clerk, United States
Departent of Agriculture, Washington, DC.
[25 FR 5907, June 28, 1960, as amended at 26 FR 7797, Aug. 22, 1961; 28
FR 579, Jan. 23, 1963; 37 FR 8059, Apr. 25, 1972]
Sec. 900.102 Filing of applications for mediation or arbitration.
All applications for mediation or arbitration, all submissions, and
all correspondence regarding mediation or arbitration shall be addressed
to the Secretary, attention of the Division.
Sec. 900.103 Application for mediation.
An application for mediation by a cooperative, shall be in writing
and shall include the following information:
(a) Names in full of the parties to the dispute and their addresses;
(b) Description of the cooperative organization and business,
including copies of the articles of incorporation or association, by-
laws, and membership contract; information regarding the number of
shares of outstanding stock and the approximate portion owned by active
producers; a statement of the function performed in connection with the
collective processing, preparing, handling, or marketing of milk or its
products; and data relative to the distribution of membership by States,
the distribution by States of plant facilities for collecting,
processing, or disposing of milk or its products, and the
[[Page 28]]
business operations for the year last past, including the total quantity
of milk and its products handled by the applicant and the proportion of
that quantity that was sold in States other than the States of
production;
(c) Suggested time and place for meeting between parties and
mediator.
Sec. 900.104 Inquiry by the Administrator.
Upon receipt of an application for mediation, the Administrator,
through such officers or employees of the Service as he may designate,
may make any inquiry which is deemed to be necessary or proper in order
to determine whether a bona fide dispute exists.
Sec. 900.105 Notification.
The Administrator, acting on behalf of the Secretary will notify the
applicant as to whether he considers that mediation will effectuate the
purpose of the act and as to whether he will mediate.
Sec. 900.106 Assignment of mediator.
The Director of the Division shall assign a mediator, from the group
designated by the Administrator, to act in such capacity.
Sec. 900.107 Meetings.
All meetings held pursuant to Secs. 900.103 to 900.109 shall be held
with and under the direction of the mediator.
Sec. 900.108 Mediator's report.
The mediator, upon the completion of mediation proceedings, shall
submit to the Administrator a complete report on such proceedings.
Sec. 900.109 Mediation agreement.
An agreement arrived at by mediation shall not become effective
until approved by the Secretary, and the Secretary will not approve an
agreement if there is evidence of fraud, if there is a lack of evidence
to support the agreement, or if the agreement provides for any unfair
trade practice.
Sec. 900.110 Application for arbitration.
An application for arbitration by a cooperative shall be in writing
and shall contain the following information:
(a) Names in full of the parties to the dispute and their addresses;
(b) The same information required under Sec. 900.103(b);
(c) Concise statement of dispute to be submitted;
(d) Originals or certified copies of all contracts, if any, involved
in the dispute, and of correspondence which has passed between the
parties and of any other documents or information relied upon;
(e) Dates before which it is desired that the hearing shall be had
and the award shall become effective;
(f) Suggested time and place for arbitration hearing.
The applicant shall send a copy of the application to each other
party to the dispute.
Sec. 900.111 Inquiry by the Administrator.
Upon receipt of an application for arbitration, the Administrator,
through such officers or employees of the Service as he may designate,
may make any inquiry deemed to be necessary or proper in order to
determine whether a bona fide dispute exists, to assist the parties in
reducing the dispute to well-defined issues, and to select an arbitrator
who would be satisfactory to all parties.
Sec. 900.112 Notification.
The Administrator, acting on behalf of the Secretary, within a
reasonable time after the receipt of an application, will notify the
applicant as to whether he will grant the application.
Sec. 900.113 Submission.
(a)(1) Within a reasonable time after the receipt of the
Administrator's consent to arbitrate, the parties to the dispute shall
file with the Administrator a formal submission, which shall contain the
following information:
(i) Names in full of the parties;
(ii) Addresses of the parties to whom all notifications and
communications concerning the arbitration shall be sent;
(iii) Description of the organization and businesses of all parties
to the dispute, including sufficient information to show that the
cooperative is a bona
[[Page 29]]
fide one, and that the parties are engaged in activities in the current
of interstate or foreign commerce;
(iv) Concise statement of the specific questions submitted and a
brief outline of the contentions of each party to the dispute, and a
statement as to the period of time during which the award shall be in
effect, said period to be not less than thirty days from the effective
date of the award;
(v) Name of arbitrator;
(vi) Time and place of arbitration, including street address;
(vii) Stipulation by the parties that they will produce any books,
records, and correspondence required by the arbitrator as being
necessary to a fair determination of the dispute;
(viii) Agreement by the parties that they will consider the award as
final and will comply therewith;
(ix) Stipulation by the parties that arbitration is to take place
under rules and regulations issued by the Secretary, and that any such
rules and regulations pertaining to mediation and arbitration shall be
considered a part of the submission;
(x) Stipulation that a stenographic report of the proceedings must
be made.
(2) The submission shall be signed by each party before a notary
public, and when the signature is that of an agent of a corporation or
cooperative association, the same shall be accompanied by evidence of
the authority to sign.
(3) A submission may be withdrawn at any time before the award, and
any question held by the arbitrator to be a separable question may be
withdrawn before award by agreement of all parties. When any question is
so withdrawn, the parties shall file with the arbitrator the agreement
on that question reached by the parties, showing all the details
thereof, and the arbitrator shall include it in the record of the
arbitration.
(b) [Reserved]
Sec. 900.114 Designation of arbitrator.
The Administrator, after receiving the submission, will designate
one or more persons to act as arbitrator.
Sec. 900.115 Hearing.
(a) The arbitrator shall have full discretion to conduct the hearing
in such manner as will, in his opinion, enable him to ascertain all the
facts in the case.
(b) Parties to the dispute may appear in person or by duly
accredited agents and may be represented by counsel.
(c) All relevant and material evidence may be presented. The
arbitrator shall not be bound by the legal rules of evidence.
(d) The arbitrator, in the presence of the parties, may require the
production of books and records for examination by himself, but not for
examination of confidential information by other parties to the dispute
unless the party producing the same consents to its examination by the
other parties to the dispute.
(e) No evidence offered by one party shall be recieved except in the
presence of all parties unless the parties so agree in a submission
specifying the nature of the evidence to be received.
(f) Final determination as to what will be considered confidential
information shall be made by the arbitrator.
(g) The arbitrator may request the opinions of economists, marketing
specialists, statisticians, lawyers, accountants, and other experts.
(h) When more than two arbitrators are designated to hear a dispute,
and they disagree, the award of the majority shall be the final award.
If the arbitrators are evenly divided, there shall be no award.
(i) A stenographic record of all the proceedings during an
arbitration must be made.
Sec. 900.116 Award.
(a) An award shall be made within ten days after the close of the
hearing.
(1) The award shall be in writing and shall cover only points of
dispute raised in the submission.
(2) The arbitrator, in making the award, may use his own technical
knowledge in addition to the evidence submitted by the parties.
(3) The award shall state the period during which it shall be in
effect, said period to be not less than thirty days from the effective
date thereof; and
[[Page 30]]
said period may be extended by agreement among the parties upon
notification thereof to the Administrator, unless or until the
Administrator withdraws his approval.
(4) The arbitrator shall sign the award in the presence of a notary
public, or, when more than one arbitrator is designated the arbitrator
shall sign in the presence of each other.
(5) Copies of the award shall be delivered to the parties by the
Division.
(b) [Reserved]
Sec. 900.117 Approval of award.
The award shall not become effective until approved by the
Secretary, and the Secretary will not approve an award if there is
evidence of fraud, or evidence of misconduct upon the part of the
arbitrator, or lack of evidence to support the award, or if the award
provides for any unfair trade practice.
Sec. 900.118 Costs.
The parties jointly shall pay for the stenographic record. A copy of
the record shall be furnished by the parties to the arbitrator and shall
be forwarded by him to the Administrator, ultimately to be filed in the
office of the hearing clerk. The arbitrator shall not receive
compensation for parties to the dispute.
Subpart--Miscellaneous Regulations
Authority: Sec. 10, 48 Stat. 37, as amended; 7 U.S.C. 610.
Sec. 900.200 Definitions.
As used in this subpart, the terms as defined in the Act shall apply
with equal force and effect. In addition, unless the context otherwise
requires:
(a) The term 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, 7 U.S.C. 601), as
amended;
(b) The term Department means the United States Department of
Agriculture;
(c) The term 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;
(d) The term General Counsel means the General Counsel of the
Department;
(e) The term Administrator means the Administrator of the
Agricultural Marketing Service, with power to redelegate, or any officer
or employee of the Department to whom authority has been delegated or
may hereafter be delegated to act in his stead.
(f) [Reserved]
(g) The term Federal Register means the publication provided for by
the Act of July 26, 1935 (49 Stat. 500), and Acts supplementary thereto
and amendatory thereof;
(h) The term marketing agreement means any marketing agreement or
any amendment thereto which may be entered into pursuant to section 8b
of the Act;
(i) The term marketing order means any order or any amendment
thereto which may be issued pursuant to section 8c of the Act;
(j) The term person means any individual, corporation, partnership,
association, or any other business unit;
(k) The term official means the Secretary, any officer, employee, or
other person employed or appointed by the Department, and any agency or
agent appointed by the Secretary to administer a marketing agreement or
a marketing order, and any agent or employee of any such agency or
agent;
(l) The term information means and includes reports, books,
accounts, records, and the facts and information contained therein and
required to be furnished to or acquired by any official pursuant to the
provisions of any marketing agreement or marketing order.
[25 FR 5907, June 28, 1960, as amended at 26 FR 7796, Aug. 22, 1961; 28
FR 579, Jan. 23, 1963; 37 FR 8059, Apr. 25, 1972]
Sec. 900.201 Investigation and disposition of alleged violations.
Whenever the Administrator has reason to believe that any handler
has violated, or is violating, the provisions of any marketing order, he
may institute such investigation and, after due notice to such handler,
conduct such
[[Page 31]]
hearing in order to determine the facts as, in his opinion, are
warranted. If, in the opinion of the Administrator and the General
Counsel, the facts developed as a result of such investigation or
hearing warrant such action, the General Counsel shall refer the matter
to the Attorney General for appropriate action.
Sec. 900.210 Disclosures of information.
All information in the possession of any official which relates to
the business or property of any person, and which was furnished by, or
obtained from, such person pursuant to the provisions of any marketing
agreement or marketing order, shall be kept confidential and shall not
be disclosed, divulged, or made public, unless otherwise expressly
provided in said marketing agreement or marketing order, or unless said
person authorizes said official, in writing, to disclose such
information, except that:
(a) Such information may be disclosed, divulged, or made public if
it has been obtained from or furnished by a person who is not the person
to whose business or property such information relates or an employee of
such latter person, or if such information is otherwise required by law
to be furnished to an official;
(b) Such information may be furnished to other officials for use in
the regular course of their official duties;
(c) Such information may be combined and published in the form of
general statistical studies or data in which the identity of the person
furnishing such information or from whom it was obtained shall not be
disclosed;
(d) Such information may be disclosed upon lawful demand made by the
President or by either House of Congress or any committee thereof, or,
if the Secretary determines that such disclosure is not contrary to the
public interest, such information may be disclosed in response to a
subpena by any court of competent jurisdiction.
(e) Such information may be offered in evidence (whether or not it
has been obtained from or furnished by the person against whom it is
offered) by or on behalf of the Secretary, the United States, or the
official who obtained it or to whom it was furnished, in any
administrative hearing held pursuant to section 8c(15)(A) of the Act or
in any action, suit, or proceeding, civil or criminal, in which the
Secretary or the United States or any such official is a party, and:
(1) Which is instituted (i) for the purpose of enforcing or
restraining the violation of any marketing agreement or marketing order,
or (ii) for the purpose of collecting any penalty or forfeiture provided
for in the Act, or (iii) for the purpose of collecting any monies due
under a marketing agreement or marketing order, or
(2) In which the validity of any marketing agreement or marketing
order, or any provision of either, is challenged or involved.
(f) Such information may be furnished to the duly constituted
authorities of any State, pursuant to a written agreement made under
authority of section 10(i) of the Act, to the extent that such
information is relevant to transactions within the regulatory
jurisdiction of such authorities.
Sec. 900.211 Penalties.
Any official who shall have violated the provisions of Sec. 900.210
by wilfully divulging, disclosing, or making public any information
acquired by or furnished to or in the possession or custody of such
official pursuant to the provisions of a marketing agreement or
marketing order shall be subject to a penalty of $100 for each offense.
(The civil penalty provided in this section is prescribed under the
authority contained in sec. 10(c) of the Act (7 U.S.C. 610(c)); this
provision is not intended to supersede the provision in section 8d(2) of
the Act (7 U.S.C. 608d(2)) for criminal liability and removal from
office.)
Subpart--Procedure for Conduct of Referenda To Determine Producer
Approval of Milk Marketing Orders To Be Made Effective Pursuant to
Agricultural Marketing Agreement Act of 1937, as Amended
Authority: Secs. 1-19, 48 Stat. 31, as amended; 7 U.S.C. 601-674.
Source: 30 FR 15412, Dec. 15, 1965, unless otherwise noted.
[[Page 32]]
Sec. 900.300 General.
Unless otherwise prescribed, the procedure contained in this subpart
shall be applicable to each producer referendum conducted for the
purpose of ascertaining whether the issuance by the Secretary of a milk
marketing order is approved or favored, as required under the applicable
provisions of the Agricultural Marketing Agreement Act of 1937, as
amended (48 Stat. 31, as amended, 7 U.S.C. 601-674). The procedure in
this subpart replaces the procedure for conducting similar referenda (15
FR 5177) issued August 7, 1950.
Sec. 900.301 Definitions.
As used in this subpart and in all supplementary instructions,
forms, and documents, unless the context or subject matter otherwise
requires, the following terms shall have the following meanings:
(a) Act. Act means Public Act No. 10, 73d Congress (48 Stat. 31), as
amended, and as re-enacted and amended by the Agricultural Marketing
Agreement Act of 1937 (50 Stat. 246), as amended.
(b) Department. Department means the United States Department of
Agriculture.
(c) 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.
(d) Administrator. Administrator means the Administrator of the
Agricultural Marketing Service, with power to redelegate, or any officer
or employee of the Department to whom authority has been delegated or
may hereafter be delegated to act in his stead.
(e) Person. Person includes any individual, partnership,
corporation, association, and any other business unit.
(f) Order. Order means the marketing order (including an amendatory
order) with respect to which the Secretary has directed that a
referendum be conducted.
(g) Producer. Producer means any person who is a dairy farmer and
who, during the representative period, met the requirements of the term
producer as defined in the order had such order been in effect during
the representative period.
(h) Handler. Handler means any person who, during the representative
period, met the requirements of the term handler as defined in the order
had such order been in effect during the representative period.
(i) Referendum agent. Referendum agent means the person designated
by the Secretary to conduct the referendum.
(j) Representative period. Representative period means the period
designated by the Secretary pursuant to section 8c of the Act (7 U.S.C.
608c).
(k) Cooperative association. Cooperative association means any
association of producers that the administrator has found to be
qualified pursuant to section 608c(12) of the Act.
[30 FR 15412, Dec. 15, 1965, as amended at 37 FR 8059, Apr. 25, 1972]
Sec. 900.302 Associations eligible to vote.
(a) Any association of producers, not previously determined to be a
cooperative association may file an application for a determination as
to whether it is a cooperative association and thus eligible to vote in
a referendum. Such application shall be filed with the Administrator at
least 60 days prior to the holding of the referendum: Provided, however,
That the Administrator may permit the filing of an application in less
than 60 days when, in the opinion of the Administrator, such filing
would not delay the conduct of the referendum.
(b) Within a time fixed by the referendum agent, but not later than
5 days prior to the final date for balloting, each cooperative
association electing to vote shall, upon the request of the referendum
agent, furnish to him a certified list showing the name and address of
each producer for whom it claims the right to vote and the plant at
which such person's milk was received during the representative period.
Sec. 900.303 Conduct of referendum.
The referendum shall be conducted by mail in the manner prescribed
in this subpart. The referendum agent may utilize such personnel or
agencies
[[Page 33]]
of the Department as are deemed necessary by the Administrator.
Sec. 900.304 Who may vote.
(a) Each producer shall be entitled to only one vote and to cast one
ballot in each referendum; and no person who may claim to be a producer
shall be refused a ballot. Each producer casting more than one ballot
with conflicting votes shall thereby invalidate all ballots cast by such
producer in such referendum. Each ballot cast shall contain a
certification by the person casting the ballot that he is a producer.
(b) Except as provided in section 8c(5)(B) of the act, as amended,
any cooperative association eligible under Sec. 900.302 may, if it
elects to do so, vote and cast one ballot for producers who are members
of, stockholders in, or under contract with, such cooperative
association. A cooperative association shall submit, with its ballot, a
certified copy of the resolution authorizing the casting of the ballot.
Each such cooperative association entitled to vote in a referendum
casting more than one ballot with conflicting votes shall thereby
invalidate all ballots cast by such voter in such referendum.
(c) Voting by proxy or agent, or in any manner, except by the
producer or cooperative association will not be permitted; however, a
producer which is other than an individual may cast its ballot by a
person who is duly authorized and such ballot shall contain a
certification by such person that the person on whose behalf the ballot
is cast is a producer.
Sec. 900.305 Duties of referendum agent.
The referendum agent shall also:
(a) For purposes of mailing, prepare a record of producers which
will disclose the name of each such person, his address, the name of the
handler who received the producer's milk during the representative
period, and the name of the cooperative association, if any, which
claims the right to vote for the producer. Such record may be compiled
from readily available sources, including the following:
(1) Records of the Department;
(2) Producer records supplied by handlers;
(3) Health authority records;
(4) Certifications signed by dairy farmers who claim to be
producers;
(5) Any other reliable sources of information which may be available
to the referendum agent.
(b) Apply, as a guide, the following criteria in preparing a record
of producers:
(1) When the order requires approval by an appropriate health
authority before a person meets the definition of producer, only those
persons having such approval and who otherwise meet the definition may
be regarded as producers. When the definition of producer requires the
shipment of milk to a handler or a plant as well as health authority
approval, only those persons having such approval and whose milk was
received by a handler or at a plant may be regarded as producers.
(2) When the order requries shipment to a handler or to a plant,
without regard to health authority approval, a person may not be
regarded as a producer, except as provided in paragraph (b)(6) of this
section, unless his name appears on the handler's producer records.
(3) In the case of a producer that is other than an individual, the
business unit shall be regarded as the producer.
(4) No person may be included in the record more than once although
he may operate more than one farm, hold more than one health authority
approval, or appear on more than one handler's producer records.
(5) In the event the health authority records are not available, are
inaccurate, or are incomplete, the appearance of the producer's name on
a handler's records as an approved producer shall be prima facie
evidence of health authority approval.
(6) In the event any handler refuses or fails to make his records
available to the referendum agent, a certification signed by the
producer shall be regarded by the referendum agent as prima facie
evidence that such person is eligible to vote.
(c) Verify the information supplied by each cooperative association
which wishes to vote on behalf of producers, as follows:
(1) Examine the records of the cooperative association for the
purpose of ascertaining whether each producer
[[Page 34]]
claimed by the cooperative association is a member of, stockholder in,
or under contract with the cooperative association.
(2) Identify the persons ascertained to be members of, stockholders
in, or under contract with a cooperative association which wishes to
vote on behalf of its producers with the names of producers which appear
on the record compiled pursuant to paragraph (a) of this section.
(3) In determining whether a cooperative association may vote on
behalf of a producer the following criteria shall be used:
(i) The cooperative association may vote for each producer who is a
member of, stockholder in, or under contract with such cooperative
association on the date of the order directing that the referendum be
conducted.
(ii) The cooperative association may cast only one ballot for all
such producers.
(iii) Whenever more than one cooperative association claims the
right to vote for a producer only the cooperative association which
furnished evidence satisfactory to the referendum agent that such
association was in fact marketing the milk of the producer on the date
of the referendum order may vote for such producer.
Sec. 900.306 Notice of the referendum.
(a) The referendum agent shall at least 5 days prior to the final
date for balloting:
(1) Mail to each cooperative association which has elected to cast a
ballot on behalf of its producers and to each of all other known
producers, a notice of the referendum which will include instructions
for completing the ballot, a statement as to the time within which the
ballot must be mailed to, and received by, the referendum agent, a copy
of the final decision, and a ballot containing a description of the
terms and conditions of the order.
(2) Give public notice of the referendum:
(i) By furnishing press releases and other information to available
media of public information (including but not limited to press, radio,
and television facilities) serving the area, announcing the time within
which ballots must be completed and mailed to and received by the
referendum agent, eligibility requirements, where additional information
may be procured, and other pertinent information; and
(ii) By such other means as said agent may deem advisable.
(b) [Reserved]
Sec. 900.307 Time for voting.
There shall be no voting except within the time specified by the
referendum agent as stated in the notice of the referendum.
Sec. 900.308 Tabulation of ballots.
(a) General. The referendum agent shall verify the information
supplied with each ballot. If he ascertains that the person who cast the
ballot was eligible to do so, that the ballot is complete and was mailed
and received within the prescribed time, the ballot shall be eligible to
be counted. If the referendum agent ascertains that the person who cast
the ballot was not eligible to do so, or if the producer who cast the
ballot was a member of, stockholder in, or under contract with a
cooperative association which cast a valid ballot, or if the ballot is
not completed or cast in accordance with instructions, or if the ballot
was not mailed to or received by the referendum agent within the
prescribed time, the ballot shall be marked ``disqualified'' with a
notation on the ballot as to the reason for the disqualification. The
total number of ballots cast, including the disqualified ballots, shall
be ascertained. The number of eligible ballots cast approving and the
number of eligible ballots cast disapproving the issuance of the order
shall also be ascertained. The ballots marked ``disqualified'' shall not
be considered as approving or disapproving the issuance of the order,
and the persons who cast such ballots shall not be regarded as
participating in the referendum.
(b) Individual-handler pool provisions. Whenever separate approval
of the pooling provisions of the order is required by section
608c(5)(B)(i) of the act, any ballot which approves the issuance of the
order and disapproves the pooling provisions, or approves the pooling
provisions and disapproves the
[[Page 35]]
issuance of the order, shall be disqualified; and the referendum agent
shall mark the ballot accordingly.
(c) Record of results of the referendum. The referendum agent shall
notify the Administrator of the number of eligible ballots cast, the
count of the votes, the number of disqualified ballots and the number of
producers who were eligible to cast ballots. The referendum agent shall
seal the ballots, including those marked ``disqualified'', the list of
eligible voters and tabulation of ballots, and shall transmit to the
Administrator a complete detailed report of all action taken in
connection with the referendum together with all the ballots cast and
all other information furnished to or compiled by the referendum agent.
(d) Announcement of the results of the referendum. Announcement of
the results of the referendum will be made only at the direction of the
Secretary. The referendum agent, or others who assist in the referendum,
shall not disclose the results of the referendum or the total number of
ballots cast.
Sec. 900.309 Confidential information.
The ballots cast, the identity of any person who voted, or the
manner in which any person voted and all information furnished to,
compiled by, or in the possession of the referendum agent, shall be
regarded as confidential.
Sec. 900.310 Supplementary instructions.
The Administrator is authorized to issue instructions and to
prescribe forms and ballots, not inconsistent with the provisions of
this subpart, to govern the conduct of referenda by referendum agents.
Sec. 900.311 Submittals or requests.
Interested persons may secure information or make submittals or
requests to the Administrator with respect to the provisions contained
in this subpart.
Subpart--Procedure for Determining the Qualification of Cooperative Milk
Marketing Associations
Authority: Secs. 1-19, 48 Stat. 31, as amended; 7 U.S.C. 601-674.
Source: 32 FR 9821, July 6, 1967, unless otherwise noted.
Sec. 900.350 General statement.
Cooperative marketing associations apply for qualification by the
Secretary under the Federal milk order program for certain privileges
and exemptions. These privileges and exemptions are expressed in the
Agricultural Marketing Agreement Act of 1937 (50 Stat. 246) as amended,
and the milk marketing orders issued pursuant to its provisions.
Sec. 900.351 Applications for qualification.
Any association of producers may apply for determinations as to
whether it is a qualified cooperative association with authority to
represent producers in order referendums; has authorization to collect
payment from handlers for members' milk; and is rendering specified
marketing services to producers. Applicant associations should supply
information for these determinations, using as a guide Application Form
DA-25. The application form may be obtained from the Dairy Division,
Agricultural Marketing Service, United States Deparment of Agriculture,
Washington, DC 20250. Determinations required of the Secretary of
Agriculture, or the Administrator of the Agricultural Marketing Service,
by delegation are made by the Director of the Dairy Division. Once
issued they are valid until amended, suspended or terminated.
[[Page 36]]
Sec. 900.352 Confidential information.
The documents and other information submitted by an applicant
association and otherwise obtained by investigation, examination of
books, documents, papers, records, files and facilities, and in reports
filed subsequent to initial determinations of qualification, shall be
regarded as confidential and shall be governed by Sec. 900.210.
Sec. 900.353 Qualification standards.
Statutory requirements for qualification of coopertive associations
are provided in subsections (5) and (12) of section 608c of the
Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601
et seq.). The association must: (a) Be a cooperative marketing
association of producers, qualified under the provisions of the Act of
Congress of February 18, 1922, as amended, known as the ``Capper-
Volstead Act,'' (7 U.S.C. 291, 292); (b) have its entire organization
and all of its activities under the control of its members; (c) have
full authority in the sale of its members' milk; and (d) be engaged in
making collective sales or marketing of milk or milk products for the
producers thereof. Qualification for exemption from deductions for
marketing service payments under specific marketing orders and payment
for milk of members under specific orders shall be determined in
accordance with the terms of the respective marketing orders.
Sec. 900.354 Inspection and investigation.
The Secretary of Agriculture, or his duly authorized representative,
shall have the right, at any time after an application is received, 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.
Sec. 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, Agricultural Marketing Service, U.S. Department
of Agriculture, Washington, DC 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.
Sec. 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,
Agricultural Marketing Service, and with the Hearing Clerk, Office of
the Secretary, U.S. Department of Agriculture, Washington, DC 20250,
where they are available 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.
Sec. 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
[[Page 37]]
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 representatives 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: Secs. 1-19, 48 Stat. 31, as amended; 7 U.S.C. 601-674.
Source: 30 FR 15414, Dec. 15, 1965, unless otherwise noted.
Sec. 900.400 General.
Referenda for the purpose of ascertaining whether the issuance by
the Secretary of Agriculture of a marketing order to regulate the
handling of any fruit, vegetable, or nut, or product thereof, or the
continuance or termination of such an order, is approved or favored by
producers or processors shall, unless supplemented or modified by the
Secretary, be conducted in accordance with this subpart.
Sec. 900.401 Definitions.
(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 Agricultural
Marketing Service, with power to redelegate, or any officer or employee
of the Department to whom authority 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.
[[Page 38]]
(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.
[30 FR 15414, Dec. 15, 1965, as amended at 37 FR 8059, Apr. 25, 1972]
Sec. 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 a landlord-tenant relationship, where in
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.
Sec. 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 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 (i) 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
[[Page 39]]
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 indicate 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.
Sec. 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.
Sec. 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.
Sec. 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.
Sec. 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
[[Page 40]]
all information furnished to, compiled by, or in possession of, the
referendum agent shall be treated as confidential.
Subpart--Public Information
Authority: 5 U.S.C. 301, 552.
Availability of Program Information, Staff Manuals and Instructions, and
Related Material
Sec. 900.500 General.
This subpart is issued in accordance with the regulations of the
Secretary of Agriculture in part 1, subpart A, of subtitle A of this
title (7 CFR 1.1 through 1.16), and appendix A thereto, implementing the
Freedom of Information Act (5 U.S.C. 552). The Secretary's regulations,
as implemented by the regulations of this subpart, govern the
availability of records of AMS to the public.
[40 FR 20267, May 9, 1975]
Sec. 900.501 Public inspection and copying.
(a) Facilities for public inspection and copying of the indexes and
materials required to be made available under Sec. 1.2(a) of this title
will be provided by AMS during normal information should be made to the
Freedom of Information Act Officer at the following address:
Freedom of Information Act Officer, Agricultural Marketing Service,
United States Department of Agriculture, Washington, DC 20250.
(b) Copies of such material may be obtained in person or by mail.
Applicable fees for copies will be charged in accordance wth the
regulations prescribed by the Director, Office of Operations and
Finance, USDA.
[44 FR 39151, July 5, 1979]
Sec. 900.502 Indexes.
Pursuant to the regulations in Sec. 1.4(b) of this title, AMS will
maintain and make available for public inspection and copying current
indexes of all material required to be made available in Sec. 1.2(a) of
this title. Notice is hereby given that publication of these indexes is
unnecessary and impractical, since the material is voluminous and does
not change often enough to justify the expense of publication.
[44 FR 39151, July 5, 1979]
Sec. 900.503 Request for records.
(a) Requests for records under 5 U.S.C. 552(a)(3) shall be made in
accordance with Sec. 1.3(a) of this title. Authority to make
determinations regarding initial requests in accordance with Sec. 1.4(c)
of this title is delegated to the Freedom of Information Act Officer of
AMS. Requests should be submitted to the FOIA Officer at the following
address:
Freedom of Information Act Officer (FOIA Request). Agricultural
Marketing Service, United States Department of Agriculture, Washington,
DC 20250.
(b) The request shall identify each record with reasonable
specificity as prescribed in Sec. 1.3 of this title.
(c) The FOIA Officer is authorized to receive requests and to
exercise the authority to (1) make determinations to grant requests or
deny initial requests, (2) extend the administrative deadline, (3) make
discretinary release of exempt records, and (4) make determinations
regarding charges pursuant to the fee schedule.
[44 FR 39151, July 5, 1979]
Sec. 900.504 Appeals.
Any person whose request under Sec. 900.503 above is denied shall
have the right to appeal such denial in accordance with Sec. 1.3(e) of
this title. Appeals shall be addressed to the Administrator,
Agricultural Marketing Service, U.S. Department of Agriculture,
Washington, DC 20250.
[40 FR 20267, May 9, 1975]
Subpart--Information Collection
Authority: 44 U.S.C. Ch. 35.
Sec. 900.600 General.
This subpart shall contain such requirements as pertain to the
information collection provisions under the Paperwork Reduction Act of
1995.
[63 FR 10492, Mar. 4, 1998]
[[Page 41]]
Sec. 900.601 OMB control numbers assigned pursuant to the Paperwork Reduction Act.
(a) Purpose. This section collects and displays the control numbers
assigned to information collection requirements by the Office of
Management and Budget contained in 7 CFR parts 905 through 998 under the
Paperwork Reduction Act of 1995.
(b) Display.
------------------------------------------------------------------------
Current
OMB
7 CFR part where identified and described control
No.
------------------------------------------------------------------------
905, Florida Oranges, Grapefruit Tangerines, Tangelos....... 0581-0094
906, Texas Oranges & Grapefruit............................. 0581-0068
911, Florida Limes.......................................... 0581-0091
915, Florida Avocados....................................... 0581-0078
916, California Nectarines.................................. 0581-0072
917, California Pears and Peaches........................... 0581-0080
920, California Kiwifruit................................... 0581-0149
922, Washington Apricots.................................... 0581-0095
923, Washington Sweet Cherries.............................. 0581-0133
924, Washington-Oregon Fresh Prunes......................... 0581-0134
925, S.E. California Desert Grapes.......................... 0581-0109
927, Oregon-Washington-California Winter Pears.............. 0581-0089
928, Hawaiian Papayas....................................... 0581-0102
929, Cranberries Grown in Designated States................. 0581-0103
930, Red Tart Cherries...................................... 0581-0177
931, Oregon-Washington Bartlett Pears....................... 0581-0092
932, California Olives...................................... 0581-0142
945, Idaho-Eastern Oregon Potatoes.......................... 0581-0178
946, Washington Potatoes.................................... 0581-0178
947, Oregon-California Potatoes............................. 0581-0178
948, Colorado Potatoes...................................... 0581-0178
953, Southeastern Potatoes.................................. 0581-0178
955, Vidalia Onions......................................... 0581-0178
956, Walla Walla Onions..................................... 0581-0178
958, Idaho-Oregon Onions.................................... 0581-0178
959, South Texas Onions..................................... 0581-0178
966, Florida Tomatoes....................................... 0581-0178
979, South Texas Melons..................................... 0581-0178
981, California Almonds..................................... 0581-0071
982, Oregon-Washington Hazelnuts............................ 0581-0178
984, California Walnuts..................................... 0581-0178
985, Spearmint Oil.......................................... 0581-0065
987, California Dates....................................... 0581-0178
989, California Raisins..................................... 0581-0178
993, California Dried Prunes................................ 0581-0178
997, Domestic Peanuts Not Covered Under the Peanut Marketing 0581-0163
Agreement..................................................
998, Domestic Peanuts Covered Under the Peanut Marketing 0581-0067
Agreement..................................................
------------------------------------------------------------------------
[63 FR 10492, Mar. 4, 1998]
PART 905--ORANGES, GRAPEFRUIT, TANGERINES, AND TANGELOS GROWN IN FLORIDA--Table of Contents
Subpart--Order Regulating Handling
Definitions
Sec.
905.1 Secretary.
905.2 Act.
905.3 Person.
905.4 Fruit.
905.5 Variety.
905.6 Producer.
905.7 Handler.
905.8 Prepare for market.
905.9 Handle or ship.
905.10 Carton or standard packed carton.
905.11 Fiscal period.
905.12 Committee.
905.13 District.
905.14 Redistricting.
905.15 Regulation Area I.
905.16 Regulation Area II.
905.17 Production area.
905.18 Improved No. 2 grade and Improved No. 2 Bright grade.
Administrative Bodies
905.19 Establishment and membership.
905.20 Term of office.
905.21 Selection of initial members of the committee.
905.22 Nominations.
905.23 Selection.
905.27 Failure to nominate.
905.28 Acceptance of membership.
905.29 Inability of members to serve.
905.30 Powers of the committee.
905.31 Duties of Citrus Administrative Committee.
905.33 Compensation and expenses of committee members.
905.34 Procedure of committees.
905.35 Right of the Secretary.
905.36 Funds.
Expenses and Assessments
905.40 Expenses.
905.41 Assessments.
905.42 Handler's accounts.
Regulations
905.50 Marketing policy.
905.51 Recommendations for regulation.
905.52 Issuance of regulations.
905.53 Inspection and certification.
Handlers' Reports
905.70 Manifest report.
905.71 Other information.
Miscellaneous Provisions
905.80 Fruit not subject to regulation.
905.81 Compliance.
905.82 Effective time.
905.83 Termination.
905.84 Proceedings after termination.
905.85 Duration of immunities.
905.86 Agents.
905.87 Derogation.
905.88 Personal liability.
905.89 Separability.
[[Page 42]]
Subpart--Rules and Regulations
905.105 Tangerine and grapefruit classifications.
905.114 Redistricting of citrus districts and reapportionment of grower
members.
905.120 Nomination procedure.
Non-Regulated Fruit
905.140 Gift packages.
905.141 Minimum exemption.
905.142 Animal feed.
905.145 Certification of certain shipments.
905.146 Special purpose shipments.
905.147 Certificate of privilege.
905.148 Reports of special purpose shipments under certificates of
privilege.
905.150 Eligibility requirements for public member and alternate
member.
905.152 Procedure for determining handlers' permitted quantities of
Robinson, Dancy and similar tangerine varieties when a portion
of the 210 size of such varieties is restricted.
905.153 Procedure for determining handlers' permitted quantities of red
seedless grapefruit when a portion of sizes 48 and 56 of such
variety is restricted.
905.161 Repacking shipper.
905.162 Repacking certificate of privilege.
905.163 Reports of shipments under repacking certificate of privilege.
Subpart--Assessment Rates
905.235 Assessment rate.
Subpart--Grade and Size Requirements
905.306 Orange, Grapefruit, Tangerine and Tangelo Regulation.
905.350 Red seedless grapefruit regulation.
Subpart--Interpretative Rule
905.400 Interpretation of certain provisions.
Authority: 7 U.S.C. 601-674.
Subpart--Order Regulating Handling
Source: 22 FR 10734, Dec. 27, 1957, unless otherwise noted.
Redesignated at 26 FR 12751, Dec. 30, 1961.
Definitions
Sec. 905.1 Secretary.
Secretary means the Secretary of Agriculture of the United States,
or any officer or employee of the United States Department of
Agriculture to whom authority has heretofore been delegated, or to whom
authority may hereafter be delegated, to act in his stead.
[42 FR 59368, Nov. 17, 1977]
Sec. 905.2 Act.
Act means Public Act No. 10, 73d Congress (May 12, 1933), as amended
and as reenacted and amended by the Agricultural Marketing Agreement Act
of 1937, as amended. (48 Stat. 31, as amended; 7 U.S.C. 601 et seq.; 68
Stat. 906, 1047.)
Sec. 905.3 Person.
Person means an individual, partnership, corporation, association,
business trust, legal representative, or any organized group of
individuals.
Sec. 905.4 Fruit.
Fruit means any or all varieties of the following types of citrus
fruits grown in the production area:
(a) Citrus sinensis, Osbeck, commonly called ``oranges'';
(b) Citrus paradisi, MacFadyen, commonly called ``grapefruit'';
(c) Citrus nobilis deliciosa, commonly called ``tangerines'';
(d) Temple oranges;
(e) Tangelos; and
(f) Honey tangerines.
[30 FR 13933, Nov. 4, 1965, as amended at 42 FR 59368, Nov. 17, 1977]
Sec. 905.5 Variety.
Variety or varieties means any one or more of the following
classifications or groupings of fruit:
(a) Early and Midseason oranges and other types commonly called
``round oranges,'' except Navel oranges and except Valencia, Lue Gim
Gong, and similar late maturing oranges of the Valencia type;
(b) Valencia, Lue Gim Gong, and similar late maturing oranges of the
Valencia type;
(c) Temple oranges;
(d) Marsh and other seedless grapefruit, excluding pink grapefruit;
(e) Duncan and other seeded grapefruit, excluding pink grapefruit;
(f) Pink seedless grapefruit;
(g) Pink seeded grapefruit;
(h) Tangelos;
(i) Dancy and similar tangerines, excluding Robinson and Honey
tangerines;
[[Page 43]]
(j) Robinson tangerines;
(k) Honey tangerines;
(l) Navel oranges; and
(m) Other varieties of citrus fruits specified in Sec. 905.4 as
recommended by the committee and approved by the Secretary.
[34 FR 12427, July 30, 1969, as amended at 42 FR 59368, Nov. 17, 1977;
42 FR 61853, Dec. 7, 1977]
Sec. 905.6 Producer.
Producer is synonymous with grower and means any person who is
engaged in the production for market of fruit in the production area and
who has a proprietary interest in the fruit so produced.
[42 FR 59368, Nov. 17, 1977]
Sec. 905.7 Handler.
Handler is synonymous with shipper and means any person (except a
common or contract carrier transporting fruit for another person) who,
as owner, agent, or otherwise, handles fruit in fresh form, or causes
fruit to be handled.
Sec. 905.8 Prepare for market.
Prepare for market means to wash, grade, size, or place fruit
(whether or not wrapped) into any container whatsoever; but such term
shall not include the harvesting of fruit.
Sec. 905.9 Handle or ship.
Handle or ship means:
(a) To sell, consign, deliver, or transport fruit, or in any other
way to place fruit in the current of commerce between the production
area and any point outside thereof in the 48 contiguous States and the
District of Columbia of the United States; and
(b) To export fruit from any point in the 48 contiguous States and
the District of Columbia of the United States to any destination.
[54 FR 37292, Sept. 8, 1989]
Sec. 905.10 Carton or standard packed carton.
Carton or standard packed carton means a unit of measure equivalent
to four-fifths (\4/5\) of a United States bushel of fruit, whether in
bulk or in any container.
[42 FR 59368, Nov. 17, 1977]
Sec. 905.11 Fiscal period.
Fiscal period means the period of time from August 1 of any year
until July 31 of the following year, both dates inclusive.
Sec. 905.12 Committee.
Committee means the Citrus Administrative Committee established
pursuant to Sec. 905.19.
[42 FR 59368, Nov. 17, 1977]
Sec. 905.13 District.
(a) Citrus District One shall include the Counties of Hillsborough,
Pinellas, Pasco, Hernando, Citrus, Sumter, and Lake.
(b) Citrus District Two shall include the Counties of Osceola,
Orange, Seminole, Alachua, Putnam, St. Johns, Flagler, Marion, Levy,
Duval, Nassau, Baker, Union, Bradford, Columbia, Clay, Gilchrist, and
Suwannee, and County Commissioner, Districts One, Two, and Three of
Volusia County, and that part of the Counties of Indian River and
Brevard not included in Regulation Area II.
(c) Citrus District Three shall include the County of St. Lucie and
that part of the Counties of Brevard, Indian River, Martin, and Palm
Beach described as lying within Regulation Area II, and County
Commissioner's Districts Four and Five of Volusia County.
(d) Citrus District Four shall include the Counties of Manatee,
Sarasota, Hardee, Highlands, Okeechobee, Glades, De Sota, Charlotte,
Lee, Hendry, Collier, Monroe, Dade, Broward, and that part of the
Counties of Palm Beach and Martin not included in Regulation Area II.
(e) Citrus District Five shall include the County of Polk.
[42 FR 59368, Nov. 17, 1977]
Sec. 905.14 Redistricting.
The committee may with the approval of the Secretary, redefine the
districts into which the production
[[Page 44]]
area is divided or reapportion or otherwise change the grower membership
of districts, or both: Provided, That the membership shall consist of at
least eight but not more than nine grower members, and any such change
shall be based, so far as practicable, upon the respective averages for
the immediately preceding five fiscal periods of (1) the volume of fruit
shipped from each district; (2) the volume of fruit produced in each
district; and (3) the total number of acres of citrus in each district.
The committee shall consider such redistricting and reapportionment
during the 1980-81 fiscal period, and only in each fifth fiscal period
thereafter, and each such redistricting or reapportionment shall be
announced on or before March 1 of the then current fiscal period.
[42 FR 59368, Nov. 17, 1977]
Sec. 905.15 Regulation Area I.
Regulation Area I is defined as the ``Interior District'', and shall
include all that part of the production area not included in Regulation
Area II.
[54 FR 37292, Sept. 8, 1989]
Sec. 905.16 Regulation Area II.
Regulation Area II is defined as the ``Indian River District'', and
shall include that part of the State of Florida particularly described
as follows:
Beginning at a point on the shore of the Atlantic Ocean where the
line between Flagler and Volusia Counties intersects said shore, thence
follow the line between said two counties to the Southwest corner of
Section 23, Township 14 South, Range 31 East; thence continue South to
the Southwest corner of Section 35, Township 14 South, Range 31 East;
thence East to the Northwest corner of Township 15 South, Range 32 East;
thence South to the Southwest corner of Township 17 South, Range 32
East; thence East to the Northwest corner of Township 18 South, Range 33
East; thence South to the St. Johns River; thence along the main channel
of the St. Johns River and through Lake Harney, Lake Poinsett, Lake
Winder, Lake Washington, Sawgrass Lake, and Lake Helen Blazes to the
range line between Ranges 35 East and 36 East; thence South to the South
line of Brevard County; thence East to the line between Ranges 36 East
and 37 East; thence South to the Southwest corner of St. Lucie County;
thence East to the line between Ranges 39 East and 40 East; thence South
to the South line of Martin County; thence East to the line between
Ranges 40 East and 41 East; thence South to the West Palm Beach Canal
(also known as the Okeechobee Canal); thence follow said canal eastward
to the mouth thereof; thence East to the shore of the Atlantic Ocean;
thence Northerly along the shore of the Atlantic Ocean to the point of
beginning.
[22 FR 10734, Dec. 27, 1957. Redesignated at 26 FR 12751, Dec. 30, 1961,
and 42 FR 59368, Nov. 17, 1977, and amended at 42 FR 59370, Nov. 17,
1977; 54 FR 37292, Sept. 8, 1989]
Sec. 905.17 Production area.
Production area means that portion of the State of Florida which is
bounded by the Suwannee River, the Georgia border, the Atlantic Ocean,
and the Gulf of Mexico.
[22 FR 10734, Dec. 27, 1957. Redesignated at 26 FR 12751, Dec. 30, 1961,
and 42 FR 59368, Nov. 17, 1977]
Sec. 905.18 Improved No. 2 grade and Improved No. 2 Bright grade.
Improved No. 2 grade and Improved No. 2 Bright grade means
grapefruit meeting all of the respective requirements of the U.S. No. 2
grade and the U.S. No. 2 Bright grade and those requirements of the U.S.
No. 1 grade relating to shape (form) and color, as such requirements are
set forth in the U.S. Standards for Grades of Florida Grapefruit
(Secs. 51.750-51.783 of this title) or as such standards may hereafter
be amended.
[31 FR 15060, Dec. 1, 1966. Redesignated at 42 FR 59368, Nov. 17, 1977]
Administrative Bodies
Sec. 905.19 Establishment and membership.
(a) There is hereby established a Citrus Administrative Committee
consisting of at least eight but not more than nine grower members, and
eight shipper members. Grower members shall be persons who are not
shippers or employees of shippers: Provided, that the committee, with
the approval of the Secretary, may establish alternative qualifications
for such grower members. Shipper members shall be shippers or employees
of shippers. The committee may be increased by one non-industry member
nominated by the committee and selected by the Secretary. The committee,
with approval
[[Page 45]]
of the Secretary, shall prescribe qualifications, term of office, and
the procedure for nominating the non-industry member.
(b) Each member shall have an alternate who shall have the same
qualifications as the member for whom this person is an alternate.
[54 FR 37293, Sept. 8, 1989]
Sec. 905.20 Term of office.
The term of office of members and alternate members shall begin on
the first day of August and continue for one year and until their
successors are selected and have qualified. The consecutive terms of
office of a member shall be limited to three terms. The terms of office
of alternate members shall not be so limited. Members, their alternates,
and their respective successors shall be nominated and selected by the
Secretary as provided in Secs. 905.22 and 905.23.
[42 FR 59369, Nov. 17, 1977]
Sec. 905.21 Selection of initial members of the committee.
The initial members of the Citrus Administrative Committee and their
respective alternates shall be the members and alternates of the Growers
Administrative Committee and the Shippers Advisory Committee serving on
the effective date of his amendment. Each member and alternate shall
serve until completion of the term for which he was selected and until
his successor has been selected and qualified.
[42 FR 59369, Nov. 17, 1977]
Sec. 905.22 Nominations.
(a) Grower member. (1) The committee shall give public notice of a
meeting of producers in each district to be held not later than July 10
of each year, for the purpose of making nominations for grower members
and alternate grower members. The committee, with the approval of the
Secretary, shall prescribe uniform rules to govern such meetings and the
balloting thereat. The chairman of each meeting shall publicly announce
at such meeting the names of the persons nominated, and the chairman and
secretary of each such meeting shall transmit to the Secretary their
certification as to the number of votes so cast, the names of the
persons nominated, and such other information as the Secretary may
request. All nominations shall be submitted to the Secretary on or
before the 20th day of July.
(2) Each nominee shall be a producer in the district from which he
is nominated. In voting for nominees, each producer shall be entitled to
cast one vote for each nominee in each of the districts in which he is a
producer. At least three of the nominees and their alternates so
nominated shall be affiliated with a bona fide cooperative marketing
organization.
(b) Shipper members. (1) the Committee shall give public notice of a
meeting for bona fide cooperative marketing organizations which are
handlers, and a meeting for other handlers who are not so affiliated, to
be held not later than July 10 of each year, for the purpose of making
nominations for shipper members and their alternates. The committee,
with the approval of the Secretary, shall prescribe uniform rules to
govern each such meeting and balloting thereat. The chairman of each
such meeting shall publicly announce at the meeting the names of the
persons nominated and the chairman and secretary of each such meeting
shall transmit to the Secretary their certification as to the number of
votes cast, the weight by volume of those shipments voted, and such
other information as the Secretary may request. All nominations shall be
submitted to the Secretary on or before the 20th day of July.
(2) Nomination of at least three members and their alternates shall
be made by bona fide cooperative marketing organizations which are
handlers. Nominations for not more than five members and their
alternates shall be made by handlers who are not so affiliated. In
voting for nominees, each handler or his authorized representative shall
be entitled to cast one vote, which shall be weighted by the volume of
fruit by such handler during the then current fiscal period.
[42 FR 59369, Nov. 17, 1977]
[[Page 46]]
Sec. 905.23 Selection.
(a) From the nominations made pursuant to Sec. 905.22(a) or from
other qualified persons, the Secretary shall select one member and one
alternate member to represent District 2 and two members and two
alternate members each to represent District, 1, 3, 4, and 5 or such
other number of members and alternate members from each district as may
be prescribed pursuant to Sec. 905.14. At least three such members and
their alternates shall be affiliated with bona fide cooperative
marketing organizations.
(b) From the nominations made pursuant to Sec. 905.22(b) or from
other qualified persons, the Secretary shall select at least three
members and their alternates to represent bona fide cooperative
marketing organizations which are handlers, and the remaining members
and their alternates to represent handlers who are not so affiliated.
[42 FR 59369, Nov. 17, 1977]
Sec. 905.27 Failure to nominate.
In the event nominations for a member or alternate member of the
committee are not made pursuant to the provisions of Secs. 905.22 and
905.25, the Secretary may select such member or alternate member without
regard to nominations.
[22 FR 10734, Dec. 27, 1957. Redesignated at 26 FR 12751, Dec. 30, 1961,
and amended at 42 FR 59370, Nov. 17, 1977]
Sec. 905.28 Acceptance of membership.
Any person selected by the Secretary as a member or alternate member
of the committee shall qualify by filing a written acceptance with the
Secretary within 10 days after being notified of such selection.
[22 FR 10734, Dec. 27, 1957. Redesignated at 26 FR 12751, Dec. 30, 1961,
and amended at 42 FR 59370, Nov. 17, 1977]
Sec. 905.29 Inability of members to serve.
(a) An alternate for a member of the committee shall act in the
place and stead of such member (1) in his absence, or (2) in the event
of his removal, resignation, disqualification, or death, and until a
successor for his unexpired term has been selected.
(b) In the event of the death, removal, resignation, or
disqualification of any person selected by the Secretary as a member or
an alternate member of the committee, a successor for the unexpired term
of such person shall be selected by the Secretary. Such selection may be
made without regard to the provisions of this subpart as to nominations.
[22 FR 10734, Dec. 27, 1957. Redesignated at 26 FR 12751, Dec. 30, 1961,
and amended at 42 FR 59370, Nov. 17, 1977]
Sec. 905.30 Powers of the committee.
The committee, in addition to the power to administer the terms and
provisions of this subpart, as herein specifically provided, shall have
power (a) to make, only to the extent specifically permitted by the
provisions contained in this subpart, administrative rules and
regulations; (b) to receive, investigate and report to the Secretary
complaints of violations of this subpart; and (c) to recommend to the
Secretary amendments to this subpart.
[22 FR 10734, Dec. 27, 1957. Redesignated at 26 FR 12751, Dec. 30, 1961,
and amended at 42 FR 59370, Nov. 17, 1977]
Sec. 905.31 Duties of Citrus Administrative Committee.
It shall be the duty of the Citrus Administrative Committee:
(a) To select a chairman from its membership, and to select such
other officers and adopt such rules and regulations for the conduct of
its business as it may deem advisable;
(b) To keep minutes, books, and records which will clearly reflect
all of its acts and transactions, which minutes, books, and records
shall at all times be subject to the examination of the Secretary;
(c) To act as intermediary between the Secretary and the producers
and handlers;
(d) To furnish the Secretary with such available information as he
may request;
(e) To appoint such employees as it may deem necessary and to
determine the salaries and define the duties of such employees;
(f) To cause its books to be audited by one or more certified or
registered public accountants at least once for
[[Page 47]]
each fiscal period, and at such other times as it deems necessary or as
the Secretary may request, and to file with the Secretary copies of all
audit reports;
(g) To prepare and publicly issue a monthly statement of financial
operations of the committee;
(h) To provide an adequate system for determining the total crop of
each variety of fruit, and to make such determinations, including
determinations by grade and size, as it may deem necessary, or as may be
prescribed by the Secretary, in connection with the administration of
this subpart;
(i) To perform such duties in connection with the administration of
section 32 of the act to amend the Agricultural Adjustment Act and for
other purposes, Public Act No. 320, 74th Congress, as amended, as may
from time to time be assigned to it by the Secretary;
[22 FR 10734, Dec. 27, 1957. Redesignated at 26 FR 12751, Dec. 30, 1961,
and amended at 30 FR 13934, Nov. 4, 1965; 42 FR 59369, Nov. 17, 1977]
Sec. 905.33 Compensation and expenses of committee members.
The members and alternate members of the Committee shall serve
without compensation but may be reimbursed for expenses necessarily
incurred by them in attending committee meetings and in the performance
of their duties under this part.
[42 FR 59369, Nov. 17, 1977]
Sec. 905.34 Procedure of committees.
(a) Ten members of the committee shall constitute a quorum.
(b) For any decision or recommendation of the committee to be valid,
ten concurring votes, five of which must be grower votes, shall be
necessary: Provided, That the committee may recommend a regulation
restricting the shipment of grapefruit grown in Regulation Area I or
Regulation Area II which meets the requirements of the Improved No. 2
grade or the Improved No. 2 Bright grade only upon the affirmative vote
of a majority of its members present from the regulation area in which
such restriction would apply; and whenever a meeting to consider a
recommendation for release of such grade is requested by a majority of
the members from the affected area, the committee shall hold a meeting
within a reasonable length of time for the purpose of considering such a
recommendation. If after such consideration the requesting area majority
present continues to favor such release for their area, the request
shall be considered a valid recommendation and transmitted to the
Secretary. The votes of each member cast for or against any
recommendation made pursuant to this subpart shall be duly recorded.
Whenever an assembled meeting is held each member must vote in person.
(c) The committee may, in cases of emergency, vote by telephone and
all such votes must be confirmed in writing. Any proposition so voted
upon shall first be fully explained to all members or alternates acting
as members. When any proposition is submitted to be voted on by
telephone, two (2) dissenting votes shall prevent its adoption.
(d) The committee shall give the Secretary the same notice of
meetings as is given to the members thereof.
[42 FR 59369, Nov. 17, 1977]
Sec. 905.35 Right of the Secretary.
The members of the committee (including successors and alternates),
and any agent or employee appointed or employed by the committee, shall
be subject to removal or suspension by the Secretary at any time. Each
and every order, regulation, decision, determination, or other act of
the committee shall be subject to the continuing right of the Secretary
to disapprove of the same at any time and upon his disapproval shall be
deemed null and void, except as to acts done in reliance thereon or in
compliance therewith.
[22 FR 10734, Dec. 27, 1957. Redesignated at 26 FR 12751, Dec. 30, 1961,
and amended at 42 FR 59370, Nov. 17, 1977]
Sec. 905.36 Funds.
(a) All funds received by the committee pursuant to any provision of
this subpart shall be used solely for the purposes herein specified and
shall be accounted for in the manner provided in this subpart.
[[Page 48]]
(b) The Secretary may, at any time, require the committee and its
members to account for all receipts and disbursements.
(c) Upon the removal or expiration of the term of office of any
member of the committee, such member shall account for all receipts and
disbursements and deliver all property and funds, together with all
books and records, in his possession, to his successor in office, and
shall execute such assignments and other instruments as may be necessary
or appropriate to vest in such successor full title to all of the
property, funds, and claims vested in such member pursuant to this
subpart.
[22 FR 10734, Dec. 27, 1957. Redesignated at 26 FR 12751, Dec. 30, 1961,
and amended at 42 FR 59370, Nov. 17, 1977]
Expenses and Assessments
Sec. 905.40 Expenses.
The committee is authorized to incur such expenses as the Secretary
finds are reasonable and likely to be incurred to carry out the
functions of the committee under this subpart during each fiscal period.
The funds to cover such expenses shall be acquired by the levying of
assessments upon handlers as provided in Sec. 905.41.
[22 FR 10734, Dec. 27, 1957. Redesignated at 26 FR 12751, Dec. 30, 1961,
and amended at 42 FR 59370, Nov. 17, 1977]
Sec. 905.41 Assessments.
(a) Each handler who first handles fruit shall pay to committee,
upon demand, such handler's pro rata share of the expenses which the
Secretary finds will be incurred by the committee for the maintenance
and functioning, during each fiscal period, of the committee established
under this subpart. Each such handler's share of such expenses shall be
that proportion thereof which the total quantity of fruit shipped by
such handler as the first handler thereof during the applicable fiscal
period is of the total quantity of fruit so shipped by all handlers
during the same fiscal period. The Secretary shall fix the rate of
assessment per standard packed carton of fruit to be paid by each such
handler. The payment of assessments for the maintenance and functioning
of the committee may be required under this part throughout the period
it is in effect irrespective of whether particular provisions thereof
are suspended or become inoperative.
(b) At any time during or after the fiscal period, the Secretary may
increase the rate of assessment so that the sum of money collected
pursuant to the provisions of this section shall be adequate to cover
the said expenses. Such increase shall be applicable to all fruit
shipped during the given fiscal period. In order to provide funds to
carry out the functions of the committee established under Sec. 905.19,
handlers may make advance payment of assessments.
(c) In the case of an extreme emergency, the committee may borrow
money on a short term basis to provide funds for the administration of
this part. Any such borrowed money shall only be used to meet the
committee's current financial obligations, and the committee shall repay
all such borrowed money by the end of the next fiscal period from
assessment income.
[22 FR 10734, Dec. 27, 1957. Redesignated at 26 FR 12751, Dec. 30, 1961,
and amended at 42 FR 59370, Nov. 17, 1977; 54 FR 37293, Sept. 8, 1989]
Sec. 905.42 Handler's accounts.
(a) If, at the end of a fiscal period, the assessments collected are
in excess of expenses incurred, the committee, with the approval of the
Secretary, may carry over such excess into subsequent fiscal periods as
a reserve: Provided, That funds already in the reserve do not exceed
approximately one-half of one fiscal period's expenses. Such reserve
funds may be used (1) to cover any expenses authorized by this part and
(2) to cover necessary expenses of liquidation in the event of
termination of this part. If any such excess is not retained in a
reserve, each handler entitled to a proportionate refund shall be
credited with such refund against the operations of the following fiscal
period unless he demands payment of the sum due him, in which case such
sum shall be paid to him. Upon termination of this part, any funds not
required to defray the necessary expenses of liquidation shall be
disposed of in such manner as the Secretary may determine to be
appropriate: Provided, That to the extent practical, such
[[Page 49]]
funds shall be returned pro rata to the persons from whom such funds
were collected.
(b) The committee may, with the approval of the Secretary, maintain
in its own name or in the name of its members a suit against any handler
for the collection of such handler's pro rata share of the said expense.
[22 FR 10734, Dec. 27, 1957. Redesignated at 26 FR 12751, Dec. 30, 1961,
and amended at 34 FR 12427, July 30, 1969; 42 FR 59371, Nov. 17, 1977]
Regulations
Sec. 905.50 Marketing policy.
(a) Before making any recommendations pursuant to Sec. 905.51 for
any variety of fruit, the committee shall, with respect to the
regulations permitted by Sec. 905.52, submit to the Secretary a detailed
report setting forth an advisable marketing policy for such variety for
the then current shipping season. Such report shall set forth the
proportion of the remainder of the total crop of such variety of fruit
(determined by the committee to be available for shipment during the
remainder of the shipping season of such variety) deemed advisable by
the committee to be shipped during such season.
(b) In determining each such marketing policy and advisable
proportion, the committee shall give due consideration to the following
factors relating to citrus fruit produced in Florida and in other
States: (1) The available crop of each variety of citrus fruit in
Florida, and in other States, including the grades and sizes thereof,
which grades and sizes in Florida shall be determined by the committee
pursuant to Sec. 905.31; (2) the probable shipments of citrus fruit from
other States; (3) the level and trend in consumer income; (4) the
prospective supplies of competitive commodities; and (5) other pertinent
factors bearing on the marketing of fruit.
(c) In addition to the foregoing, the committees shall set forth a
schedule of proposed regulations for the remainder of the shipping
season for each variety of fruit for which recommendations to the
Secretary pursuant to Sec. 905.51 are contemplated. Such schedules shall
recognize the practical operations of harvesting and preparation for
market of each variety and the change in grades and sizes thereof as the
respective seasons advance. In the event it is deemed advisable to alter
such marketing policy or advisable proportion as the shipping season
progresses, in view of changed demand and supply conditions with respect
to fruit, the said committee shall submit to the Secretary a report
thereon.
(d) The committee shall transmit a copy of each marketing policy
report or revision thereof to the Secretary and to each producer and
handler who files a request therefor. Copies of all such reports shall
be maintained in the office of the committee where they shall be
available for examination by producers and handlers.
[22 FR 10734, Dec. 27, 1957. Redesignated at 26 FR 12751, Dec. 30, 1961,
and amended at 30 FR 13934, Nov. 4, 1965; 42 FR 59371, Nov. 17, 1977]
Sec. 905.51 Recommendations for regulation.
(a) Whenever the committee deems it advisable to regulate any
variety in the manner provided in Sec. 905.52, it shall give due
consideration to the following factors relating to the citrus fruit
produced in Florida and in other States: (1) Market prices, including
prices by grades and sizes of the fruit for which regulation is
recommended; (2) maturity, condition, and available supply, including
the grade and size thereof in the producing areas; (3) other pertinent
market information; and (4) the level and trend in consumer income. The
committee shall submit to the Secretary its recommendations and
supporting information respecting the factors enumerated in this
section.
(b) The committee shall give notice of any meeting to consider the
recommendation of regulations pursuant to Sec. 905.52 by mailing a
notice of meeting to each handler who has filed his address with
committee for this purpose. The committee shall give the same notice of
any such recommendation before the time it is recommended that such
regulation become effective.
[42 FR 59370, Nov. 17, 1977]
Sec. 905.52 Issuance of regulations.
(a) Whenever the Secretary shall find from the recommendations and
reports
[[Page 50]]
of the committee, or from other available information, that to limit the
shipment of any variety would tend to effectuate the declared policy of
the act, he shall so limit the shipment of such variety during a
specified period or periods. Such regulations may:
(1) Limit the shipments of any grade or size, or both, of any
variety, in any manner as may be prescribed, and any such limitation may
provide that shipments of any variety grown in Regulation Area II shall
be limited to grades and sizes different from the grade and size
limitations applicable to shipments of the same varieties grown in
Regulation Area I: Provided, That whenever any such grade or size
limitation restricts the shipment of a portion of a specified grade or
size of a variety the quantity of such grade or size that may be shipped
by a handler during a particular week shall be established as a
percentage of the total shipments of such variety by such handler in
such prior period established by the committee with the approval of the
Secretary, in which he shipped such variety.
(2) Limit the shipment of any variety by establishing and
maintaining, only in terms of grades or sizes, or both, minimum
standards of quality and maturity;
(3) Limit the shipment of the total quantity of any variety by
prohibiting the shipment thereof: Provided, that no such prohibition
shall apply to exports or be effective during any fiscal period with
respect to any variety other than for one period not exceeding five days
during the week in which Thanksgiving Day occurs, and for not more than
two periods not exceeding a total of 14 days during the period December
20 to January 20, both dates inclusive.
(4) Provide that exports of any variety shall be limited to grades
and sizes different from the grade and size limitations applicable to
shipments of such variety in the 48 contiguous States and the District
of Columbia of the United States, and specify condition requirements for
such variety; and
(5) Fix the size, capacity, weight, dimensions, marking, or pack of
the container or containers which may be used in the shipment of fruit
for export: Provided, that such regulation shall not authorize the use
of any container which is prohibited for use for fruit under the
provisions of Chapter 601 of the Florida Statutes and regulations
effective thereunder.
(b) Prior to the beginning of any such regulations, the Secretary
shall notify the committee of the regulation issued by him, and the
committee shall notify all handlers by mailing a copy thereof to each
handler who has filed his address with said committee for this purpose.
(c) Whenever the Secretary finds from the recommendations and
reports of the committee, or from other available information, that a
regulation should be modified, suspended, or terminated with respect to
any or all shipments of fruit in order to effectuate the declared policy
of the act, he shall so modify, suspend, or terminate such regulation.
If the Secretary finds that a regulation obstructs or does not tend to
effectuate the declared policy of the act, he shall suspend or terminate
such regulation. On the same basis, and in like manner, the Secretary
may terminate any such modification or suspension.
(d) Whenever any variety is regulated pursuant to paragraph (a)(3)
of this section, no such regulation shall be deemed to limit the right
of any person to sell, contract to sell, or export such variety but no
handler shall otherwise ship any fruit of such variety which was
prepared for market during the effective period of such regulation.
[22 FR 10734, Dec. 27, 1957. Redesignated at 26 FR 12751, Dec. 30, 1961,
and amended at 34 FR 12427, July 30, 1969; 42 FR 59370, Nov. 17, 1977;
54 FR 37292, Sept. 8, 1989]
Sec. 905.53 Inspection and certification.
(a) Whenever the handling of a variety of a type of fruit is
regulated pursuant to Sec. 905.52, each handler who handles any variety
of such type of fruit shall, prior to the handling of any lot of such
variety, cause such lot to be inspected by the Federal-State Inspection
Service and certified by it as meeting all applicable requirements of
such regulation: Provided, That such inspection and certification shall
not be required if the particular lot of fruit previously had been so
inspected and
[[Page 51]]
certified unless such prior inspection was not performed within such
time limitations as may be prescribed pursuant to paragraph (b) of this
section. Each handler shall promptly submit, or cause to be submitted,
to the committee a copy of each certificate of inspection issued to him
covering varieties so handled.
(b) With respect to any variety regulated pursuant to
Sec. 905.52(a)(4), the committee may prescribe, with the approval of the
Secretary, such requirements with respect to time of inspection as it
may deem necessary to insure satisfactory condition of the fruit at time
of export.
[22 FR 10734, Dec. 27, 1957. Redesignated at 26 FR 12751, Dec. 30, 1961,
and amended at 42 FR 59371, Nov. 17, 1977]
Handlers' Reports
Sec. 905.70 Manifest report.
The committee may request information from each handler regarding
the variety, grade, and size of each standard packed carton of fruit
shipped by him and may require such information to be mailed or
delivered to the committee or its duly authorized representative, within
24 hours after such shipment is made, in a manner or by such method as
the said committee may prescribe, and upon such forms as may be prepared
by it.
[42 FR 59371, Nov. 17, 1977]
Sec. 905.71 Other information.
Upon request of the committee, made with the approval of the
Secretary, every handler shall furnish the committee, in such manner and
at such times as it prescribes, such other information as will enable it
to perform its duties under this subpart.
[22 FR 10734, Dec. 27, 1957. Redesignated at 26 FR 12751, Dec. 30, 1961,
and amended at 42 FR 59371, Nov. 17, 1977]
Miscellaneous Provisions
Sec. 905.80 Fruit not subject to regulation.
Except as otherwise provided in this section, any person may,
without regard to the provisions of Secs. 905.52 and 905.53 and the
regulations issued thereunder, ship any variety for the following
purposes: (a) To a charitable institution for consumption by such
institution; (b) to a relief agency for distribution by such agency; (c)
to a commercial processor for conversion by such processor into canned
or frozen products or into a beverage base; (d) by parcel post; or (e)
in such minimum quantities, types of shipments, or for such purposes as
the committee with the approval of the Secretary may specify. No
assessment shall be levied on fruit so shipped. The committee shall,
with the approval of the Secretary, prescribe such rules, regulations,
or safeguards as it may deem necessary to prevent varieties handled
under the provisions of this section from entering channels of trade for
other than the purposes authorized by this section. Such rules,
regulations, and safeguards may include the requirements that handlers
shall file applications with the committee for authorization to handle a
variety pursuant to this section, and that such applications be
accompanied by a certification by the intended purchaser or receiver
that the variety will not be used for any purpose not authorized by this
section.
[22 FR 10734, Dec. 27, 1957. Redesignated at 26 FR 12751, Dec. 30, 1961,
and amended at 42 FR 59371, Nov. 17, 1977]
Sec. 905.81 Compliance.
Except as provided in this part, no person shall ship fruit the
shipment of which has been prohibited by the Secretary in accordance
with the provisions of this part.
Sec. 905.82 Effective time.
The provisions of this subpart shall become effective on and after
12:01 a.m., e.s.t., September 1, 1946, and shall continue in force until
terminated in one of the ways specified in Sec. 905.83.
Sec. 905.83 Termination.
(a) The Secretary may at any time terminate the provisions of this
part by giving at least one day's notice by means of a press release or
in any other manner which he may determine.
(b) The Secretary shall terminate the provisions of this part at the
end of any fiscal period whenever he finds that such termination is
favored by a
[[Page 52]]
majority of producers who, during the preceding fiscal period, have been
engaged in the production for market of fruit: Provided, That such
majority have, during such period, produced for market more than 50
percent of the volume of such fruit produced for market, but such
termination shall be effective only if announced on or before July 31 of
the then current fiscal period.
(c) The Secretary shall conduct a referendum six years after the
effective date of this paragraph and every sixth year thereafter to
ascertain whether continuance of this part is favored by producers. The
Secretary may terminate the provisions of this part at the end of any
fiscal period in which the Secretary has found that continuance of this
part is not favored by producers who during a representative period,
determined by the Secretary, have been engaged in the production for
market of the fruit in the production area. Such termination shall be
announced on or before July 31 of the fiscal period.
(d) The provisions of this part shall, in any event, terminate
whenever the provisions of the act authorizing it cease to be in effect.
[22 FR 10734, Dec. 27, 1957. Redesignated at 26 FR 12751, Dec. 30, 1961,
and amended at 54 FR 37293, Sept. 8, 1989]
Sec. 905.84 Proceedings after termination.
(a) Upon the termination of the provisions of this part, the then
functioning members of the committee shall continue as joint trustees,
for the purpose of liquidating the affairs of the committee, of all the
funds and property then in the possession of or under control of
committee, including claims for any funds unpaid or property not
delivered at the time of such termination.
(b) The said trustees (1) shall continue in such capacity until
discharged by the Secretary, (2) shall, from time to time, account for
all receipts and disbursements or deliver all property on hand, together
with all books and records of the committee and of the joint trustees,
to such person as the Secretary may direct; and (3) shall, upon the
request of the Secretary, execute such assignments or other instruments
necessary or appropriate to vest in such person full title and right to
all of the funds, property, and claims vested in the committee, or the
joint trustees pursuant to this part.
(c) Any funds collected pursuant to Sec. 905.41, over and above the
amounts necessary to meet outstanding obligations and expenses
necessarily incurred during the operation of this part and during the
liquidation period, shall be returned to handlers as soon as practicable
after the termination of this part. The refund to each handler shall be
represented by the excess of the amount paid by him over and above his
pro rata share of the expenses.
(d) Any person to whom funds, property, or claims have been
transferred or delivered by the committee or its members, pursuant to
this section, shall be subject to the same obligations imposed upon the
members of the committee and upon the said joint trustees.
[22 FR 10734, Dec. 27, 1957. Redesignated at 26 FR 12751, Dec. 30, 1961,
and amended at 42 FR 59371, Nov. 17, 1977]
Sec. 905.85 Duration of immunities.
The benefits, privileges, and immunities conferred upon any person
by virtue of this part shall cease upon its termination, except with
respect to acts done under and during the existence of this part.
Sec. 905.86 Agents.
The Secretary may, by designation in writing, name any person,
including any officer or employee of the Government, or name any bureau
or division in the United States Department of Agriculture, to act as
his agent or representative in connection with any of the provisions of
this part.
Sec. 905.87 Derogation.
Nothing contained in this part is, or shall be construed to be in
derogation or in modification of the rights of the Secretary or of the
United States (a) to exercise any powers granted by the act or
otherwise, or (b) in accordance with such powers, to act in the premises
whenever such action is deemed advisable.
[[Page 53]]
Sec. 905.88 Personal liability.
No member or alternate of the committee nor any employee or agent
thereof, shall be held personally responsible, either individually or
jointly with others, in any way whatsoever, to any handler or to any
other person for errors in judgment, mistakes, or other acts, either of
commission or omission, as such member, alternate, or employee, except
for acts of dishonesty.
[22 FR 10734, Dec. 27, 1957. Redesignated at 26 FR 12751, Dec. 30, 1961,
and amended at 42 FR 59371, Nov. 17, 1977]
Sec. 905.89 Separability.
If any provision of this part is declared invalid, or the
applicability thereof to any person, circumstance, or thing is held
invalid, the validity of the remainder of this part or the applicability
thereof to any other person, circumstance, or thing shall not be
affected thereby.
Subpart--Rules and Regulations
Source: 42 FR 59371, Nov. 17, 1977, unless otherwise noted.
Sec. 905.105 Tangerine and grapefruit classifications.
(a) Pursuant to Sec. 905.5(m), the following classifications of
grapefruit are renamed as follows:
(1) Marsh and other seedless grapefruit, excluding pink grapefruit,
are renamed as Marsh and other seedless grapefruit, excluding red
grapefruit;
(2) Duncan and other seeded grapefruit, excluding pink grapefruit,
are renamed as Duncan and other seeded grapefruit, excluding red
grapefruit;
(3) Pink seedless grapefruit is renamed as Red seedless grapefruit;
(4) Pink seeded grapefruit is renamed as Red seeded grapefruit.
(b) Pursuant to Sec. 905.5(m), the term variety or varieties
includes Sunburst and Fallglo tangerines.
[56 FR 49132, Sept. 27, 1991, as amended at 63 FR 55500, Oct. 16, 1998]
Sec. 905.114 Redistricting of citrus districts and reapportionment of grower members.
Pursuant to Sec. 905.14, the citrus districts and membership
allotted each district shall be as follows:
(a) Citrus District One shall include the Counties of Hillsborough,
Pinellas, Pasco, Hernando, Citrus, Sumter, Lake, Orange, Seminole,
Alachua, Putnam, St. Johns, Flagler, Marion, Levy, Duval, Nassau, Baker,
Union, Bradford, Columbia, Clay, Gilchrist, and Suwannee and County
Commissioner's Districts One, Two, and Three of Volusia County, and that
part of the Counties of Indian River and Brevard not included in
Regulation Area II. This district shall have one grower member and
alternate.
(b) Citrus District Two shall include the Counties of Polk and
Osceola. This district shall have two grower members and alternates.
(c) Citrus District Three shall include the Counties of Manatee,
Sarasota, Hardee, Highlands, Okeechobee, Glades, De Soto, Charlotte,
Lee, Hendry, Collier, Monroe, Dade, Broward, and that part of the
Counties of Palm Beach and Martin not included in Regulation Area II.
This district shall have three grower members and alternates.
(d) Citrus District Four shall include the County of St. Lucie and
that part of the Counties of Brevard, Indian River, Martin, and Palm
Beach described as lying within Regulation Area II, and County
Commissioner's Districts Four and Five of Volusia County. This district
shall have three grower members and alternates.
[56 FR 8685, Mar. 1, 1991, as amended at 56 FR 24678, May 31, 1991]
Sec. 905.120 Nomination procedure.
Meetings shall be called by the committee in accordance with the
provisions of Sec. 905.22, for the purpose of making nominations for
members and alternate members of the Citrus Administrative Committee.
The manner of nominating members and alternate members of said committee
shall be as follows:
(a) At each such meeting the committee's representative shall
announce the requirements as to eligibility for
[[Page 54]]
voting for nominees and the procedure for voting, and shall explain the
duties of the committee.
(b) A chairman and a secretary of each meeting shall be selected.
(c) At each meeting there shall be presented for nomination and
there shall be nominated not less than the number of nominees required
under the provisions of Sec. 905.19, all of whom shall have the
qualifications as specified in Sec. 905.22.
(d) At the meetings of handlers, any person authorized to represent
a handler may cast a ballot for such handler.
(e) At each meeting each eligible person may cast one vote for each
of the persons to be nominated to represent the district or group, as
the case may be.
(f) Voting may be by written ballot. If written ballots are used,
all ballots shall be delivered by the chairman or the secretary of the
meeting to the agent of the Secretary. If ballots are not used, the
committee's representative shall deliver to the Secretary's agent a
listing of each person nominated and a count of the number of votes cast
for each nominee for grower member and alternate. Said representative
shall also provide the agent the register of eligible voters present at
each meeting, a listing of each person nominated, the number of votes
cast, and the weight by volume of shipments voted for each nominee for
shipper member and alternate.
[43 FR 9455, Mar. 8, 1979]
Non-Regulated Fruit
Sec. 905.140 Gift packages.
Any handler may, without regard to the provisions of Secs. 905.52
and 905.53 and the regulations issued thereunder, ship any varieties for
the following purpose and types of shipment:
(a) To any person gift packages containing such varieties: Provided,
That such packages are individually addressed to such person, and
shipped directly to the addressee for use by such person other than for
resale; or
(b) to any individual gift package distributor of such varieties to
be handled by such distributor: Provided, That such person is the
original purchaser and the gift packages are individually addressed or
marked ``not for resale''. This exemption does not apply to
``commercially handled'' shipments for resale.
[58 FR 65539, Dec. 15, 1993]
Sec. 905.141 Minimum exemption.
Any shipment of fruit which meets each of the following requirements
may be transported from the production area during any one day by any
person or by the occupants of one vehicle exempt from the requirements
of Secs. 905.52 and 905.53 and regulations issued thereunder:
(a) The shipment does not exceed a total of 15 standard packed
cartons (12 bushels) of fruit, either a single fruit or a combination of
two or more fruits;
(b) The shipment consists of fruit not for resale; and
(c) Such exempted quantity is not included as a part of a shipment
exceeding 15 standard packed cartons (12 bushels) of fruit.
Sec. 905.142 Animal feed.
(a) The handling of citrus for animal feed shall be exempt from the
provisions of Secs. 905.52 and 905.53 and the regulations issued
thereunder under the following conditions:
(1) The handler notifies the committee each fiscal period, prior to
such handling of his/her intention to handle such fruit, the quantity
he/she anticipates handling and the destination point of each lot of
fruit and receives from the committee a special shipping permit for the
shipment;
(2) The fruit is used for animal feed and is not offered for resale,
disposed of, or in any way handled so as to enter fresh fruit channels;
(3) The quantity does not exceed 1,000 \4/5\ bushel cartons per
fiscal period or such other quantity as may be specified by the
committee;
(4) The fruit is placed in containers of uniform capacity; and
(5) Each shipment is certified by the Federal-State Inspection
Service as to the quantity shipped.
(b) [Reserved]
[46 FR 47056, Sept. 24, 1981]
[[Page 55]]
Sec. 905.145 Certification of certain shipments.
Whenever a regulation pursuant to Sec. 905.52 restricts the shipment
of a portion of a specified grade or size of a variety, each handler
shipping such variety during the regulation period shall, with respect
to each such shipment, certify to the U.S. Department of Agriculture and
the committee the quantity of the partially restricted grade or size, or
both, contained in such shipment. Such certification shall accompany the
manifest of such shipment which the handler furnishes to the Federal-
State Inspection Service.
Sec. 905.146 Special purpose shipments.
(a) A Special Purpose Shipper is one who handles Florida citrus
fruit that is certified by a Florida Department of Agriculture and
Consumer Services licensed certifying agent as organically grown under
Florida law. In addition, the shipper shall certify that shipments will
be limited to outlets handling organically grown fruits. Any such
shipments shall be subject to a Certificate of Privilege issued by the
committee.
(b) To qualify for a Certificate of Privilege, each such shipper
must notify the committee prior to the first shipment of certified
organically grown Florida citrus fruit in the fiscal period of the
shipper's intent to ship such citrus, submit an application on forms
supplied by the committee, and agree to other requirements as set forth
in Secs. 905.147 and 905.148 inclusive, with respect to such shipments.
The shipper shall certify that no claims will be made, written or
verbal, concerning any alleged advantages of using, or any alleged
superiority of, fruit shipped under a Certificate of Privilege, compared
to other Florida produced citrus.
(c) Citrus meeting all other applicable requirements may be handled
without regard to grade regulations issued under Sec. 905.52 under the
following conditions:
(1) Such fruit meets requirements of the U.S. No. 2 Russet grade and
those requirements of the U.S. No. 1 grade relating to shape (form) as
such requirements are set forth in the revised U.S. Standards for grades
of Florida Oranges and Tangelos (7 CFR 2851.1140 through 2851.1180), the
revised U.S. Standards for Florida Tangerines (7 CFR 2851.8180 through
2851.1835), or the revised U.S. Standards for Grades of Florida
Grapefruit (7 CFR 2851.750 through 2851.784). Such fruit meets
applicable minimum size requirements in effect for domestic shipments of
citrus fruits.
(2) All such citrus shall be inspected as required by Sec. 905.53 by
the Federal or Federal-state Inspection Service prior to the time such
citrus is shipped from the packing facility, and certified as meeting
the applicable requirements.
(3) Be reported as required in Sec. 905.148.
[59 FR 26928, May 25, 1994]
Sec. 905.147 Certificate of privilege.
(a) Application. Application for Certificate of Privilege by a
Special Purpose Shipper shall be made on forms furnished by the
committee. Each application may contain, but need not be limited to, the
name and address of each handler; a list of certified organic citrus
fruit growers, including addresses; a list of receivers; the quantity
and variety of citrus to be shipped; a certification to the Secretary of
Agriculture and to the committee as to the truthfulness of the
information shown thereon; and any other appropriate information or
documents deemed necessary by the committee or its duly authorized
agents for the purposes stated in Sec. 905.146.
(b) Approval. The committee or its duly authorized agents shall give
prompt consideration to each application for a Certificate of Privilege.
Approval of an application based upon a determination as to whether the
information contained therein and other information available to the
committee supports approval, shall be evidenced by the issuance of a
Certificate of Privilege to the applicant. Each certificate shall expire
at the end of the fiscal period.
(c) Suspension or Denial of Certificate of Privilege. The committee
may investigate the handling of special purpose shipments under
Certificates of Privilege to determine whether Special Purpose Shippers
are complying with the requirements and regulations applicable to such
certificates. Whenever the
[[Page 56]]
committee finds that a Special Purpose Shipper or consignee is failing
to comply with the requirements and regulations applicable to such
certificates, the Certificate of Privilege issued to such Special
Purpose Shipper may be suspended or, in the case of an application for
the issuance of an initial Certificate of Privilege, may be denied. Such
suspension of a certificate shall be for a reasonable period of time as
determined by the committee, but in no event shall it extend beyond the
end of the current fiscal period. In the case of the denial of an
application for the issuance of an initial certificate, such certificate
shall be denied until the applicant comes into compliance with the
requirements and regulations applicable to such certificates. Prior to
suspending or denying an application for a Certificate of Privilege, the
committee shall give the shipper or applicant reasonable advance notice
in writing of its intention and the facts and reasons therefor, and
afford the shipper or applicant an opportunity, either orally or in
writing, to present opposing facts and reasons. The shipper or applicant
shall be informed of the committee's determination in writing and in a
timely manner.
[43 FR 9456, Mar. 8, 1978, as amended at 59 FR 26929, May 25, 1994]
Sec. 905.148 Reports of special purpose shipments under certificates of privilege.
(a) Each handler of citrus shipping under Certificates of Privilege
shall supply the committee with reports on each shipment as requested by
the committee, on forms supplied by the committee, showing the name and
address of the shipper or shippers; name and address of the certified
organic Florida citrus fruit grower or growers supplying fruit for such
shipment; truck or other conveyance identification; the loading point;
destination, consignee; the inspection certificate number; and any other
information deemed necessary by the committee.
(b) One copy of the report on each shipment shall be forwarded by
the shipper to the committee within 10 days after such shipment, and two
copies of the report shall accompany each shipment to the receiver. Upon
the receipt of each shipment, the receiver shall complete the applicable
portion of the form and return one copy to the committee within 10 days
and one copy shall be retained by the shipper. Such completion shall
contain a certification to the Secretary and the committee that the
citrus described shall be distributed in the outlets described. Failure
to complete and return such forms will be cause to remove that
receiver's name from the committee's list of eligible receivers.
[43 FR 9456, Mar. 8, 1978, as amended at 59 FR 26929, May 25, 1994]
Sec. 905.150 Eligibility requirements for public member and alternate member.
(a) The public member shall be neither a producer nor a handler of
Florida citrus fruit and shall have no direct financial interest in the
production or marketing of citrus fruit (except as a consumer of
agricultural products).
(b) The public member should be able to devote sufficient time and
express a willingness to attend Committee activities regularly and
become familiar with the background and economics of the industry.
(c) The public member must be a resident of the production area.
(d) The public member should be nominated by the Citrus
Administrative Committee and should serve a 1-year term which coincides
with the term of office of producer and handler members of the
Committee.
[43 FR 32397, July 27, 1978]
Sec. 905.152 Procedure for determining handlers' permitted quantities of Robinson, Dancy and similar tangerine varieties when a portion of the 210 size of such varieties is restricted.
(a) For the purposes of this section the prior period specified in
Sec. 905.52 is hereby established as a average week within the
immediately preceding three seasons, together with the current season.
When used in the regulation of Dancy tangerines the term season means
the twenty weeks beginning with the first full week in October, and the
term current season means the elapsed weeks beginning with the first
[[Page 57]]
full week in October of the current fiscal period through the most
recent week that certified shipping records are available for all
shippers. When used in the regulation of Robinson variety tangerines,
the term season means the fifteen weeks beginning with the first full
week in September, and the term current season means the elapsed weeks
beginning with the first full week in September of the current fiscal
period through the most recent week that certified shipping records are
available for all shippers.
(b) When a size limitation restricts the shipment of a portion of
the 210 size Dancy or Robinson tangerines during a particular week as
provided in Sec. 905.52, the committee shall compute the quantity of the
210 size of such variety that may be shipped by each handler by
multiplying the handler's volume of shipments of such variety in the
applicable prior period by the percentage established by regulation for
such variety for that week.
(c) The committee shall notify each handler of the quantity of 210
size Dancy or Robinson tangerines such handler may handle during the
particular week.
(d) Any handler may transfer any or all of his or her shipping
allowance of 210 size Dancy or Robinson tangerines to another handler.
Each handler party to such transfer shall promptly notify the committee
so the proper adjustment of records may be made. The committee shall
confirm all such transfers immediately after completion thereof by
memorandum to the handlers involved.
[46 FR 47057, Sept. 24, 1981]
Sec. 905.153 Procedure for determining handlers' permitted quantities of red seedless grapefruit when a portion of sizes 48 and 56 of such variety is restricted.
(a) For the purposes of this section, the prior period specified in
Sec. 905.52 is hereby established as an average week within the
immediately preceding five seasons. Each handler's average week shall be
computed by adding the total volume of red seedless grapefruit handled
in the immediately preceding five seasons and dividing the total by 165.
The average week for handlers with less than five previous seasons of
shipments shall be calculated by adding the total volume of shipments
for the seasons they did ship red seedless grapefruit, divide by the
number of seasons, divide further by 33. New handlers with no record of
shipments could ship size 48 and 56 red seedless grapefruit as a
percentage of total shipments equal to the percentage applied to other
handlers' average week; once such handlers have recorded shipments,
their average week shall be calculated as an average of total shipments
for the weeks they have shipped red seedless grapefruit during the
current season. When used in the regulation of red seedless grapefruit,
the term season means the weeks beginning the third Monday in September
and ending the first Sunday in the following May. The term regulation
period means the 11 week period beginning the third Monday in September
of the current season.
(b) When a size limitation restricts the shipment of a portion of
sizes 48 and 56 red seedless grapefruit during a particular week as
provided in Sec. 905.52, the committee shall compute the quantity of
sizes 48 and 56 red seedless grapefruit that may be shipped by each
handler by multiplying the handler's calculated average week shipments
of such grapefruit by the percentage established by regulation for red
seedless grapefruit for that week. Such set percentage may vary from
week to week but shall not be less than 25 percent in any week.
(c) The committee shall notify each handler of the quantity of size
48 and 56 red seedless grapefruit such handler may handle during a
particular week.
(d) During any regulation week for which the Secretary has fixed the
percentage of sizes 48 and 56 red seedless grapefruit, any person who
has received an allotment may handle, in addition to their total
allotment available, an amount of size 48 and 56 red seedless grapefruit
up to 10 percent greater than their allotment. The quantity of the
overshipment shall be deducted from the handler's allotment for the
following week. Overshipments will not be allowed during week 11. If the
handler fails to use his or her entire allotment, the undershipment is
not carried forward to the following
[[Page 58]]
week. Each handler shipping size 48 and/or 56 red seedless grapefruit
during the regulation period shall complete and submit to the committee,
no later than 2 p.m. of the business day following the shipment, a
report of red seedless grapefruit shipments by day for each regulation
week.
(e) Any handler may transfer or loan any or all of their shipping
allotment (excluding the overshipment allowance) of size 48 and 56 red
seedless grapefruit to any other handler. Each handler party to such
transfer or loan shall no later than noon on the Wednesday following the
regulation week notify the committee so the proper adjustment of records
may be made. In each case, the committee shall confirm in writing all
such transactions, prior to the following week, to the handlers
involved. The committee may act on behalf of handlers wanting to arrange
allotment loans or participate in the transfer of allotments.
(f) New handlers with no record of shipments planning to ship red
seedless grapefruit covered by any percentage size regulation shall
register with the committee prior to the regulation period so their
allotments can be properly calculated. Each new handler shall provide on
a form furnished by the committee their Florida citrus fruit dealer's
license number, their Florida Department of Agriculture and Consumer
Services' Fruit and Vegetable Division packinghouse registration number,
and the physical location of the packinghouse where the red seedless
grapefruit is to be prepared for market. The committee shall notify any
new handlers of their allotments prior to the regulation period.
[61 FR 69015, Dec. 31, 1996, as amended at 62 FR 52011, Oct. 6, 1997; 64
FR 51892, Sept. 27, 1999]
Sec. 905.161 Repacking shipper.
(a) A repacking shipper is a person who repacks and ships citrus
fruit grown in the production area in Florida which has been previously
inspected and certified as meeting the requirements specified under
Sec. 905.52 of the order, and who has obtained a currently valid
repacking certificate of privilege issued to him or her by the committee
as specified in Sec. 905.162.
(b) Each repacking shipper, to qualify for a repacking certificate
of privilege, must notify the committee 10 days prior to his or her
first shipment of repacked citrus fruit during a particular fiscal
period of his or her intent to ship such citrus fruit, submit an
Application for a Repacking Certificate of Privilege form supplied by
the committee, and agree to other requirements as set forth in
Secs. 905.162 and 905.163 inclusive, with respect to such shipments. The
repacking shipper shall certify that he or she will only handle
previously inspected and certified citrus fruit.
(c) Any repacking shipper who handles citrus fruit shipped under a
repacking certificate of privilege must, other order provisions not
withstanding, meet the following requirements:
(1) All such citrus fruit must be positive lot identified by the
Federal or Federal/State Inspection Service and certified as meeting the
applicable requirements for citrus fruit shipped to the domestic market
(fruit shipped from the production area to any point outside thereof in
the 48 contiguous States and the District of Columbia of the United
States), prior to being repacked and shipped by the repacking shipper.
Each such citrus fruit shipment shall be accompanied by a Federal-State
manifest that certifies the grade and amount of each load of citrus
fruit received, which shall be retained by the repacking shipper.
(2) Be reported as required in Sec. 905.163.
(3) The repacking facility used to repack previously inspected and
certified citrus fruit by the repacking shipper shall not have operable
equipment to wash, brush, wax, or dry citrus fruit.
(4) All citrus fruit handled by a repacking shipper shall be packed
in approved Florida Department of Citrus fruit containers.
(5) Each container shipped with such citrus fruit shall be marked
with the repacking shipper's repacking certificate of privilege number.
[59 FR 48782, Sept. 23, 1994]
[[Page 59]]
Sec. 905.162 Repacking certificate of privilege.
(a) Application. Application for a repacking certificate of
privilege by a repacking shipper shall be made on an Application for a
Repacking Certificate of Privilege form supplied by the committee. Each
such application shall contain, but need not be limited to, the name,
address and Florida citrus fruit dealer license number of the applicant;
approximate number of boxes to be handled during the season; the various
types of containers to be used to ship the repacked citrus fruit; a
certification to the Secretary of Agriculture and to the committee as to
the truthfulness of the information shown thereon; and any other
appropriate information or documents deemed necessary by the committee
or duly authorized agents for the purposes stated in Sec. 905.161.
(b) Approval. The committee or its duly authorized agents shall give
prompt consideration to each application for a repacking certificate of
privilege. Approval of an application based upon a determination as to
whether the information contained therein and other information
available to the committee supports approval, shall be evidenced by the
issuance of a repacking certificate of privilege to the applicant. Each
such certificate shall expire at the end of the fiscal period.
(c) Suspension or denial of certificate of privilege. The committee
may investigate the handling of repacked fresh citrus fruit shipments
under certificates of privilege to determine whether repacking shippers
are complying with the requirements and regulations applicable to such
certificates. Whenever the committee finds that a repacking shipper is
failing to comply with the requirements and regulations applicable to
such certificates, the certificate of privilege issued to such repacking
shipper may be suspended or, in the case of an application for the
issuance of an initial certificate of privilege, may be denied. Such
suspension of a certificate shall be for a reasonable period of time as
determined by the committee, but in no event shall it extend beyond the
end of the then current fiscal period. In the case of the denial of an
application for the issuance of an initial certificate, such certificate
shall be denied until the applicant comes into compliance with the
requirements and regulations applicable to such certificates. Prior to
suspending or denying an application for a certificate of privilege, the
committee shall give the shipper or applicant an opportunity, either
orally or in writing, to present opposing facts and reasons. The shipper
or applicant shall be informed of the committee's determination in
writing and in a timely manner.
[59 FR 48783, Sept. 23, 1994]
Sec. 905.163 Reports of shipments under repacking certificate of privilege.
(a) Each repacking shipper who handles citrus fruit under a
repacking certificate of privilege shall supply the committee with
reports on each shipment as requested by the committee, on a Report of
Shipments Under Certificate of Privilege form supplied by the committee,
showing the name and address of the repacking shipper; name and address
of the handler supplying the inspected and certified citrus fruit for
such shipment; number of packages; size and containers; brand; grade;
certificate number; and any other information deemed necessary by the
committee. Each repacking shipper of citrus fruit shall maintain on file
a copy of the Federal-State manifest that certifies the grade and amount
of each load of citrus fruit received. These manifests shall be readily
available to the committee upon request.
(b) One copy of the Report of Shipments Under Certificate of
Privilege form on each shipment shall be forwarded to the committee
promptly, one copy of such form shall be retained by the repacking
shipper, and one copy of such form shall accompany the shipment. Failure
to complete and return such form shall be cause for suspension of the
repacking shippers repacking certificate of privilege.
[59 FR 48783, Sept. 23, 1994]
[[Page 60]]
Subpart--Assessment Rates
Sec. 905.235 Assessment rate.
On and after August 1, 2000, an assessment rate of $0.0055 per \4/
5\-bushel carton or equivalent is established for assessable Florida
citrus covered under the order.
[65 FR 50909, Aug. 22, 2000]
Subpart--Grade and Size Requirements
Sec. 905.306 Orange, Grapefruit, Tangerine and Tangelo Regulation.
(a) Except as otherwise provided in Sec. 905.601, during the period
specified in column (2) of table I, no handler shall ship between the
production area and any point outside thereof, in the 48 contiguous
States and the District of Columbia of the United States, any variety of
fruit listed in column (1) of such table unless such variety meets the
applicable minimum grade and size (with tolerances for size as specified
in paragraph (c) of this section) specified for such variety in columns
(3) and (4) of such table.
Table I
----------------------------------------------------------------------------------------------------------------
Minimum
Variety Regulation period Minimum grade diameter
(inches)
----------------------------------------------------------------------------------------------------------------
(1) (2)........................ (3)........................ (4)
Oranges
Early and midseason...................... 01/29/90-08/19/90.......... U.S. No. 1 Golden.......... 2\4/16\
....................................... On and after 08/20/90...... U.S. No. 1................. 2\8/16\
Navel.................................... On and after 12/7/81....... U.S. No. 1 Golden.......... 2\8/16\
Temple................................... On and after 12/7/81....... U.S. No. 1................. 2\8/16\
Valencia and other late type............. 05/06/91-09/22/91.......... U.S. No. 1 Golden.......... 2\4/16\
....................................... On and after 09/23/91...... U.S. No. 1................. 2\8/16\
Grapefruit
Seeded, except red....................... On and after 9/01/94....... U.S. No. 1................. 3\12/16\
Seeded, red.............................. On and after 9/01/94....... U.S. No. 1................. 3\12/16\
Seedless, red............................ On and after 11/13/00...... U.S. No. 1................. \35/16\
Seedless, except red..................... On and after 9/01/94....... U.S. No. 1................. 3\9/16\
Tangerines
Dancy.................................... On and after September 26, U.S. No. 1................. 2\6/16\
2000.
Fallglo.................................. On and after October 19, U.S. No. 1................. 2\6/16\
1998.
Honey.................................... March 23, 1992-08/23/92.... Florida No. 1 Golden....... 2\6/16\
....................................... On and after 8/24/92....... Florida No. 1.............. 2\6/16\
Robinson................................. On and after September 26, U.S. No. 1................. 2\6/16\
2000.
Sunburst................................. On and after September 26, U.S. No. 1................. 2\6/16\
2000.
Tangelos
Tangelos................................. On and After 12/7/81....... U.S. No. 1................. 2\8/16\
----------------------------------------------------------------------------------------------------------------
(b) Except as otherwise provided in Sec. 905.601, during the period
specified in column (2) of table II, no handler shall ship to any
destination outside the 48 contiguous States and the District of
Columbia of the United States any variety of fruit listed in column (1)
of such table unless such variety meets the applicable minimum grade and
size (with tolerances for size as specified in paragraph (c) of this
section) specified for such variety in columns (3) and (4) of such
table.
Table II
----------------------------------------------------------------------------------------------------------------
Minimum
Variety Regulation period Minimum grade diameter
(inches)
----------------------------------------------------------------------------------------------------------------
(1) (2)........................ (3)........................ (4)
Oranges
Early and midseason...................... 01/29/90-08/19/90.......... U.S. No. 1 Golden.......... 2\4/16\
....................................... On and after 08/20/90...... U.S. No. 1................. 2\8/16\
Navel.................................... On and after 11/24/89...... U.S. No. 1 Golden.......... 2\8/16\
[[Page 61]]
Temple................................... On and after 11/24/89...... U.S. No. 1................. 2\8/16\
Valencia and other late type:............ March 23, 1992-9/27/92..... U.S. No. 1................. 2\4/16\
....................................... On and after 9/28/92....... U.S. No. 1................. 2\8/16\
Grapefruit
Seeded, except red....................... On and after 09/01/94...... U.S. No. 1................. 3\9/16\
Seeded, red.............................. On and after 09/01/94...... U.S. No. 1................. 3\9/16\
Seedless, except red..................... On and after 09/01/94...... U.S. No. 1................. 3\5/16\
Seedless, red............................ On and after 09/01/94...... U.S. No. 1................. 3\5/16\
Tangerines
Dancy.................................... On and after September 26, U.S. No. 1................. 2\6/16\
2000.
Fallglo.................................. On and after October 19, U.S. No. 1................. 2\6/16\
1998.
Honey.................................... March 23, 1992-08/23/92.... Florida No. 1 Golden....... 2\6/16\
....................................... On and after 08/24/92...... Florida No. 1.............. 2\6/16\
Robinson................................. On and after September 26, U.S. No. 1................. 2\6/16\
2000.
Sunburst................................. On and after September 26, U.S. No. 1................. 2\6/16\
2000.
Tangelos
Tangelos................................. On and After 11/24/89...... U.S. No. 1................. 2\8/16\
----------------------------------------------------------------------------------------------------------------
\1\ Florida No. 1 Golden grade for Honey tangerines means the same as provided in Rule No. 20-35.03 of the
Regulation of the Florida Department of Citrus.
(c) Size tolerances. In the determination of minimum size as
prescribed in tables I and II, the following tolerances are permitted
(1) for oranges, as set forth in Sec. 2851.1152 of the U.S. Standards
for Grades of Florida Oranges and Tangelos, except that such tolerances
for other than navel and Temple oranges shall be based only on the
oranges in the lot measuring 2\14/16\ inches or smaller in diameter, and
the tolerance for Honey tangerines shall be as specified in
Sec. 2851.1818 of the U.S. Standards for Grades of Florida Tangerines;
(2) for grapefruit, as specified in Sec. 2851.761 of the U.S. Standards
for Grades of Florida Grapefruit; (3) for tangerines, as specified in
Sec. 2851.1818 of the U.S. Standards for Grades of Florida Tangerines;
and (4) for tangelos, as set forth in Sec. 2851.1152 of the U.S.
Standards for Grades of Florida Oranges and Tangelos.
(d) Terms used in the marketing order, including Improved No. 2
grade for grapefruit, when used herein, mean the same as is given to the
terms in the order; Florida No. 1 grade for Honey tangerines means the
same as provided in Rule No. 20-35.03 of the Regulations of the Florida
Department of Citrus, and terms relating to grade, except Improved No. 2
grade for grapefruit, and diameter shall mean the same as is given to
the terms in the U.S. Standards for Grades of Florida Oranges and
Tangelos (7 CFR 2851.1140-2851.1180), the U.S. Standards for Grades of
Florida Tangerines (7 CFR 2851.1810-2851.1835), or the U.S. Standards
for Grades of Florida Grapefruit (7 CFR 2851.750-2851.784).
[46 FR 60171, Dec. 8, 1981]
Editorial Note: For Federal Register citations affecting
Sec. 905.306, see the List of CFR Sections Affected, which appears in
the Finding Aids section of the printed volume and on GPO Access.
Editorial Note: After January 1, 1979, ``Budget of Expenses and Rate
of Assessment'' regulations (e.g. sections .200 through .299) and
``Handling'' regulations (e.g. sections .300 through .399) which are in
effect for a year or less, will not be carried in the Code of Federal
Regulations. For Federal Register citations affecting these regulations,
see the List of CFR Sections Affected, which appears in the Finding Aids
section of the printed volume and on GPO Access.
Sec. 905.350 Red seedless grapefruit regulation.
This section establishes the weekly percentages to be used to
calculate each handler's weekly allotment of small sizes. Handlers can
fill their allotment with size 56, size 48, or a combination of the two
sizes such that the total of these shipments are within the established
weekly limits. The weekly percentages for size 48 (3\9/16\ inches
minimum diameter) and size 56 (3\5/16\ inches
[[Page 62]]
minimum diameter) red seedless grapefruit grown in Florida, which may be
handled during the specified weeks are as follows:
------------------------------------------------------------------------
Weekly
Week percentage
------------------------------------------------------------------------
(a) 9/18/00 through 9/24/00................................ 45
(b) 9/25/00 through 10/1/00................................ 45
(c) 10/2/00 through 10/8/00................................ 45
(d) 10/9/00 through 10/15/00............................... 40
(e) 10/16/00 through 10/22/00.............................. 40
(f) 10/23/00 through 10/29/00.............................. 40
(g) 10/30/00 through 11/5/00............................... 40
(h) 11/6/00 through 11/12/00............................... 35
(i) 11/13/00 through 11/19/00.............................. 35
(j) 11/20/00 through 11/26/00.............................. 35
(k) 11/27/00 through 12/3/00............................... 35
------------------------------------------------------------------------
[65 FR 55890, Sept. 15, 2000]
Subpart--Interpretative Rule
Sec. 905.400 Interpretation of certain provisions.
(a) In interpreting the provisions of paragraph (d) of Sec. 905.52,
the limitation on shipment of any variety of fruit regulated pursuant to
paragraph (a)(3) of that section, which was prepared for market during
the effective period of such regulation, shall not be deemed to apply to
shipment of such variety which was prepared for market incidentally as
part of a lot packed for export and shipped following the period of
regulation.
(b) Prior to shipment of any variety of fruit so prepared, the
handler shall provide the Citrus Administrative Committee or its
designated agent a copy of the shipping manifest applicable to such
shipment with a notation thereon that the fruit was packed incidentally
as part of a lot packed for export.
[54 FR 46597, Nov. 6, 1989]
PART 906--ORANGES AND GRAPEFRUIT GROWN IN LOWER RIO GRANDE VALLEY IN TEXAS--Table of Contents
Subpart--Order Regulating Handling
Definitions
Sec.
906.1 Secretary.
906.2 Act.
906.3 Person.
906.4 Production area.
906.5 Fruit.
906.6 Handler.
906.7 Handle.
906.8 Producer.
906.9 Grade and size.
906.10 Pack.
906.11 Maturity.
906.12 Container.
906.13 Variety or varieties.
906.14 Committee.
906.15 Fiscal period.
906.16 District.
Committee
906.18 Establishment and membership.
906.19 Term of office.
906.20 Districts.
906.21 Redistricting.
906.22 Selection.
906.23 Nominations.
906.24 Failure to nominate.
906.25 Acceptance.
906.26 Vacancies.
906.27 Alternate members.
906.28 Procedure.
906.29 Expenses and compensation.
906.30 Powers.
906.31 Duties.
Expenses and Assessments
906.32 Expenses.
906.33 Budget.
906.34 Assessments.
906.35 Accounting.
Research and Development
906.37 Research and development.
Regulation
906.38 Marketing policy.
906.39 Recommendations for regulations.
906.40 Issuance of regulations.
906.41 Gift fruit shipments.
906.42 Shipments for special purposes.
906.43 Notification of regulations.
906.44 Safeguards.
Inspection
906.45 Inspection and certification.
Reports
906.51 Reports.
Miscellaneous Provisions
906.52 Compliance.
906.53 Right of the Secretary.
906.54 Effective time.
906.55 Termination.
906.56 Proceedings after termination.
906.57 Effect of termination or amendment.
906.58 Duration of immunities.
906.59 Agents.
906.60 Derogation.
906.61 Personal liability.
906.62 Separability.
[[Page 63]]
Subpart--Rules and Regulations
906.120 Fruit exempt from regulations.
906.121 Reestablishment of districts.
906.122 [Reserved]
906.123 Fruit for processing.
906.137 Handlers use of identifying marks utilized by the committee in
promotional and advertising projects.
906.151 Reports.
906.235 Assessment rate.
Subpart--Container and Pack Requirements
906.340 Container, pack, and container marking regulations.
906.365 Texas Orange and Grapefruit Regulation 34.
Authority: 7 U.S.C. 601-674.
Subpart--Order Regulating Handling
Source: 25 FR 9093, Sept. 22, 1960. Redesignated at 26 FR 12751,
Dec. 30, 1961.
Definitions
Sec. 906.1 Secretary.
Secretary means the Secretary of Agriculture of the United States,
or any employee of the Department to whom authority has heretofore been
delegated, or to whom authority may hereafter be delegated, to act in
his stead.
Sec. 906.2 Act.
Act means Public Act No. 10, 73d Congress, as amended and as re-
enacted and amended by the Agricultural Marketing Agreement Act of 1937,
as amended (sections 1-19, 48 Stat. 31, as amended; 7 U.S.C. 601-674).
Sec. 906.3 Person.
Person means an individual, partnership, corporation, association,
or any other business unit.
Sec. 906.4 Production area.
Production area means all territory in the counties of Cameron,
Hidalgo, and Willacy in the State of Texas.
Sec. 906.5 Fruit.
Fruit means either or both of the following citrus fruits grown in
the production area: (a) Citrus grandis, Osbeck, commonly called
grapefruit, and (b) Citrus sinensis, Osbeck, commonly called oranges.
Sec. 906.6 Handler.
Handler is synonymous with shipper and means any person (except a
common or contract carrier of fruit owned by another person) who handles
fruit or causes fruit to be handled.
(a) Independent handler. Independent handler means any handler other
than a handler that is a cooperative marketing organization.
(b) [Reserved]
Sec. 906.7 Handle.
Handle or ship means to transport or sell fruit, or in any other way
to place fruit, in the current of commerce between the production area
and any point outside thereof in the United States, Canada, or Mexico.
Sec. 906.8 Producer.
Producer means any person engaged in a proprietary capacity in the
production of fruit for market.
(a) Independent producer. Independent producer means any producer
who does not market his fruit through a handler that is a cooperative
marketing organization.
(b) [Reserved]
Sec. 906.9 Grade and size.
Grade means any one of the established grades of fruit and size
means any one of the established sizes of fruit as defined and set forth
in the applicable U.S. Standards for fruit (Secs. 51.680 through 51.714
and Secs. 51.620 through 51.653) issued by the United States Department
of Agriculture, or amendments thereto, or modifications thereof, or
variations based thereon recommended by the committee and approved by
the Secretary.
Sec. 906.10 Pack.
Pack means the specific grade, quality, size, or arrangement of
fruit in a particular container or containers.
Sec. 906.11 Maturity.
Maturity means various degrees of ripeness for fruit as established
by the committee with approval of the Secretary.
[[Page 64]]
Sec. 906.12 Container.
Container means any box, bag, crate, hamper, basket, package, bulk
carton, or any other type of receptacle used in the packaging,
transportation, sale, or other handling of fruit.
Sec. 906.13 Variety or varieties.
Variety or varieties means any one or more of the following
groupings or classifications of fruit: (a) Navel oranges; (b) Early and
Midseason oranges, except Navel oranges; (c) Valencia and similar late
type oranges; (d) white seeded grapefruit; (e) white seedless
grapefruit; (f) pink and red seeded grapefruit; and (g) pink and red
seedless grapefruit.
Sec. 906.14 Committee.
Committee means the Texas Valley Citrus Committee, established
pursuant to Sec. 906.18.
Sec. 906.15 Fiscal period.
Fiscal period means the period beginning August 1 and ending July 31
following; or such annual beginning and ending dates as may be approved
by the Secretary pursuant to recommendations of the committee.
Sec. 906.16 District.
District means any of the geographic divisions of the production
area initially established pursuant to Sec. 906.20 or as re-established
pursuant to Sec. 906.21.
Committee
Sec. 906.18 Establishment and membership.
(a) The Texas Valley Citrus Committee, consisting of fifteen (15)
members is hereby established. For each member of the committee there
shall be an alternate who shall have the same qualifications as the
member.
(b) Nine members shall be producers who produce fruit in the
district which they represent and are residents of the production area.
Two of the producer members shall be producers who market their fruit
through cooperative marketing organizations, and seven of the producer
members shall be independent producers. Producer members shall not have
a proprietary interest in or be employees of a handler organization:
Provided, That members of a cooperative marketing organization shall not
be considered as having a proprietary interest in a handler organization
because of such membership.
(c) Six members shall be handlers who are residents of the
production area. One handler member shall represent cooperative
marketing organizations; five handler members shall represent
independent handlers.
Sec. 906.19 Term of office.
(a) The term of office of committee members and their respective
alternates shall be for three years beginning August 1 and ending July
31: Provided, That the term of office of one-third of the initial
producer members and alternates and one-third of the initial handler
members and alternates shall end July 31, 1961, and the term of office
of an identical number of such committee members and alternates shall
end July 31, 1962. No member or alternate member shall succeed himself.
(b) Members and alternates shall serve in that capacity during the
portion of the term of office for which they are selected and have
qualified, and until their respective successors are selected and have
qualified. Should a producer member or alternate member change his
marketing affiliation during his term of office, he may continue to
serve in such capacity during the remainder of such term.
[25 FR 9093, Sept. 22, 1960. Redesignated at 26 FR 12751, Dec. 30, 1961,
and amended at 31 FR 10462, Aug. 4, 1966]
Sec. 906.20 Districts.
For the purpose of determining the basis for selecting producer
committee members the following districts of the production area are
hereby initially established:
District No. 1: The county of Cameron in the State of Texas;
District No. 2: The county of Hidalgo in the State of Texas; and
District No. 3 The county of Willacy in the State of Texas.
Sec. 906.21 Redistricting.
The committee may recommend, and pursuant thereto the Secretary may
[[Page 65]]
approve, the reapportionment of members among districts, the
reapportionment of members between grower and handler members
representing cooperative marketing organizations and independent grower
and independent handler members, and the re-establishment of districts
within the production area. In recommending such changes, the committee
shall give consideration to: (a) Shifts in production; (b) the
importance of new production in its relation to existing districts; (c)
the equitable relationship of committee membership and districts; (d)
changes in amount of fruit handled by cooperative marketing
organizations in relation to fruit handled by independent handlers; and
(e) other relevant factors. No changes in districting or in
apportionment of members may become effective in less than 30 days prior
to the date on which terms of office begin each year and no
recommendations for such redistricting or reapportionment may be made
less than six months prior to such date.
Sec. 906.22 Selection.
(a) From District No. 1 the Secretary shall select initially two
producer members and their alternates representing independent
producers. From District No. 2 the Secretary shall select initially two
producer members and their respective alternates representing producers
who market their fruit through cooperative marketing organizations, and
four producer members and their respective alternates representing
independent producers. From District No. 3 the Secretary shall select
initially one producer member and his alternate representing independent
producers.
(b) From the production area the Secretary shall select initially
six handler members and their respective alternates. One handler member
shall represent cooperative marketing organizations and five handler
members shall represent independent handlers.
Sec. 906.23 Nominations.
The Secretary may select the members of the committee and alternates
from nominations which may be made in the following manner:
(a) A meeting of producers who are members of cooperative marketing
organizations and a meeting of independent producers shall be held for
each district having both cooperative and independent producer members
and alternates to elect nominees for such positions. For all other
districts, meetings of all producers shall be held for such purpose. A
meeting of handlers representing cooperative marketing organizations and
a meeting of independent handlers shall be held in the production area
to elect nominees for handler members and alternates. For nominations to
the initial committee, the meetings may be sponsored by the United
States Department of Agriculture or by any agency or group requested to
do so by such Department. For nominations for succeeding members and
alternates on the committee, the committee shall hold such meetings or
cause them to be held prior to June 15 of each year, after the effective
date of this subpart.
(b) At each such meeting at least one nomination shall be designated
for each position as member and alternate.
(c) Nominations for committee members and alternates following the
initial committee shall be supplied to the Secretary not later than July
1 each year.
(d) In districts having both cooperative and independent producer
members, only producers who market their fruit through cooperative
marketing organizations may participate in designating nominees for
members and alternates representing cooperative producers; and only
independent producers may participate in designating nominees for
members and alternates representing independent producers. In all other
districts, all producers may participate in designating the nominees for
producer members and alternates. Only handlers representing cooperative
marketing organizations may participate in designating nominees for
members and alternates representing cooperative handlers; and only
independent handlers may participate in designating nominees for members
and alternates representing independent handlers. In the event that a
person is engaged in producing fruit in more than one district such
person shall elect the
[[Page 66]]
district within which he may participate, as aforesaid, in designating
nominees.
(e) Regardless of the amount of fruit handled by a handler or the
number of districts in which a person produces fruit, each person is
entitled to cast only one vote on behalf of himself, his agents,
subsidiaries, affiliates, and representatives in designating nominees
for committee members and alternates. An eligible voter's privilege of
casting only one vote shall be construed to permit a voter to cast one
vote for each position to be filled. Votes must be cast in person at all
nomination meetings.
Sec. 906.24 Failure to nominate.
If nominations are not made within the time and in the manner
specified in Sec. 906.23, the Secretary may, without regard to
nominations, select the committee members and alternates, which
selection shall be on the basis of the representation provided for in
Secs. 906.20 through 906.22, inclusive.
Sec. 906.25 Acceptance.
Any person selected as a committee member or alternate shall qualify
by filing a written acceptance with the Secretary within ten days after
being notified of such selection.
Sec. 906.26 Vacancies.
To fill committee vacancies, the Secretary may select such members
or alternates from unselected nominees on the current nominee list from
the district and group involved, or from nominations made in the manner
specified in Sec. 906.23. If the names of nominees to fill any such
vacancy are not made available to the Secretary within 30 days after
such vacancy occurs, such vacancy may be filled without regard to
nominations, which selection shall be made on the basis of
representation provided for in Secs. 906.20 through 906.22, inclusive.
Sec. 906.27 Alternate members.
An alternate member of the committee shall act in the place and
stead of the member for whom he is an alternate, during such member's
absence or when designated to do so by the member for whom he is an
alternate. In the event both a member and his alternate are unable to
attend a committee meeting, the committee members present may designate
another alternate of the same classification (handler or producer, and
to the extent practical, independent, or co-op) to serve in such
member's place and stead. In the event of the death, removal,
resignation, or disqualification of a member, his alternate shall act
for him until a successor of such member is selected and has qualified.
[31 FR 10462, Aug. 4, 1966]
Sec. 906.28 Procedure.
Ten members of the committee shall be necessary to constitute a
quorum, six of whom shall be producer members. Ten affirmative votes
shall be required to pass any motion or approve any committee action.
All votes shall be cast in person.
Sec. 906.29 Expenses and compensation.
The members of the committee, and alternates, shall serve without
compensation; but they may be reimbursed for expenses necessarily
incurred by them in the performance of their duties and in the exercise
of their powers under this subpart.
Sec. 906.30 Powers.
The committee shall have the following powers:
(a) To administer the provisions of this part in accordance with its
terms;
(b) To make rules and regulations to effectuate the terms and
provisions of this part;
(c) To receive, investigate, and report to the Secretary complaints
of violation of the provisions of this part; and
(d) To recommend to the Secretary amendments to this part.
Sec. 906.31 Duties.
It shall be, among other things, the duty of the committee:
(a) At the beginning of each term of office, to meet and organize,
to select a chairman and such other officers as may be necessary, to
select sub-committees, and to adopt such rules and regulations for the
conduct of its business as it may deem advisable;
[[Page 67]]
(b) To act as intermediary between the Secretary and any producer or
handler;
(c) To furnish to the Secretary such available information as he may
request;
(d) To appoint such employees, agents, and representatives as it may
deem necessary and to determine the salaries and define the duties of
each such person;
(e) To require adequate fidelity bonds for all persons handling
funds;
(f) To investigate from time to time and to assemble data on the
growing, harvesting, shipping, and marketing conditions with respect to
fruit;
(g) To prepare a marketing policy;
(h) To recommend marketing regulations to the Secretary;
(i) To recommend rules and procedures for, and to make
determinations in connection with, issuance of certificates of
privilege;
(j) To keep minutes, books, and records which clearly reflect all of
the acts and transactions of the committee; and such minutes, books, and
records shall be subject to examination at any time by the Secretary or
his authorized agent or representative; and minutes of each committee
meeting shall be promptly submitted to the Secretary;
(k) At the beginning of each fiscal period, to prepare a budget of
its expenses for such fiscal period, together with a report thereon;
(l) To cause the books of the committee to be audited by a competent
accountant at least once each fiscal period, and at such other time as
the committee may deem necessary or as the Secretary may request (the
report of each such audit shall show the receipt and expenditure of
funds collected pursuant to this part; a copy of each such report shall
be furnished to the Secretary and a copy of each report shall be made
available at the principal office of the committee for inspection by
producers and handlers); and
(m) To consult, cooperate, and exchange information with other
marketing agreement committees and other individuals or agencies in
connection with all proper committee activities and objectives under
this part.
Expenses and Assessments
Sec. 906.32 Expenses.
The committee is authorized to incur such expenses as the Secretary
may find are reasonable and likely to be incurred during each fiscal
period for its maintenance and functioning, and for such purposes as the
Secretary, pursuant to this subpart, determines to be appropriate. Each
handler's share of such expense shall be proportionate to the ratio
between the total quantity of fruit handled by him as the first handler
thereof during a fiscal period and the total quantity of fruit handled
by all handlers as first handlers thereof during such fiscal period.
Sec. 906.33 Budget.
At the beginning of each fiscal period and as may be necessary
thereafter, the committee shall prepare an estimated budget of income
and expenditures necessary for the administration of this part. The
committee shall recommend the rate of assessment calculated to provide
adequate funds to defray its proposed expenditures. The committee shall
present such budget to the Secretary with an accompanying report showing
the basis for its estimates and recommendations.
Sec. 906.34 Assessments.
(a) The funds to cover the committee's expenses shall be acquired by
the levying of assessments upon handlers as provided in this subpart.
Each handler who first handles fruit shall, with respect to the fruit so
handled by him, pay assessments to the committee upon demand, which
assessments shall be in payment of such handler's pro rata share of the
committee's expenses.
(b) Assessments shall be levied upon handlers at rates established
by the Secretary. Such rates may be established upon the basis of the
committee's recommendations and other available information. Such rates
may be applied to specified containers used in the production area.
(c) The rate of assessment may be increased at any time by the
Secretary if he finds such increase is necessary in order that the money
collected shall be adequate to cover the committee's expenses during a
given fiscal period.
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Such increase shall be applicable to all fruit handled during such
fiscal period.
(d) The payment of assessments for the maintenance and functining of
the committee may be required under this part throughout the period it
is in effect irrespective of whether particular provisions of this part
are suspended or become inoperative.
Sec. 906.35 Accounting.
(a) If, at the end of a fiscal period, the assessments collected are
in excess of expenses incurred, such excess shall be accounted for in
accordance with one of the following:
(1) If such excess is not retained in a reserve, as provided in
paragraph (a)(2) of this section, it shall be refunded proportionately
to the persons from whom collected.
(2) The committee, with the approval of the Secretary may carry over
such excess into subsequent fiscal periods as a reserve: Provided, That
funds already in the reserve do not equal approximately 1 fiscal
period's expenses. Such reserve funds may be used for any expenses
authorized pursuant to Sec. 906.32 and for necessary expenses of
liquidation in the event of termination of this part. Upon such
termination, any funds not required to defray the necessary expenses of
liquidation shall be disposed of in such manner as the Secretary may
determine to be appropriate. To the extent practical, such funds shall
be returned pro rata to the persons from whom such funds were collected.
(b) All funds received by the committee pursuant to the provisions
of this part shall be used solely for the purpose specified in this part
and shall be accounted for in the manner provided in this part. The
Secretary may at any time require the committee and its members to
account for all receipts and disbursements.
(c) Upon the removal or expiration of the terms of office of any
member of the committee, such member shall account for all receipts and
disbursements and deliver all property and funds in his possession to
the committee, and shall execute such assignments and other instruments
as may be necessary or appropriate to vest in the committee full title
to all of the property, funds, and claims vested in such member pursuant
to this part.
(d) The committee may make recommendations to the Secretary for one
or more of the members thereof, or any other person, to act as a trustee
for holding records, funds, or any other committee property during
periods of suspension of this subpart, or during any period or periods
when regulations are not in effect, and if the Secretary determines such
action appropriate, he may direct that such person or persons shall act
as trustee or trustees for the committee.
[25 FR 9093, Sept. 22, 1960. Redesignated at 26 FR 12751, Dec. 30, 1961,
and amended at 31 FR 10462, Aug. 4, 1966]
Research and Development
Sec. 906.37 Research and development.
The committee, with the approval of the Secretary, may establish or
provide for the establishment of marketing research and development
projects, including paid advertising, designed to assist, improve, or
promote the marketing, distribution, and consumption of fruit. Any such
project for the promotion and advertising of fruit may utilize an
identifying mark which shall be made available for use by all handlers
in accordance with such terms and conditions as the committee, with the
approval of the Secretary, may prescribe. The expenses of such projects
shall be paid from funds collected pursuant to Sec. 906.34.
[31 FR 10462, Aug. 4, 1966]
Regulation
Sec. 906.38 Marketing policy.
Prior to or at the same time as initial recommendations are made
pursuant to Sec. 906.39, the committee shall submit to the Secretary a
report setting forth the marketing policy it deems desirable for the
industry to follow in shipping fruit from the production area during the
ensuing season. Additional reports shall be submitted from time to time
if it is deemed advisable by the committee to adopt a new or modified
marketing policy because of changes in the demand and supply situation
with respect to fruit. The committee shall publicly announce the
submission of
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each marketing policy report and copies thereof shall be available at
the committee's office for inspection by any producer or handler. In
determining each such marketing policy the committee shall give due
consideration to the following:
(a) Market prices of fruit, including prices by grade, size, and
quality in different packs, and such prices by foreign competing areas;
(b) Supply of fruit, by grade, size, and quality in the production
area, and in other production areas, including foreign production areas;
(c) Trend and level of consumer income;
(d) Marketing conditions affecting fruit prices; and
(e) Other relevant factors.
Sec. 906.39 Recommendations for regulations.
The committee, upon complying with the requirements of Sec. 906.38,
may recommend regulations to the Secretary whenever it finds that such
regulations, as are provided for in this sub-part, will tend to
effectuate the declared policy of the act. The committee shall give
notice to handlers of any such recommendation at the same time such
recommendation is submitted to the Secretary.
Sec. 906.40 Issuance of regulations.
The Secretary shall limit the handling of fruit whenever he finds
from the recommendation and information submitted by the committee, or
from other available information, that such rgulation would tend to
effectuate the declared policy of the act. Such regulations may:
(a) Limit the handling of particular grades, sizes, qualities,
maturities, or packs of any or all varieties of fruit during a specified
period or periods: Provided, That specific maturity requirements
applicable to the handling of any variety may be prescribed under this
section only in the event that appropriate maturity requirements for
such variety are not in effect under State authority.
(b) Limit the handling of particular grades, sizes, qualities, or
packs of fruit differently for different varieties, for different
containers, for different purposes specified in Sec. 906.42, or any
combination of the foregoing, during any period.
(c) Limit the handling of fruit by establishing, in terms of grades,
sizes, or both, minimum standards of quality and maturity.
(d) Fix the size, weight, capacity, dimensions, or pack of the
container or containers which may be used in the packaging,
transportation, sale, shipment, or other handling of fruit.
(e) Prohibit the handling (1) of any fruit which does not have
marked on each container the grade or the registered grade label of the
fruit contained therein; (2) of any grapefruit which does not have
marked on each fruit the word Texas or other words implying Texas
origin, except that the committee may recommend and the Secretary
establish a tolerance for grapefruit in any container or lot not so
marked; and (3) of any container fruit which is misbranded as to
variety.
(f) No regulations may be issued under the provisions of this
subpart which allots to individual handlers the quantity of fruit which
each handler may ship during any regulation period.
Sec. 906.41 Gift fruit shipments.
The handling to any person of gift packages of fruit individually
addressed to such person, in quantities aggregating not more than 500
pounds and not for resale, are exempt from the provisions of
Secs. 906.34, 906.40, and 906.45, and the regulations issued thereunder,
but shall conform to such safeguards as may be established pursuant to
Sec. 906.43.
Sec. 906.42 Shipments for special purposes.
Upon the basis of recommendations and information submitted by the
committee, or other available information, the Secretary, whenever he
finds that it will tend to effectuate the declared policy of the act,
shall modify, suspend, or terminate regulations issued pursuant to
Secs. 906.34, 906.40, 906.45, or any combination thereof, in order to
facilitate the handling of fruit:
(a) For relief or for charity;
(b) For processing or for manufacture or conversion into specified
products; and
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(c) In such minimum quantities and for such other purposes as may be
specified by the committee with the approval of the Secretary.
Sec. 906.43 Notification of regulations.
The Secretary shall notify the committee of any regulations issued
or of any modification, suspension, or termination thereof. The
committee shall give reasonable notice thereof to handlers.
Sec. 906.44 Safeguards.
(a) The committee, with the approval of the Secretary, may prescribe
adequate safeguards to prevent the handling of fruit pursuant to
Sec. 906.41 or Sec. 906.42 from entering channels of trade for other
than the specific purpose authorized therefor, and rules governing the
issuance and the contents of certificates of privilege if such
certificates are prescribed as safeguards by the committee. Such
safeguards may include requirements that:
(1) Handlers shall file applications with the committee to ship
fruit pursuant to Secs. 906.41 and 906.42.
(2) Handlers shall obtain inspection provided by Sec. 906.45, or pay
the assessment levied pursuant to Sec. 906.34, or both, in connection
with shipments made under Sec. 906.42: Provided, That such inspection
and assessment requirements shall not apply to fruit handled for canning
or freezing.
(3) Handlers shall obtain certificates of privilege from the
committee to handle fruit affected or to be affected under the
provisions of Secs. 906.41 and 906.42.
(b) The committee may rescind or deny certificates of privilege to
any handler if proof is obtained that fruit handled by him for the
purposes stated in Secs. 906.41 and 906.42 was handled contrary to the
provisions of this part.
(c) The Secretary shall have the right to modify, change, alter, or
rescind any safeguards prescribed and any certificates issued by the
committee pursuant to the provisions of this section.
(d) The committee shall make reports to the Secretary, as requested,
showing the number of applications for such certificates, the quantity
of fruit covered by such applications, the number of such applications
denied and certificates granted, the quantity of fruit handled under
duly issued certificates, and such other information as may be
requested.
Inspection
Sec. 906.45 Inspection and certification.
(a) During any period in which handling of a variety of a type of
fruit is regulated pursuant to Secs. 906.34, 906.40, 906.42, or any
combination thereof, no handler shall handle any variety of such type of
fruit which has not been inspected by an authorized representative of
the Federal or Federal-State Inspection Service, unless such handling is
relieved from such requirements pursuant to Sec. 906.41 or Sec. 906.42,
or both;
(b) Regrading, resorting, or repacking any lot of fruit shall
invalidate any prior inspection insofar as the requirements of this
section are concerned. No handler shall handle fruit after it has been
regraded, resorted, repacked, or in any other way prepared for market,
unless each lot of fruit is inspected by an authorized representative of
the Federal or Federal-State Inspection Service: Provided, That the
committee, with the approval of the Secretary, may provide for waiving
inspection requirements on any fruit in circumstances where it appears
reasonably certain that, after regrading, resorting, or repacking, such
fruit meets the applicable quality and other standards then in effect;
(c) Insofar as the requirements of this section are concerned, the
length of time for which an inspection certificate is valid may be
established by the committee with the approval of the Secretary;
(d) When fruit is inspected in accordance with the requirements of
this section a copy of each inspection certificate issued shall be made
available to the committee by the inspection service;
(e) The committee may recommend and the Secretary may require that
any fruit handled or transported by motor vehicle shall be accompanied
by a copy of the inspection certificate issued thereon, which
certificate shall be surrendered to such authority as may be designated.
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Reports
Sec. 906.51 Reports.
Upon request of the committee, made with the approval of the
Secretary, each handler shall furnish to the committee, in such manner
and at such time as it may prescribe, such reports and other information
as may be necessary for the committee to perform its duties under this
part.
(a) Such reports may include, but are not necessarily limited to,
the following:
(1) The quantities of fruit received by a handler;
(2) The quantities disposed of by him, segregated as to the
respective quantities subject to regulation and not subject to
regulation;
(3) The date of each such disposition and the identification of the
carrier transporting such fruit;
(4) Identification of the inspection certificates, and the
certificates of privilege, if any, pursuant to which the fruit was
handled, together with the destination of each lot of fruit handled
pursuant to Sec. 906.41.
(b) All such reports shall be held under appropriate protective
classification and custody of the committee, or duly appointed employees
thereof, so that the information contained therein which may adversely
affect the competitive position of any handler in relation to other
handlers will not be disclosed. Compilations of general reports from
data submitted by handlers is authorized, subject to prohibition of
disclosure of individual handlers identities or operations.
(c) Each handler shall maintain for at least two succeeding years
such records of the fruit received and disposed of by such handler as
may be necessary to verify the reports he submits to the committee
pursuant to this section.
Miscellaneous Provisions
Sec. 906.52 Compliance.
Except as provided in this subpart, no handler shall handle fruit,
the handling of which has been prohibited by the Secretary in accordance
with provisions of this subpart, or the rules and regulations issued
thereunder, and no handler shall handle fruit except in conformity to
the provisions of this part.
Sec. 906.53 Right of the Secretary.
The members of the committee (including successors and alternates),
and any agent or employee appointed or employed by the committee, shall
be subject to removal or suspension by the Secretary at any time. Each
and every order, regulation, decision, determination or other act of the
committee shall be subject to the continuing right of the Secretary to
disapprove of the same at any time. Upon such disapproval, the
disapproved action of the said committee shall be deemed null and void,
except as to acts done in reliance thereon or in compliance therewith
prior to such disapproval by the Secretary.
Sec. 906.54 Effective time.
The provisions of this subpart, or any amendment thereto, shall
become effective at such time as the Secretary may declare and shall
continue in force until terminated in one of the ways specified in this
subpart.
Sec. 906.55 Termination.
(a) The Secretary may, at any time, terminate the provisions of this
subpart by giving at least one day's notice by means of a press release
or in any other manner he may determine.
(b) The Secretary may terminate or suspend the operation of any or
all of the provisions of this subpart whenever he finds that such
provisions do not tend to effectuate the declared policy.
(c) The Secretary shall terminate the provisions of this subpart at
the end of any fiscal period whenever he finds that such termination is
favored by a majority of producers who, during a representative period,
have been engaged in the production of fruit for market: Provided, That
such majority has, during such representative period, produced for
market more than fifty percent of the volume of such fruit produced for
market.
(d) The provisions of this subpart shall, in any event, terminate
whenever the provisions of the act authorizing them cease to be in
effect.
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