[Title 7 CFR ]
[Code of Federal Regulations (annual edition) - January 1, 2023 Edition]
[From the U.S. Government Publishing Office]
[[Page i]]
Title 7
Agriculture
________________________
Parts 900 to 999
Revised as of January 1, 2023
Containing a codification of documents of general
applicability and future effect
As of January 1, 2023
Published by the Office of the Federal Register
National Archives and Records Administration as a
Special Edition of the Federal Register
[[Page ii]]
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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 5
Finding Aids:
Table of CFR Titles and Chapters........................ 687
Alphabetical List of Agencies Appearing in the CFR...... 707
List of CFR Sections Affected........................... 717
[[Page iv]]
----------------------------
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.
----------------------------
[[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
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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
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LEGAL STATUS
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HOW TO USE THE CODE OF FEDERAL REGULATIONS
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To determine whether a Code volume has been amended since its
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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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(a) The incorporation will substantially reduce the volume of
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(b) The matter incorporated is in fact available to the extent
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that volume.
[[Page vii]]
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Oliver A. Potts,
Director,
Office of the Federal Register
January 1, 2023
[[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, 1600-1759, 1760-1939, 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, 2023.
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.
For this volume, Robert J. Sheehan, III was Chief Editor. The Code
of Federal Regulations publication program is under the direction of
John Hyrum Martinez, assisted by Stephen J. Frattini.
[[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]]
Subtitle B--Regulations of the Department of Agriculture (Continued)
[[Page 5]]
CHAPTER IX--AGRICULTURAL MARKETING SERVICE (MARKETING AGREEMENTS AND
ORDERS; FRUITS, VEGETABLES, NUTS), DEPARTMENT OF AGRICULTURE
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Part Page
900 General regulations......................... 7
905 Oranges, grapefruit, tangerines, and
pummelos grown in Florida............... 50
906 Oranges and grapefruit grown in Lower Rio
Grande Valley in Texas.................. 73
915 Avocados grown in south Florida............. 90
917 Fresh pears and peaches grown in California. 108
920 Kiwifruit grown in California............... 127
922 Apricots grown in designated counties in
Washington.............................. 141
923 Sweet cherries grown in designated counties
in Washington........................... 154
925 Grapes grown in a designated area of
southeastern California................. 166
926 Data collection, reporting and recordkeeping
requirements applicable to cranberries
not subject to the cranberry marketing
order................................... 178
927 Pears grown in Oregon and Washington........ 181
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 196
930 Tart cherries grown in the States of
Michigan, New York, Pennsylvania,
Oregon, Utah, Washington, and Wisconsin. 223
932 Olives grown in California.................. 251
944 Fruits; import regulations.................. 280
945 Irish potatoes grown in certain designated
counties in Idaho, and Malheur County,
Oregon.................................. 293
948 Irish potatoes grown in Colorado............ 309
955 Vidalia onions grown in Georgia............. 328
[[Page 6]]
956 Sweet onions grown in the Walla Walla Valley
of southeast Washington and northeast
Oregon.................................. 338
958 Onions grown in certain designated counties
in Idaho, and Malheur County, Oregon.... 352
959 Onions grown in south Texas................. 367
966 Tomatoes grown in Florida................... 382
980 Vegetables; import regulations.............. 401
981 Almonds grown in California................. 408
982 Hazelnuts grown in Oregon and Washington.... 436
983 Pistachios grown in California, Arizona, and
New Mexico.............................. 457
984 Walnuts grown in California................. 474
985 Marketing order regulating the handling of
spearmint oil produced in the Far West.. 496
986 Pecans grown in the states of Alabama,
Arkansas, Arizona, California, Florida,
Georgia, Kansas, Louisiana, Missouri,
Mississippi, North Carolina, New Mexico,
Oklahoma, South Carolina, and Texas..... 511
987 Domestic dates produced or packed in
Riverside County, California............ 529
989 Raisins produced from grapes grown in
California.............................. 556
990 Domestic hemp production program............ 602
993 Dried prunes produced in California......... 621
996 Minimum quality and handling standards for
domestic and imported peanuts marketed
in the United States.................... 661
999 Specialty crops; import regulations......... 669
[[Page 7]]
PART 900_GENERAL REGULATIONS--Table of Contents
Subpart A_Procedural Requirements Governing Proceedings Pertaining to
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 B_Supplemental Procedural Requirements Governing Proceedings to
Amend Federal Milk Marketing Agreements and Marketing Orders
900.20 Words in the singular form.
900.21 Definitions.
900.22 Proposal submission requirements.
900.23 Procedures following receipt of proposal.
900.24 Pre-hearing information sessions.
900.25 Advance submission of testimony.
900.26 Requesting USDA data for use at a hearing.
900.27 Deadline for filing post-hearing briefs and corrections to
transcript.
900.28 Deadline for issuance of recommended decisions or tentative final
decisions.
900.29 Deadline for filing exceptions to recommended decisions.
900.30 Deadline for issuance of Secretary's (final) decisions.
900.31 Electronic document submission standards.
900.32 Informal rulemaking.
900.33 Industry assessments.
Subpart C_Supplemental Procedural Requirements Governing Proceedings to
Amend Fruit, Vegetable and Nut Marketing Agreements and Marketing Orders
900.36 Words in the singular form.
900.37 Definitions.
900.38 Pre-hearing information sessions.
900.39 Proposal submission requirements.
900.40 Written testimony and USDA data request requirements.
900.41 Electronic document submission standards.
900.42 Industry assessments.
900.43 Use of informal rulemaking.
Subpart D_Procedural Requirements 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 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 Petitions 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 E_Supplemental Procedural Requirements for Marketing Orders,
Marketing Agreements, and Requirements Covering Fruits, Vegetables, and
Nuts
900.80 Words in the singular form.
900.81 Definitions.
900.82 Stipulation procedures.
[[Page 8]]
900.83 Conducting meetings via electronic communication or otherwise.
Subpart F_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 G_Miscellaneous Requirements
900.200 Definitions.
900.201 Investigation and disposition of alleged violations.
900.202 Restrictions applicable to Committee personnel.
900.210 Disclosures of information.
900.211 Penalties.
Subpart H_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.
Subpart I_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 J_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 K_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 L_Information Collection
900.600 General.
900.601 OMB control numbers assigned pursuant to the Paperwork Reduction
Act.
Subpart M_Assessment of Exemptions
900.700 Exemption from assessments.
Authority: 7 U.S.C. 601-674; 7 U.S.C. 7401; 5 U.S.C. 301, 552; and
44 U.S.C. Ch. 35.
Source: 25 FR 5907, June 28, 1960, unless otherwise noted.
Subpart A_Procedural Requirements Governing Proceedings Pertaining to
Marketing Agreements and Marketing Orders
Authority: 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.
[[Page 9]]
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 for the Secretary.
(d) The term judge means any administrative law judge appointed
pursuant to 5 U.S.C. 3105 or any presiding official appointed by the
Secretary, and assigned to conduct the proceeding.
(e) The term Administrator means the Administrator of the
Agricultural Marketing Service or any officer or employee of the
Department to whom authority has been delegated or may hereafter be
delegated to act for the Administrator.
(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.
(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; 67 FR 10829, Mar. 11, 2002; 82 FR 58098, Dec. 11, 2017]
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 describe any alternative procedures established
pursuant to
[[Page 10]]
paragraph (d) of this section; 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, using a postal
or other delivery service or electronic communication, 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 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.
(d) Alternative procedures. The Administrator may establish
alternative procedures for the proceeding that are in addition to or in
lieu of one or more procedures in this subpart, provided that the
procedures are consistent with 5 U.S.C. 556 and 557. The alternative
procedures must be described in the notice of hearing, as required in
paragraph (a) of this section.
[25 FR 5907, June 28, 1960, as amended at 83 FR 52944, Oct. 19, 2018; 85
FR 41174, July 9, 2020]
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
[[Page 11]]
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 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, provided
that such interested person complies with any alternative procedures
included in the hearing notice pursuant toSec. 900.4. 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
[[Page 12]]
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.
(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,
[[Page 13]]
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; 85
FR 41174, July 9, 2020]
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
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
[[Page 14]]
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) Transcripts of hearings shall be made available to any person at
actual cost of duplication.
[25 FR 5907, June 28, 1960, as amended at 67 FR 10829, Mar. 11, 2002]
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 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
[[Page 15]]
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 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
[[Page 16]]
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 in this subpart to be filed shall be deemed to be filed at
the time it is received by the Hearing Clerk.
(d) Computation of time. Each day, including Saturdays, Sundays, and
legal public holidays, shall be included in computing the time allowed
for filing any document or paper: Provided, That when the time for
filing a document or paper expires on a Saturday, Sunday, or legal
public holiday, the time allowed for filing the document or paper shall
be extended to include the following business day.
[25 FR 5907, June 28, 1960, as amended at 30 FR 254, Jan. 9, 1965; 67 FR
10829, Mar. 11, 2002]
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 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
[[Page 17]]
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 B_Supplemental Procedural Requirements Governing Proceedings to
Amend Federal Milk Marketing Agreements and Marketing Orders
Authority: 7 U.S.C. 608c(17) and 610.
Source: 73 FR 49088, Aug. 20, 2008, unless otherwise noted.
Sec. 900.20 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. 900.21 Definitions.
As used in this subpart, the terms as defined in the Act and in
Sec. 900.2 of this part shall apply.
Sec. 900.22 Proposal submission requirements.
When a person other than the Secretary makes a proposal to amend a
Federal milk marketing agreement or order under Sec. 900.3 of this
part, the proposal shall address the following, to the extent
applicable:
(a) Explain the proposal. What is the disorderly marketing condition
that the proposal is intended to address?
(b) What is the purpose of the proposal?
(c) Describe the current Federal order requirements or industry
practices relative to the proposal.
(d) Describe the expected impact on the industry, including on
producers and handlers, and on consumers. Explain/Quantify.
(e) What are the expected effects on small businesses as defined by
the Regulatory Flexibility Act (5 U.S.C. 601-612)? Explain/Quantify.
(f) How would adoption of the proposal increase or decrease costs to
producers, handlers, others in the marketing chain, consumers, the
Market Administrator offices and/or the Secretary? Explain/Quantify.
(g) Would a pre-hearing information session be helpful to explain
the proposal?
Sec. 900.23 Procedures following receipt of a proposal.
Within 30 days of receipt of a proposal to amend a Federal milk
marketing agreement order under Sec. 900.3 of this part, USDA shall
either: Issue a notice providing an action plan and expected timeframes
for the different steps in the formal rulemaking process for completion
of the hearing not more than 120 days after the date of the issuance of
the notice; request additional information from the person submitting
the proposal to be used in deciding whether a hearing will be held. If
the information requested is not received within a specified timeframe,
the request shall be denied; or deny the request. Notice of the action
[[Page 18]]
plan will be made on the Dairy Programs, AMS Web site and through
program releases to interested persons.
Sec. 900.24 Pre-hearing information sessions.
A pre-hearing information session may be held by the Secretary in
response to any proposals received under Sec. 900.3 of this part. Any
person proposing an amendment to a Federal milk marketing agreement or
order may request that a pre-hearing information session be held. A
person submitting a proposal shall have up to 3 calendar days to modify
or withdraw his or her proposal prior to the publication of a notice of
hearing.
Sec. 900.25 Advance submission of testimony.
Any person proposing an amendment to a Federal milk marketing
agreement or order under Sec. 900.3 of this part, when participating as
a witness, shall make copies of his or her testimony, if prepared as an
exhibit, and any other exhibits available to USDA officials before the
start of the hearing on the person's day of appearance. Individual dairy
farmers shall not be subject to this requirement.
Sec. 900.26 Requesting USDA data for use at an amendatory hearing.
Requests for preparation of USDA data to be used at a Federal milk
marketing agreement or order amendatory proceeding must be received by
USDA at least 10 days before the beginning of the hearing. If an
amendatory hearing is announced with less than 10 days before the start
of the hearing, requests for data must be submitted within 2 days
following publication of the notice of hearing in the Federal Register.
Sec. 900.27 Deadline for filing post-hearing briefs and corrections
to transcript.
(a) Under Sec. 900.10 of this part, the period of time for
interested persons to file corrections to the transcript of testimony at
a Federal milk marketing agreement or order amendatory proceeding shall
be no more than 30 days after the hearing record is available.
(b) Under Sec. 900.9(b) of this part, the period of time after the
completion of a Federal milk marketing agreement or order amendatory
hearing for interested persons to file proposed findings and
conclusions, and written arguments or briefs, shall be no more than 60
days after completion of the amendatory hearing.
Sec. 900.28 Deadline for issuance of recommended decisions or tentative
final decisions.
In a Federal milk marketing agreement or order amendatory
proceeding, USDA shall issue a recommended decision under Sec. 900.12
or, when applicable, a tentative final decision, not later than 90 days
after the deadline for submission of proposed findings and conclusions,
and written arguments or briefs.
Sec. 900.29 Deadline for filing exceptions to recommended decisions.
In a Federal milk marketing agreement or order amendatory
proceeding, exceptions to a recommended decision under Sec. 900.12
shall be filed with the hearing clerk not later than 60 days after
publication of the recommended decision in the Federal Register, unless
otherwise specified in that decision.
Sec. 900.30 Deadline for issuance of Secretary's (final) decisions.
A Secretary's (final) decision under Sec. 900.13a to a proposed
amendment on marketing agreement or order shall be issued not later than
60 days after the deadline for submission of exceptions to the
recommended decision.
Sec. 900.31 Electronic submission of hearing documents.
To the extent practicable, all documents filed with the hearing
clerk in a proceeding to amend a Federal milk marketing agreement or
order shall also be submitted electronically to the Dairy Programs,
Agricultural Marketing Service, USDA. All documents should reference the
docket number of the proceeding. Instructions for electronic filing will
be provided in the notice of action plan referred to in Sec. 900.23 of
this subpart, at the amendatory
[[Page 19]]
hearing, and in each Federal Register publication regarding the
amendatory proceeding.
Sec. 900.32 Informal rulemaking.
USDA may elect to use informal rulemaking procedures under 553 of
Title 5, United States Code, to amend Federal milk marketing agreements
and orders, other than provisions that directly affect milk prices. In
making this determination, consideration shall be given to:
(a) The nature and complexity of the proposal;
(b) The potential regulatory and economic impacts on affected
entities; and
(c) Any other relevant matters.
Sec. 900.33 Industry assessments.
If the Secretary determines it is necessary to improve or expedite
an amendatory formal rulemaking proceeding to amend a Federal milk
marketing agreement or order, USDA may impose an assessment on pooled
milk to supplement appropriated funds for the procurement of such
services, including but not limited to, court reporters, hearing
examiners, legal counsel, hearing venue and associated travel for USDA
officials. Only the milk pooled in the particular marketing area that
stands to be affected by proposals heard at the amendatory proceeding
may be assessed. The assessments shall be subject to the provisions of
Sec. 1000.85 (7 CFR 1000.85) concerning assessments for order
administration, including the provision that assessments shall not
exceed $.005 per hundredweight of milk for any given month.
Subpart C_Supplemental Procedural Requirements Governing Proceedings to
Amend Fruit, Vegetable and Nut Marketing Agreements and Marketing Orders
Authority: 7 U.S.C. 608c(17) and 610.
Source: 73 FR 49310, Aug. 21, 2008, unless otherwise noted.
Sec. 900.36 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. 900.37 Definitions.
As used in this subpart, the terms as defined in the Act and in
Sec. 900.2 of this part shall apply.
Sec. 900.38 Pre-hearing information sessions.
A pre-hearing information session concerning a proposal to amend a
fruit, vegetable or nut marketing agreement or order may be held either
prior or subsequent to submission of a proposal under Sec. 900.3 of
this part. Such sessions may be held by a marketing agreement or order
committee or board or by the Secretary.
Sec. 900.39 Proposal submission requirements.
When a person other than the Secretary makes a proposal to amend a
fruit, vegetable or nut marketing agreement or order under Sec. 900.3
of this part, the proposal shall address the following, to the extent
applicable:
(a) The purpose of the proposal;
(b) The problem the proposal is designed to address with explanation
and quantification;
(c) The current requirements or industry practices relative to the
proposal;
(d) The expected impact on the industry, including producers,
handlers, and on consumers;
(e) In the case of marketing orders, an explanation, including
supporting information and data, of how the proposal would tend to
improve returns to producers, and in the case of marketing agreements,
how the proposal impacts the signatories to the agreement;
(f) The expected effects on small businesses as defined by the
Regulatory Flexibility Act (5 U.S.C. 601-612);
(g) A description and quantification of whether the proposal would
increase or decrease costs to producers, handlers, or others in the
marketing chain, and to consumers, marketing order committees and boards
and/or the Secretary;
(h) A description of how the proposal would be implemented; and
[[Page 20]]
(i) A description, including quantification, of how compliance with
the proposal would be effected.
Sec. 900.40 Written testimony and USDA data request requirements.
In addition to the provisions of Sec. 900.8(b)(4), witnesses at an
amendatory fruit, vegetable or nut formal rulemaking hearing shall make,
to the extent practicable, at least 8 copies of their testimony, if
prepared as an exhibit, and any other exhibits available to USDA before
testimony is given on the day of appearance at the hearing. Industry
requests for preparation of USDA data for a rulemaking hearing should be
made at least 10 days prior to the beginning of the hearing.
Sec. 900.41 Electronic document submission standards.
To the extent practicable, all documents filed with the hearing
clerk in a proceeding to amend a fruit, vegetable or nut marketing
agreement or order shall also be submitted electronically to the
Agricultural Marketing Service, Fruit and Vegetable Programs, USDA. All
documents should reference the docket number of the proceeding.
Instructions for electronic filing shall be provided at the amendatory
formal rulemaking hearing and in each Federal Register publication
regarding the amendatory proceeding.
Sec. 900.42 Industry assessments.
If the Secretary determines it is necessary to improve or expedite
an amendatory fruit, vegetable or nut formal rulemaking proceeding,
costs associated with improving or expediting the proceeding may be
charged to the committees or boards. Such costs shall be paid with
assessments from the handlers regulated under the marketing order to be
amended or on signatories to the marketing agreement subject to
amendment. Such assessments may supplement funds for costs associated
with, but not limited to, court reporters, hearing examiners, legal
counsel, hearing venue and associated travel for USDA officials.
Sec. 900.43 Use of informal rulemaking.
(a) Notwithstanding the provisions of Sec. Sec. 900.1 through
900.18, and 900.36 through 900.42 of this part, the Secretary may
determine that informal rulemaking procedures under Sec. 553 of Title
5, United States Code be used to amend fruit, vegetable or nut marketing
agreements and marketing orders. In making this determination,
consideration shall be given to:
(1) The nature and complexity of the proposal;
(2) The potential regulatory and economic impacts on affected
entities; and
(3) Any other relevant matters.
Subpart D_Procedural Requirements Governing Proceedings on Petitions To
Modify or To Be Exempted From Marketing Orders
Authority: 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 for the Secretary;
(d) The term judge means any administrative law judge appointed
pursuant to 5 U.S.C. 3105 or any presiding official appointed by the
Secretary, and assigned to conduct the proceeding.
(e) The term Administrator means the Administrator of the
Agricultural Marketing Service or any officer or employee of the
Department to whom authority has been delegated or may
[[Page 21]]
hereafter be delegated to act for the Administrator.
(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 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 section 8c(15)(A) 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) rulings 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; 67 FR 10829, Mar. 11, 2002; 82 FR 58098, Dec. 11, 2017]
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 marketing
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
marketing 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 marketing 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, the
Administrator may, within thirty
[[Page 22]]
days after the service of the petition, file with the Hearing Clerk a
motion to dismiss the petition, or any portion thereof, on one 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 consideration.
(2) Decision by the 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; 67
FR 10829, Mar. 11, 2002]
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
service of an order of the 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; 67
FR 10829, Mar. 11, 2002]
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
[[Page 23]]
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.
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
[[Page 24]]
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 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
[[Page 25]]
not be deemed to be waiver of the Department's right to file suggested
findings of fact, conclusions and order; to 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
[[Page 26]]
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 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) Transcript. Transcripts of hearings shall be made available to
any person at actual cost of duplication.
[25 FR 5907, June 28, 1960, as amended at 38 FR 29798, Oct. 29, 1973; 67
FR 10829, Mar. 11, 2002]
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 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
[[Page 27]]
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 post office 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.
[25 FR 5907, June 28, 1960, as amended 67 FR 10829, Mar. 11, 2002]
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
[[Page 28]]
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 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) 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; 67
FR 10830, Mar. 11, 2002]
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 filing an appeal petition with 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.
(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
[[Page 29]]
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, as amended at 67 FR 10830, Mar. 11, 2002]
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]
Sec. 900.68 Petitions for reopening hearings; for rehearings or
rearguments of proceedings; or for reconsideration of orders.
(a) Petition requisite--(1) Filing; service. A petition 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.
[[Page 30]]
(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.
[25 FR 5907, June 28, 1960, as amended at 67 FR 10830, Mar. 11, 2002]
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 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 required or
authorized in this subpart to be filed shall be deemed to be filed at
the time it is received by the Hearing Clerk.
(e) Computation of time. Each day, including Saturdays, Sundays, and
legal public holidays, shall be included in computing the time allowed
for filing any document or paper: Provided, That when the time for
filing a document or
[[Page 31]]
paper expires on a Saturday, Sunday, or legal public holiday, the time
allowed for filing the document or paper shall be extended to include
the following business day.
[25 FR 5907, June 28, 1960, as amended at 67 FR 10830, Mar. 11, 2002]
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 for 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.
[25 FR 5907, June 28, 1960, as amended at 67 FR 10830, Mar. 11, 2002]
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.
Subpart E_Supplemental Procedural Requirements for Marketing Orders,
Marketing Agreements, and Requirements 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:
[[Page 32]]
(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 same handler or importer for the same alleged violation.
Sec. 900.83 Conducting Meetings via Electronic Communication or
Otherwise.
Notwithstanding any other provisions of a marketing order in this
part, administrative bodies of fruit, vegetable, and specialty crop
marketing orders, and their committees/subcommittees may, upon due
notice to all members and the public:
(a) Conduct meetings by any means of communication available,
electronic or otherwise, that effectively assembles members and the
public, and facilitates open communication.
(b) Vote by any means of communication available, electronic or
otherwise; Provided, That votes cast are verifiable and that quorum and
other procedural requirements of each respective marketing order are
met.
[[Page 33]]
(c) With the approval of the Secretary, each administrative body may
prescribe any additional procedures necessary to carry out the
objectives of paragraphs (a) and (b) of this section.
[83 FR 22832, May 17, 2018]
Subpart F_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
[[Page 34]]
distribution by States of plant facilities for collecting, processing,
or disposing of milk or its products, and the 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 Sec. Sec. 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;
[[Page 35]]
(iii) Description of the organization and businesses of all parties
to the dispute, including sufficient information to show that the
cooperative is a bona 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 received 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
[[Page 36]]
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 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 G_Miscellaneous Requirements
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) The term mail means to transmit either electronically or through
a postal or other delivery system, information or a package (e.g.,
letter or envelope) to a recipient.
(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
[[Page 37]]
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; 83 FR 27682, June 14,
2018]
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 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. 900.202 Restrictions applicable to Committee personnel.
Members and employees of Federal marketing order boards and
committees are immune from prosecution under the United States antitrust
laws only insofar as their conduct in administering the respective
marketing order is authorized by the Agricultural Marketing Agreement
Act of 1937, 7 U.S.C. 601-674, or the provisions of the respective
order. Under the antitrust laws, Committee members and employees may not
engage in any unauthorized agreement or concerted action that
unreasonably restrains United States domestic or foreign commerce. For
example, Committee members and employees have no authority to
participate, either directly or indirectly, whether on an informal or
formal, written or oral basis, in any bilateral or international
undertaking or agreement with any competing foreign producer or seller
or with any foreign government, agency, or instrumentality acting on
behalf of competing foreign producers or sellers to raise, fix,
stabilize, or set a floor for commodity prices, or limit the quantity or
quality of commodity imported into or exported from the United States.
Participation in any such unauthorized agreement or joint undertaking
could result in prosecution under the antitrust laws by the United
States Department of Justice and/or suit by injured private persons
seeking treble damages, and could also result in expulsion of members
from the Committee or termination of employment with the Committee.
[80 FR 45396, July 30, 2015]
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
[[Page 38]]
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 the amount specified at
Sec. 3.91(b)(1) (viii) of this title 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.)
[25 FR 5907, June 28, 1960, as amended at 75 FR 17560, Apr. 7, 2010]
Subpart H_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.
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
[[Page 39]]
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 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:
[[Page 40]]
(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 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
[[Page 41]]
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 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
[[Page 42]]
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 I_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 Department 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.
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
[[Page 43]]
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 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 J_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
[[Page 44]]
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.
(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.
[[Page 45]]
(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 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
[[Page 46]]
(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 all information furnished to, compiled by, or in
possession of, the referendum agent shall be treated as confidential.
Subpart K_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 with the
regulations prescribed by the Director, Office of Operations and
Finance, USDA.
[44 FR 39151, July 5, 1979]
[[Page 47]]
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 L_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]
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..................................................
------------------------------------------------------------------------
[[Page 48]]
[63 FR 10492, Mar. 4, 1998]
Subpart M_Assessment of Exemptions
Sec. 900.700 Exemption from assessments.
(a) This section specifies criteria for identifying persons eligible
to obtain an exemption from the portion of the assessment used to fund
marketing promotion activities under a marketing order and the
procedures for applying for such an exemption under 7 CFR parts 905,
906, 915, 922, 923, 925, 927, 929, 930, 932, 948, 955, 956, 958, 959,
966, 981, 982, 984, 985, 987, 989, 993, and such other parts (included
in 7 CFR parts 905 through 998) covering marketing orders for fruits,
vegetables, and specialty crops as may be established or amended to
include market promotion. For the purposes of this section, the term
``assessment period'' means fiscal period, fiscal year, crop year, or
marketing year as defined under these parts; the term ``marketing
promotion'' means marketing research and development projects or
marketing promotion, including paid advertising designed to assist,
improve, or promote the marketing, distribution, or consumption of the
applicable commodity.
(b) A handler who operates under an approved National Organic
Program (7 CFR part 205) (NOP) organic handling system plan and is
subject to assessments under a part or parts specified in paragraph (a)
of this section may be exempt from the portion of the assessment
applicable to marketing promotion, including paid advertising, provided
that:
(1) Only agricultural commodities certified as ``organic'' or ``100
percent organic'' (as defined in the NOP) are eligible for exemption;
(2) The exemption shall apply to all certified ``organic'' or ``100
percent organic'' (as defined in the NOP) products of a handler
regardless of whether the agricultural commodity subject to the
exemption is handled by a person that also handles conventional or
nonorganic agricultural products of the same agricultural commodity as
that for which the exemption is claimed;
(3) The handler maintains a valid certificate of organic operation
as issued under the Organic Foods Production Act of 1990 (7 U.S.C. 6501-
6522)(OFPA) and the NOP regulations issued under OFPA (7 CFR part 205);
(4) Any handler so exempted shall continue to be obligated to pay
assessments under such part or parts specified that are associated with
any agricultural products that do not qualify for an exemption under
this section; and
(5) For exempted products, any handler so exempted shall be
obligated to pay the portion of the assessment associated with the other
authorized activities under such part or parts other than marketing
promotion, including paid advertising.
(c) Assessment exemption application. (1) To be exempt from paying
assessments for these purposes under a part or parts listed in paragraph
(a) of this section, the handler shall submit an application to the
board or committee established under the applicable part or parts prior
to or during the assessment period. This application, Form FV-649,
``Certified Organic Handler Application for Exemption from Market
Promotion Assessments Paid Under Federal Marketing Orders,'' shall
include:
(i) The date, applicable committee or board, and Federal marketing
order number;
(ii) The applicant's full name, company name, address, telephone and
fax numbers, and email address;
(iii) Certification that the applicant maintains a valid certificate
of organic operation under the OFPA and the NOP;
(iv) Certification that the applicant handles or markets organic
products eligible to be labeled ``organic'' or ``100 percent organic''
under the NOP;
(v) Certification that the applicant is otherwise subject to
assessments under the Federal marketing order program for which the
exemption is requested;
(vi) The number of organic certified producers for whom they handle
or market product (including the applicant);
(vii) A requirement that the applicant attach a copy of their
certificate of organic operation and all applicable
[[Page 49]]
producer certificates of organic operation issued by a USDA-accredited
certifying agent under the OFPA and the NOP;
(viii) Certification, as evidenced by signature and date, that all
information provided by the applicant is true; and
(ix) Such other information as the committee or board may require,
with the approval of the Secretary.
(2) The handler shall file the application with the committee or
board, prior to or during the applicable assessment period, and annually
thereafter, as long as the handler continues to be eligible for the
exemption. If the person complies with the requirements of this section
and is eligible for an assessment exemption, the committee or board will
approve the exemption request and provide written notification of such
to the applicant within 30 days. If the application is disapproved, the
committee or board will provide written notification of the reason(s)
for such disapproval within the same timeframe.
(3) The exemption will apply at the beginning of the next assessable
period following notification of approval of the assessment exemption,
in writing, by the committee or board.
(d) Assessment exemption calculation. (1) The applicable assessment
rate for any handler approved for an exemption shall be computed by
dividing the committee's or board's estimated non-marketing promotion
expenditures by the committee's or board's estimated total expenditures
approved by the Secretary and applying that percentage to the assessment
rate applicable to all persons for the assessment period. The modified
assessment rate shall then be applied to the quantity of certified
``organic'' or ``100 percent organic'' products handled under an
approved organic assessment exemption as provided in paragraph (c)(2) of
this section. Products handled not subject to an approved organic
assessment exemption shall be assessed at the assessment rate applicable
to all persons for the assessment period. The committee's or board's
estimated non-marketing promotion expenditures shall exclude the direct
costs of marketing promotion and the portion of committee's or board's
administrative and overhead costs (e.g., salaries, supplies, printing,
equipment, rent, contractual expenses, and other applicable costs) to
support and administer the marketing promotion activities.
(2) If a committee or board does not plan to conduct any market
promotion activities in a fiscal year, the committee or board may submit
a certification to that effect to the Secretary, and as long as no
assessments for such fiscal year are used for marketing promotion
projects, or the administration of projects are funded by a previous
fiscal period's assessments, the committee or board may assess all
handlers, regardless of their organic status, the full assessment rate
applicable to the assessment period.
(3) For each assessment period, the Secretary shall review the
portion of the assessment rate applicable to marketing promotion for
persons eligible for an exemption and, if appropriate, approve the
assessment rate.
(4) When the requirements of this section for exemption no longer
apply to a handler, the handler shall inform the committee or board
within 30 days and pay the full assessment on all remaining assessable
product for all committee or board assessments from the date the handler
no longer is eligible to the end of the assessment period.
(5) Within 30 days following the applicable assessment period, the
committee or board shall re-compute the applicable assessment rate for
handlers exempt under this section based on the actual expenditures
incurred during the applicable assessment period. The Secretary shall
review, and if appropriate, approve any change in the portion of the
assessment rate for market promotion applicable to exempt handlers, and
authorize adjustments for any overpayments or collection of
underpayments.
[80 FR 82020, Dec. 31, 2015]
[[Page 50]]
PART 905_ORANGES, GRAPEFRUIT, TANGERINES, AND PUMMELOS GROWN IN FLORIDA-
-Table of Contents
Subpart A_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 Qualification and acceptance.
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.
905.54 Marketing, research and development.
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.
Subpart B_Administrative Requirements
905.105 Tangerine and grapefruit classifications.
905.107 Registered handler certification.
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.
905.149 Procedure for permitting growers to ship tree run citrus fruit.
905.150 Eligibility requirements for public member and alternate member.
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.
905.171 Handler supplier report.
Subpart C_Assessment Rate
905.235 Assessment rate.
Subpart D_Grade and Size Requirements
905.306 Orange, Grapefruit, Tangerine and Tangelo Regulation.
905.350 [Reserved]
Subpart E_Interpretations
905.400 Interpretation of certain provisions.
Authority: 7 U.S.C. 601-674.
Subpart A_Order Regulating Handling
Source: 22 FR 10734, Dec. 27, 1957, unless otherwise noted.
Redesignated at 26 FR 12751, Dec. 30, 1961.
[[Page 51]]
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 reticulata, commonly called ``tangerines'' or
``mandarin'';
(d) Citrus maxima Merr (L.); Osbeck, commonly called ``pummelo'';
and,
(e) ``Citrus hybrids'' that are hybrids between or among one or more
of the four fruits in paragraphs (a) through (d) of this section and the
following: Trifoliate orange (Poncirus trifoliata), sour orange (C.
aurantium), lemon (C. limon), lime (C. aurantifolia), citron (C.
medica), kumquat (Fortunella species), tangelo (C. reticulata x C.
paradisi or C. grandis), tangor (C. reticulata x C. sinensis), and
varieties of these species. In addition, citrus hybrids include: Tangelo
(C. reticulata x C. paradisi or C. grandis), tangor (C. reticulata x C.
sinensis), Temple oranges, and varieties thereof
[81 FR 10454, Mar. 1, 2016]
Sec. 905.5 Variety.
Variety or varieties means any one or more of the following
classifications or groupings of fruit:
(a) Oranges. (1) Early and Midseason oranges;
(2) Valencia, Lue Gim Gong, and similar late maturing oranges of the
Valencia type;
(3) Navel oranges.
(b) Grapefruit. (1) Red Grapefruit, to include all shades of color;
(2) White Grapefruit.
(c) Tangerines and mandarins. (1) Dancy and similar tangerines;
(2) Robinson tangerines;
(3) Honey tangerines;
(4) Fall-Glo tangerines;
(5) US Early Pride tangerines;
(6) Sunburst tangerines;
(7) W-Murcott tangerines;
(8) Tangors.
(d) Pummelos. (1) Hirado Buntan and other pink seeded pummelos;
(2) [Reserved].
(e) Citrus hybrids--(1) Tangelos. (i) Orlando tangelo;
(ii) Minneola tangelo.
(2) Temple oranges.
(f) Other varieties of citrus fruits specified in Sec. 905.4,
including hybrids, as recommended and approved by the Secretary.
Provided, That in order to add any hybrid variety of citrus fruit to be
regulated under this provision, such variety must exhibit similar
characteristics and be subject to cultural practices common to existing
regulated varieties.
[81 FR 10454, Mar. 1, 2016]
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. Each handler shall be registered
[[Page 52]]
with the Committee pursuant to rules recommended by the Committee and
approved by the Secretary.
[81 FR 10454, Mar. 1, 2016]
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 to sell, transport, deliver, pack, prepare for
market, grade, or in any other way to place fruit in the current of
commerce within the production area or between any point in the
production area and any point outside thereof.
[81 FR 10455, Mar. 1, 2016]
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.
(a) The Committee may, with the approval of the Secretary, redefine
the districts into which the production 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,
insofar as practicable, upon the respective averages for the immediately
preceding three fiscal periods of:
(1) The number of bearing trees in each district;
(2) The volume of fresh fruit produced in each district;
(3) The total number of acres of citrus in each district; and
(4) Other relevant factors.
(b) Each redistricting or reapportionment shall be announced on or
prior to March 1 preceding the effective fiscal period.
[81 FR 10455, Mar. 1, 2016]
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]
[[Page 53]]
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 further redesignated at 42 FR 59368, Nov. 17, 1977, as 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 further redesignated at 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
(Sec. Sec. 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 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 of even-numbered years and continue for two
years and until their successors are selected and have qualified. The
consecutive terms of office of a member shall be limited to two 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 Sec. Sec. 905.22
and 905.23.
[81 FR 10455, Mar. 1, 2016]
[[Page 54]]
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 members. (1) The Committee shall give public notice of a
meeting of producers in each district to be held not later than June
10th of even-numbered years, 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 June.
(2) Each nominee shall be a producer in the district from which he
or she 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 or she is a producer. At least two 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 June 10th of even-numbered years, 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 the balloting thereat. The
chairperson 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 June.
(2) Nomination of at least two members and their alternates shall be
made by bona fide cooperative marketing organizations which are
handlers. Nominations for not more than six members and their alternates
shall be made by handlers who are not so affiliated. In voting for
nominees, each handler or his or her 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.
(c) Notwithstanding the provisions of paragraphs (a) and (b) of this
section, nomination and election of members and alternate members to the
Committee may be conducted by mail, electronic mail, or other means
according to rules and regulations recommended by the Committee and
approved by the Secretary.
[42 FR 59369, Nov. 17, 1977, as amended at 74 FR 46306, Sept. 9, 2009;
81 FR 10455, Mar. 1, 2016]
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 Districts 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 two such members and
their alternates shall be affiliated with bona fide cooperative
marketing organizations.
[[Page 55]]
(b) From the nominations made pursuant to Sec. 905.22(b) or from
other qualified persons, the Secretary shall select at least two 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.
[74 FR 46306, Sept. 9, 2009]
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 Sec. Sec. 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,
as amended at 42 FR 59370, Nov. 17, 1977]
Sec. 905.28 Qualification and acceptance.
Any person nominated to serve as a member or alternate member of the
Committee shall, prior to selection by the Secretary, qualify by filing
a written qualification and acceptance statement indicating such
person's qualifications and willingness to serve in the position for
which nominated.
[81 FR 10455, Mar. 1, 2016]
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) If both a member and his or her respective alternate are unable
to attend a committee meeting, such member may designate another
alternate to act in his or her place in order to obtain a quorum:
Provided, That such alternate member represents the same group
affiliation as the absent member. If the member is unable to designate
such an alternate, the committee members present may designate such
alternate.
(c) 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,
as amended at 42 FR 59370, Nov. 17, 1977; 74 FR 46306, Sept. 9, 2009]
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,
as 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 each fiscal period, and
at such other times as it deems necessary or as the Secretary may
request, and to file with
[[Page 56]]
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,
as 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 provide for meeting by telephone, telegraph,
or other means of communication, and any vote cast at such a meeting
shall be promptly confirmed in writing: Provided, That if any assembled
meeting is held, all votes shall be cast in person.
(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, as amended at 74 FR 46306, Sept. 9, 2009]
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,
as 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.
(b) The Secretary may, at any time, require the committee and its
members to account for all receipts and disbursements.
[[Page 57]]
(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,
as 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,
as 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,
as 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 two fiscal periods' 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 funds shall be returned pro rata to the persons
from whom such funds were collected.
[[Page 58]]
(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,
as amended at 34 FR 12427, July 30, 1969; 42 FR 59371, Nov. 17, 1977; 81
FR 10455, Mar. 1, 2016]
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,
as 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 59]]
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) Establish, prescribe, and fix the size, capacity, weight,
dimensions, marking (including labels and stamps), or pack of the
container or containers which may be used in the packaging,
transportation, sale, shipment, or other handling of fruit.
(5) Provide requirements that may be different for the handling of
fruit within the production area, the handling of fruit for export, or
for the handling of fruit between the production area and any point
outside thereof within the United States.
(6) Any regulations or requirements pertaining to intrastate
shipments shall not be implemented unless Florida statutes and
regulations regulating such shipments are not in effect.
(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,
as amended at 34 FR 12427, July 30, 1969; 42 FR 59370, Nov. 17, 1977; 54
FR 37292, Sept. 8, 1989; 81 FR 10455, Mar. 1, 2016]
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
[[Page 60]]
be required if the particular lot of fruit previously had been so
inspected and 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,
as amended at 42 FR 59371, Nov. 17, 1977]
Sec. 905.54 Marketing, research and development.
The committee may, with the approval of the Secretary, establish, or
provide for the establishment of, projects including production
research, marketing research and development projects, and marketing
promotion including paid advertising, designed to assist, improve, or
promote the marketing, distribution, and consumption or efficient
production of fruit. The expenses of such projects shall be paid by
funds collected pursuant to Sec. 905.41. Upon conclusion of each
project, but at least annually, the committee shall summarize the
program status and accomplishments to its members and the Secretary. A
similar report to the committee shall be required of any contracting
party on any project carried out under this section. Also, for each
project, the contracting party shall be required to maintain records of
money received and expenditures, and such shall be available to the
committee and the Secretary.
[74 FR 46306, Sept. 9, 2009]
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,
as 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 Sec. Sec. 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,
[[Page 61]]
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,
as 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 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,
as 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
[[Page 62]]
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,
as 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.
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,
as 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 B_Administrative Requirements
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. 905.107 Registered handler certification.
Each handler who handles citrus grown in the production area must be
certified as a registered handler by the Committee in order to ship such
regulated citrus outside of the regulated area. A handler who is
certified as a registered handler is a handler who has adequate
facilities to meet the requirements for preparing citrus for market,
obtains inspection on citrus handled, agrees to handle citrus in
compliance with the Order's grade, size and container requirements, pays
applicable assessments on a timely basis, submits reports required by
the Committee, and agrees to comply with other regulatory requirements
on the handling of citrus grown in the production area.
(a) Eligibility. Based on the criteria specified in this section,
the Committee shall determine eligibility for certification as a
registered handler. The Committee or its authorized agent shall inspect
a handler's facilities to
[[Page 63]]
determine if the facilities are adequate for preparing citrus for
market. To be adequate for such purposes, the facilities must be
permanent, nonportable buildings located in the production area with
equipment that is nonportable for the proper washing, grading, sizing
and packing of citrus grown in the production area.
(b) Application for certification. Application for certification
shall be executed by the handler by August 1st of fiscal period and
filed with the Committee on a form, prescribed by and available at the
principal office of the Committee, containing the following information:
(1) Business name,
(2) Address of handling facilities (including telephone, email and
facsimile number),
(3) Mailing address (if different from handling facility address),
(4) Number of years in the citrus business in Florida,
(5) Type of business entity, and
(6) Names of senior officers, partners, or principal owners with
financial interest in the business.
(c) Determination of certification. If the Committee determines from
available information that an applicant meets the criteria specified in
this section, the applicant shall be certified as a registered handler
and informed by written notice from the Committee. Certification is
effective for a fiscal period unless the Committee determines, based on
criteria herein, that cancellation is warranted. If certification is
denied, the handler shall be informed by the Committee in writing,
stating the reasons for denial.
(d) Cancellation of certification. A registered handler's
certification shall be cancelled by the Committee, with the approval of
the Secretary, if the handler fails to pay assessments within 90 days of
the invoice date, fails to provide reports to the Committee, or no
longer has adequate facilities as described in this section.
Cancellation of a handler's certification shall be made in writing to
the handler and shall specify the reason(s) for and effective date of
the cancellation. Cancellation shall be for a minimum two-week period if
a handler is found to be shipping without proper inspection. The
Committee shall recertify the handler's registration at such time as the
handler corrects the deficiencies which resulted in the cancellation and
the Committee or its agent verifies compliance. The Committee shall
notify the handler in writing of its recertification.
(e) Inspection certification. During any period in which the
handling of citrus is regulated pursuant to this part, no handler shall
obtain an inspection certifying that the handler's citrus meets the
requirements of the Order unless the handler has been certified as a
registered handler by the Committee. Any person who is not certified as
a registered handler may receive inspection from the Federal-State
Inspection Service, however, the inspection certificate shall state
``Fails to meet the requirements of Marketing Order No. 905 because the
handler is not a registered handler.''
(f) Contrary shipping. The Committee may cancel or deny a handler's
registration if the handler has shipped citrus contrary to the
provisions of this part. The cancellation or denial of a handler's
registration shall be effective for a minimum of two weeks and not
exceed the applicable shipping season as determined by the Committee.
(g) Appeals. Any handler who has been denied a handler's
registration or who has had a handler's registration cancelled, may
appeal to the Secretary, supported by any arguments and evidence the
handler may wish to offer as to why the application for certification or
recertification should have been approved. The appeal shall be in
writing and received at the Specialty Crops Program office in
Washington, DC, within 90 days of the date of notification of denial or
cancellation.
[85 FR 55362, Oct. 8, 2020]
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 Alachua,
Baker, Bradford, Citrus, Clay, Columbia, Duval, Flagler, Gilchrist,
Hernando,
[[Page 64]]
Hillsborough, Lake, Levy, Marion, Nassau, Orange, Osceola, Pasco,
Pinellas, Polk, Putnam, Seminole, St. Johns, Sumter, Suwannee, and Union
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 two grower
members and alternates.
(b) Citrus District Two shall include the counties of Broward,
Charlotte, Collier, Dade, De Soto, Glades, Hardee, Hendry, Highlands,
Lee, Manatee, Monroe, Okeechobee, Sarasota, 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.
(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. This district
shall have four grower members and alternates.
[78 FR 13781, Mar. 1, 2013]
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 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.
(g) Up to four grower members may be growers who are also shippers,
or growers who are also employees of shippers.
[43 FR 9455, Mar. 8, 1979, as amended at 78 FR 13781, Mar. 1, 2013]
Non-Regulated Fruit
Sec. 905.140 Gift packages.
Any handler may, without regard to the provisions of Sec. Sec.
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
[[Page 65]]
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 Sec. Sec. 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 Sec. Sec. 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]
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 Sec. Sec. 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 the requirements of U. S. No. 2 Russet grade
and those requirements of 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 51.1140 through 51.1179),
the revised Standards for Florida Tangerines (7 CFR 51.1810 through
51.1837), or the revised U. S. Standards for Grades of Florida
Grapefruit (7 CFR 51.750 through 51.784). Such fruit also 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
[[Page 66]]
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, as amended at 66 FR 229, Jan. 3, 2001]
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 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
[[Page 67]]
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. 905.149 Procedure for permitting growers to ship tree run citrus
fruit.
(a) Tree run citrus fruit. Tree run citrus fruit as referenced in
this section is defined in the Florida Department of Citrus (FDOC)
regulation 20-35.006, which specifies that ``Tree run grade is that
grade of naturally occurring sound and wholesome citrus fruit which has
not been separated either as to grade or size after severance from the
tree.'' Wholesomeness is as defined in FDOC regulation 20-62.002. The
tree run citrus fruit shipped under this provision also must be from the
applying grower's own grove.
(b) Application. A grower shall apply to ship tree run fruit using a
Grower Tree Run Certificate Application, furnished by the committee.
Such application shall contain, but not be limited to: the name,
address, and phone number of the grower; legal description of the
grove(s) from which citrus will be shipped; variety of citrus produced
on the identified grove(s); approximate number of boxes produced on the
identified grove(s); and a certification to the U.S. Department 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.
(c) Approval. The committee or its duly authorized agents shall give
prompt consideration to each application for a Grower Tree Run
Certificate. Approval of an application will be based upon a
determination as to whether the information contained therein and on
whether other information available to the committee supports an
application's approval. Approval of an application shall be evidenced by
the issuance of a Grower Tree Run Certificate to the applicant. Each
certificate shall expire at the end of the fiscal period.
(d) Suspension or denial of a Grower Tree Run Certificate. The
committee may investigate the handling of tree run shipments under a
Grower Tree Run Certificate to determine whether growers are complying
with the requirements and regulations applicable to such certificates.
Whenever the committee finds that a grower is failing to comply with the
requirements and regulations applicable to such certificates, the Grower
Tree Run Certificate issued to such grower may be suspended or, in the
case of an application for the issuance of an initial Grower Tree Run
Certificate, 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 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 Grower
Tree Run Certificate, the committee shall give the grower reasonable
advance notice in writing of its intention and the facts and reasons
therefor, and afford the grower an opportunity, either orally or in
writing, to present opposing facts and reasons. The grower shall be
informed of the committee's determination in writing and in a timely
manner.
(e) To qualify for a Grower Tree Run Certificate, each such grower
must notify the committee prior to the first shipment of tree run
Florida citrus fruit of the grower's intent to ship such citrus, submit
an application on forms supplied by the committee, and agree to other
requirements as set forth in this section with respect to such
shipments.
(f) The handling of tree run citrus under a Grower Tree Run
Certificate shall be exempt from the provisions of Sec. Sec. 905.52 and
905.53 and the regulations issued thereunder, under the following
conditions:
(1) A grower may only ship up to 150 1\3/5\ bushel boxes per
variety, per shipment.
(2) A grower may only ship up to 3,000 boxes per variety per season.
(3) Each grower shall apply to the Citrus Administrative Committee
and
[[Page 68]]
receive a Grower Tree Run Certificate prior to shipping their own tree
run Florida citrus fruit.
(4) Each grower of citrus shipping under a Grower Tree Run
Certificate shall supply the committee with reports on each shipment as
requested by the committee, on forms supplied by the committee,
providing the following information: The name and address of the grower,
along with the grower's Grower Tree Run Certificate number; the legal
description of the grove; the variety and amount of citrus shipped; the
date the fruit was shipped; and the truck/trailer license number. A copy
of the form will be completed for each shipment. One copy of the report
will be forwarded by the grower to the committee office within 10 days
after such shipment, and one copy of the report will accompany each
shipment and be given to the Road Guard Station.
(5) Each container of tree run fruit shipped under a Grower Tree Run
Certificate shall be labeled with or contain the name and address of the
grower shipping under the Grower Tree Run Certificate.
[67 FR 62313, Oct. 7, 2002, as amended at 68 FR 52329, Sept. 3, 2003; 69
FR 50269, Aug. 16, 2004]
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. 905.153 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 three seasons. Each handler's average week shall
be computed by adding the total volume of red seedless grapefruit
handled in the immediately preceding three seasons and dividing the
total by 99. The average week for handlers with less than three 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. If crop conditions limit
shipments from any or all of the immediately preceding three season(s),
the committee may use a prior season or seasons for the purposes of
calculating an average week. 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
22-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
[[Page 69]]
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 the last week
of regulation. If the handler fails to use his or her entire allotment,
the undershipment is not carried forward to the following 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; 67 FR 809, Jan. 8, 2002; 69 FR 50278, Aug. 16,
2004; 70 FR 54242, Sept. 14, 2005]
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
Sec. Sec. 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
[[Page 70]]
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]
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
[[Page 71]]
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]
Sec. 905.171 Handler supplier report.
Each handler shall furnish a supplier report to the Committee on an
annual basis. Such reports shall be made on forms provided by the
Committee and shall include the name and business address of each grower
whose fruit was shipped or acquired by the handler during the season.
Handlers shall submit this report to the Committee not later than June
15 of each season.
[78 FR 32070, May 29, 2013]
Subpart C_Assessment Rate
Sec. 905.235 Assessment rate.
On and after August 1, 2018, an assessment rate of $0.015 per 4/5-
bushel carton or equivalent is established for Florida citrus covered
under the Order.
[84 FR 2049, Feb. 6, 2019]
Subpart D_Grade and Size Requirements
Sec. 905.306 Orange, Grapefruit, Tangerine and Tangelo Regulation.
(a) 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 Table I, except for Ambersweet and Temple, 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 (2) and (3) of Table I: Provided, That all grapefruit meet
the minimum maturity requirements specified in paragraph (e) of this
section.
Table I
----------------------------------------------------------------------------------------------------------------
Minimum
Variety Regulation period Minimum grade diameter
(inches)
(1) (2)....................... (3)....................... (4)
----------------------------------------------------------------------------------------------------------------
Oranges
----------------------------------------------------------------------------------------------------------------
Early and midseason..................... .......................... U.S. No. 1................ 2\4/16\
Navel............................... .......................... U.S. No. 1................ 2\4/16\
Valencia and other late type........ September 1-May 14........ U.S. No. 1................ 2\4/16\
May 15-June 14............ U.S. No. 1 Golden......... 2\4/16\
June 15-August 31......... U.S. No. 2, External/U.S. 2\4/16\
No. 1, Internal.
Grapefruit, Seedless.................... .......................... U.S. No. 1................ 3
Tangerines:
Fallglo............................. .......................... U.S. No. 1................ 2\6/16\
Honey............................... .......................... Florida No. 1............. 2\6/16\
Sunburst............................ .......................... U.S. No. 1................ 2\6/16\
Tangelos................................ .......................... U.S. No. 1................ 2\8/16\
----------------------------------------------------------------------------------------------------------------
(b) 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 Table II, except for Ambersweet
and Temple, 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 (2) and (3) of Table II:
Provided, That all grapefruit meet the minimum maturity requirements
specified in paragraph (e) of this section.
[[Page 72]]
Table II
------------------------------------------------------------------------
Minimum
Variety Minimum grade diameter
(inches)
(1) (2).................... (3)
------------------------------------------------------------------------
Oranges........................ U.S. No. 1............. 2\4/16\
Navels......................... U.S. No. 1 Golden...... 2\4/16\
Grapefruit, Seedless........... U.S. No. 1............. 3
Tangerines:
Fallglo.................... U.S. No. 1............. 2\6/16\
Honey...................... Florida No. 1.......... 2\6/16\
Sunburst................... U.S. No. 1............. 2\6/16\
Tangelos....................... U.S. No. 1............. 2\8/16\
------------------------------------------------------------------------
(c) Size tolerances. To allow for variations incident to proper
sizing in the determination of minimum diameters as prescribed in Tables
I and II, not more than 10 percent, by count, of the fruit in any lot of
containers may fail to meet the minimum diameter size requirements, and
not more than 15 percent, by count, in any individual sample may fail to
meet the minimum diameter size requirements specified: Provided, 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.
(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 revised U. S. Standards for Grades of Florida Oranges
and Tangelos (7 CFR 51.1140 through 51.1179), the revised U. S.
Standards for Florida Tangerines (7 CFR 51.1810 through 51.1837), or the
revised U. S. Standards for Grades of Florida Grapefruit (7 CFR 51.750
through 51.784).
(e)(1) All grapefruit shipped under the order shall meet minimum
maturity requirements of 8.0 percent soluble solids (sugars) and 7.5 to
1 solids to acid ratio or shall comply with one of the alternate
equivalent soluble solids and solids to acid ratio combinations set
forth in Table III: Provided, That the minimum ratio shall not drop
below 7.2 even if the soluble solids (sugars) reaches a level higher
than 9.6.
(2) Notwithstanding the provision of paragraph (e)(1) of this
section, for the period December 23, 2004 to July 31, 2005, all
grapefruit shipped under the order shall meet minimum maturity
requirements of 7.5 percent soluble solids (sugars) and 7.5 to 1 solids
to acid ratio or shall comply with one of the alternate equivalent
soluble solids and solids to acid ratio combinations set forth in Table
III: Provided, That the minimum ratio shall not drop below 7.2 even if
the soluble solids (sugars) reaches a level higher than 9.6.
Table III
------------------------------------------------------------------------
Minimum total solids (sugars), % Solids to acid minimum ratio
------------------------------------------------------------------------
8.0 to (not including) 9.1 7.50 to 1
9.1 to (not including) 9.2 7.45 to 1
9.2 to (not including) 9.3 7.40 to 1
9.3 to (not including) 9.4 7.35 to 1
9.4 to (not including) 9.5 7.30 to 1
9.5 to (not including) 9.6 7.25 to 1
9.6 and greater 7.20 to 1
------------------------------------------------------------------------
[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 at www.govinfo.gov.
Sec. 905.350 [Reserved]
Subpart E_Interpretations
Sec. 905.400 Interpretation of certain provisions.
(a) In interpreting the provisions of paragraph (d) of Sec. 905.52,
the limitation
[[Page 73]]
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 A_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.
Subpart B_Administrative Requirements
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 C_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 A_Order Regulating Handling
Source: 25 FR 9093, Sept. 22, 1960, unless otherwise noted.
Redesignated at 26 FR 12751, Dec. 30, 1961.
[[Page 74]]
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 (Sec. Sec. 51.680 through
51.714 and Sec. Sec. 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.
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.
[[Page 75]]
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,
as amended at 31 FR 10462, Aug. 4, 1966]