tablishment as provided in section 18(b) of the Poultry Products Inspection Act (21 U.S.C. 467(b)), pending final determination in the proceeding.

§ 381.233 Withholding use of marking, labeling or containers from use under section 8 of the Poultry Products Inspection Act.

(a) In any situation in which the Administrator determines that any marking or labeling or size or form of any container in use or proposed for use with respect to any article subject to the Poultry Products Inspection Act is false or misleading in any particular, he shall notify, in writing, the person, firm, or corporation using or proposing to use such marking, labeling, or container, that such use shall be withheld unless the marking, labeling, or container is modified in such a manner as the Administrator may prescribe so that it would not be false or misleading.

(b) The written notification shall briefly set forth the reason for withholding the use of the marking, labeling, or container, and shall offer the respondent an opportunity to submit a written statement by way of answer to the notification and a right to request a hearing with respect to the merits or validity of the withholding action. The written notification shall be served in the manner prescribed in § 1.147(b) of the Uniform Rules of Practice (7 CFR 1.147(B).

(c) Effective upon service of the notification, the use of the marking, labeling, or container shall be withheld, if the Administrator so directs.

(d) If any person, firm, or corporation so notified fails to accept the determination of the Administrator and files an answer and requests a hearing, and the Administrator, after review of the answer, determines the initial determination to be correct, he shall file with the Hearing Clerk the notification, answer and request for hearing,

which shall constitute the complaint and answer in the proceeding, which shall thereafter be governed by the Uniform Rules of Practice.

§ 381.234 Refusal or withdrawal of inspection service under the Poultry Products Inspection Act for failure to comply with requirements as to premises, facilities, equipment, or the operation thereof.

(a) In any situation in which the Administrator determines that the conditions of an establishment which is applying for inspection or receives inspection under the Poultry Products Inspection Act are such that there is a failure to comply with any requirements as to premises, facilities, equipment, or the operation thereof, as provided in section 7 of the Act (21 U.S.C. 456) and the regulations issued thereunder (9 CFR 381.1 et seq.), he shall refuse to render inspection at the establishment. The Administrator shall notify the applicant or operator of the establishment, orally or in writing, as promptly as circumstances permit, of such refusal and the reasons therefor, and the action which the Administrator deems necessary to eliminate such conditions. In the event of oral notification, written confirmation shall be given, as promptly as circumstances permit, to the applicant or operator of the establishment in the manner prescribed in § 1.147(b) of the Uniform Rules of Practice (7 CFR 1.147(b)).

(b) If any applicant or operator of an establishment so notified fails to take the necessary action to eliminate the conditions within the period specified in the notice, the Administrator may issue a complaint in accordance with the Uniform Rules of Practice. Effective upon service of the complaint, inspection service shall be refused or withdrawn from such establishment as provided in sections 7 and 18(b) of the Act (21 U.S.C. 456 and 467(b)) pending final determination in the proceeding.

RULES APPLICABLE TO THE SUSPENSION OF THE ASSIGNMENT OF INSPECTORS FOR THREATS TO FORCIBLY ASSAULT OR FORCIBLE ASSAULT, INTIMIDATION OR INTERFERENCE WITH ANY INSPECTION SERVICE EMPLOYEE

§ 381.235 Notification to operator of establishment of incident.

In any situation in which a supervisor of an inspection service employee determines that the operator of any official establishment or any subsidiary therein, or any officer, employee, or agent of any such operator or any subsidiary therein, acting within the scope of his office, employment, or agency, has threatened to forcibly assault or has forcibly assaulted, intimidated or interfered with any inspection service employee, under his supervision, in or on account of the performance of the employee's official duties under the Poultry Products Inspection Act, he shall notify the operator of the establishment, orally or in writing, of the incident in accordance with § 381.29 of the regulations in this subchapter (9 CFR 381.29).

§ 381.236 Procedure upon failure of operator of establishment to take action required by § 381.29 of the regulations. (a) If any operator of an establishment, notified pursuant to § 381.235 (9 CFR 381.235), fails to promptly take any of the actions specified in § 381.29 of the regulations (9 CFR 381.29), the Administrator may suspend the assignment of inspectors at that establishment, in whole or in part, as the Administrator determines necessary to avoid impairment of the effective conduct of inspection service, by notifying the operator of the establishment, orally or in writing, of such suspension. In the event of oral notification,

a written confirmation shall be given as promptly as circumstances permit to the operator of the establishment. The written notification or confirmation shall be served upon the operator of the establishment in the manner prescribed in § 1.147(b) of the Uniform Rules of Practice (7 CFR 1.147(b)).

(b) The written notification or confirmation, specified in paragraph (a) of this section, which shall constitute the complaint in the proceeding, shall briefly set forth the reason for the suspension of the assignment of inspectors, including allegations of fact which constitute a basis for the action. The complaint shall offer the respondent the opportunity to submit a specific written statement by way of answer and the right to request a hearing with respect to the merits or validity of the suspension action, and shall state the time within which answer by the respondent must be made, which shall not be less than 10 days after service of the complaint. At any time prior to the close of the hearing, the complaint may be amended; but, in case of an amendment adding new provisions, the hearing shall, on the request of the respondent, be adjourned for a period not exceeding 15 days, if the judge determines that such an adjournment is necessary to avoid prejudice to the respondent.

(c) A copy of the complaint served upon the respondent shall be filed with the Hearing Clerk who shall assign the matter a docket number.

(d) After the complaint is served upon the respondent, as provided in paragraphs (a) and (b) of this section, the proceeding shall thereafter be conducted in accordance with rules of practice which shall be adopted for the proceeding.

8390.1 Scope and purpose.

These regulations are issued pursuant to the Freedom of Information Act, as amended (5 U.S.C. 552), and in accordance with the directives of the Department of Agriculture regulations in Part 1, Subpart A, of this title. The availability of records of the Food Safety and Inspection Service (FSIS), and the procedures by which the public may request such information, shall be governed by this Act and by these Department regulations as implemented and supplemented by the regulations in this part.

$390.2 Published materials.

Rules and regulations of FSIS relating to its regulatory responsibilities are continuously published and made available to the public in the FEDERAL REGISTER, and codified in Chapter III, Title 9 of the Code of Federal Regulations. FSIS also issues numerous publications relating to agency programs which implement the laws listed in the Delegations of Authority, 7 CFR 2.15(a) of this title. Most of these publications are available free from the USDA Publications Division, Office of Governmental and Public Affairs, or at established rates from the Superintendent of Documents, U.S. Government Printing Office, Washington, D.C. 20402.

[45 FR 54309, July 15, 1980. Redesignated and amended at 46 FR 63203, Dec. 31, 1981]

§ 390.3 Index.

Pursuant to the regulations in 7 CFR 1.4(b), FSIS will maintain and make available for public inspection and copying an index providing information regarding the materials required to be published or made available under the Freedom of Information Act (5 U.S.C. 552(a)(2)). Quarterly publication of these indexes is unnecessary and impracticable, since the material is voluminous and does not change often enough to justify the expense of quarterly publication. The Agency shall provide copies of any index, upon request, at a cost not to exceed direct cost of duplication.

§ 390.4 Facilities for inspection and copying.

Facilities for public inspection and copying of the material described in §§ 390.2 and 390.3 of this part will be provided by FSIS pursuant to 7 CFR 1.4(a) in a reading area, on business days between the hours of 8:15 a.m. and 4:45 p.m., upon request to the Freedom on Information Coordinator or designee at the following address: Freedom of Information Act Coordinator (FOIA), Food Safety and Inspection Service, U.S. Department of Agriculture, Washington, DC 20250. Copies of such material may be obtained in person or by mail.

8 390.5 Requests for records.

(a) The FOIA Coordinator of FSIS or designee is authorized to receive requests and to exercise the authority under 7 CFR 1.4(c) to (1) make determinations to grant or deny such requests, (2) extend the 10-day deadline, (3) make discretionary releases of exempt records, except where disclosure is specifically prohibited by Executive Order, statute, or applicable regulations, and (4) make determinations regarding the charging of fees pursuant to the established schedule.

(b) Requests for FSIS records or information shall be made in writing in accordance with 7 CFR 1.3, and submitted to the FSIS Freedom of Infor

mation Act Coordinator at the following address:

Freedom of Information Act Coordinator

(FOIA Request), Food Safety and Inspection Service U.S. Department of Agriculture, Washington, DC 20250. The submitter shall identify each record with reasonable specificity as prescribed in 7 CFR 1.3. Initial requests for records customarily released by FSIS may be made orally, but in certain instances, the Coordinator in his/her discretion, may deem it necessary to require a written submission from the requester.

(c) In exercising his/her authority under 7 CFR 1.4(c) to grant and deny requests, the Coordinator or designee will comply with subsection (b) of the Freedom of Information Act (5 U.S.C. 552(b)), as amended, which requires that any reasonably segregable portion of a document shall be provided to a person requesting such document after deletion of any portions within the scope of the request for which an exemption is being claimed under the Act. Therefore, unless the disclosable and nondisclosable portions are so inextricably linked that it is not reasonably possible to separate them, the document will be released with the nondisclosable portions deleted. The Coordinator or designee may exercise discretion as limited by 7 CFR 1.11 to release the entire document, or to make only a minimum number of deletions.

8 390.6 Fee schedule.

Departmental regulations provide for a schedule of reasonable standard charges for document search and duplication. See 7 CFR 1.10. Fees to be charged are set forth in 7 CFR Part 1, Subpart A, Appendix A.

8 390.7 Appeals.

(a) If the request for information, or for a waiver of search and/or duplication fees is denied, in whole or in part, the Freedom of Information Act Coordinator or designee will set forth in the letter of response the grounds for

any denial of access and offer the requesting party an opportunity to file an administrative appeal from the denial, pursuant to 7 CFR 1.3(e). The appeals should be filed in writing within 45 days of the date of denial (departmental regulations, 7 CFR 1.5(a)(3)) and should be addressed as follows:

Administrator, Food Safety and Inspec

tion

Service, (FOIA Appeal), U.S.
Department of Agriculture,
Washington, DC 20250.

(b) The Administrator of FSIS is authorized under 7 CFR 1.4(d) to (1) extend the 20-day deadline, (2) make discretionary releases, and (3) make determinations regarding the charging of fees.

§ 390.8 Agency response to requests.

(a) The response to Freedom of Information requests and appeals by the officials named in §§ 390.5 and 390.7 of this part shall be governed by and made in accordance with 7 CFR 1.5 and the regulations in this part.

(b) Requests for records and information may be submitted to field stations. The field station shall immediately notify the FOIA Coordinator or designee by telephone. Unless the FOIA Coordinator or designee orally authorizes a release of the requested records, the field station receiving the request shall transmit the request directly to the FOIA Coordinator for a response. For purposes of compliance with the statutory time limit, the request will be considered as having been received on the date of its arrival in the office of the Coordinator or designee.

(c) Any person whose request for records has been granted may inspect and copy such records (or copies) at the office listed in § 390.4 of this part in accordance with the provisions of that section as well as § 390.6, relating respectively to time and fees. Copies may also be obtained by mail.