[Federal Register Volume 74, Number 170 (Thursday, September 3, 2009)]
[Proposed Rules]
[Pages 45565-45574]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-21295]


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Proposed Rules
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of 
the proposed issuance of rules and regulations. The purpose of these 
notices is to give interested persons an opportunity to participate in 
the rule making prior to the adoption of the final rules.

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Federal Register / Vol. 74, No. 170 / Thursday, September 3, 2009 / 
Proposed Rules

[[Page 45565]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 970

[Docket No. AO-FV-09-0138; AMS-FV-09-0029; FV09-970-1]


Leafy Green Vegetables Handled in the United States; Hearing on 
Proposed Marketing Agreement No. 970

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Proposed rule; notice of public hearing.

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SUMMARY: Notice is hereby given of a public hearing to consider a 
proposed marketing agreement under the Agricultural Marketing Agreement 
Act of 1937 to cover the handling of leafy green vegetables and 
products in the United States. The proposal was submitted by a cross-
section of producer and handler representatives from the fresh produce 
industry, collectively referred to as the ``proponent group.'' The 
proposed agreement would authorize the development and implementation 
of production and handling regulations (metrics). Such metrics would 
reflect Good Agricultural Practices, Good Handling Practices, and Good 
Manufacturing Practices. The proposal would be voluntary in that only 
handlers who sign the marketing agreement would be subject to the 
requirements of the marketing agreement. Signatory handlers could only 
handle leafy green vegetables or product from the production area or 
imported that meets the requirements of the program. The program would 
be financed by assessments on first handlers of leafy green vegetables 
for the fresh market and would be administered by a twenty-three member 
committee, the majority of whom would be growers and handlers nominated 
by the industry and appointed by the Department of Agriculture (USDA).

DATES: The hearing dates are:
    1. September 22 through 24, 2009, Monterey, California.
    2. September 30 through October 1, 2009, Jacksonville, Florida.
    3. October 6, 2009, Columbus, Ohio.
    4. October 8, 2009, Denver, Colorado.
    5. October 14 and 15, 2009, Yuma, Arizona.
    6. October 20, 2009, in Syracuse, New York.
    7. October 22, 2009, in Charlotte, North Carolina.
    All hearing sessions are scheduled to begin at 8:30 a.m. and will 
conclude at 5 p.m., or any other time as determined by the presiding 
administrative law judge.

ADDRESSES: The hearing locations are:
    1. Hyatt Regency Monterey, 1 Old Golf Course Road, Monterey, 
California, (831) 372-1234.
    USDA will produce an on-demand video recording of the September 22-
24, 2009, hearing sessions. The on-demand-video recordings will be 
available for viewing by interested parties beginning September 23, 
2009, at http://www.ams.usda.gov/moab.
    2. Wyndham Jacksonville Riverwalk, 1515 Prudential Drive, 
Jacksonville, Florida, (904) 396-5100.
    3. Greater Columbus Convention Center, Room D130, 400 North High 
Street, Columbus, Ohio, (614) 827-2500.
    4. Denver Airport Marriot at Gateway Park, 16455 East 40th Circle, 
Aurora, Colorado, (303) 371-4333.
    5. Yuma Civic Center, Yuma Room, 1440 Desert Hills Drive, Yuma, 
Arizona, (928) 373-5040.
    6. Renaissance Syracuse Hotel, 701 East Genesee Street, Syracuse, 
New York, (315) 479-7000.
    7. Charlotte Marriott Executive Park, 5700 Westpark Drive, 
Charlotte, North Carolina, (704) 527-9650.

FOR FURTHER INFORMATION CONTACT: Antoinette Carter, Marketing Order 
Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 
Independence Avenue, SW., Stop 0237, Washington, DC 20250-0237; 
Telephone: (202) 720-2491, Fax: (202) 720-8938, or E-mail: 
<a href="/cdn-cgi/l/email-protection#d697b8a2b9bfb8b3a2a2b3f895b7a4a2b3a496b7bba5f8a3a5b2b7f8b1b9a0"><span class="__cf_email__" data-cfemail="6e2f001a0107000b1a1a0b402d0f1c1a0b1c2e0f031d401b1d0a0f40090118">[email protected]</span></a>; or Melissa Schmaedick, Marketing Order 
Administration Branch, Fruit and Vegetable Programs, Northwest 
Marketing Field Office, AMS, USDA, 1220 SW Third Avenue, Room 385, 
Portland, OR 97204; Telephone: (503) 326-2724, Fax: (503) 326-7440, or 
E-mail: <a href="/cdn-cgi/l/email-protection#81cce4ede8f2f2e0afd2e2e9ece0e4e5e8e2eac1e0ecf2aff4f2e5e0afe6eef7"><span class="__cf_email__" data-cfemail="1b567e777268687a35487873767a7e7f7278705b7a7668356e687f7a357c746d">[email protected]</span></a>.
    Small businesses may request information on this proceeding by 
contacting Jay Guerber, Marketing Order Administration Branch, Fruit 
and Vegetable Programs, AMS, USDA, 1400 Independence Avenue, SW., Stop 
0237, Washington, DC 20250-0237; Telephone: (202) 720-2491, Fax: (202) 
720-8938, or E-mail: <a href="/cdn-cgi/l/email-protection#9cd6fde5b2dbe9f9eefef9eedcfdf1efb2e9eff8fdb2fbf3ea"><span class="__cf_email__" data-cfemail="8ac0ebf3a4cdffeff8e8eff8caebe7f9a4fff9eeeba4ede5fc">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: This administrative action is instituted 
pursuant to the Agricultural Marketing Agreement Act of 1937, as 
amended (7 U.S.C. 601-674), hereinafter referred to as the ``Act.'' The 
proposed marketing agreement is authorized under section 8(b) of the 
Act. This action is governed by the provisions of sections 556 and 557 
of title 5 of the United States Code and, therefore, is excluded from 
the requirements of Executive Order 12866.
    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) seeks to 
ensure that within the statutory authority of a program, the regulatory 
and informational requirements are tailored to the size and nature of 
small businesses. Interested persons are invited to present evidence at 
the hearing on the possible regulatory and informational impacts of the 
proposal on small businesses.
    The marketing agreement proposed herein has been reviewed under 
Executive Order 12988, Civil Justice Reform. It is not intended to have 
retroactive effect.
    The hearing is called pursuant to the provisions of the Act and the 
applicable rules of practice and procedure governing the formulation of 
marketing agreements and orders (7 CFR part 900).

Background

    In mid-September 2006, the FDA issued the first public alerts of a 
multi-state Escherichia coli (E. coli) outbreak linked to fresh spinach 
grown in California's Salinas Valley. The resulting recall was the 
largest ever for leafy green products. Investigations by the FDA and 
the California Department of Health Services, in cooperation with the 
Centers for Disease Control and Prevention and USDA's Animal and Plant 
Health Inspection Service, concluded that the E. coli contamination 
might have been attributed to environmental factors in the production 
area.

[[Page 45566]]

    In response to this outbreak, members of the California industry 
initiated the establishment of a State marketing agreement for handlers 
of leafy greens, which became effective February 10, 2007. Currently, 
signatory handlers under the California state program represent 99 
percent of leafy green vegetable production volume in that state. In 
October 2007, a similar program was implemented in Arizona, which 
covers approximately 75 percent of leafy green vegetables produced in 
the state. While both the California and Arizona programs are 
voluntary, the requirements of these state agreements are mandatory for 
all signatories.
    On October 4, 2007, USDA's Agricultural Marketing Service (AMS) 
published an Advance Notice of Proposed Rulemaking (ANPR) in the 
Federal Register (72 FR 56678) in response to industry interest in the 
establishment of a national marketing program to address the handling 
of fresh leafy green vegetables. Proposals and comments were sought 
from the public, particularly from growers, handlers, buyers, and 
sellers of leafy green commodities.
    The ANPR resulted in the submission and consideration of 3,500 
public comments on the need and level of support for a nationwide best 
practices program. These comments may be viewed at http://www.regulations.gov/search/Regs/home.html#searchResults?Ne=11+8+8053+8098+8074+8066+8084+1&Ntt=AMS-FV-07-0090&Ntk=All&Ntx=mode+matchall&N=0.

Proposed Marketing Agreement

    On June 10, 2009, a petition for rulemaking requesting a public 
hearing on a proposed national marketing agreement for lettuce, spinach 
and other leafy greens was submitted to AMS. The proposal was submitted 
by a group of representatives (proponents) of a cross-section of 
producer and handler members of the fresh produce industry. The 
proponent group is comprised of: United Fresh Produce Association, 
Produce Marketing Association, Georgia Fresh Vegetable Association, 
Georgia Farm Bureau, Texas Fresh Vegetable Association, Arizona Farm 
Bureau, Leafy Greens Council, California Farm Bureau, California Leafy 
Greens Products Handler Marketing Agreement, Grower-Shipper Association 
of Central California, Western Growers, and the Imperial Valley 
Vegetable Growers Association. The proponents, whose membership 
includes both conventional and organic producers and handlers, claim to 
represent a majority of the volume of leafy green vegetables produced 
for the U.S. fresh market.
    Proponents of the proposed program support the systematic 
application of good agricultural production, handling, and 
manufacturing under an auditable, science-based program. Proponents 
state that the proposed program is intended to minimize the potential 
for microbial contamination in production and handling systems, and 
would improve consumer confidence of fresh leafy green vegetables and 
their products in the marketplace.
    Presently, there are no mandatory national food quality or safety 
requirements for the growing and handling of leafy green vegetables. 
Processing facilities, however, are subject to current good 
manufacturing practices as provided for in FDA Title 21, Part 110 of 
the Code of Federal Regulations.
    USDA has quality grade standards for select leafy green vegetables 
(lettuce, endive, dandelion and cabbage), and offers voluntary quality 
related programs for fresh fruits and vegetables (Qualified Through 
Verification, Partners in Quality, Identity Preservation, and Domestic 
Origin Verification programs), as well as Good Agricultural and Good 
Handling Practices Audit Verification Programs.
    Two FDA documents provide guidelines for the fresh produce industry 
and leafy green supply chain: Guide to Minimize Microbial Food Safety 
Hazards for Fresh Fruits and Vegetables, and Commodity Specific Food 
Safety Guidelines for Lettuce and Leafy Greens Supply Chain. Recently, 
a third FDA document was published as draft guidelines for leafy 
greens. All these documents may be viewed at http://www.fda.gov.
    If the proposed national marketing agreement were implemented, the 
administrative committee, after consultation with the proposed 
Technical Review Board, would recommend audit metrics for USDA 
approval. These metrics would be science-based, scalable and regionally 
applicable in order to accommodate compliance of varying size and types 
of operations.
    As a voluntary program, only signatory handlers to the proposed 
agreement would be regulated. Under the proposed agreement, signatory 
handlers could only handle leafy green vegetables from (1) producers 
within the production area who meet the requirements of the program, or 
(2) producers and handlers outside the production area who meet the 
requirements of the program. The production area is defined as the 50 
states and the District of Columbia. Audits would be conducted by the 
USDA Inspection Service, and would include both domestic and imported 
product handled by signatory handlers.
    The proposed program would be financed by assessments collected 
from first handlers on the volume of leafy green vegetables handled for 
the fresh market. Such assessments would include costs of domestic 
audit verification for first handlers and their producers. First 
handlers would also be responsible for fees for audit verification 
services provided for their imported leafy green vegetables or 
products. Secondary signatory handlers would be responsible for fees 
for audit verification services for leafy green vegetables or products 
handled by such handler.
    The proponent group states that the proposed agreement has been 
discussed with leafy green vegetable growers, handlers, including those 
importing leafy greens, trade associations, and other industry 
stakeholders for more than a year. The proposal discussed herein has 
not received approval by the Secretary of Agriculture.
    Testimony is invited at the hearing on the proposed marketing 
agreement and all of its provisions, as well as any appropriate 
modifications or alternatives.
    The public hearing is held for the purpose of:
    (a) Receiving evidence about the economic and marketing conditions 
that relate to the proposed agreement and to appropriate modifications 
thereof;
    (b) Determining whether the handling of leafy green products within 
the production area is in the current of interstate commerce or 
directly burdens, obstructs, or affects interstate commerce and foreign 
commerce;
    (c) Determining whether there is a need for a marketing agreement 
for leafy green vegetables;
    (d) Determining the economic impact of the proposed agreement on 
the affected leafy green growers, handlers, other industry members and 
consumers; and,
    (e) Determining whether the proposed agreement or any appropriate 
modification thereof would effectuate the declared policy of the Act.
    All persons wishing to submit written material as evidence at the 
hearing should be prepared to submit four copies of such material at 
the hearing and should have prepared testimony available for 
presentation at the hearing. Where possible, all submitted written 
material should also be accompanied by an electronic copy in digital 
format. To the extent possible, all exhibits, including copies of 
prepared testimony, accepted into evidence during the hearing process 
will be available for

[[Page 45567]]

viewing by interested parties at http://www.ams.usda.gov/moab.
    From the time the notice of hearing is issued and until the 
issuance of a Secretary's decision in this proceeding, USDA employees 
involved in the decisional process are prohibited from discussing the 
merits of the hearing issues on an ex-parte basis with any person 
having an interest in the proceeding. The prohibition applies to 
employees in the following organizational units: Office of the 
Secretary of Agriculture; Office of the Administrator, AMS; Office of 
the General Counsel; and the Fruit and Vegetable Programs, AMS.
    Procedural matters are not subject to the above prohibition and may 
be discussed at any time.
    Provisions of the proposed marketing agreement follow.

List of Subjects in Proposed 7 CFR Part 970

    Marketing agreements, Reporting and recordkeeping requirements, 
Vegetables.

    The marketing agreement proposed by the proponent group would add a 
new part 970 to read as follows:

PART 970--NATIONAL MARKETING AGREEMENT REGULATING LEAFY GREEN 
VEGETABLES

Subpart--Agreement Regulating Signatory Handlers

Definitions

Sec.
970.1 Act.
970.2 Audit verification.
970.3 Broker.
970.4 Critical limit.
970.5 Crop year.
970.6 Foodservice distributor.
970.7 Fresh-cut.
970.8 Fresh-cut, packaged leafy green product.
970.9 Good agricultural and handling practices.
970.10 Good manufacturing practices.
970.11 Handle.
970.12 Handler.
970.13 Importer.
970.14 Inspection Service.
970.15 Leafy green vegetables.
970.16 Manufacture.
970.17 Manufacturer.
970.18 Packaged.
970.19 Person.
970.20 Producer.
970.21 Process.
970.22 Process control.
970.23 Production area.
970.24 Retailer.
970.25 Secretary.
970.26 Signatory.
970.27 USDA.
970.28 Zone.

Purpose

970.35 Purpose

Leafy Green Vegetable Administrative Committee

970.40 Establishment and membership.
970.41 Eligibility.
970.42 Term of office.
970.43 Nominations.
970.44 Alternate members.
970.45 Technical Review Board.
970.46 Market Review Board.
970.47 Compensation and expenses.
970.48 Procedure.
970.49 Powers.
970.50 Duties.

Expenses and Assessments

970.55 Expenses.
970.56 Assessments.
970.57 Accounting.
970.58 Contributions.

Duties and Responsibilities of Signatories

970.65 Signatory parties.
970.66 Verification audits.
970.67 Audit metrics.
970.68 Traceability.
970.69 Official certification mark.
970.70 Administrative review.
970.71 Modification or suspension of regulations.
970.72 Exemptions.

Research and Promotion

970.75 Research and promotion.

Reports and Records

970.80 Reports and recordkeeping.
970.81 Confidential information.
970.82 Verification of reports.
970.83 Compliance.

Miscellaneous

970.85 Effective time.
970.86 Rights of the Secretary.
970.87 Personal liability.
970.88 Separability.
970.89 Derogation.
970.90 Duration of immunities.
970.91 Agents.
970.92 Suspension or termination.
970.93 Proceedings upon termination.
970.94 Effect of termination or amendment.
970.95 Amendments.
970.96 Counterparts.
970.97 Additional parties.
970.98 Withdrawal.

    Authority:  U.S.C. 601-674.

Definitions


Sec.  970.1  Act.

    Act means Public Act No. 10, 73d Congress (May 12, 1933), as 
amended and as re-enacted and amended by the Agricultural Marketing 
Agreement Act of 1937, as amended (48 Stat. 31, as amended; 7 U.S.C. 
601 et seq.).


Sec.  970.2  Audit verification.

    Audit verification means the physical visit to the farm and/or 
facility when it is in operation by an Inspection Service audit team to 
verify and document that good agricultural, handling, and manufacturing 
practices are adhered to throughout the growing, harvesting, packing 
operation and transportation as defined in Sec.  970.9, and Sec.  
970.10. This verification shall take the form of an official audit 
conducted by the Inspection Service, Sec.  970.14. An audit 
verification is a snapshot in time based on documentation reviewed, 
persons interviewed and operations observed, and is intended to 
represent the past and ongoing activities of the auditee.


Sec.  970.3  Broker.

    Broker means an individual or entity that coordinates the sale and 
transport of fresh leafy green vegetable retail or foodservice buyers 
without taking ownership of the product.


Sec.  970.4  Critical limit.

    Critical limit means a maximum and/or minimum value established as 
part of a process control to which a biological, chemical, or a 
physical parameter must be controlled to prevent or minimize the 
occurrence of a food safety hazard to an acceptable level.


Sec.  970.5  Crop year.

    Crop year is synonymous with fiscal year and means the 12-month 
period beginning with April 1 of any year and ending with March 31 of 
the following year.


Sec.  970.6  Foodservice distributor.

    Foodservice distributor means an individual or entity that provides 
leafy green vegetables to restaurants, cafeterias, industrial caterers, 
hospitals and nursing homes.


Sec.  970.7  Fresh-cut.

    Fresh-cut means fresh vegetables that have been altered from their 
natural form by cutting, dicing, peeling, slicing, chopping, shredding, 
coring, or trimming, with or without washing prior to being packaged 
for use by the consumer, foodservice industry, or a retail 
establishment. Fresh-cut products do not require additional 
preparation, processing, or cooking before human consumption.


Sec.  970.8  Fresh-cut, packaged leafy green product.

    Fresh-cut, packaged leafy green product means any leafy green 
vegetable defined under Sec.  970.15 that is fresh-cut and packaged for 
human consumption. This definition excludes from regulation all whole 
or cut non-leafy green vegetables or non-produce ingredients commingled 
with fresh-cut leafy green vegetables in packaged products (e.g. salad 
kits which may contain carrots, meat, cheese, and/or dressings).

[[Page 45568]]

Sec.  970.9  Good agricultural and handling practices.

    Good agricultural practices (GAP) and good handling practices (GHP) 
refer to general practices to reduce microbial food safety hazards as 
outlined in the current U.S. Food and Drug Administration (FDA) ``Guide 
to Minimize Microbial Food Safety Hazards for Fresh Fruits and 
Vegetables'' guidance document and the current Association of Food and 
Drug Officials (AFDO) model codes for food safety at the farm and 
packinghouse, or any other revised or modified versions thereof, or any 
other FDA document approved as a replacement thereof and as approved by 
the Secretary.


Sec.  970.10  Good manufacturing practices.

    Good manufacturing practices (GMP) means any FDA regulations (21 
CFR part 110) that describe the methods, equipment, facilities, and 
controls required for producing processed food, including fresh-leafy 
green vegetable products or any other FDA regulation approved as a 
replacement or supplement thereof as approved by the Secretary.


Sec.  970.11  Handle.

    Handle means to receive, acquire, sell, process, ship, distribute, 
or import leafy green vegetables, including both raw agricultural 
commodities and fresh cut, packaged products: Provided, that handle 
does not include brokering, retail or foodservice sales of leafy green 
vegetables.


Sec.  970.12  Handler.

    Handler means any person who handles: Provided, that, this 
definition does not include a retailer, a foodservice distributor, or a 
broker, except to the extent that such a person is otherwise engaged in 
handling.


Sec.  970.13  Importer.

    Importer means a handler who imports leafy green vegetables that 
are produced or handled outside of the production area.


Sec.  970.14  Inspection Service.

    Inspection Service means the Fruit and Vegetable Programs, 
Agricultural Marketing Service, USDA, its designees, or any other 
entity approved by USDA to inspect/audit on its behalf.


Sec.  970.15  Leafy green vegetables.

    Leafy greens means the fresh mature and immature leafy portions of 
any of the following: Arugula, cabbage (red, green and savoy), chard, 
cilantro, endive, escarole, kale, lettuce (iceberg, leaf, butter, head 
and romaine), parsley, raddichio, spinach, spring mix (baby leaf items 
including, but not limited to, cress, dandelion, endigia, mache, 
mizuna, tat soi, winter purslane) or any other leafy green vegetable 
recommended by the Committee and approved by the Secretary. The 
Committee may also recommend, subject to the approval of the Secretary, 
the removal of any leafy green vegetable from this definition.


Sec.  970.16  Manufacture.

    Manufacture is synonymous with process and means to change fresh 
leafy green vegetables from their natural form into fresh-cut, packaged 
products: Provided, that manufacture does not apply to leafy green 
vegetables packed in the field or to a retailer or foodservice 
distributor except to the extent that such a person is otherwise 
engaged in manufacturing for non-retail purposes.


Sec.  970.17  Manufacturer.

    Manufacturer means any person who manufactures: Provided, that, 
this definition does not include a retailer, a foodservice distributor, 
or a broker, except to the extent that such a person is otherwise 
engaged in handling.


Sec.  970.18  Packaged.

    Packaged means a commodity or a unit of a product uniformly wrapped 
or sealed.


Sec.  970.19  Person.

    Person means an individual, partnership, corporation, association, 
or any other business unit or legal entity.


Sec.  970.20  Producer.

    Producer is synonymous with grower and means any person engaged in 
a proprietary capacity in the production of leafy green vegetables for 
sale or delivery to a signatory of this agreement.


Sec.  970.21  Process.

    Process is synonymous with manufacture and means to change fresh 
leafy green vegetables from their natural form into fresh-cut, packaged 
products: Provided, that process does not apply to retailer or 
foodservice distributor except to the extent that such a person is 
otherwise engaged in processing for non-retail purposes.


Sec.  970.22  Process control.

    Process control means an auditable step within a production, 
harvest, handling, manufacturing, or transportation process at which 
control can be applied and is essential to prevent or minimize a food 
safety hazard to an acceptable level.


Sec.  970.23  Production area.

    Production area means all fifty states and the District of Columbia 
of the United States of America.


Sec.  970.24  Retailer.

    Retailer means an individual or entity that sells leafy green 
vegetables direct to the consumer: Provided, that retailer does not 
include direct sales from a producer to a consumer.


Sec.  970.25  Secretary.

    Secretary means the Secretary of Agriculture of the United States 
or any officer or employee of the United States Department of 
Agriculture who is, or who may hereafter be, authorized to act in his 
or her stead.


Sec.  970.26  Signatory.

    Signatory means a handler who is party to this agreement.


Sec.  970.27  USDA.

    USDA means the United States Department of Agriculture, including 
any officer, employee, service, program or branch of the Department of 
Agriculture, or any other person acting as the Secretary's agent or 
representative in connection with any provisions of this part.


Sec.  970.28  Zone.

    Zone means the applicable one of the following described 
subdivisions of the production area or such other subdivision as 
recommended by the Committee and approved by the Secretary:
    (a) Zone 1 shall include the states of California, Washington, 
Oregon, Hawaii, and Alaska.
    (b) Zone 2 shall include the states of Arizona, Montana, North 
Dakota, Wyoming, South Dakota, Idaho, Nevada, and Utah.
    (c) Zone 3 shall include the states of New Mexico, Colorado, 
Nebraska, Minnesota, Iowa, Kansas, Oklahoma, Texas, Missouri, Arkansas, 
and Louisiana.
    (d) Zone 4 shall include the states of Wisconsin, Michigan, Ohio, 
Illinois, Indiana, Kentucky, Tennessee, Mississippi, Alabama, and 
Georgia.
    (e) Zone 5 shall include the states of Maine, New Hampshire, 
Vermont, New York, Connecticut, Massachusetts, Pennsylvania, New 
Jersey, West Virginia, Virginia, Maryland, Delaware, Rhode Island, 
North Carolina, South Carolina, Florida, and the District of Columbia.

Purpose


Sec.  970.35  Purpose

    The purposes of this marketing agreement are: to provide a 
mechanism

[[Page 45569]]

to enable leafy green handlers to organize; to enhance the quality of 
fresh leafy green vegetable products available in the marketplace 
through the application of good agricultural production and handling 
practices; to implement a uniform, auditable, science-based food 
quality verification program; to provide for USDA validation and 
verification of program compliance; to foster greater collaboration 
with local, state and federal regulators; and, to improve consumer 
confidence in leafy green vegetables.

Leafy Green Vegetable Administrative Committee


Sec.  970.40  Establishment and membership.

    A National Leafy Green Vegetable Administrative Committee 
(hereinafter referred to as Committee) is hereby established to 
administer the terms and provisions of this agreement.
    (a) Such Committee shall consist of twenty-three members, each of 
whom shall have an alternate who shall have the same qualifications as 
the member for whom he or she is an alternate. Committee membership 
shall be allocated as follows:
    (1) Four handlers and two producers from Zone 1;
    (2) Three handlers and one producer from Zone 2;
    (3) Two handlers and one producer from Zone 3;
    (4) Two handlers and one producer from Zone 4;
    (5) Two handlers and one producer from Zone 5;
    (6) One retail representative from the production area;
    (7) One foodservice representative from the production area;
    (8) One public member from the production area; and,
    (9) One importer from the production area.
    (b) A majority of the producer members of the Committee shall not 
otherwise be engaged in the handling of leafy green vegetables or the 
manufacturing of fresh-cut, packaged leafy green products, and two 
producers must be small producers as defined in the rules and 
regulations. Furthermore, at least four handler members must be engaged 
in the manufacturing of fresh-cut leafy green products.
    ([scy]) The Secretary, upon recommendation of the Committee, may 
reapportion members among zones, may change the number of members and 
alternates, and may change the composition by changing the ratio of 
members, including their alternates. In recommending any such changes, 
the following shall be considered:
    (1) Shifts in production within zones during recent years;
    (2) The importance of new production in its relation to existing 
zones;
    (3) The equitable relationship between membership and zones;
    (4) Economies to result in promoting efficient administration due 
to rezoning or reapportionment of membership among the zones; and,
    (5) Other relevant factors.


Sec.  970.41  Eligibility.

    (a) Each producer or handler member of the Committee and their 
alternate member shall be, at the time of his or her selection and 
throughout his or her term of office, a producer or a handler, or an 
officer or employee of a producer or handler in the zone for which 
selected.
    (b) All handler members and their alternates must be signatories.
    (c) The retail, foodservice, and public members and their alternate 
members may not be engaged in the production or handling of leafy green 
vegetables. The retail and foodservice members and alternates shall be, 
at the time of their selection and throughout their term of office, an 
owner, officer or employee for the seat selected.


Sec.  970.42  Term of office.

    Members and alternate members of the Committee shall serve for 
terms of two (2) years beginning on April 1 and ending on March 31. 
Each member and alternate member shall continue to serve until a 
successor is selected and has qualified. Members shall not serve more 
than three (3) consecutive two-year terms of office or for a total of 
six (6) consecutive years.


Sec.  970.43  Nominations.

    Nomination of Committee members and alternates shall follow the 
procedure set forth in this section or as may be changed as recommended 
by the Committee and approved by the Secretary.
    (a) Initial members. Nominations for each of the initial producer 
and handler members and alternate members of the Committee shall be 
conducted by the Secretary by means of meetings of producer and handler 
representatives, by mail, or by any other form of electronically 
verifiable communication. Once selected and appointed by the Secretary, 
the producer and handler members shall nominate the retail, 
foodservice, importer and public members and alternate members, subject 
to final selection and appointment by the Secretary.
    (b) Successor members. Subsequent to the nomination and selection 
of the initial committee members and alternate members, nomination and 
selection of committee members and alternate members shall be pursuant 
to procedures recommended by the Committee and approved by the 
Secretary: Provided, that such procedures include the following:
    (1) Only persons eligible to serve on the Committee shall be 
eligible to nominate and vote for committee members and alternate 
members;
    (2) Committee producer and handler members and alternate members 
shall be nominated by zone;
    (3) Each producer or handler shall have but one vote, and may vote 
in only one zone in which he or she is a producer or handler;
    (4) All producer and handler member and alternate member 
nominations shall be certified by the Committee to the Secretary prior 
to the beginning of each two-year term of office, together with all 
necessary data and other information deemed by the Committee to be 
pertinent or requested by the Secretary. From these nominations, the 
Secretary shall select the producer and handler members and alternate 
members of the Committee; and
    (5) The producer and handler members of the Committee shall 
nominate the retail, foodservice, importer and public members and 
alternate members.
    (6) The Committee shall prescribe such additional qualifications, 
administrative rules and procedures for selection and voting for each 
candidate as it deems necessary and as the Secretary approves.
    (c) Acceptance. Each person to be selected by the Secretary as a 
member or as an alternate member of the Committee shall, prior to such 
selection, qualify by advising the Secretary that if selected, such 
person agrees to serve in the position for which that nomination has 
been made.
    (d) Failure to nominate. If nominations are not made within the 
time and manner specified in this part, the Secretary may, without 
regard to nominations, select the Committee members and alternate 
members on the basis of the representation provided for in Sec.  
970.40.
    (e) Vacancies. To fill a vacancy on the Committee occasioned by the 
failure of any person selected as member or alternate member to 
qualify, or in the event of the death, removal, resignation, or 
disqualification of any member or alternate member, a successor for the 
unexpired term of such member or alternate member shall be nominated 
and selected in the manner specified in paragraphs (b) and (c) of this 
section. If

[[Page 45570]]

the names of nominees to fill any such vacancy are not made available 
to the Secretary within a reasonable time after such vacancy occurs, 
the Secretary may fill such vacancy without regard to nominations on 
the basis of representation provided for in Sec.  970.40.


Sec.  970.44  Alternate members.

    An alternate for a member shall act in the place and stead of such 
member during the member's absence, or in the event of the member's 
removal, resignation, disqualification or death, until a successor for 
such member's unexpired term has been selected and has qualified. In 
the event both a member and his/her alternate are unable to attend a 
meeting, the member or the Committee members of that group and zone 
present may designate any other alternate to serve in such member's 
place and stead.


Sec.  970.45  Technical Review Board.

    A Technical Review Board is hereby established for the purpose of 
assisting the Committee in developing audit metrics in Sec.  970.67 and 
any other function that the Committee may recommend and the Secretary 
approve. The Technical Review Board shall consist of 13 members as 
follows: 1 representative from each zone who is elected by the 
Committee producer and handler members from the corresponding zone; 1 
produce food safety expert from a land grant university within each 
zone elected by the producer and handler members from the corresponding 
zone; 1 representative from USDA Natural Resources Conservation Service 
(NRCS) appointed by the Secretary; 1 representative of the US 
Environmental Protection Agency (EPA) designated by the Administrator, 
and 2 representatives from FDA designated by the Commissioner. The 
Technical Review Board may appoint subcommittees as necessary to 
facilitate input and review from regions throughout the production 
area. Subcommittees may consist of producers, handlers, and other 
interested parties as deemed appropriate by the Technical Review Board.


Sec.  970.46  Market Review Board.

    A Market Review Board is hereby established for the purpose of 
providing advice to the Committee on retail, food service, and consumer 
issues that should be addressed to maximize consumer confidence through 
market acceptance and recognition of the program. The Market Review 
Board shall be appointed by the Committee and shall consist of 9 non-
voting members as follows: 2 representatives of retail grocers; 2 
representatives from food service companies; 3 consumers, and 2 
representatives from land grant universities with expertise in fresh 
vegetable marketing, economics, or consumer acceptance. The Committee 
may additionally appoint representatives from consumer, retail, or 
foodservice organizations.


Sec.  970.47  Compensation and expenses.

    All committee members, alternate members, and subcommittee members 
shall serve without compensation, but shall be reimbursed for necessary 
and reasonable expenses incurred in the performance of their duties 
under this part.


Sec.  970.48  Procedure.

    (a) A majority of all the members of the Committee shall constitute 
a quorum: Provided, that each zone shall be represented by at least one 
member or his or her alternate at any meeting of the full Committee. 
Committee action shall require the concurrence of a majority of the 
members except that acceptance of Good Agricultural, Handling and 
Manufacturing Practices; assessment rates and termination of the 
agreement must be approved by a \2/3\ majority of the Committee.
    (b) In the event that a member of the Committee and alternate are 
unable to attend the meeting, the member or the Committee may designate 
any other alternate from the same zone or group (handler, producer) who 
is present at the meeting to serve in the member's place.
    (c) The Committee shall give to the Secretary the same notice of 
each meeting that is given to the members of the Committee.
    (d) The Committee may vote by telephone or other means of 
communication and any votes so cast shall be confirmed promptly in 
writing: Provided, that if an assembled meeting is held, all votes 
shall be cast in person. A videoconference shall be considered an 
assembled meeting and all votes shall be considered as cast in person.


Sec.  970.49  Powers.

    The Committee shall have the following powers:
    (a) To administer the agreement in accordance with its terms and 
provisions;
    (b) To make such rules and regulations, with the approval of the 
Secretary, as may be necessary to effectuate the terms and provisions 
of the agreement;
    (c) To adopt, with the approval of the Secretary after notice and 
comment, audit metrics to administer the terms and provisions in 
Sec. Sec.  970.9, 970.10, 970.66, and 970.67;
    (d) To collaborate with existing state boards, commissions and 
agreements through memorandum of understanding to affect the purposes 
of the agreement;
    (e) To receive, investigate, and report to the Secretary complaints 
of violation of the provisions of the agreement; and,
    (f) To recommend to the Secretary amendments to the agreement.


Sec.  970.50  Duties.

    The Committee shall have, among others, the following duties:
    (a) To act as intermediary between the Secretary and any signatory 
with respect to the operations of the agreement;
    (b) To select from among its members a chairperson and such other 
officers as may be necessary, and to define the duties of such 
officers;
    (c) To establish subcommittees and advisory boards to aid the 
Committee in the performance of its duties under the agreement;
    (d) To adopt such bylaws for the conduct of its business as it may 
deem advisable;
    (e) To keep minutes, books, and records which clearly reflect all 
the acts and transactions of the Committee and subcommittees, and these 
shall be subject to examination by the Secretary at any time;
    (f) To appoint such employees or agents as it may deem necessary, 
and to determine the compensation and define the duties of each;
    (g) To cause its financial statements to be audited by a certified 
public accountant at least once each crop year and at such other times 
as the Committee may deem necessary or as the Secretary may request. 
Such audit shall include an examination of the receipt of assessments 
and the disbursement of all funds. The Committee shall provide the 
Secretary with a copy of all audits and shall make copies of such 
audits, after the removal of any confidential information that may be 
contained in them, available for examination at the offices of the 
Committee;
    (h) To investigate the production, handling and marketing of leafy 
green vegetables and to assemble data in connection therewith; and,
    (i) To furnish such available information as may be deemed 
pertinent or as requested by the Secretary.

Expenses and Assessments


Sec.  970.55  Expenses.

    The Committee is authorized to incur such expenses as the Secretary 
finds are reasonable and likely to be incurred by it during each crop 
year for the

[[Page 45571]]

maintenance and functioning of the Committee, including the payment of 
audit and inspection fees, and for such other purposes as the Secretary 
may, pursuant to the provisions of this part, determine to be 
appropriate. Such expenses shall be paid from assessments received 
pursuant to Sec.  970.56 and other funds available to the Committee.


Sec.  970.56  Assessments.

    (a) Each first handler shall pay to the Committee such handler's 
pro rata share of the Committee's expenses authorized by the Secretary 
for each crop year. The payment of assessments for the maintenance and 
functioning of the Committee, as described in Sec.  970.55, Expenses, 
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) Based upon recommendation of the Committee, or other available 
data, the Secretary shall fix a base rate of assessment for all leafy 
green vegetables or products that first handlers shall pay during each 
crop year. The Committee may also recommend and the Secretary may 
approve supplemental assessments, but no combination of assessment and 
supplemental assessments may exceed the cap established in Sec.  
970.56(d).
    (c) Any signatories who are not first handlers shall pay inspection 
service fees based on time and travel as approved by the Committee.
    (d) Based on the recommendation of the Committee or other available 
data, the Secretary may change or modify the base rate classification 
defined in this section. The assessment shall be set at the lowest rate 
practical to carry out the objectives of the agreement. At no time 
shall the assessment rate exceed $0.05 per 24 pound carton or 
equivalent.
    (e) Any assessment not paid by a handler within a period of time 
prescribed by the Committee may be subject to an interest or late 
payment charge, or both. The period of time, rate of interest and late 
payment charge shall be as recommended by the Committee and approved by 
the Secretary. Subsequent to such approval, all assessments not paid 
within the prescribed period of time shall be subject to an interest or 
late payment charge or both.
    (f) In order to provide funds for the administration of this part, 
the Committee may accept but not require, advance payments of 
assessments, which shall be credited toward assessments levied against 
such handler during the crop year. The Committee may also borrow money 
for such purposes when assessment and reserve funds are not sufficient 
to cover them.


Sec.  970.57  Accounting.

    (a) If, at the end of a crop year, the assessments collected are in 
excess of expenses incurred, the Committee, with the approval of the 
Secretary, may carry over such excess into subsequent crop years as an 
operating monetary reserve, except that funds already in such reserve 
shall not exceed approximately two (2) fiscal periods' budgeted 
expenses, or such lower limits as the Committee, with the approval of 
the Secretary, may establish. Funds in such reserve shall be available 
for use by the Committee for expenses authorized pursuant to Sec.  
970.55 and 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 crop 
year, or be paid such refund.
    (b) Upon termination of this part, any refunds not required to 
defray the necessary expenses of liquidation shall be used, to the 
extent practicable, to fulfill any obligations under Sec.  970.75, 
Research and promotion.


Sec.  970.58  Contributions.

    The committee may accept voluntary contributions but these shall 
only be used to pay expenses incurred pursuant to Sec.  970.75, 
Research and promotion. Furthermore, such contributions shall be free 
from any encumbrances by the donor and the committee shall retain 
complete control of their use.

Duties and Responsibilities of Signatories


Sec.  970.65  Signatory parties.

    No signatory to this agreement shall handle leafy green vegetables 
for human consumption unless such are verified as meeting the 
provisions of this part. This verification shall take the form of an 
official audit conducted by the inspection service.


Sec.  970.66  Verification audits.

    (a) GAP audits.
    (1) Signatory handlers shall ensure that any leafy green vegetables 
handled by their operation have been subject to GAP validation and 
verification audits. Such audits shall verify that such product was 
produced under auditable conditions that meet production and harvest 
requirements as outlined in the GAPs (Sec.  970.9) and as further 
defined in any applicable audit metrics provided for under Sec.  
970.67.
    (2) No signatory handlers subject to the provisions of this 
agreement shall receive leafy green vegetables produced in foreign 
countries that have not been subject to GAP validation and verification 
audits by USDA licensed inspectors. Such audits shall verify that such 
product was produced under auditable conditions that meet production 
and harvest requirements as outlined in the GAPs (Sec.  970.9) and as 
further defined in any applicable audit metrics provided for under 
Sec.  970.67.
    (b) GHP or GMP audits.
    (1) All signatory handlers shall be subject to audit verifications. 
Such audits shall verify that such signatories operate under auditable 
conditions that meet requirements outlined in the GHPs or GMPs, (Sec.  
970.9 and Sec.  970.10) and as further defined in any applicable audit 
metrics provided for under Sec.  970.67.
    (2) No signatory handlers subject to the provisions of this 
agreement shall receive leafy green vegetables from handlers in foreign 
countries that have not been subject to GHP, GMP validation and 
verification audits by Inspection Service or the FDA. Such audits shall 
verify that such product was produced under auditable conditions that 
meet production and harvest requirements as outlined in the GAPs (Sec.  
970.9) and as further defined in any applicable audit metrics provided 
for under Sec.  970.67.
    (c) All audits shall be conducted by the Inspection Service, and 
certified as to meeting the regulations of this part.
    (d) Audits shall be conducted on a regular schedule that ensures 
every handler is audited during their corresponding production season. 
In addition, random unannounced audits of handlers and associated 
producers will also be performed during the production season in each 
zone.


Sec.  970.67  Audit metrics.

    Audit metrics shall be recommended by the Committee to USDA for 
approval after consultation with the Technical Review Board.
    (a) GAP audit metrics. GAP audit metrics shall include verification 
related but not limited to: Water quality, soil amendments, machine 
harvest, hand harvest (including direct contact with soil during 
harvest), transfer of human pathogens by field workers, field 
sanitation, equipment-facilitated cross contamination, flooding, water 
usage to prevent dehydration, and production location concerns, 
including climatic conditions and environment, and encroachment by 
animals of significant risk and urban settings, or any other factors 
defined under Sec.  970.9, or as

[[Page 45572]]

recommended by the Committee and approved by the Secretary.
    (b) GHP or GMP audit metrics. Such audit metrics shall include 
verification of process controls related but not limited to:
    (1) Post-harvest handling process: Cooling, water, reuse of field 
containers, bulk-bin modified atmosphere process, condition and 
sanitation of transportation vehicles, and employee hygiene.
    (2) Handling and manufacturing process: Wash water, wash system 
capacity, bulk-bin modified atmosphere process, condition and 
sanitation of transportation vehicles, and employee hygiene, labeling 
of Raw Agricultural Commodity (RAC) versus ready-to-eat (RTE) products, 
and finished product packaging.
    (3) Distribution handling process: Condition and sanitation of 
transportation vehicles, condition and sanitation of distribution/
cooler facilities, and temperature measurement of product.
    (4) Any other factors defined under Sec.  970.9 and Sec.  970.10, 
or as recommended by the Committee and approved by the Secretary.
    (c) Critical limits for process controls for each of the quality 
factors identified in the audit metrics shall be prescribed by USDA in 
consultation with FDA and any other federal or state regulatory body 
administering regulations impacted by the provisions of this agreement; 
shall incorporate Committee recommendations with regard to industry 
production, harvest and handling technologies; shall be based on sound 
scientific practices; and shall be approved by the Secretary.
    (d) Audit metrics may be developed and recommended to accommodate 
differences in production and handling environments of different 
regions and different leafy green vegetable products.
    (e) The committee may, at any time, recommend changes to the audit 
metrics after consultation with the Technical Review Board for approval 
by the Secretary.
    (f) The Committee shall recommend, to the Secretary, for approval, 
a schedule for review of audit metrics such that audit metrics are 
reviewed a minimum of once every three years to ensure that they 
continually reflect the best industry practices, scientific information 
and industry knowledge.


Sec.  970.68  Traceability.

    (a) The traceability of leafy green products subject to the terms 
of this agreement shall be established at all stages of production, 
processing, and distribution.
    (b) Signatory handlers shall have the ability to track their 
products from their supplier(s) to their customer(s). To this end, 
signatory handlers shall have in place systems and procedures which 
allow for this information to be made available for verification by the 
Inspection Service.
    (c) Documents necessary for verification shall be maintained for 
two years.


Sec.  970.69  Official certification mark.

    (a) USDA will obtain and grant to the Committee the use of a U.S. 
registered certification mark that will be the agreement's official 
mark (mark). This mark will be licensed to signatories who comply with 
the terms of this agreement. Signatories shall use the mark in 
accordance with this section and shall use the mark consistent with the 
mark registration.
    (b) The Committee may license signatories to affix the official 
certification mark to bills of lading or manifests, subject to the 
verification, suspension, revocation requirements, or any other such 
uses recommended by the Committee and approved by the Secretary to 
carry out the purposes of this Agreement. A signatory's compliance with 
the regulations under this Agreement is a condition precedent and 
subsequent to the signatory's entitlement to use the mark.


Sec.  970.70  Administrative review.

    Any signatory denied the use of the official certification mark may 
request an administrative review if it is believed that a material fact 
of the original verification audit was misinterpreted. Administrative 
reviews would be conducted in accordance with the USDA audit 
verification procedures for any audit program in effect under this 
agreement. Any financially interested person may request an 
administrative review if it is believed that the original audit 
verification is in error. The person requesting the review would pay 
the cost of the review. The review results shall be issued to the 
person making the request.


Sec.  970.71  Modification or suspension of regulations.

    (a) In the event that the Committee, at any time, finds that the 
provisions contained under this part should be modified or suspended, 
it shall by vote of a concurring majority of its members, so recommend 
to the Secretary.
    (b) Whenever the Secretary finds from the recommendations and 
information submitted by the Committee or from other available 
information, that the provisions of this part should be modified, 
suspended, or terminated in order to effectuate the declared policy of 
the Act, the Secretary shall modify or suspend such provisions. If the 
Secretary finds that a regulation obstructs or does not tend to 
effectuate the declared policy of the Act, the Secretary shall suspend 
or terminate such regulation.
    (c) The Committee, with the approval of the Secretary, may issue 
rules and regulations implementing this part.


Sec.  970.72  Exemptions.

    The Committee, with the approval of the Secretary, may establish 
such rules, regulations, and safeguards that exempt from any or all 
requirements pursuant to this part such quantities of leafy green 
vegetables or products as do not interfere with the objectives of this 
part, and shall require such reports, certifications, or other 
conditions as are necessary to ensure that such leafy green vegetables 
are handled or used only as authorized.

Research and Promotion


Sec.  970.75  Research and promotion.

    The Committee, with the approval of the Secretary, may establish or 
provide for the establishment of marketing research, and development 
projects, and/or promotional activities, including paid advertising, 
designed to assist, improve, or promote the efficient adoption, 
implementation, and marketplace acceptance of the agreement and of 
leafy green vegetables or products handled by signatory members. The 
expenses of such projects shall be budgeted and paid from funds 
collected pursuant to Sec.  970.56.

Reports and Records


Sec.  970.80  Reports and recordkeeping.

    (a) Each handler shall report acquisitions of all leafy green 
vegetables or products and such other reports or information as may be 
necessary to enable the Committee to carry out the provisions of this 
part.
    (b) Each handler shall maintain records of all receipts and 
acquisitions of leafy green vegetables or products, and all 
documentation relating to the verification audit reports. Such records 
shall be maintained for at least two years after the crop year of their 
applicability. Such recordkeeping shall be sufficient to document and 
substantiate the handler compliance with this part.
    (c) The Committee shall maintain copies of audit reports.


Sec.  970.81  Confidential information.

    All reports and records furnished or submitted by handlers to the 
Committee

[[Page 45573]]

which include data or proprietary information constituting a trade 
secret, or disclosing a trade position, financial condition, or 
business operations of the particular handlers or their customers, 
shall be received by, and at all times kept in the custody and control 
of, one or more employees of the Committee, who shall disclose such 
data and information to no person except the Secretary. However, such 
data or information may be disclosed only with the approval of the 
Secretary, to the Committee, when reasonably necessary to enable the 
Committee to carry out its functions under this part.


Sec.  970.82  Verification of reports.

    For the purpose of checking and verifying reports filed by 
signatories, authorized agents or employees of the Committee, and the 
Secretary shall have access to any premises of any signatory at any 
time during reasonable business hours to verify compliance with the 
requirements of the agreement. For the purpose of checking and 
verifying GAP compliance, authorized agents or employees of the 
Committee and the Secretary shall have access to audit verification 
records.


Sec.  970.83  Compliance.

    Compliance with the provisions of this agreement will be overseen 
by the Committee and any staff hired or appointed to undertake this 
responsibility. In conjunction with USDA, the Committee shall establish 
a policy for signatory handlers for non-conformities identified through 
verification audits:
    (a) A signatory shall be subject to withdrawal of audit services, 
shall lose the privilege of the use of the official certification mark, 
and may be subject to misbranding or trademark violations, if the 
signatory:
    (1) Produces or acquires leafy green vegetables or products without 
an inspection service verification audit, pursuant to Sec.  970.9 and 
Sec.  970.10.
    (2) Fails to obtain audit verification on the production, handling 
or manufacturing of leafy green vegetable or products, pursuant to 
Sec.  970.66, and ships such vegetables or products for human 
consumption;
    (3) Ships or places into the current of commerce leafy green 
vegetables or products that fail to meet requirements under this 
agreement, pursuant to Sec.  970.66 and Sec.  970.67, for human 
consumption;
    (4) Commingles leafy green vegetables that fail to meet the 
requirements of this agreement with leafy green vegetables verified to 
meet the requirements of the agreement and ships the commingled lot for 
human consumption;
    (5) Fails to maintain and provide access to records, pursuant to 
Sec.  970.80; or
    (6) Otherwise violates any provision of this part.
    (b) Any lot or portion thereof of leafy green vegetables which is 
deemed an immediate threat to public health by Inspection Service staff 
during the course of a verification audit shall be reported by USDA to 
FDA
    (c) Failure to comply with the provisions of this agreement may 
also result in additional remedies or penalties, such as injunctive 
relief, as authorized under the Act.

Miscellaneous


Sec.  970.85  Effective time.

    The provisions of this part, as well as any amendments, shall apply 
to 2010-2011 and subsequent crop year leafy green vegetables and shall 
continue in force and effect until modified, suspended, or terminated.


Sec.  970.86  Rights of the Secretary.

    Members and alternates of the Committee, subcommittees, advisory 
boards, and any agents, employees, or representatives thereof, shall be 
subject to removal or suspension by the Secretary at any time. Each and 
every decision, determination, and other act of the Committee shall be 
subject to the continuing right of the disapproval by the Secretary at 
any time. Upon such disapproval, the disapproved action of the 
Committee shall be deemed null and void.


Sec.  970.87  Personal liability.

    No member or alternate member of the Committee, and no employee or 
agent of the Committee, shall be held personally responsible, either 
individually or jointly with others, in any way whatsoever, to any 
person for errors in judgment, mistakes, or other acts, either of 
commission or omission, as such member, alternate, employee, or agent, 
except for acts of dishonesty, willful misconduct, or gross negligence.


Sec.  970.88  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.


Sec.  970.89  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.  970.90  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.  970.91  Agents.

    The Secretary may, by designation in writing, name any officer or 
employee of the United States, or name any agency or division in the 
USDA, to act as the Secretary's agent or representative in connection 
with any of the provisions of this part.


Sec.  970.92  Suspension or termination.

    (a) The Secretary may at any time terminate the provisions of this 
part.
    (b) The Secretary shall terminate or suspend the operations of any 
or all of the provisions of this part whenever it is found that such 
provisions do not tend to effectuate the declared policy of the Act.
    (c) The provisions of this part shall, in any event, terminate 
whenever the provisions of the Act authorizing them cease.


Sec.  970.93  Proceedings upon termination.

    Upon the termination of this part, the members of the Committee 
then functioning shall continue as joint trustees, for the purpose of 
liquidating the affairs of the Committee. Action by such trustees shall 
require the concurrence of a majority of said trustees. Such trustees 
shall continue in such capacity until discharged by the Secretary, and 
shall account for all receipts and disbursements and deliver all 
property on hand, together with all books and records of the Committee 
and the joint trustees, to such persons as the Secretary may direct; 
and 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 the funds, properties, and claims vested in 
the Committee or the joint trustees, pursuant to this part. Any person 
to whom funds, property, or claims have been transferred or delivered 
by the Committee or the joint trustees, pursuant to this section, shall 
be subject to the same obligations imposed upon the members of said 
Committee and upon said joint trustees.

[[Page 45574]]

Sec.  970.94  Effect of termination or amendment.

    Unless otherwise expressly provided by the Secretary, the 
termination of this part or any regulation issued pursuant thereto, or 
the issuance of any amendment to either thereof, shall not:
    (a) Affect or waive any right, duty, obligation, or liability which 
shall have arisen or which may thereafter arise, in connection with any 
provisions of this part or any regulation issued thereunder;
    (b) Release or extinguish any violation of this part or any 
regulation issued; or
    (c) Affect or impair any rights or remedies of the Secretary, or of 
any other persons, with respect to such violation.


Sec.  970.95  Amendments.

    Amendments to this part may be proposed from time to time by the 
Committee, or by any interested person affected by its provisions, 
including the Secretary.


Sec.  970.96  Counterparts.

    This agreement may be executed in multiple counterparts and, when 
one counterpart is signed by the Secretary, all such counterparts shall 
constitute, when taken together, one and the same instrument as if all 
signatures were contained in one original.


Sec.  970.97  Additional parties.

    After the effective date of the agreement, any non-signatory 
handler may become a party hereto if a counterpart is executed by him 
or her and delivered to the Secretary. This agreement shall take effect 
as to such new contracting party at the time such counterpart is 
delivered to the Secretary. The obligations, benefits, privileges, and 
immunities conferred by this agreement shall then be effective as to 
such new contracting party.


Sec.  970.98  Withdrawal.

    Release from this agreement may be obtained, provided that a 
signatory handler is not in violation of the provisions of this 
agreement and has fulfilled all of his or her obligations, including 
payment of any assessments or charges levied pursuant to this 
agreement, under any of the following conditions:
    (a) A signatory handler may file with the Committee a written 
request for withdrawal at the close of a crop year, effective for the 
succeeding crop year.
    (b) Immediate withdrawal may be effectuated when a signatory 
handler ceases to be a handler of leafy green vegetables or products 
and gives notice thereof to the Committee in writing.

    Dated: August 31, 2009.
Rayne Pegg,
Administrator, Agricultural Marketing Service.
[FR Doc. E9-21295 Filed 9-2-09; 8:45 am]
BILLING CODE P


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