24292 Federal Register / Vol. 76, No. 83 / Friday, April 29, 2011 / Proposed Rules 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Part 970 

[Doc. No. AO–FV–09–0138; AMS–FV–09– 

0029; FV09–970–1] 

Proposed National Marketing 

Agreement Regulating Leafy Green 

Vegetables; Recommended Decision 

and Opportunity To File Written 

Exceptions to Proposed Marketing 

Agreement No. 970 

AGENCY: Agricultural Marketing Service, 

USDA. 

ACTION: Proposed rule and opportunity 

to file exceptions. 

SUMMARY: This recommended decision 

proposes the issuance of a marketing 

agreement (agreement) under the 

Agricultural Marketing Agreement Act 

of 1937 to cover the handling of fresh 

leafy green vegetables in the United 

States. Leafy green vegetables include 

lettuce, spinach, cabbage, and similar 

items. The proposed agreement would 

authorize the development and 

implementation of production and 

handling regulations (audit metrics) to 

reflect United States Food and Drug 

Administration (FDA) Good 

Agricultural Practices (GAPs) and Good 

Manufacturing Practices (GMPs), and 

United States Department of Agriculture 

(USDA) Good Handling Practices 

(GHPs). The program would be 

voluntary, and cover both United States 

and imported leafy green vegetables. 

Signatory handlers would agree to only 

handle leafy green vegetables that meet 

the requirements of the program. The 

program would be financed primarily by 

assessments collected from signatory 

first handlers. A Board, whose members 

would be appointed by the Secretary, 

would administer the proposed 

agreement with USDA oversight. This 

rule also announces USDA Agricultural 

Marketing Service’s (AMS) intention to 

request approval by the Office of 

Management and Budget for new 

information collection requirements to 

implement this program. 

DATES: Written exceptions must be filed 

by July 28, 2011. Pursuant to the 

Paperwork Reduction Act, comments on 

the information collection burden must 

be received by July 28, 2011. 

ADDRESSES: Written exceptions should 

be filed with the Hearing Clerk, United 

States Department of Agriculture, 1400 

Independence Ave., SW., Room 1031–S, 

Washington, DC 20250–9200, Fax: (202) 

720–9776 or via the Internet at http:// 

www.regulations.gov. All exceptions 

should reference the docket number and 

the date and page number of this issue 

of the Federal Register. Comments will 

be made available for public inspection 

in the Office of the Hearing Clerk during 

regular business hours, or can be viewed 

at: http://www.regulations.gov. 

To the extent practicable, all 

documents filed with the hearing clerk 

also should be submitted electronically 

to Melissa Schmaedick at the e-mail 

address noted for her in the FOR

FURTHER INFORMATION CONTACT section. 

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: 

Antoinette.Carter@ams.usda.gov; or 

Melissa Schmaedick, Marketing Order 

Administration Branch, Fruit and 

Vegetable Programs, AMS, USDA, 805 

SW. Broadway, Suite 930, Portland, OR 

97205; Telephone (503) 326–2724, Fax 

(503) 326–7440, or E-mail: 

Melissa.Schmaedick@ams.usda.gov. 

Small businesses may request 

information on this proceeding by 

contacting Antoinette Carter at the 

address provided for her above. 

SUPPLEMENTARY INFORMATION: Prior 

documents in this proceeding: Notice of 

Public Hearing issued on August 31, 

2009, and published in the September 3, 

2009, issue of the Federal Register (74 

FR 45565); and Notice of Additional 

Time for Public Hearing issued on 

September 18, 2009, and published in 

the September 23, 2009, issue of the 

Federal Register (74 FR 48423). 

These actions are governed by the 

provisions of sections 556 and 557 of 

title 5 of the United States Code and are 

therefore excluded from the 

requirements of Executive Order 12866. 

Preliminary Statement 

Notice is hereby given of the filing 

with the Hearing Clerk of this 

recommended decision with respect to 

the proposed marketing agreement 

regulating the handling of leafy green 

vegetables in the United States, and the 

opportunity to file written exceptions 

thereto. Copies of this recommended 

decision can be obtained from Melissa 

Schmaedick, whose address is listed 

above. 

This recommended decision is issued 

pursuant to the provisions of the 

Agricultural Marketing Agreement Act 

of 1937, as amended (48 Stat. 31, as 

amended; 7 U.S.C. 601–674), hereinafter 

referred to as the ‘‘Act’’, and the 

applicable rules of practice and 

procedure governing the formulation of 

marketing agreements and orders (7 CFR 

part 900). 

The proposed agreement is based on 

the record of a public hearing held on: 

September 22 through 24, 2009, in 

Monterey, California; September 30 

through October 1, 2009, in 

Jacksonville, Florida; October 6, 2009, 

in Columbus, Ohio; October 8, 2009, in 

Denver, Colorado; October 14 and 15, 

2009, in Yuma, Arizona; October 20, 

2009, in Syracuse, New York; and 

October 22, 2009, in Charlotte, North 

Carolina. 

The hearing was held to receive 

evidence on the proposed agreement 

from producers, handlers, and other 

interested parties. The Notice of Public 

Hearing was published in the Federal 

Register on September 3, 2009 (74 FR 

45565). 

Background 

In mid-September 2006, 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 fresh leafy green 

vegetables. Investigations by 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. 

In response to this E. coli outbreak, 

members of the California leafy green 

vegetable industry initiated the 

establishment of a State marketing 

agreement for handlers of leafy green 

vegetables. The California Leafy Green 

Products Handler Marketing Agreement 

became effective February 10, 2007. At 

the time of the hearing, 99 percent of 

leafy green vegetables produced and 

handled in California were subject to 

the State program. In October 2007, a 

similar program was implemented in 

Arizona: The Arizona Leafy Green 

Products Shipper Marketing Agreement. 

Approximately 75 percent of the leafy 

green vegetables produced and handled 

in Arizona were being regulated under 

that State’s program at the time of the 

hearing. While both the California and 

Arizona programs are voluntary, the 

requirements of these State marketing 

agreements are mandatory for all 

signatories within each respective State. 

On October 4, 2007, 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 


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Federal Register / Vol. 76, No. 83 / Friday, April 29, 2011 / Proposed Rules 24293 

the handling of leafy green vegetables 

nationwide. The ANPR explored the 

concept of establishing a regulatory 

program to reduce microbial 

contamination and improve product 

quality of leafy green vegetables 

available in the United States’ produce 

market. Proposals and comments were 

sought from the public, particularly 

from producers, handlers, buyers, and 

sellers of leafy green vegetables. 

The ANPR resulted in the submission 

and consideration of more than 3,500 

public comments on the need and level 

of support for a nationwide regulatory 

program for GAPs, GHPs, and GMPs. 

These comments may be viewed at 

http://www.regulations.gov and by 

typing the following docket number into 

the search function: AMS–FV–07–0090. 

On June 10, 2009, a petition for 

rulemaking and a request for public 

hearing on a proposed national 

agreement for leafy green vegetables 

were submitted to AMS. The proposal 

was submitted by a group of producers, 

handlers, and interested persons 

representing a cross-section of the 

national fresh and fresh-cut produce 

industry, hereinafter referred to as the 

‘‘proponents’’ or ‘‘proponent group’’. The 

proponent group is comprised of the 

membership of the following 

organizations: United Fresh Produce 

Association, Produce Marketing 

Association, Georgia Fresh Vegetable 

Association, Georgia Farm Bureau, 

Texas 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, as well as business entities of 

all sizes, claim to represent a majority 

of the volume of leafy green vegetables 

produced and handled for the United 

States market. 

In their request and at the hearing, the 

proponents proposed the establishment 

of a program that would oversee a 

systematic application of good 

agricultural production, handling, and 

manufacturing practices for leafy green 

vegetables. Proponents stated that the 

proposed agreement would minimize 

the potential for microbial 

contamination in production and 

handling systems and would improve 

consumer confidence in leafy green 

vegetables in the United States market. 

Proponents supported the 

establishment of a voluntary program 

that would require mandatory 

compliance for its signatories under the 

authority of the Act and that it be 

administered by USDA. Proponents 

explained that, if implemented, an 

administrative body comprised of leafy 

green vegetable producers, handlers, 

and other representatives of the leafy 

green vegetable industry should be 

established to administer the program 

under USDA oversight. In addition to 

the administrative body, proponents 

proposed two committees: One to assist 

the administrative body in the 

identification and development of audit 

metrics, and one to advise the 

administrative body on research and 

development projects administered 

under the program. 

Proponents defined the proposed 

production area as the 50 States of the 

United States of America and the 

District of Columbia. It was further 

proposed that the agreement be financed 

primarily by assessments collected from 

signatory first handlers on the volume of 

leafy green vegetables handled. In 

addition, contributions could be 

received for the purposes of funding 

research and development activities. 

As a voluntary program, proponents 

explained that only signatory handlers 

to the proposed agreement would be 

regulated. Signatory handlers would be 

required to only handle leafy green 

vegetables that were produced and 

handled in adherence to specific 

requirements (audit metrics) established 

under the proposed agreement. 

Proponents stated that audit metrics 

should be science-based, scalable, and 

regionally applicable in order to 

accommodate compliance of varying 

size and types of operations. Moreover, 

any audit metrics proposed under the 

program would require approval of the 

USDA prior to implementation. 

Proponents explained that audits 

should be conducted by the USDA 

Inspection Service, or persons or 

organizations authorized to audit on its 

behalf, to verify signatory handler 

compliance to the proposed agreement. 

If implemented, proponents stated that 

such audits should be conducted on 

both domestic and imported product 

handled by signatory handlers. 

One hundred and twenty individuals 

testified during the 9 days of hearings 

which resulted in 4,935 pages of 

testimony. One hundred and thirty-nine 

exhibits were submitted. Witnesses 

represented leafy green producers and 

handlers, and representatives from 

stakeholder interest groups including 

State and local government 

representatives, certified organic 

auditors, organic and sustainable 

agriculture advocacy groups, consumer 

advocacy groups, conservation and 

wildlife advocacy organizations, 

academia, and others. Some witnesses 

supported the proposed agreement, 

while others opposed it or suggested 

modifications or changes to it. 

In addition to other opponents of the 

proposed agreement, an opponent group 

comprised of member organizations of 

the National Organic Coalition (NOC) 

testified at the hearing. Members of the 

NOC include: Beyond Pesticides, Center 

for Food Safety, Equal Exchange, Food 

and Water Watch, Maine Organic 

Farmers and Gardeners Association, 

Midwest Organic Farmers and 

Gardeners Association, National 

Cooperative Grocers Association, 

Northeast Organic Dairy Producers 

Alliance, Northeast Organic Farming 

Association-Interstate Council, 

Organically Grown Company, Rural 

Advancement Foundation InternationalUSA, and the Union of Concerned 

Scientists. 

Witnesses opposed to the program 

cited several areas of concern. These 

included: The cost of becoming 

compliant and maintaining compliance 

with the proposed agreement; the 

existing proliferation of audit 

requirements from private sector 

customers, the addition of a new and 

potentially conflicting set of audit 

requirements, and ‘‘audit fatigue’’; the 

need for science-based production and 

handling requirements, as well as the 

need for adequate peer-review of 

scientific studies used to establish them; 

potential conflicts between existing 

Federal, State, and local conservation, 

wildlife, and environmental regulations 

and any proposed metrics; the need for 

recognition of organic and other nonconventional production and handling 

practices in the development of audit 

metrics; the appropriateness and 

authority for USDA oversight of the 

proposed agreement; and, the need for 

a national program. 

At the conclusion of the hearing, the 

Administrative Law Judge fixed January 

13, 2010, as the due date for interested 

persons to file proposed findings and 

conclusions or written arguments based 

on the evidence received at the hearing. 

Upon a motion for extension from the 

proponents as well as member 

organizations of the National Organic 

Coalition, the date was extended until 

January 27, 2010. 

Sixteen briefs were filed in total. 

Those submitting briefs included: 

Pollinator Partnership, Global Organic 

Specialty Source, Inc., Chiquita Brands 

International, Inc., Arizona Leafy Green 

Products Shipper Marketing Agreement, 

Office of the Attorney General for the 

State of Arizona, Episcopal Diocese of 

California, DNO, Inc., Duda Farm Fresh 

Foods, Inc., National Organic Coalition 


srobinson on DSKHWCL6B1PROD with PROPOSALS5
24294 Federal Register / Vol. 76, No. 83 / Friday, April 29, 2011 / Proposed Rules 

(including Food and Water Watch, 

Carolina Farm Stewardship Association, 

and Florida Certified Organic Growers 

and Consumers, Inc.), Canadian 

Horticultural Council, Partners for 

Sustainable Pollination, Association of 

Food and Drug Officials, Massachusetts 

Farm Bureau Federation, Inc., Grower’s 

Management, Inc., Western Growers, 

and California Roundtable on 

Agriculture and the Environment. 

Overview 

After extensive analysis and review of 

the hearing record, USDA has 

incorporated in this recommended 

decision changes and revisions to the 

text of the proposed marketing 

agreement. Changes and modifications 

include numerical redesignations of 

sections, combining of regulatory text, 

the addition of new provisions, and 

clarifications. For ease of reference in 

reading this recommended decision, the 

following table provides a summary that 

identifies the differences between the 

sections proposed in the Notice of 

Hearing and the sections proposed in 

this recommended decision. 

Notice of hearing Changes and revisions Recommended 

decision 

970.1 ........................................................ .................................................................................................................................... 970.1 

NEW .......................................................................................................................... 970.2 

970.2 ........................................................ REDESIGNATED AND REVISED ............................................................................. 970.3 

970.3 ........................................................ REDESIGNATED AND REVISED ............................................................................. 970.4 

NEW .......................................................................................................................... 970.5 

970.4 ........................................................ REDESIGNATED AND REVISED ............................................................................. 970.6 

970.6 ........................................................ REDESIGNATED AND REVISED ............................................................................. 970.8 

NEW .......................................................................................................................... 970.9 

970.7 ........................................................ REDESIGNATED AND REVISED ............................................................................. 970.10 

970.8 ........................................................ REDESIGNATED AND REVISED ............................................................................. 970.11 

970.9 ........................................................ REDESIGNATED AND REVISED ............................................................................. 970.12 

970.10 ...................................................... REDESIGNATED AND REVISED ............................................................................. 970.13 

970.11 ...................................................... REDESIGNATED AND REVISED ............................................................................. 970.14 

970.12 ...................................................... REDESIGNATED AND REVISED ............................................................................. 970.15 

970.13 ...................................................... REDESIGNATED AND REVISED ............................................................................. 970.16 

970.14 ...................................................... REDESIGNATED AND REVISED ............................................................................. 970.17 

970.15 ...................................................... REDESIGNATED AND REVISED ............................................................................. 970.18 

970.16 ...................................................... REDESIGNATED AND REVISED ............................................................................. 970.19 

970.17 ...................................................... REDESIGNATED AND REVISED ............................................................................. 970.20 

NEW .......................................................................................................................... 970.21 

NEW .......................................................................................................................... 970.22 

970.18 ...................................................... REDESIGNATED AND REVISED ............................................................................. 970.23 

NEW .......................................................................................................................... 970.24 

970.19 ...................................................... REDESIGNATED ...................................................................................................... 970.25 

970.20 ...................................................... REDESIGNATED AND REVISED ............................................................................. 970.27 

970.21 ...................................................... REDESIGNATED AND REVISED ............................................................................. 970.19 

970.22 ...................................................... REDESIGNATED AND REVISED ............................................................................. 970.26 

970.23 ...................................................... REDESIGNATED ...................................................................................................... 970.28 

NEW .......................................................................................................................... 970.29 

970.24 ...................................................... REDESIGNATED AND REVISED ............................................................................. 970.30 

970.25 ...................................................... REDESIGNATED ...................................................................................................... 970.31 

NEW .......................................................................................................................... 970.32 

970.26 ...................................................... REDESIGNATED AND REVISED ............................................................................. 970.33 

NEW .......................................................................................................................... 970.34 

970.27 ...................................................... REDESIGNATED AND REVISED ............................................................................. 970.35 

NEW .......................................................................................................................... 970.36 

970.28 ...................................................... REDESIGNATED AND REVISED ............................................................................. 970.37 

970.35 ...................................................... REDESIGNATED AND REVISED ............................................................................. 970.39 

970.40 ...................................................... REVISED ................................................................................................................... 970.40 

NEW .......................................................................................................................... 970.41 

970.41 ...................................................... REDESIGNATED AND REVISED ............................................................................. 970.42 

970.42 ...................................................... REDESIGNATED AND REVISED ............................................................................. 970.43 

970.43 ...................................................... REDESIGNATED AND REVISED ............................................................................. 970.44 

970.44 ...................................................... REDESIGNATED AND REVISED ............................................................................. 970.45 

970.45 ...................................................... REDESIGNATED AND REVISED ............................................................................. 970.46 

970.46 ...................................................... REDESIGNATED AND REVISED ............................................................................. 970.47 

970.47 ...................................................... REDESIGNATED AND REVISED ............................................................................. 970.48 

970.48 ...................................................... REDESIGNATED AND REVISED ............................................................................. 970.49 

970.49 ...................................................... REDESIGNATED AND REVISED ............................................................................. 970.50 

970.50 ...................................................... REDESIGNATED AND REVISED ............................................................................. 970.51 

970.55 ...................................................... REVISED ................................................................................................................... 970.55 

970.56 ...................................................... REVISED ................................................................................................................... 970.56 

970.57 ...................................................... REVISED ................................................................................................................... 970.57 

970.58 ...................................................... REVISED ................................................................................................................... 970.58 

970.65 ...................................................... REVISED ................................................................................................................... 970.65 

970.66 ...................................................... REVISED ................................................................................................................... 970.66 

970.67 ...................................................... REVISED ................................................................................................................... 970.67 

970.68 ...................................................... REVISED ................................................................................................................... 970.68 

970.69 ...................................................... REVISED ................................................................................................................... 970.69 

970.70 ...................................................... REVISED ................................................................................................................... 970.70 

970.71 ...................................................... REVISED ................................................................................................................... 970.71 


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Notice of hearing Changes and revisions Recommended 

decision 

970.72 ...................................................... REVISED ................................................................................................................... 970.72 

970.75 ...................................................... REVISED ................................................................................................................... 970.75 

970.80 ...................................................... REVISED ................................................................................................................... 970.80 

970.81 ...................................................... REVISED ................................................................................................................... 970.81 

970.82 ...................................................... REVISED ................................................................................................................... 970.82 

970.83 ...................................................... REVISED ................................................................................................................... 970.83 

970.85 ...................................................... REVISED ................................................................................................................... 970.85 

970.86 ...................................................... REVISED ................................................................................................................... 970.86 

970.87 ...................................................... REVISED ................................................................................................................... 970.87 

970.88 ...................................................... .................................................................................................................................... 970.88 

970.89 ...................................................... REVISED ................................................................................................................... 970.89 

970.90 ...................................................... .................................................................................................................................... 970.90 

970.91 ...................................................... REVISED ................................................................................................................... 970.91 

970.92 ...................................................... .................................................................................................................................... 970.92 

970.93 ...................................................... REVISED ................................................................................................................... 970.93 

970.94 ...................................................... .................................................................................................................................... 970.94 

970.95 ...................................................... REVISED ................................................................................................................... 970.95 

970.96 ...................................................... REVISED ................................................................................................................... 970.96 

970.97 ...................................................... REVISED ................................................................................................................... 970.97 

970.98 ...................................................... REVISED ................................................................................................................... 970.98 

NEW .......................................................................................................................... 970.99 

This recommended decision takes 

into consideration the record of the 

public hearing as well as the arguments 

contained in the post-hearing briefs. The 

merits of these arguments are discussed 

in the findings and conclusions of this 

recommended decision. 

Material Issues 

The material issues presented on the 

record of hearing are as follows: 

1. Whether the handling of leafy green 

vegetables in the production area is in 

the current of interstate commerce or 

foreign commerce, or directly burdens, 

obstructs, or affects such commerce; 

2. Whether market conditions justify 

a need for a Federal marketing 

agreement which would tend to 

effectuate the declared policy of the Act; 

3. What the definition of the 

production area and the commodity to 

be covered by the proposed agreement 

should be; 

4. What the identity of the persons 

and the activities to be regulated under 

the proposed agreement should be; 

5. What the specific terms and 

provisions of the proposed agreement 

should be, including: 

(a) The definition of terms used 

therein, which are necessary and 

incidental to attain the declared 

objectives and policy of the Act; 

(b) Whether an administrative body 

should be established to assist USDA in 

the administration and oversight of the 

proposed agreement, and what the 

membership composition, 

administrative procedures, powers, and 

duties of that body should be; 

(c) Whether the proposed agreement 

should include the authority to establish 

regulations and audit requirements that 

would apply to signatory handlers; 

(d) Whether the proposed agreement 

should include the authority to incur 

expenses and establish procedures to 

levy assessments on signatory first 

handlers to obtain revenue for paying 

such expenses; 

(e) Whether the proposed agreement 

should include the authority to establish 

signatory handler reporting and 

recordkeeping requirements; 

(f) Whether the proposed agreement 

should require signatory handler 

compliance with all provisions of the 

agreement and with any regulations 

issued under it; 

(g) Whether the proposed agreement 

should include the authority to establish 

rules, regulations, or safeguards for 

exemption from the requirements of the 

agreement; 

(h) Whether the proposed agreement 

should include the authority to establish 

or provide for the establishment of 

research and market development 

projects; 

(i) Whether the proposed agreement 

should include additional terms and 

conditions as set forth in § 970.85 

through § 970.98 of the Notice of 

Hearing published in the Federal 

Register on September 3, 2009 (74 FR 

45565), which are common to all 

agreements; and 

6. What the handler sign-up process 

should be, and if provisions should be 

made for signatory handlers to 

discontinue participation in the 

program. 

Findings and Conclusions 

The following findings and 

conclusions on the material issues are 

based on the evidence presented at the 

hearing and the record thereof. 

Material Issue Number 1—Current of 

Interstate Commerce or Foreign 

Commerce 

The record indicates that the handling 

of leafy green vegetables grown in the 

United States, or leafy green vegetables 

grown outside the United States and 

imported by United States handlers, is 

in the current of interstate or foreign 

commerce or directly burdens, 

obstructs, or affects such commerce. 

Evidence is that the leafy green 

vegetable industry is a highly integrated, 

complex system of large, mid-size, and 

small producers delivering product to 

handlers, retailers, and foodservice 

operators nation-wide. Leafy green 

vegetables may be produced in one 

State, processed in another State, and 

then shipped for consumption to many 

States or nationally. Moreover, the 

product of one or more producers of 

varying sizes and origin may be handled 

by one or more handlers, also of varying 

size or origin. 

Evidence also is that leafy green 

vegetables are imported, mainly from 

Mexico and Canada, and that such leafy 

green vegetables are often co-mingled 

with United States produced leafy green 

vegetables and distributed throughout 

the United States market. Similarly, 

United States produced leafy green 

vegetables are regularly exported, 

primarily to Canada. Exported leafy 

green vegetables may contain product 

produced by a variety of producers, 

varying in size and origin, and may be 

handled by one or more handlers. 

For these reasons, evidence confirms 

that the handling of leafy green 

vegetables is at multiple levels of 

interstate or foreign commerce and has 

an effect on such commerce. 


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24296 Federal Register / Vol. 76, No. 83 / Friday, April 29, 2011 / Proposed Rules 

Industry Overview 

Producers and Handlers 

According to USDA Census of 

Agriculture data (Census) and other 

USDA data presented at the hearing, 

there were 8,216 farms that harvested 

433,023 acres of leafy green vegetables 

specifically for the fresh market in 2007. 

While data indicates that leafy green 

vegetable production is found in all 50 

United States, evidence is that most 

production tends to be concentrated in 

the States of California, Arizona, 

Florida, New York, Texas, Georgia, and 

Colorado, and on farms that exceed the 

Small Business Administration (SBA) 

definition of a small agricultural 

producer. Under 13 CFR 121.201, the 

SBA defines ‘‘small’’ agricultural 

producers as farming operations having 

gross annual receipts of $750,000 or 

less. This is the threshold by which 

USDA analyzes the impact of the 

proposed marketing agreement on small 

producer entities. Farm data by States 

from the 2007 Census of Agriculture 

(Census), unavailable from other 

sources, has also been used in 

developing the recommended decision. 

However, the Census defines small 

producers as those with annual receipts 

of less than $250,000 and large 

producers as those with $250,000 or 

more. Thus, in some of the discussion 

and analysis in this recommended 

decision, the Census data cannot be 

reconciled with the SBA definition for 

small producers. 

California and Arizona are the largest 

producing States of leafy green 

vegetables, with California alone 

accounting for 75 percent of total United 

States production in 2007, and Arizona 

representing 15 percent of total United 

States production in that same year. 

Evidence is that the remaining 10 

percent of production is spread 

throughout the United States and tends 

to be sourced by handlers from small to 

mid-size farms. 

For such farms, leafy green vegetable 

production commonly only represents a 

portion of these diversified farms’ total 

production. According to the hearing 

record, a ‘‘diversified farm’’ is a farming 

operation that produces a variety of 

crops or animals, or both, on one farm, 

as distinguished from a producer who 

specializes solely in the production of 

leafy green vegetables. 

Marketing Research Association 

(MRA) data presented at the hearing 

indicates that there were approximately 

1,285 handlers of leafy green vegetables 

in the United States in 2009. This data 

is published in the Blue Book Marketing 

Research Service Directory (Blue Book), 

which can be found at http:// 

www.bluebook.org. 

According to the record, many small 

and mid-size producers also operate as 

handlers by way of their direct sales to 

consumers, foodservice operators, or 

retailers. Evidence is that the Blue Book 

likely does not account for many of 

these smaller producer-handler 

businesses because they are not directly 

engaged in the mainstream, 

conventional market. Therefore, record 

evidence indicates that the number of 

leafy green vegetable handlers in the 

United States that would qualify to 

participate as signatory handlers under 

the proposed agreement is more than 

1,285. Record evidence is unclear, 

however, as to how many small 

producer-handler operations handling 

leafy green vegetables exist in the 

United States. 

According to the record, the majority 

of leafy green vegetables handled in the 

United States are subject to seasonal 

contracts between producers and 

handlers, and these relationships are 

usually long-term. Typically, such 

contracts are prepared using quantity, 

weight, acreage, or price. 

Any leafy green vegetable crop for 

sale in the market that is not covered 

under a contract is considered part of 

the cash, or ‘‘spot’’ market, where 

produce is sold for cash and delivered 

immediately. Small farms often sell 

directly to consumers at farmers’ 

markets, roadside stands, and through 

community-supported agriculture (CSA) 

programs, as well as directly to smaller 

retailers and local foodservice operators. 

According to the record, these types of 

transactions are considered part of the 

spot market. 

Evidence shows that some leafy green 

vegetables for the United States market 

are sold through produce auctions, 

where members of the auction maintain 

their membership through a contractual 

relationship with the auction 

organization. In this scenario, produce 

supplied by auction members is sold 

through the auction method, where 

prices obtained for the produce can 

fluctuate based on daily market supply 

and demand, and quality of produce. 

According to the hearing record, sales of 

leafy green vegetables made through a 

produce auction also are considered 

part of the spot market. 

Production 

USDA data presented at the hearing 

indicates that the value of leafy green 

vegetables grown for the United States 

fresh and fresh-cut market was $2.5 

billion in 2008. The majority of United 

States leafy green vegetable production 

is accounted for by three lettuce crops 

(head, leaf, and romaine), spinach, and 

fresh cabbage. Of the 2008 production 

value, lettuce crops accounted for 79 

percent, cabbage accounted for 15 

percent, and spinach accounted for 7 

percent, for a total of 81 percent. Other 

minor fresh leafy green vegetable crops, 

such as collards, escarole, endives and 

specialty varieties of kale, are produced 

regionally and seasonally. Evidence is 

that these crops are produced widely 

across the United States and are 

generally available throughout the year. 

Since 1997, United States production of 

major fresh leafy green vegetables has 

grown by almost 25 percent. 

Major Fresh Leafy Green Vegetable 

Crops 

At the time of the hearing, head 

lettuce production was estimated at 5.3 

billion pounds. Even though head 

lettuce’s average share of United States 

lettuce production has declined from an 

average of 77 percent during 1996 to 

1998, to 56 percent from 2006 to 2008, 

head lettuce continues to represent the 

majority of total leafy green vegetable 

production in the United States. Iceberg 

lettuce is harvested year-round in 

California. Of the other States with large 

production of head lettuce, Arizona 

harvests in the winter, New Jersey 

harvests in the spring and fall, and 

Colorado harvests in the summer. 

According to 2007 Census data, 1,158 

farms harvested head lettuce from 

nearly 167,000 acres. Although the 

farms harvesting head lettuce were 

spread over 48 States, only three States 

reported harvesting more than 1,000 

acres: California (118,676 acres), 

Arizona (39,187 acres), and Colorado 

(2,268 acres). 

USDA statistical evidence presented 

at the hearing indicates that demand for 

lettuce has shifted away from head 

lettuce to romaine and other varieties of 

leaf lettuce. Leaf and romaine lettuce 

production from major States increased 

125 percent between 1990 and 1999, 

and an additional 42 percent between 

2000 and 2009. Total production of leaf 

and romaine lettuce for 2009 was 

estimated at 3.9 billion pounds 

accounting for 42 percent of United 

States lettuce production. Leaf and 

romaine lettuce are harvested yearround in California. Arizona is the other 

main producer of these lettuces in the 

winter. According to 2007 Census 

record data, 2,891 farms in all 50 States 

harvested leaf lettuce from 

approximately 59,000 acres. For 

romaine lettuce, the figures are 87,000 

acres harvested from 1,057 farms in 49 

States. 

According to the hearing record, 

demand for fresh spinach resulted in 


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average production increases of over 6 

percent per year since 1990, with 

production from major States estimated 

to have reached 513 million pounds in 

2009. According to the 2007 Census, 

1,121 farms in all 50 States harvested 

spinach for the fresh market from almost 

30,000 acres. In 2007, the top producers 

of spinach for the fresh market were 

California (harvesting 18,000 acres), 

Arizona (harvesting 3,600 acres), Texas 

(harvesting 2,200 acres), Colorado 

(harvesting 1,900 acres), and New Jersey 

(harvesting 1,500 acres). These States 

accounted for 94 percent of the fresh 

spinach acreage. Seasonal production 

data indicates that California harvests 

spinach throughout the year. Arizona 

and Texas harvest in the winter, 

Colorado harvests in the summer, and 

New Jersey harvests in the spring and 

fall. 

Production increases for fresh cabbage 

have been significantly less than for 

lettuce and spinach over the past 20 

years, but do indicate a steady increase 

in demand for fresh cabbage. Production 

averaged 2.3 billion pounds in the 

1990s, 11 percent higher than the 

average for the 1980s. For the 10-year 

period between 2000 and 2009, fresh 

cabbage production in major States 

averaged 2.4 billion pounds, 4 percent 

higher than the 1990s average. 

In 2007, 88 percent of harvested 

cabbage acreage was for fresh use. In 

2007, the top 5 State producers of 

cabbage for the fresh market were 

California (harvesting 14,000 acres), 

New York (harvesting 10,300 acres), 

Florida (harvesting 9,800 acres), Texas 

(harvesting 6,800 acres), and Georgia 

(harvesting 6,600 acres), and accounted 

for 67 percent of United States total 

fresh cabbage production. Other States 

that produce large quantities of fresh 

cabbage include North Carolina, 

Wisconsin, and Arizona. According to 

the 2007 Census, 3,986 farms in all 50 

States harvested cabbage for the fresh 

market from approximately 71,000 

acres. Of the States with large 

production of fresh cabbage, Florida, 

Georgia, and Texas harvest in the winter 

and spring, California harvests year 

round, and New York harvests in the 

summer. 

Minor Fresh Leafy Green Vegetable 

Crops 

The 2007 Census included limited 

data for the following leafy green 

vegetables for the United States market: 

Chinese cabbage, escarole & endive 

(data combined), kale, and mustard 

greens. 

According to hearing record evidence, 

there were a total of 618 farms growing 

Chinese cabbage on a total of 11,471 

acres in 2007. The top producing States 

for Chinese cabbage include California 

(harvesting 5,593 acres on 111 farms), 

Florida (harvesting 3,206 acres on 40 

farms), New Jersey (harvesting 981 acres 

on 27 farms), Texas (harvesting 517 

acres on 7 farms), and Hawaii 

(harvesting 271 acres on 53 farms). 

For escarole and endive, the 2007 

Census numbers reported for national 

acreage and numbers of farms are 3,169 

and 132, respectively. The top 

producing States for these crops are 

California (harvesting 1,974 acres on 28 

farms), New Jersey (harvesting 546 acres 

on 32 farms), Florida (harvesting 402 

acres on 7 farms), Ohio (harvesting 164 

acres on 4 farms), and New York 

(harvesting 75 acres on 13 farms). 

For kale, the 2007 Census numbers 

reported for national acreage and 

numbers of farms are 3,784 and 946, 

respectively. The top producing States 

for these crops are California (harvesting 

1,077 acres on 96 farms), North Carolina 

(harvesting 363 acres on 64 farms), 

Texas (harvesting 214 acres on 13 

farms), Colorado (harvesting 84 acres on 

12 farms), and Ohio (harvesting 76 acres 

on 28 farms). 

For mustard greens, the 2007 Census 

numbers reported for national acreage 

and numbers of farms are 7,013 and 848, 

respectively. The top producing States 

for these crops are California (harvesting 

1,902 acres on 87 farms), Georgia 

(harvesting 1,585 acres on 36 farms), 

South Carolina (harvesting 581 acres on 

35 farms), Texas (harvesting 470 acres 

on 61 farms), and Michigan (harvesting 

308 acres on 29 farms). 

Consumption 

According to the hearing record, 

annual per capita lettuce consumption 

in the United States was 21 pounds in 

the 1960s, 24 pounds in the 1970s, and 

25 pounds in the first half of the 1980s. 

Since the late 1980s, lettuce 

consumption has averaged about 30 

pounds per person, an increase of 40 

percent compared to the 1960s. The 

type of lettuce consumed has changed 

over this period of time. Historically, 

head lettuce has accounted for the 

majority of national leafy green 

vegetable consumption. While still 

representing the majority of leafy green 

vegetable production volume, evidence 

is that consumer demand for head 

lettuce is slowly shifting toward other 

leafy green vegetable crops. Evidence is 

that demand is shifting to leaf lettuce, 

romaine, spinach, and specialty crops. 

Consumption of head lettuce 

decreased from 23.5 pounds per person 

in 2000 to 16.9 pounds per person in 

2008. At the same time, consumption of 

leaf and romaine lettuce increased from 

8.4 pounds per person in 2000 to 11.1 

pounds per person in 2008. 

Consumption of spinach peaked in 2005 

at 2.3 pounds per person, and has 

remained at most 15 percent below peak 

consumption since the E. coli outbreak 

in 2006. Average per capita 

consumption of spinach was forecasted 

at 1.6 pounds per person for 2009. 

Cabbage consumption has remained 

steady since 2004, oscillating from 8.1 

pounds per person in that year to 7.8 

pounds per person in 2005–06 to 8.2 

pounds per person in 2009. 

Leafy Green Vegetable Imports and 

Exports 

According to data submitted into 

evidence, the United States is the 

second largest producer of leafy green 

vegetables in the world, accounting for 

roughly 22 percent of global production 

in 2009. China is the world’s largest 

leafy green vegetable producer, with a 

world market share equal to 51 percent 

in 2008. 

Witnesses explained that United 

States leafy green vegetable producers 

compete on both a domestic and 

international level with foreign leafy 

green producers. Since 2002, Mexico 

has been the largest exporter of leafy 

green vegetables to the United States, 

followed by Canada, Peru, and Israel. In 

2006, Mexico exported 118 million 

pounds of leafy green vegetables to the 

United States. During the same period, 

Canada, Peru, and Israel exported 52 

million pounds, 1.2 million pounds, 

and 365,000 pounds, respectively. In 

2006, the United States exported 

slightly less than 12 percent of its leafy 

green vegetable production. 

Even though China consumes the 

majority of its leafy green vegetable 

production, witnesses stated that China 

is the main competitor to United States 

leafy green vegetable exports to Asian 

markets. Although Japan and India both 

are top ten global producers of leafy 

green vegetables, neither country 

exports more than 0.1 percent of the 

leafy green vegetables that they produce. 

Mexico is the largest producer of leafy 

green vegetables in Latin America and 

was the ninth largest global producer in 

2006. Its proximity to the United States 

market makes Mexico a competitor in 

both the United States and Mexican 

markets, in addition to other Latin 

American markets. Witnesses also 

explained that some of the leafy green 

vegetables from Mexico are produced by 

United States companies operating in 

both countries. 

Major producers and exporters in the 

European Union are Spain and Italy. 

Both Spain and Italy produced 

approximately 2 million pounds of leafy 


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green vegetables annually from 2000– 

2006. Total exports from Spain and Italy 

average 45 percent and 10 percent of 

their respective leafy green vegetable 

production. 

Record evidence from the hearing 

illustrates that the handling of United 

States grown leafy green vegetables is 

multi-State, regional, national, and 

international in scope. Within the 

United States, the handling of leafy 

green vegetables in one State exerts an 

influence on all other handling of leafy 

green vegetables within the production 

area. Additionally, the handling of 

imported fresh leafy green vegetables 

also impacts interstate commerce and 

foreign commerce. Record evidence is 

that imported leafy green vegetables are 

widely distributed throughout the 

United States market alongside 

domestic leafy green vegetables. 

Moreover, record evidence is that 

sometimes imported product is comingled with domestic product prior to 

its distribution in United States markets. 

Thus, the evidence shows that the 

handling of leafy green vegetables for 

the United States market, whether the 

leafy green vegetables are produced 

domestically or imported, is in the 

current of interstate and foreign 

commerce and directly affects such 

commerce. 

Material Issue Number 2—The Need for 

a National Leafy Green Vegetable 

Marketing Agreement 

The record evidence demonstrates 

that there is a need for the proposed 

program to regulate the handling of 

leafy green vegetables, and that such a 

program would improve quality by 

minimizing the occurrence of microbial 

contamination of those vegetables. If 

implemented, the proposed program 

would provide for the establishment of 

audit metrics and verification audits of 

all product handled by signatory 

handlers within the United States. Any 

audit metrics developed under the 

proposed program would reflect FDA 

good agricultural practice guidelines 

(GAPs) and FDA fresh product 

manufacturing regulation (GMPs). Any 

regulation would also take into account 

leafy green vegetable industry 

stakeholder interests and concerns 

regarding varying production and 

handling environments across the 

nation. Furthermore, the proposed 

program would assist in stabilizing 

market conditions if a contamination 

event were to occur, and would increase 

consumer confidence in the quality of 

leafy green vegetables. 

While participation in the proposed 

program would be voluntary, any 

handler becoming a signatory to the 

agreement would be subject to 

mandatory compliance. The proposed 

program would also cover any imported 

leafy green vegetables handled by 

signatory handlers. According to record 

evidence, foreign producers and 

handlers doing business with signatory 

handlers would be required to meet 

equivalent audit metrics as in effect for 

the domestic industry. 

USDA Inspection Service would serve 

as the primary auditing authority to 

conduct verification audits under the 

proposed program. USDA Inspection 

Service would also have the authority to 

designate other entities approved or 

recognized by USDA to conduct audits 

on its behalf. 

According to the hearing record, there 

are no national, mandatory food quality 

or safety regulations for the growing and 

handling of fresh leafy green vegetables. 

There are, however, FDA guidelines that 

are commonly used by leafy green 

vegetable producers and handlers in 

their development of private or 

customer-driven food safety plans. 

These guidelines are: The ‘‘Guide to 

Minimize Microbial Food Safety 

Hazards for Fresh Fruits and Vegetables’’ 

(1998), and the ‘‘Guide to Minimize 

Microbial Food Safety Hazards for 

Fresh-cut Fruits and Vegetables’’ (2008). 

According to the hearing record, these 

guidelines jointly comprise what are 

referred to as ‘‘Good Agricultural 

Practices’’ or ‘‘GAPs’’. In 2009, FDA 

published a draft set of commodity 

specific guidelines for leafy green 

vegetables, the ‘‘Commodity Specific 

Food Safety Guidelines for Lettuce and 

Leafy Greens Supply Chain’’. These 

guidelines have not been finalized yet 

and, therefore, are not being actively 

used in the industry. 

Mandatory FDA regulation does exist 

for manufacturers of fresh-cut leafy 

green vegetables. Manufacturers alter 

leafy green vegetables from their fresh 

form into a fresh-cut form. FDA 

regulations regarding the manufacturing 

of fresh-cut leafy green vegetables are 

found in 21 CFR Part 110. According to 

the record, these regulations are 

commonly referred to as Good 

Manufacturing Practices (GMPs). 

The AMS, in partnership with State 

departments of agriculture, offers a 

voluntary, audit-based program that 

verifies adherence to the two FDA 

guidelines identified above. Under 

AMS’s Good Agricultural and Good 

Handling Practices Audit Verification 

Programs, the FDA GAPs guidelines are 

divided into two specific programs: 

GAPs verification audits, which 

examine farm practices, and Good 

Handling Practices (GHPs), which 

concentrate on packing facilities, storage 

facilities, and wholesale distribution 

centers. The AMS programs are not 

mandatory. However, according to the 

hearing record, many commercial 

purchasers of leafy green vegetables 

require their vendors to be audited 

under one of the above mentioned 

programs. 

There are two State programs that 

have been established specifically for 

the purpose of regulating the handling 

of fresh leafy green vegetables. These 

programs are found in California and 

Arizona. 

The California Leafy Green Products 

Handler Marketing Agreement became 

effective February 10, 2007. Record 

evidence indicates that, at the time of 

the hearing, 99 percent of leafy green 

vegetables produced and handled in 

California were subject to the State 

program. In October 2007, a similar 

program was implemented in Arizona: 

The Arizona Leafy Green Products 

Shipper Marketing Agreement. Evidence 

is that approximately 75 percent of the 

leafy green vegetables produced and 

handled in Arizona were being 

regulated under that State’s program at 

the time of the hearing. While both the 

California and Arizona programs are 

voluntary, the requirements of these 

State marketing agreements are 

mandatory for all signatories within 

each respective State. 

Proponents of the proposed agreement 

stated that a national program would 

allow for the coordination of audit 

verifications for all fresh leafy green 

vegetables at a national level and would 

allow for continuity of product quality 

as it moves between States. 

While proponents acknowledged that 

leafy green vegetable GAP and GHP 

programs have been designed and 

implemented in cooperation with the 

USDA Inspection Service in two States 

(Arizona and California), they argued 

that the development of a national 

program was necessary. Proponents 

stated that a national program would 

minimize the potential for 

contamination of fresh leafy green 

vegetables in all States where they were 

produced or handled, not just California 

and Arizona. According to the record, 

participation in the two State programs 

represents roughly 99 and 75 percent of 

production in California and Arizona, 

respectively, but participation of 

production outside of those two States 

is inconsistent and limited. Proponents 

explained that producers and handlers 

who currently undergo GAP or GHP 

audit verifications outside of the States 

of California and Arizona primarily do 

so either electively or at the request of 

their buyers. 


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Proponents explained that a fresh 

leafy green vegetable may be grown in 

one State, shipped to another State for 

washing and preliminary handling, and 

then shipped to a third State for further 

processing and packaging prior to that 

product reaching consumers. For this 

reason, proponents stated that 

consistency in good agricultural and 

handling practices were needed in all 

States in which leafy green vegetables 

are grown or handled. Proponents stated 

that national coordination of such 

practices is needed to maintain the 

integrity of product quality, including 

minimizing the potential for microbial 

contamination. 

For example, the California Leafy 

Green Products Handler Marketing 

Agreement does not cover lettuce or 

leafy green vegetables grown outside of 

California. It does not have the authority 

to send inspectors to audit growers or 

handlers in another State. Therefore, if 

a handler who is based in California 

receives product from outside the State, 

that product may not be required to 

meet the GAPs or GHPs. According to 

the proponents, the development of a 

national GAP and GHP program for 

leafy green vegetables based on FDA 

guidelines would foster consistency in 

agricultural and handling practices 

across all States. 

Proponents explained that FDA-based 

GAPs and GHPs provide general 

guidance on critical steps within the 

growing, harvesting, transportation, 

cooling, packing, and storage of fresh 

produce where food safety might be 

compromised. FDA guidelines alert 

producers and handlers to critical areas 

within the production and handling of 

fresh leafy green vegetables that present 

potential for microbiological 

contamination. FDA guidelines do not, 

however, describe the actions that need 

to be taken by producers or handlers 

within their individual businesses to 

meet the guidance benchmark. 

Proponents explained that guidance of 

this kind is established in the form of 

‘‘audit metrics’’. 

For example, FDA guidelines state 

that mechanical or machine harvest has 

become increasingly prevalent and that 

this activity leads to increased surface 

contact exposure of leafy green 

vegetables with components of the 

harvest machinery. FDA guidelines 

identify surface contact in mechanical 

harvesting as a critical step. One of the 

guidelines offered by FDA to reduce the 

potential for contamination at this 

critical step includes establishing 

appropriate measures that reduce, 

control, or eliminate the potential 

introduction of human pathogens at the 

cut surface during and after the 

mechanical harvest operation. Under 

the proposed program, audit metrics 

would be developed to identify actions 

that would meet this guideline, such as 

equipment cleaning schedules and 

requirements for harvest workers to use 

gloves or other protective clothing. 

According to proponents, if the 

proposed program were implemented, 

its administrative body would have 

authority to recommend ‘‘audit metrics’’. 

Witnesses explained that audit metrics 

are standards or steps within a 

production or handling system at which 

some action or measure should be taken 

to minimize the potential for microbial 

contamination. The standards or steps 

within a production or handling system 

at which action or measures are taken 

are also referred to as ‘‘control points’’ of 

a ‘‘process control’’. It was further 

explained that any ‘‘audit metrics’’ 

established under the proposed program 

would represent a set of auditable 

standards or requirements within a 

process control that would allow an 

auditor to determine if a producer or 

handler is in compliance with the 

program. 

While proponent witnesses supported 

the need for a uniform verification audit 

program, they also supported the 

development of a program that 

recognizes differences among producers 

and handlers across regions in the 

production area. For example, 

differences in water sources, geography, 

climate, or size of operation could 

require slight variations in the types of 

actions needed to be taken for a 

producer or handler to be compliant 

under the proposed program. 

It also was argued that the proposed 

agreement should allow for the 

development of audit metrics that are 

reflective of current industry practices 

and are scientifically-based. According 

to the record, standardization of 

production and handling audit metrics 

would result in increased efficiencies 

and reduced costs related to multiple 

buyer-specific requirements. Proponents 

explained that usage of current industry 

practices was important for two reasons. 

First, current practices for organic 

handling operations are likely different 

from conventional handling operations. 

However, the audit metric established 

for each respective type of handling 

operation should result in both 

operations meeting the FDA guidelines 

and complying with the proposed 

program. 

Secondly, proponents advocated that 

audit metrics be supported by current 

scientific research accepted within the 

professional and academic scientific 

community. Proponents stated that the 

proposed program would positively 

address the increasingly common 

practice among fresh produce buyers to 

develop their own food safety 

requirements for producers and 

handlers. According to the hearing 

record, these requirements often differ 

from buyer to buyer, resulting in a 

complex web of private standards that 

producers and handlers need to adhere 

to in order to sell their product. 

Implementation of these varied 

requirements is costly to the producer 

and handler, and is often redundant. 

Moreover, many witnesses testified that 

some buyer requirements are not 

scientifically justified and, in turn, have 

led to production and handling 

practices that challenge existing 

industry technology or are contraindicated to findings of current 

scientific research. 

To this end, proponents expressed the 

importance of including input from 

stakeholder groups including, but not 

limited, to organic producers and 

handlers, small businesses, and natural 

resource interest groups. Additionally, 

proponents stated that members of the 

professional and academic community 

should be represented in the audit 

metric development process. 

Proponents argued that because the 

handling of imported fresh leafy green 

vegetables impacts domestic commerce, 

foreign product handled by signatories 

should also be regulated. As discussed 

in Material Issue 1, imported leafy green 

vegetables are widely distributed 

throughout the United States market 

alongside domestic leafy green 

vegetables. Moreover, record evidence 

shows that imported product can be comingled with domestic product prior to 

its distribution in United States markets. 

Witnesses explained that if microbial 

contamination were to occur during the 

growing or handling of foreign leafy 

green vegetables imported by United 

States handlers and consumed by 

United States consumers, the United 

States fresh leafy green vegetable 

industry would suffer economic losses 

regardless of the origin of the 

contaminated product. Witnesses 

stressed the importance of having a 

Federally-regulated program through 

which the industry could stabilize any 

negative market impacts, and 

proactively address consumer 

confidence with regard to domestically 

handled leafy green vegetables, if such 

an event were to occur. 

According to the hearing record, the 

regulation of imported product handled 

by signatory handlers would ensure that 

both domestic and foreign product was 

held to the same, or equivalent, good 

agricultural and handling practices. 

This would allow for consistency of 


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product quality among participants of 

the proposed program. 

Proponents stated that it is critical for 

the industry to improve and ensure the 

safety and quality of leafy green 

vegetables. The relationship among 

quality, consumer demand, and 

producer returns was demonstrated at 

the hearing. Furthermore, the 

correlation between product quality and 

the absence of microbial contamination 

was clearly defined. 

Witnesses testifying at the hearing 

used the example of the September 

2006, multi-state outbreak of E. coli 

linked to fresh spinach grown in 

California’s Salinas Valley. According to 

the record, the resulting recall was the 

largest ever for the fresh leafy green 

vegetable industry. Investigations by 

FDA and the California Department of 

Health Services, in cooperation with the 

Centers for Disease Control and 

Prevention, and USDA Animal and 

Plant Health Inspection Service, 

concluded that E. coli contamination 

might have been attributed to 

environmental factors in the production 

area. 

Witnesses who were impacted by the 

recall stated that consumer demand for 

fresh spinach dropped by more than 60 

percent immediately following FDA’s 

public alerts. Witnesses also explained 

that after the contamination had been 

linked to California, consumer 

consumption of spinach remained at 

record lows regardless of the State 

within which it was produced. 

According to record evidence, consumer 

demand for spinach remains below pre2006 levels. 

Proponents used the 2006 E. coli 

outbreak, and the subsequent damage to 

consumer confidence and demand for 

leafy green vegetables, to demonstrate 

that a contamination event in one State 

can impact industry participants nationwide. Witnesses stressed the need to 

have a regulatory system in place as a 

means of minimizing the potential for 

future contamination events. Witnesses 

also expressed the usefulness of having 

a Federally regulated program to 

facilitate the rapid identification and 

containment of contamination events if 

they occur. Proponents explained that 

such a national program would 

safeguard consumers, as well as provide 

the leafy green vegetable industry with 

a mechanism to address potential loss of 

consumer confidence in product 

quality. 

According to record evidence, USDA 

has several programs—namely the 

Qualified Through Verification and the 

GAPs and GHPs Audit Verification 

Programs—that provide independent 

verification that growers and handlers 

are following FDA’s guidance and 

commodity-specific best practices. 

Proponents further stated that USDA 

and FDA have an established working 

relationship on food quality programs. 

For example, AMS offers the GAPs and 

GHPs Fresh Produce Audit Verification 

Program, a voluntary, audit-based 

program for the fresh produce industry 

based on the FDA’s ‘‘Guidance to 

Minimize Microbial Food Safety 

Hazards for Fresh Fruits and 

Vegetables’’, and also coordinates 

Inspection Service audits under both the 

California and Arizona leafy green 

vegetable marketing agreements. 

Witnesses in favor of USDA oversight 

also cited the history of interagency 

cooperation. As an example, witnesses 

at the hearing referred to the USDA and 

FDA co-sponsorship of the National 

Advisory Committee on Microbiological 

Criteria for Foods by the Food Safety 

and Inspection Services, along with 

other Federal agencies such as the 

Centers for Disease Control and 

Prevention. 

Witnesses opposed to the proposed 

program, as well as those who voiced 

the need for revisions to the proponents’ 

proposal, expressed apprehension over 

the ability of program administrators to 

collaborate with stakeholder interest 

groups. Specifically, witnesses were 

concerned that the development and 

recommendation process of audit 

metrics would not take into 

consideration differences between 

conventional and organic production 

and handling practices, as well as scale 

of business operations. Other areas of 

particular concern noted during the 

hearing include topics such as 

conservation practices and natural 

resource management. 

These witnesses also explained that 

regulatory jurisdiction over some of 

these topics is shared by multiple 

Federal, State, and local government 

agencies, and stated the need to include 

representatives from these regulatory 

agencies in the audit metric 

development process. It was argued that 

their involvement would mitigate the 

potential for conflicting requirements 

being placed on producers or handlers 

that are subject to multiple sets of 

standards and compliance issues. 

Some witnesses opposed to the 

proposed program expressed concern 

that its implementation would lead to 

further proliferation of private sector 

standards. These critics argue that the 

current California and Arizona State 

programs have had little positive impact 

on the reduction of private standards in 

those States since their implementation. 

While many witnesses testified at the 

hearing that a relationship between 

product quality and food safety does 

exist, some stated that a regulatory 

program would be better placed under 

FDA oversight, or perhaps under a 

system of State regulatory programs. 

Critics of USDA oversight of such a 

program stated that USDA lacks the 

scientific expertise needed for the 

development and implementation of a 

science-based regulatory program for 

food safety. Critics also explained that 

their understanding of the mission of 

AMS is to facilitate the marketing of 

agricultural products and therefore 

should not be involved in the oversight 

of quality as it relates to food safety 

issues. These witnesses stated that 

monitoring of food safety is not relevant 

to food quality and should not be 

included under the purview of 

marketing and market stability. 

Others witnesses stated that 

individual State departments of 

agriculture would be better equipped at 

addressing the particular needs and 

unique characteristics of their producer 

and handler constituents. Witnesses in 

favor of State regulatory programs 

argued that the implementation of a 

national program would result in a ‘‘onesize fits all’’ Federal regulatory program. 

These witnesses believe that regulation 

would be developed to reflect the 

agricultural practices of regions 

producing the most volume of leafy 

green vegetables to the detriment of 

regions producing less volume. 

Lastly, concerns were raised during 

the hearing process and in the posthearing briefs submitted over the 

development process of any audit 

metrics applied to foreign production or 

handling operations. Witnesses also 

raised questions over the proposed 

agreement’s ability to recognize foreign 

GAPs, GHPs and GMPs programs, 

foreign auditing services, or 

independent third-party auditing 

services currently in operation both 

domestically and internationally. 

Based on hearing record evidence, 

USDA concludes that there is a need for 

a national program to regulate the 

handling of leafy green vegetables. The 

evidence supports that the proposed 

program would allow a uniform 

baseline of regulation to be proficiently 

administered throughout the complex 

and diverse leafy green vegetable 

industry. The proposed program should 

allow for participation and compliance 

among the diverse community of 

growing and handling operations across 

the United States. 

Through the proposed program, leafy 

green vegetable industry stakeholders 

could work cooperatively together to 

develop and recommend a uniform, 

auditable, science-based food quality 


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verification program. Furthermore, audit 

oversight conducted by the USDA 

Inspection Service or USDA approved 

or recognized entities in coordination 

with current FDA guidelines, would 

benefit the industry and would be in the 

best interest of consumers. Finally, the 

proposed agreement would tend to 

effectuate the declared policy of the Act. 

Material Issue Number 3—Definition of 

Leafy Green Vegetables and Production 

Area 

The proposed agreement should 

provide for the definition of the 

commodity and the area that would be 

regulated. Terms related to the 

commodity to be covered by the 

proposed agreement, such as ‘‘fresh’’ and 

‘‘fresh-cut’’ should also be defined. 

Leafy Green Vegetables 

The proponents testified that leafy 

green vegetables are short-lived 

herbaceous plants that are eaten raw. 

Most leafy green vegetables are 

produced in raised beds that are either 

directly seeded or transplanted with 

plugs (immature plants). Leafy green 

vegetables produced for fresh market 

production are harvested either as single 

leaves or as whole plants. Some types of 

leafy green vegetables, such as chard, 

kale, mizuna, and baby leaf lettuce may 

be harvested multiple times in a crop 

year. Record evidence pertaining to the 

leafy green vegetables included in the 

definition follows. 

Arugula, a member of the 

Brassicaceae family of plants, has three 

species that are used for human 

consumption: the annual species— 

Eruca sativa (domesticated) and Eruca 

sativa vesicaria (L.) Cav. (wild-type); 

perennial species—Diplotaxis tenuifolia 

(L.) DC; and a polyploidy perennial 

Diplotaxis muralis (L.) DC. Arugula is a 

low-growing annual that is commonly 

called rocket, roquette (French), 

rughetta, and rucola (Italian). If arugula 

is marketed as a single commodity, it is 

usually bunched and packed into 

cartons in the field. Arugula that is for 

the fresh-cut market is shipped from the 

field to the processing facility in bulk 

containers. 

According to record evidence, arugula 

produced in Arizona is primarily 

produced for value-added packaged 

salad mixes. In this example, the plants 

are not thinned after sprouting and are 

harvested as immature arugula. This 

differs from producers in New Jersey, 

who generally harvest, wash, and 

bundle their crop, and sell it as a single 

commodity at local produce auctions in 

wholesale units of 24 bunches per crate. 

Record evidence indicates that small 

producers who produce arugula 

generally sell their crop in bunches 

directly to customers at farmers’ 

markets. 

Cabbage, one of the most consumed 

vegetables in the world, is a member of 

the Brassica oleracea species (Capitata 

Group) of the family Brassicaceae. 

Cabbage is produced year-round in all 

50 States. A mature head of cabbage 

generally weighs 3–5 pounds, 

depending on the variety. Cabbage 

produced for the fresh market is 

harvested by hand and packed 18–24 

heads per carton. 

Chard (Beta vulgaris var. cicla) is a 

member of the Amaranthaceae family of 

plants that is commonly called Swiss 

chard in the United States. It is the same 

species as beetroot. Stems of the chard 

plant vary from white to red and yellow 

depending on the variety. If only mature 

leaves are harvested, chard will 

continue to be productive for up to a 

year. Leaves are typically bunched in 

the field during harvest. Immature or 

baby leaves may be added to packaged 

salad mixes. 

Cilantro (Coriandrum sativum) is an 

annual herb in the family Apiaceae that 

is also called Chinese or Mexican 

parsley in the United States. In Florida, 

cilantro is produced for the fresh-cut 

market between late September and 

May, whereas in California it is 

produced year-round. Hand-harvested 

cilantro is sold in bunches tied with a 

rubber band or twist tie. Conventional 

packing is 30 bunches in 10 pound 

boxes. 

There are three major cress species 

known in North America: Garden cress, 

Upland cress, and watercress. All are 

members of the family Brassicaceae. 

Garden cress (Lepidium sativum), also 

called peppergrass, pepper cress, or 

pepperwort, is a fast-growing plant. 

Introduced to the United States from 

China, it is botanically related to 

mustard and watercress and is 

sometimes referred to as an herb. 

Garden cress is commonly used in 

salads as a ‘‘baby green’’. Upland cress 

(Barbarea verna) is native and grows 

wild in the southeast; it is often called 

creasy greens, highland creasy, or creasy 

salad. Watercress (Nasturtium 

officinale, N. microphyllum) is a fastgrowing aquatic or semi-aquatic 

perennial plant. It is thought to be one 

of the oldest known leafy green 

vegetables consumed by humans. 

Dandelion is produced commercially 

in the United States from two species, 

Taraxacum officinale and Chichorium 

intybus, both belonging to the 

Asteraceae family. A perennial 

herbaceous plant, dandelions are native 

to North America and produced as 

weeds worldwide. Dandelion use as a 

fresh leafy green is growing in 

popularity. 

Endigia is a new variety of forced red 

chicory that is a cross between Belgian 

endive and two varieties of radicchio— 

Chioggia and Verona. 

Endive (Cichorium endivia) is a leafy 

green belonging to the large Asteraceae 

family. There are two main varieties of 

endive, curly endive, or frisee (var. 

crispum), and escarole (var. latifolia). 

The leaves from endive are harvested by 

hand and tied in bunches before being 

packed into cartons. Belgian endive 

(Cichorium intybus var. foliosum) is also 

known as witloof in the United States. 

Kale is a member of the Brassica 

oleracea species (Acephala Group) with 

common varieties of green kale, red 

kale, red Russian kale, and Lacinto or 

dinosaur kale. At harvest, two cuttings 

may generally be taken from one 

seeding. If harvested as an immature 

leaf, kale is often co-mingled with other 

immature or baby leaf variety leafy 

green vegetables in salad mixes. Mature 

kale is typically cooked prior to eating. 

However, witnesses testified that mature 

kale is often used on salad bars for 

decoration, so it comes into contact with 

other leafy green vegetables in that 

context. 

Lettuce (Lactuca sativa) is produced 

in all 50 States and is highly perishable. 

Lettuce crops include head, leaf, and 

romaine. Common varieties of head 

lettuce (Lactuca sativa var. capitata) are 

iceberg (also called crisphead) and 

butterhead (also called Boston, bibb, 

buttercrunch, or Tom Thumb). During 

harvesting in Arizona and California, 

outer leaves are stripped from the 

lettuce heads before boxing. Head 

lettuce sold fresh is boxed 24 heads to 

a carton—either naked or film-wrapped. 

Head lettuce that will be further 

processed is shipped in bulk to the 

processing facility where it is washed, 

cored, shredded, and/or cut and 

packaged as ready-to-eat products. Leaf 

lettuce (Lactuca sativa var. crispa) has 

steadily grown in popularity in the 

United States in the past 15 years. 

Common leaf lettuce varieties are red 

leaf, green leaf, and baby leaf or salad/ 

spring mix. At harvest, leaf lettuce is 

generally naked packed 24 to a carton. 

Romaine lettuce (Lactuca sativa var. 

longifolia), also called Cos lettuce, is 

generally loosely packed. 

Maˆche (Valerianella locusta) is a 

small annual plant of the family 

Valeriancaceae. It is also called corn 

salad, Lewiston cornsalad, lamb’s 

lettuce, lamb’s tongue, field lettuce, 

field salad, rapunzel, and fetticus. 

Parsley (Petroselinum crispum) is a 

biennial green leaf herb that is a 

member of the family Apiaceae. Parsley 


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is available in two varieties—curly leaf 

and Italian or flat leaf. Parsley is 

harvested by cutting 1.5–2 inches above 

ground so that re-growth may occur, 

allowing for three to four cuttings per 

planting. 

Radicchio, a type of chicory 

(Cichorium intybus var. foliosum), is a 

member of the family Asteraceae. 

Sometimes called Italian chicory, 

varieties of radicchio are named after 

the regions of Italy from which they 

originate. The most common variety of 

radicchio found in the United States is 

Radicchio di Chioggia. Other lesser 

known varieties available are Radicchio 

di Treviso, Tardivo, and Radicchio di 

Castelfranco. In Italy, radicchio is often 

grilled or roasted, but in the United 

States it is most often used as a colorful 

addition to leafy green salad mixes. The 

United States also imports radicchio 

from Italy and Chile. 

Spinach (Spinancia oleracea) is a 

hardy leafy green vegetable that is 

produced in all 50 States. There are 

several different varieties of spinach 

that are classified according to leaf 

shape and texture. Varieties include 

savoy, which has wrinkled leaves, semisavoy, and varieties with smooth or flat 

leaves. Savoy types are sold mainly for 

fresh market uses, while types with 

smooth or flat leaves are used mainly for 

processing. The growing season varies 

by location, and leaves may be cut as 

often as four times during a crop year. 

Spinach is sold in bunches or as loose 

leaf in cellophane packaging to food 

service and retail outlets. 

Tat soi (Brassica rapa var. rosularis, 

Narinosa group) is an Asian leafy green 

vegetable and a member of the 

Brassicaceae family. 

Winter purslane (Claytonia perfoliata) 

is a member of the Portulacaceae 

family. Also known as Cuban Spinach 

and Miner’s lettuce, winter purslane is 

an annual plant. 

Proponents and other witnesses 

testified that they believe this is a 

comprehensive list of the leafy green 

vegetables produced in the United 

States and available in the market. 

However, new varieties of lettuces and 

other leafy greens appear in the market 

on an annual basis. Those varieties 

would be covered by the proposed 

agreement. Similarly, witnesses testified 

that ‘‘baby leaf’’ or ‘‘baby greens’’ are a 

seed variety that is to be harvested and 

marketed as a vegetable, rather than 

being an immature version of a leafy 

green vegetable. These varieties would 

also be covered by the program. The 

definition of leafy green vegetables 

should be revised to clarify that all 

varieties of the listed items would be 

covered. 

Some witnesses supported adding 

mustards and herbs to the proponents’ 

definition. However, record evidence 

does not support extending program 

coverage to those items. Proponents 

testified, for example, that mustards 

were not included in the definition of 

leafy green vegetables because they are 

normally cooked prior to consumption. 

The proponents supported including 

‘‘spring mix’’ in the definition of leafy 

green vegetables. However, the record 

evidence is that spring mix is not a 

single commodity, but a mixture of a 

variety of leafy green vegetables. 

Proponents and other witnesses testified 

that there is no universal, standard 

ingredient blend for spring mix. A 

spring mix typically includes, but is not 

limited to, arugula, chard, cress, lettuce, 

and radicchio. It also includes baby leaf 

items such as cress, dandelion, endiga, 

mache, mizuna, tat soi, and winter 

purslane. While the list of leafy green 

vegetables includes most items 

commonly used in a spring mix, 

signatory handlers who produce a 

spring mix would need to ensure that all 

ingredients of their spring mix are 

produced and handled in accordance 

with the terms of the proposed 

agreement. 

The proposed agreement is intended 

to cover all mixes (such as spring mix 

and other salad blends) of leafy green 

vegetables. The definition of leafy green 

vegetables is revised to clarify this point 

by adding a new paragraph (b). In a 

related matter, sometimes salad mixes 

contain items that are not leafy green 

vegetables, such as carrots or dressings. 

These items would not be covered by 

the agreement. Such language is being 

added to the definition of leafy green 

vegetables as a new paragraph (c). (This 

provision appeared in § 970.8 of the 

proponents’ proposal, but that section of 

the proposed agreement is being deleted 

as unnecessary.) 

Some witnesses stated that the 

program should apply only to fresh-cut 

leafy green vegetables. These witnesses 

cited that there is a different safety risk 

for leafy green vegetables produced for 

fresh-cut versus the fresh market. Other 

witnesses with generally the same 

viewpoint stated that the list of leafy 

green vegetables presented by the 

proponents was too broad and should 

provide an exception for leafy green 

vegetables that require cooking. 

Based on hearing record evidence, all 

leafy green vegetables included in the 

proposed definition that are handled by 

signatory handlers and that are intended 

for human consumption in the fresh 

form (whether fresh-cut or not) should 

be covered under the proposed 

agreement. Record evidence 

demonstrates that the movement of leafy 

green vegetables from producers to 

handlers is fluid and that oftentimes it 

is difficult to anticipate what the end 

use of a harvested field will be. 

Moreover, record evidence supports that 

the opportunity for microbial 

contamination exists throughout the 

industry at the production, harvesting, 

handling and processing stages. 

Therefore, coverage of all leafy green 

vegetables, whether in their fresh or 

fresh-cut form, is necessary and is in the 

best interest of consumers. 

Regarding witness requests to exempt 

leafy green vegetables that require 

cooking prior to human consumption, 

this exemption is unnecessary as the 

proposed program would only cover 

leafy green vegetables intended for 

consumption in their raw or uncooked 

form. This is because the process of 

cooking is identified as a ‘‘kill step’’ in 

food safety guidelines and is believed to 

eliminate contamination. 

Lastly, the record evidence supports 

the authority for the Board, with the 

approval of the Secretary, to add and 

remove leafy green vegetables from the 

definition as deemed necessary. This 

authority would enable the program to 

adapt and change to the needs of the 

leafy green vegetable industry. Any 

change would require that the Board 

approve such a recommendation at a 

public meeting and then submit the 

recommendation to the Secretary for 

review. If appropriate, USDA would 

initiate rulemaking. 

In summary, the definition of ‘‘leafy 

green vegetables’’ that appeared in the 

Notice of Hearing as § 970.15, is revised 

as discussed above and redesignated as 

§ 970.18. 

Fresh 

Proponents and other witnesses stated 

that ‘‘fresh’’ means any leafy green 

vegetable in the raw or natural form. 

Proponents described the many 

different ways that leafy green 

vegetables are harvested fresh in the 

field. One witness described how 

cilantro could be harvested using any of 

three different methods: (1) Cut the 

foliage 1–2 inches above the crown (the 

most common method); (2) cut the 

whole plant just below the soil; and 

(3) bulk harvest into bins using a mower 

and conveyor. Another witness 

provided the example that a head of 

lettuce that is field-cored and wrapped 

in the field is considered a raw 

agricultural commodity in a package. 

Both of these examples demonstrate that 

while harvesting involves cutting the 

foliage growth from the stem or crown 

of the plant, such cutting does not 


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constitute the creation of a fresh-cut 

leafy green vegetable. 

The term ‘‘fresh’’ was used often as 

witnesses discussed GAPs and GHPs, 

since both pertain only to the fresh 

commodity. Thus, based on record 

evidence, a new definition § 970.9, 

‘‘fresh’’ is added to the proposed 

agreement. This is necessary to identify 

and describe how fresh leafy green 

vegetables are different from fresh-cut 

leafy green vegetables. 

Fresh-Cut 

Proponents proposed a definition of 

‘‘fresh cut’’ to mean fresh leafy green 

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. Proponents 

provided examples of fresh-cut leafy 

green vegetables by citing lettuce that is 

shipped in bulk to the processing 

facility where it is washed, cored, 

shredded or cut, and packaged as readyto-eat bagged salads. It was noted that 

this process would also apply to 

cabbage. 

Section 970.7 is revised for 

clarification and redesignated as 

§ 970.10. 

In addition, proponents proposed a 

definition in the Notice of Hearing as 

§ 970.8, ‘‘fresh-cut, packaged leafy green 

product’’. However, witnesses testified 

that this term means the same as the 

definition of ‘‘fresh-cut’’. This definition 

is being removed from the proposed 

agreement as unnecessary. Likewise, the 

definition of ‘‘Packaged’’ that appeared 

in the Notice of Hearing as § 970.18 is 

deleted as unnecessary. 

Production Area 

The term ‘‘production area’’ should be 

included in order to identify the area in 

which the proposed program would be 

applicable. According to the hearing 

record, the production area should 

include the fifty of the United States 

and the District of Columbia. 

Proponents testified that the intent of 

the proposed program is to put into 

effect a national, standardized system to 

increase quality by minimizing 

microbial contamination of leafy green 

vegetables intended for raw or uncooked 

human consumption in the United 

States. Furthermore, the proposed 

program would assist in stabilizing 

market conditions if a contamination 

event were to occur, and would increase 

consumer confidence in the quality of 

leafy green vegetables. 

According to record evidence and as 

discussed in Material Issue 1, leafy 

green vegetables are produced and 

handled year-round in all 50 States and 

the District of Columbia. Handlers in the 

United States may acquire leafy green 

vegetables that are produced in one 

State, manufactured in another State, 

and shipped nationally for consumption 

by consumers. Additionally, witnesses 

stated that some handlers have 

production or manufacturing 

operations, or both, in multiple 

locations throughout the United States. 

Thus, the national scope of the leafy 

green vegetable industry supports 

defining the production area as all 50 

States and the District of Columbia. 

Lastly, the production area and the 

zones into which it would be divided 

would determine the eligibility of 

persons to serve on the Board. The 

proposed program would require that all 

handlers, producers, and at-large 

members are located within the 

production area. The topic of the 

division of the production area into 

zones and Board membership are 

further discussed in Material Issue 5(b). 

Based on the hearing record, the term 

‘‘production area’’ should be defined to 

mean all 50 States and the District of 

Columbia of the United States of 

America. The definition of ‘‘production 

area’’ that appeared in the Notice of 

Hearing as § 970.23 is redesignated as 

§ 970.28. 

Material Issue Number 4—Persons and 

Activities To Be Regulated 

Certain terms should be defined to 

identify the persons and the activities 

that would be regulated under the 

proposed agreement. The proposed 

agreement would regulate the act of 

handling leafy green vegetables in the 

production area by those handlers 

would voluntarily agree to adhere to the 

agreement requirements. As such, the 

following terms should be defined: 

‘‘handle’’, ‘‘handler’’, ‘‘importer’’, 

‘‘manufacture’’, ‘‘manufacturer’’, 

‘‘signatory first handler’’, and ‘‘signatory 

handler.’’ 

According to record testimony, within 

the leafy green vegetable industry, 

businesses in the farm to fork 

continuum include growers/producers, 

handlers (commonly known as 

processors, shippers, packers), 

wholesalers/distributors, agents/brokers, 

exporters/importers, retail outlets such 

as grocery stores, and foodservice 

providers. Small farms as defined by 

SBA commonly sell their leafy green 

vegetables directly to consumers at 

farmer markets, through Community 

Supported Agriculture (CSA) programs, 

or to retailers. Record testimony 

indicates that large farm operations 

usually sell their leafy green vegetable 

crops to handlers or directly to retailers 

at wholesale produce auctions. 

Record testimony indicates that there 

basically are two types of handlers ‘‘first 

handlers’’ and ‘‘secondary handlers’’ or 

handlers other than first handlers. ‘‘First 

handlers’’ take possession of leafy green 

vegetables and may process and package 

leafy green vegetables before selling to 

other handlers or retailers. ‘‘Secondary 

handlers’’ such as manufacturers—the 

record indicates—commonly buy from 

first handlers. However, such handlers 

also could buy directly from producers. 

According to record testimony, 

handling generally begins when the 

harvested leafy green vegetable crop 

leaves the field and is in the possession 

of the handler. Record testimony also 

indicates that fresh leafy green vegetable 

crops may change hands as many as 

three times through handling activities 

before reaching its final destination. 

According to record evidence, the 

term ‘‘handle’’ should be defined to 

mean ‘‘receive, acquire, sell, process, 

ship, distribute, or import leafy green 

vegetables. The record indicates that 

‘‘handle’’ should not include retail sales, 

foodservice sales, or brokering of such 

leafy green vegetables. According to 

record evidence, the act of handling 

places leafy green vegetables or 

products into the current of commerce 

both within the production area, and 

between the production area and any 

point outside that area. As such, 

‘‘handle’’ which appeared in the Notice 

of Hearing as § 970.11 should be 

redesignated as § 970.14, and revised 

slightly for clarity. 

‘‘Handler’’ should be defined to mean 

any person who handles leafy green 

vegetables. The record indicates that a 

handler could be an individual, joint 

venture, partnership, corporation, or 

other business entity. According to 

record testimony, a handler represents 

the segment of the industry that 

processes, ships, sells, consigns, or 

imports leafy green vegetables, or any 

combination thereof. As proposed by 

under this agreement, distributors, 

packers, processors, shippers, and 

wholesalers would be handlers. The 

record also indicates that producers 

who engage in the act of handling leafy 

green vegetables would be considered 

handlers. As handlers, such producers 

would directly place their product into 

the stream of commerce, through direct 

sales to consumers, retailers, or other 

handlers such as a manufacturer or 

foodservice operator. 

For the purposes of the proposed 

agreement, the term ‘‘handler’’ should 

specify that brokers, retailers, and 

foodservice operators would not be 

considered handlers unless such 


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persons are otherwise engaged in 

handling. The record indicates that 

generally brokers serve as 

intermediaries and, negotiate with 

producers or handlers on behalf of their 

customers without ever taking 

possession or ownership of the actual 

leafy green vegetables. 

The term ‘‘handler’’ appeared in the 

Notice of Hearing as § 970.12, and 

should be re-designated § 970.15, and 

revised slightly for clarity. 

Record evidence indicates that the 

term ‘‘signatory’’ should be modified to 

‘‘signatory handler’’ and the definition 

should be revised to mean a handler 

located in the production area who is 

party to the proposed agreement. The 

revisions clarify that only handlers 

could become signatories to the 

proposed agreement, and that such 

persons would have to be located within 

the production area. 

According to the record, a signatory 

handler would be responsible for 

meeting the requirements of the 

proposed agreement, complying with 

audit requirements, and submitting 

reports and other information required 

for the administration of the proposed 

agreement. In cases where a signatory 

handler contracts for services, the 

signatory handler would be responsible 

for verifying and retaining 

documentation that the contracting 

service provider or agent meets any 

requirements in effect under the 

proposed agreement. 

Signatory handlers would be eligible 

to nominate persons to the Board and to 

serve as handler members or their 

alternates on the Board. Signatory 

handlers also would be eligible to 

nominate persons to serve on 

Committees of the Board and be eligible 

to serve as members of the Technical 

Review Committee. Additionally, record 

evidence indicates that signatory 

handlers would need to be located in 

the production area because they are 

responsible for handling leafy green 

vegetables in the United States. 

The term ‘‘signatory’’, which appeared 

in the Notice of Hearing as § 970.26, is 

revised to ‘‘signatory handler’’, and 

redesignated as § 970.33. 

Record testimony indicates that, 

signatory handlers would be identified 

as ‘‘first’’ or ‘‘secondary’’ handlers under 

the proposed agreement. Record 

evidence supports adding a new 

§ 970.32. This section would establish 

the definition of ‘‘signatory first 

handler’’ to mean the person located in 

the production area who signs the 

proposed agreement and who is the first 

to handle leafy green vegetables. This 

definition is intended to identify 

signatory handlers who first receive 

leafy green vegetables for the purposes 

of assessment collection. As proposed 

under the agreement and supported by 

the record, signatory first handlers 

would be financially responsible for the 

payment of assessments under the 

proposed agreement. It is important to 

identify the responsible party, since 

leafy green vegetables may be handled 

by several different signatory handlers 

and the assessment should only be 

applied once. 

According to proponents of the 

proposed agreement, ‘‘signatory first 

handlers’’ would be identified as the 

handler who first takes possession of 

leafy green vegetables in their natural 

form from a producer with the intent to 

sell them to retailers or other handlers. 

As an example, a signatory first handler 

may contract with an independent 

harvesting company to harvest a 

producer’s crop and deliver that crop to 

the signatory first handler’s facility. In 

such a case, the signatory first handler 

would take ownership of the crop, yet 

would not be the first business entity to 

physically engage in the act of handling. 

According to record evidence, given that 

the harvesting company is contracted by 

the signatory first handler, and the 

handler assumes ownership, the said 

handler, and not the harvester, would be 

identified as the signatory first handler. 

Therefore, the signatory first handler 

would be responsible for ensuring that 

the contracting harvester is in 

compliance with any provisions in 

effect under the proposed agreement. 

Additionally, the signatory first handler 

would be responsible for the payment of 

assessments on such leafy green 

vegetables. 

As another example, if a producer 

were to harvest a leafy green vegetable 

crop and then engage in the act of 

handling the crop that producer would 

be considered a ‘‘signatory first handler’’ 

and responsible for ensuring crop is in 

program compliance with the proposed 

agreement, assuming the producer in its 

capacity as a handler had signed the 

agreement. 

Witnesses explained that while some 

leafy green vegetables are minimally 

handled after they are harvested, some 

product is sold or transferred to a 

secondary handler or a handler other 

than a first handler for further 

processing. These secondary handlers 

are commonly known as 

‘‘manufacturers’’ or ‘‘processors’’. Record 

testimony indicates that secondary 

handlers or handlers other than first 

handlers generally buy from first 

handlers, and could receive product 

from other handlers, processors, or 

manufacturers. Additionally, such 

secondary handlers also may purchase 

leafy green vegetables directly from 

producers. 

According to the hearing record, the 

term ‘‘process’’, which is included in the 

definition of ‘‘handle’’, is synonymous 

with ‘‘manufacture’’ and means ‘‘to 

change fresh leafy green vegetables from 

their natural or raw form into packaged 

fresh-cut products.’’ During the 

manufacturing process, leafy green 

vegetables are typically washed, and 

then shredded, cut, cored, trimmed, or 

blended with other types of fresh-cut 

leafy green vegetables, or any 

combination thereof. Ultimately, the 

processed product is packaged for 

distribution. Processed fresh leafy green 

vegetable products are then typically 

transported in refrigerated trucks or 

coolers to the secondary handler’s 

customer. These customers may include 

consumers, retailers, foodservice 

companies, or wholesale produce 

operations supplying a range of 

products to retail and foodservice 

companies. 

Witnesses were careful to clarify that 

activities of a manufacturer do not 

include the packing of leafy green 

vegetables in the field. Additionally, 

record testimony indicates that, in some 

cases, coring and trimming activities 

can be part of a producer or handler 

harvesting activity. Therefore, the 

definition of manufacture should not 

include leafy green vegetables packed in 

the field. Additionally, the terms 

‘‘manufacture’’ and ‘‘process’’ appeared 

in the Notice of Hearing as § 970.16 and 

§ 970.21, respectively, and should be 

combined and revised slightly for 

purposes of clarification and 

redesignated as § 970.19. 

The term ‘‘manufacturer’’ as indicated 

above should be defined to mean any 

person who manufactures. As slightly 

revised, the definition should not 

include a retailer, a foodservice 

operator, or broker, except to the extent 

that such a person is otherwise engaged 

in handling. The term ‘‘manufacturer’’ 

appeared in the Notice of Hearing as 

§ 970.17, and should be redesignated as 

§ 970.20. 

Hearing record evidence supports the 

inclusion of the term ‘‘import’’ under the 

definition of ‘‘handle’’. As such, the term 

‘‘importer’’ should be defined to mean ‘‘a 

handler located in the production area 

who imports leafy green vegetables that 

are produced or handled outside of the 

production area.’’ The term ‘‘importer’’ 

appeared in the Notice of Hearing as 

§ 970.13, and should be re-designated as 

§ 970.16. 


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Material Issue Number 5(a)—Definition 

of Terms 

In addition to the definitions 

addressed in Material Issues 3 and 4, 

certain terms should be defined for the 

purpose of specifically designating their 

applicability and limitations whenever 

they are used in the proposed 

agreement. 

‘‘Act’’ should be defined in § 970.1 of 

the proposed agreement as the 

Agricultural Marketing Agreement Act 

of 1937, as amended (48 Stat. 31, as 

amended; 7 U.S.C. 601–674). This is the 

statute under which the proposed 

regulatory agreement would be 

operative. 

Record evidence supports adding a 

new definition § 970.2, ‘‘Audit metric’’, 

to the proposed agreement. According to 

the record, ‘‘audit metric’’ should be 

defined to mean an auditable standard 

or requirement within a process control 

prescribed pursuant to § 970.67. 

‘‘Audit verification’’ should be revised 

to ‘‘audit’’ and should mean an official 

review conducted by the Inspection 

Service to verify and document that 

good agricultural, handling, and 

manufacturing practices are adhered to 

throughout the growing, harvesting, 

packing, manufacturing, and 

transportation of leafy green vegetables. 

Additionally, according to the record, 

an audit would include a physical visit 

to the farm or facility subject to audit 

while it is in operation. This audit 

would represent a ‘‘snapshot in time’’ 

based on documentation reviewed, 

persons interviewed, and operations 

observed. The intention of the audit is 

to provide the auditor with a picture of 

the handler’s activities with the ultimate 

goal of ensuring that such activities 

comply with program requirements. 

The definition for ‘‘audit verification’’ 

that appeared in the Notice of Hearing 

as § 970.2, should be redesignated as 

§ 970.3, ‘‘audit’’. 

The term ‘‘broker’’ should mean a 

person who coordinates the sale and 

transportation of leafy green vegetables 

for retail or foodservice operators, 

without taking ownership of such 

vegetables. This definition appeared in 

the Notice of Hearing as § 970.3, and 

should be redesignated as § 970.4 and 

reworded for clarity. 

As witnesses explained, and as 

recommended in this decision, the term 

‘‘critical limit’’ should refer to a 

maximum or minimum value that is 

assigned to a process control when a 

biological, chemical, or a physical 

parameter must be controlled. This 

prevents or minimizes the occurrence of 

a food safety hazard. ‘‘Critical limit’’ 

appeared in the Notice of Hearing as 

§ 970.4, and should be redesignated as 

§ 970.6 and revised slightly for clarity. 

The term ‘‘crop year’’ should be 

defined to mean the 12-month period 

beginning on April 1 of any year and 

ending on March 31 of the following 

year. The record indicates that leafy 

green vegetables are produced year 

round in the production area. The 

proposed April through March period 

mirrors the existing crop year in the 

predominant production areas for leafy 

green vegetables. This period represents 

a fixed timeline that would prescribe a 

period of conduct essential for the 

Board’s administrative activities, such 

as preparing an annual budget of 

expenses and accounting for receipts 

and expenditures of funds. Thus, the 

term ‘‘crop year’’ would be synonymous 

with ‘‘fiscal year.’’ 

The definition of ‘‘crop year’’ should 

be revised to include authority for the 

Board, subject to approval of the 

Secretary, to recommend any other 

annual period if a different annual 

period is found to be more appropriate. 

The definition of ‘‘crop year’’ that 

appeared in the Notice of Hearing as 

§ 970.5 should be revised as indicated 

above and redesignated as § 970.7. 

The definition of ‘‘foodservice 

distributor’’ that appeared in the Notice 

of Hearing should be replaced by a 

definition of ‘‘foodservice operator’’. The 

term should be defined to mean a 

person that provides leafy green 

vegetables to the public as a restaurant, 

cafeteria, industrial caterer, hospital, or 

nursing homes. These businesses 

directly deliver leafy green vegetables to 

consumers, either by sale or by offering 

for direct consumption. Foodservice 

operators are excluded from the 

definition of ‘‘handler’’ in their role as a 

foodservice operator, much the same as 

retailers are excluded from the term 

handlers in their roles as retailers. 

Record evidence also supports 

clarifying that the list of businesses 

identified in the proponents’ definition 

of foodservice operators is not all 

inclusive. This clarification is being 

added to the definition of foodservice 

operator, which appeared as § 970.6 and 

is being revised and redesignated as 

§ 970.8. 

‘‘Good agricultural and handling 

practices’’ refer to general practices 

established by FDA to reduce microbial 

food safety hazards in leafy green 

vegetables. According to the hearing 

record, good agricultural and handling 

practices are described in two FDA 

guideline documents, the ‘‘Guide to 

Minimize Microbial Food Safety 

Hazards for Fresh Fruits and Vegetables’’ 

and the ‘‘Guide to Minimize Microbial 

Food Safety Hazards for Fresh-cut Fruits 

and Vegetables’’. 

FDA is the agency at the U.S. 

Department of Health and Human 

Services charged with primary 

regulatory responsibility for food safety. 

The FDA guidelines referenced above, 

broadly referred to as ‘‘GAPs’’ and 

‘‘GHPs’’, are intended to assist the 

produce industry in minimizing the risk 

of food-borne contamination throughout 

the industry’s production and handling 

activities. According to the hearing 

record, GAPs and GHPs, would provide 

the scientific baseline or reference for 

all audit metrics relating to production 

and handling activities developed under 

the proposed agreement. 

As witnesses explained, and as 

included in the proposed agreement, the 

Board should have authority to 

recommend, for approval by the 

Secretary, the adoption of any other 

documents or regulations, established 

for the purposes of minimizing 

microbial food safety hazards in the 

production and handling of leafy green 

vegetables. These documents and 

regulations would be used as the basis 

for audits conducted by the Inspection 

Service under the program. 

Section 970.9 that appeared in the 

Notice of Hearing is being modified for 

clarification and redesignated as 

§ 970.11. 

According to the hearing record, 

‘‘good manufacturing practices’’, or 

‘‘GMPs’’, mean any FDA regulations 

which describe the methods, 

equipment, facilities, and controls 

required for producing fresh-cut food, 

including processed, packaged leafy 

green vegetables. Current FDA 

regulations appear in 21 CFR Part 110. 

According to the hearing record, GMPs 

would provide the scientific baseline or 

reference for all audit metrics relating to 

manufacturing activities developed 

under the proposed agreement. 

As recommended in this proposed 

agreement, the Board should have 

authority to recommend, for approval by 

the Secretary, the adoption of FDA 

guidance documents, regulations, or any 

other documents, for use in audits 

conducted by the Inspection Service 

under this part. This definition 

appeared in the Notice of Hearing as 

§ 970.10, ‘‘good manufacturing 

practices’’ and should be revised and 

redesignated as § 970.13, ‘‘good 

manufacturing practices or GMPs’’. 

‘‘Inspection Service’’ should be 

defined to mean Fruit and Vegetable 

Programs, Agricultural Marketing 

Service, USDA, its designees, or any 

other entity approved or recognized by 

USDA to conduct audits on leafy green 

vegetables. USDA recommends revising 


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this definition to more clearly define the 

Inspection Service’s role in the audit 

process. This definition appeared in the 

Notice of Hearing as § 970.14 and 

should be revised and redesignated as 

§ 970.17. 

The term ‘‘National Leafy Green 

Vegetable Board’’ or ‘‘Board’’ be added to 

the list of defined terms as § 970.22 of 

the proposed agreement. ‘‘Board’’ should 

mean the administrative board 

established pursuant to § 970.40 and 

§ 970.41. 

The term ‘‘part’’ should be added to 

the proposed agreement as § 970.24 and 

should be defined to mean the 

marketing agreement regulating the 

handling of leafy green vegetables and 

all rules, and regulations issued 

thereunder. 

As presented in the Notice of Hearing, 

proponents proposed that ‘‘Person’’ 

should be defined to mean an 

individual, partnership, corporation, 

association, or any other business unit 

or legal entity. This definition should be 

revised to make it consistent with the 

definition of the same term in the Act 

and redesignated as § 970.25. 

The definition of ‘‘process control’’ 

should be revised so that it more clearly 

reflects the usage of this term as it was 

presented by witnesses during the 

hearing. ‘‘Process control’’ should mean 

a step or point within a production, 

harvesting, handling, manufacturing, or 

transportation process at which the 

potential for microbiological 

contamination can be reduced. This 

definition appeared in the Notice of 

Hearing as § 970.22, and should be 

revised and redesignated as § 970.26. 

‘‘Producer’’ is synonymous with 

‘‘grower’’ and should be defined to mean 

any person engaged in a proprietary 

capacity in the production of leafy green 

vegetables for sale or delivery to a 

signatory handler. 

Section § 970.20 of the Notice of 

Hearing should be modified for clarity 

and redesignated as § 970.27. 

Witnesses proposed the addition of 

the term ‘‘region’’ to the list of 

definitions to clarify that ‘‘region’’ is 

distinctly different from the term 

‘‘zone’’. As discussed later in Material 

Issue 5(b), zones are related to Board 

membership. According to record 

evidence, ‘‘region’’ should mean a 

production or growing area 

distinguished by common 

environmental or growing conditions 

including, but not limited to, geography, 

climate, production practices, water 

sources and distribution systems, and 

wildlife. This definition should be 

added to the list of definitions as 

§ 970.29 of the proposed agreement. 

‘‘Retailer’’ should be defined to mean 

any person that sells leafy green 

vegetables directly to the consumer. 

Retailers’ sales typically involve the sale 

of leafy green vegetables for further 

preparation or home consumption by 

the consumer. An example of a retailer 

would be a grocery store. 

This definition appeared in the Notice 

of Hearing as § 970.24, and should be 

revised for clarity and redesignated as 

§ 970.30. 

‘‘Secretary’’ means the Secretary of 

Agriculture of the United States or any 

officer or employee of the USDA who is 

acting on their behalf. This definition 

appeared in the Notice of Hearing as 

§ 970.25 and should be redesignated as 

§ 970.31. 

‘‘United States Department of 

Agriculture or USDA’’ should be defined 

to mean 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. This definition appeared in 

the Notice of Hearing as § 970.27 and 

should be revised with minor 

modifications for clarity and 

redesignated as § 970.35. 

A definition of the term ‘‘United 

States Food and Drug Administration or 

FDA’’ should be added to the list of 

defined terms as § 970.36 of the 

proposed agreement and should mean 

the agency within the United States 

Department of Health and Human 

Services. This definition allows the FDA 

acronym to be used throughout the 

proposed agreement. 

The definition of ‘‘Zone’’ that 

appeared in the Notice of Hearing as 

§ 970.28 should be revised and 

redesignated as § 970.37. ‘‘Zone’’ should 

be defined to mean one of the 

subdivisions of the production area or 

such other subdivisions as may be 

established pursuant to § 970.41. 

Defining the zones would be important 

for the purpose of Board and the 

Technical Review Committee 

representation, and is related to 

§§ 970.40, 970.41, 970.42, 970.44, 

970.46, 970.49 and 970.66. 

Record evidence supports modifying 

the zones proposed by the proponents, 

as well as adding additional zones. 

Zones should be comprised of States 

that are geographically contiguous and 

reflect similarities in climate and crop 

production. Zones should also reflect 

the distribution of leafy green vegetable 

acreage, and distribution of leafy green 

vegetable farms. ‘‘Zone’’ is further 

discussed under Material Issue 5(b). 

USDA recommends replacing the 

proponents’ proposed five zones with 

eight zones, as stated below: 

(1) Zone 1 shall include the States of 

California and Hawaii. 

(2) Zone 2 shall include the States of 

Alaska, Idaho, Montana, Oregon, 

Washington, and Wyoming; 

(3) Zone 3 shall include the States of 

Arizona, Colorado, Nevada, New 

Mexico, and Utah; 

(4) Zone 4 shall include the States of 

Illinois, Iowa, Minnesota, Nebraska, 

North Dakota, South Dakota, and 

Wisconsin; 

(5) Zone 5 shall include the States of 

Arkansas, Kansas, Louisiana, Missouri, 

Oklahoma, and Texas; 

(6) Zone 6 shall include the States of 

Delaware, District of Columbia, Indiana, 

Kentucky, Maryland, Michigan, Ohio, 

Virginia, and West Virginia; 

(7) Zone 7 shall include the States of 

Alabama, Florida, Georgia, Mississippi, 

North Carolina, South Carolina, and 

Tennessee; and, 

(8) Zone 8 shall include the States of 

Connecticut, Maine, Massachusetts, 

New Hampshire, New Jersey, New York, 

Pennsylvania, Rhode Island, and 

Vermont. 

Material Issue 5(b)—Administrative 

Board 

The proposed agreement should 

provide for the establishment of an 

administrative body (Board) to 

administer the program and to provide 

for its effective and efficient operation. 

Membership on the Board should be 

reflective of leafy green vegetable 

industry stakeholders, namely signatory 

handlers, producers supplying such 

signatory handlers, importers, retailers, 

foodservice operators, and the public 

(consumers). Further, the proposed 

agreement should delineate the 

procedures, powers, and duties of the 

Board. 

USDA recommends that, based on 

record evidence, the provisions of the 

proposed agreement pertaining to zones, 

Board membership allocation among 

zones, eligibility requirements, and 

nomination procedures, be revised from 

those provisions that appeared in the 

Notice of Hearing. Specifically, USDA 

recommends increasing the number of 

zones and redefining them so that 

regional similarities are recognized as 

well as leafy green vegetable acreage 

and the number of farms harvesting 

leafy green vegetables. USDA also 

proposes that the Board’s membership 

be expanded and revised to reflect the 

proposed changes in zones, and to 

increase opportunity for participation of 

industry representatives on the Board. 

Lastly, USDA proposes that eligibility 

requirements and nomination 

procedures be revised to address 

witness concerns regarding diverse 


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stakeholder (small businesses, organic 

businesses, diversified businesses) 

representation among the Board 

membership. This would provide for an 

open, transparent, and inclusive 

nomination, selection, and appointment 

process. 

This Material Issue addresses 

§§ 970.37, 970.40, 970.41, 970.42, 

970.43, 970.44, 970.45, 970.48, 970.49, 

970.50, and 970.51 of the proposed 

agreement. These sections address the 

subject areas of: establishment of zones, 

establishment and membership of the 

Board, rezoning and reallocation, 

eligibility, term of office, nominations, 

alternate members, compensation and 

expenses, administrative procedures, 

and powers and duties of the Board. 

These sections were originally proposed 

in the Notice of Hearing as §§ 970.28, 

970.40, 970.41, 970.42, 970.43, 970.44, 

970.47, 970.48, 970.49, and 970.50, 

respectively. 

Definition of Zones 

The proponents testified that the 

production area should be subdivided 

into five zones for the purpose of 

industry representation on the Board 

and administration of the proposed 

agreement. The five zones were 

proposed as follows: 

(1) Zone 1: California, Washington, 

Oregon, Hawaii, and Alaska. 

(2) Zone 2: Arizona, Montana, North 

Dakota, Wyoming, South Dakota, Idaho, 

Nevada, and Utah. 

(3) Zone 3: New Mexico, Colorado, 

Nebraska, Minnesota, Iowa, Kansas, 

Oklahoma, Texas, Missouri, Arkansas, 

and Louisiana. 

(4) Zone 4: Wisconsin, Michigan, 

Ohio, Illinois, Indiana, Kentucky, 

Tennessee, Mississippi, Alabama, and 

Georgia. 

(5) Zone 5: 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. 

For this zone structure, the 

proponents utilized 2007 United States 

Census production volume data for leafy 

green vegetables. Proponents explained 

that they attempted to anchor each zone 

with a key leafy green vegetableproducing State, as detailed in Material 

Issue 1. For this reason, the States of 

California and Arizona were 

purposefully separated so that their 

production volume would not be 

attributed to one zone, thereby not 

skewing the balance of Board member 

representation in favor of those two 

States and thus, a specific zone. Other 

anchor States that produce the majority 

of leafy green vegetables in the United 

States are Texas, Colorado, Georgia, 

Florida, and New York. 

Proponents explained that their intent 

was to create zones strictly for the 

purpose of industry representation on 

the Board. Proponents contended that 

the proposed zones and corresponding 

Board representation would provide for 

the development of audit metrics that 

recognized regional differences. 

Proponents further explained that they 

intended to develop a process that 

would be inclusive and transparent to 

allow for the participation of various 

stakeholder groups and the recognition 

of regional, geographic differences. The 

topic of audit metrics development is 

discussed in Material Issue 5(c). 

A considerable number of witnesses, 

both those who were opposed to the 

establishment of the proposed 

agreement, as well as those who 

supported the concept of a national 

agreement but suggested improvements 

to the proponents’ proposal, raised 

concerns over the proponents’ proposed 

zones. Witnesses testified that the 

proposed zones were geographically too 

large, and did not recognize regional 

differences in geography, types of crops 

grown, production practices, 

environmental factors, climate, and 

diverse stakeholder concerns that exist 

in the United States leafy green 

vegetable industry. Witnesses also 

testified that the proposed zones did not 

accurately reflect the distribution of 

leafy green vegetable acreage or the 

distribution of farms. 

Witnesses contended that the 

proponents’ proposed zones were not 

established based on agricultural or 

climatic conditions to reflect common 

growing seasons or agronomic zone 

characteristics. Witnesses further 

claimed that it was unreasonable to 

expect representatives of zones 

inclusive of States that greatly differ in 

leafy green vegetable crop type, 

production methods, geography, and 

climate, to adequately understand the 

growing conditions across such a wide 

geography. Witnesses cited several 

examples to illustrate the proponents’ 

proposed zones were geographically too 

large and included States in the same 

zone that do not share geographic and 

climate characteristics, but would be 

represented by the same membership 

and Board member allocation. 

As an example, witnesses testified 

that proponents’ proposed Zone 4 

included 10 States that stretched from 

Wisconsin to Alabama. These witnesses 

pointed out that, as proposed, the States 

of Georgia and Ohio, and the States of 

Wisconsin and Alabama, would be in 

the same zone even though they have 

distinct differences in geography and 

climate. Witnesses also noted that 

proponents’ proposed Zone 5, which 

included 16 States and the District of 

Columbia, combined southern States 

such as Florida with northern States 

such as Vermont, Maine, and New York 

which vary widely in geography, 

climate, and production practices. 

Witnesses further asserted that the 

States in proposed Zone 5 have different 

soil types, water sources, growing 

seasons, and marketing channels. 

Witnesses testified that production 

practices, which vary across the United 

States, were reflective of climates. 

Witnesses suggested that the proposed 

zones should include similar climate 

areas such as the Upper Midwest as one 

zone. An example cited by witnesses 

identified Upper Midwest States as 

having climate requiring different 

production practices than those found 

in Georgia or California. Witnesses 

explained that Upper Midwest States 

tend to have periods of hard freezes, 

thereby limiting their production season 

to the months of May through October. 

In contrast, witnesses noted that the 

State of Georgia has a high humidity 

climate, Northeast States have cooler 

climates, and Southern California has 

more of a desert climate. 

Witnesses asserted that States having 

similar climate and geography should be 

grouped together in order to represent a 

contiguous area as further support of 

proper representation of like concerns 

among States. One witness offered the 

example of combining the States of 

Florida, Georgia, and Alabama as an 

appropriate representation of like 

geography, climate, and production 

practices. Another witness suggested 

subdividing the State of Maryland to 

place the northern half of Maryland 

with States west to Michigan in one 

zone, and southern part of Maryland 

with States west of the Mississippi River 

in another zone. Additionally, another 

witness suggested combining the 

Northeast States into one single zone 

because of similarities in climate. 

Some witnesses suggested that the 

division of zones and Board 

membership allocation among those 

zones should be based on the number of 

leafy green vegetables acres harvested 

for the fresh and fresh-cut market. 

Witnesses explained that some 

production areas benefit from 

production environments that allow for 

multiple harvests of high-yielding crops, 

while other areas only harvest one crop 

per year. 

According to witnesses, an example of 

this difference would be a producer in 

California that may harvest a field of 

immature or baby leaf varieties of leafy 


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green vegetables several times within 

one growing season, while producers of 

cabbage in New York may only harvest 

one time per growing season. In this 

example, if production volume were 

used instead of acreage, the producer in 

California would be given more weight 

in the allocation of producer seats under 

the proponents’ proposal. However, 

witnesses indicated that if the number 

of acres were used as a basis of member 

allocation, the example farm in 

California would be equally weighted to 

the farm in New York. As such, 

witnesses suggested that the usage of 

acres would therefore result in a more 

equitable representation of producers on 

the Board. 

Other witnesses, including those 

opposed to the proposed agreement, 

suggested using the number of farms per 

State to capture the distribution of 

producers nationwide as opposed to 

relying solely on production volume to 

determine producer representation. 

These witnesses explained that while 

some States have a concentration of 

large producer entities producing highyielding crops, other States have a high 

number of smaller producer entities that 

produce leafy green vegetables as a 

portion of their overall farm production. 

Witnesses argued that under a zone and 

membership allocation structure that 

focuses on production volume, such as 

that proposed by the proponents, States 

having a high number of small, lowvolume farms risk being underrepresented compared to States with 

fewer high-volume farms. Witnesses 

contended that under-representation of 

these small farm operations would 

result from the proponents’ proposed 

zones. Witnesses with this concern 

stated that the proposed zones and 

corresponding member representation 

on the Board should be revised to better 

recognize diversified, small-scale 

operations. 

Witnesses argued that an increase in 

the number of zones together with a 

more accurate zone definition would 

likely result in greater opportunities for 

stakeholders, such as small diversified 

farms, farms using non-conventional 

production methods, and handler 

entities interacting with local, smallscale markets and producer 

associations, to gain representation. 

Witnesses stated that increased 

opportunity for stakeholders would 

result in the inclusion of those groups’ 

concerns in Board decisions, including 

the audit metric development process. 

Witnesses argued that, contrary to the 

proponents’ position, the definition of 

zones and the recommendation of audit 

metrics by Board members are 

intrinsically linked. Witnesses disagreed 

with the proponents’ position that the 

division of zones would not have an 

impact on the process of developing 

audit metrics under the proposed 

agreement. They explained that if the 

proposed zones did not adequately 

represent regional differences in 

geography, climate, and production 

practices, the composition of Board 

membership would not adequately 

represent the complex spectrum of 

producer and signatory handler interests 

that exist in the United States leafy 

green vegetable industry. Furthermore, 

because the Board would ultimately be 

responsible for recommending audit 

metrics to USDA for approval, witnesses 

feared that minority and diverse 

stakeholder concerns would be 

overlooked in this process because they 

may not be represented on the Board. 

Lastly, witnesses, including 

proponent witnesses, stated that the 

Board should have the ability to modify 

the number and definition of zones, in 

order to reflect the diverse and changing 

leafy green vegetable industry. 

Proponent witnesses testified that 

their intent in defining the proposed 

zones was to allow for adequate 

participation by stakeholders to ensure 

consideration of diverse interests in 

Board decision-making, including the 

development of the audit metrics. 

However, there was record testimony 

that the proposed zones were 

geographically too large to ensure 

adequate representation of diverse 

stakeholder interests. The record further 

establishes that acreage of leafy green 

vegetables and the number of farms 

harvesting leafy green vegetables rather 

than production volume also should be 

considered in subdividing the 

production area into zones. 

Throughout the hearing, proponents 

stated they were open to revisions in the 

proposed agreement to address concerns 

brought to light by the hearing process. 

Proponents asserted that they were 

willing to collaborate with concerned 

witnesses and USDA to improve the 

proposed agreement’s effectiveness. 

Several proponents stated that, while 

their proposal attempted to present an 

equitable, balanced division of 

geographic zones and diverse 

perspectives of the supply chain, USDA 

should have the discretion, based on 

hearing record evidence, to modify the 

proposal so that it better reflects the 

needs of the industry. In addition, both 

witnesses who were opposed to the 

proponents’ proposal and those who 

advocated improvements to the 

proposal, stated that USDA should 

revise the proposed zones and Board 

membership eligibility requirements to 

ensure that leafy green stakeholder 

groups are adequately represented. 

These stakeholder groups would 

include, but are not limited to: Small 

producer and signatory handler entities, 

organic producers and signatory 

handlers, and diversified farming 

operations. 

USDA has analyzed witness 

testimony in conjunction with record 

data and has developed recommended 

changes to the proposed zones. 

Evidence reviewed by USDA includes 

both Census and NASS leafy green 

vegetable data, and information specific 

to the distribution of leafy green 

vegetable acreage and the number of 

farm reporting such acreage by State. In 

addition, USDA considered information 

supplied by witnesses with regard to 

geography, climate, and seasonal growth 

patterns of different leafy green 

vegetable crops to more appropriately 

group States into zones. 

USDA’s analysis of the distribution of 

leafy green acreage throughout the 

production area as compared to the 

volume of production demonstrated that 

significant variances exist between areas 

producing high-yielding crops and those 

producing low-yielding crops. An 

acreage-based analysis places leafy 

green vegetable acreage having smaller 

annual per acre production yields on 

more equal footing with leafy green 

vegetable acreage having higher annual 

per acre production yields. This should 

result in greater and more equitable 

opportunity for participation in States 

having lower yields per acre. As such, 

USDA recommends that acreage rather 

than production volume, as proposed by 

proponents, should be utilized in 

defining zones. 

Furthermore, USDA’s analysis of the 

number of farms reporting harvest of 

leafy green vegetables (specifically for 

the fresh and fresh-cut market) allowed 

USDA to assess the distribution of 

industry stakeholders across the 

production area. Using the number of 

farms harvesting leafy green vegetables 

in defining zones would address 

concerns that States having a high 

number of small producer entities 

would be under-represented under the 

zone structure proposed by proponents. 

Lastly, defining zones on a combined 

analysis of leafy green vegetable acreage 

and the number of leafy green farms 

provides better representation on the 

Board of diverse stakeholder interests. 

USDA also took into consideration 

witness testimony that zones should 

reflect grouping of States that are 

contiguous and share geographic and 

climate similarities. According to 

hearing record evidence, incorporating 

guidelines that would require, to the 

extent practicable, grouping of States 


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into zones that are contiguous and share 

climate and similarities in agricultural 

practices would result in zones 

comprised of States that share similar 

production and handling concerns. 

Regarding the above, USDA 

recommends grouping, to the extent 

practicable, geographically contiguous 

States into zones to reflect similarities 

in climate and agricultural practices. 

For example, southeastern States such 

as Mississippi, Alabama, Florida, 

Georgia, and North and South Carolina 

were grouped together because of the 

similarity in warm, coastal climates, 

type of crops grown, and growing 

seasons. Tennessee was added to this 

group as record evidence indicated that 

the similarity between leafy green 

vegetable production in this State was 

more similar to the coastal States than 

its northern neighbors. 

Similarly, the northeastern States 

stretching from Pennsylvania and New 

Jersey up through Maine were grouped 

because of similarities in crop types and 

growing seasons. According to the 

hearing record, the northeastern States 

produce a majority of the nation’s 

cabbage, which is typically a colder 

weather crop that is harvested according 

to a crop cycle that is distinctly different 

from warm weather crops. Another 

example is the grouping of Arizona, 

New Mexico, Nevada and Utah. These 

States all represent warmer, drier 

climates with spring and summer 

growing and harvest seasons. These 

States also typically rely heavily on 

irrigation watering systems as rainfall is 

limited. Similar to the case of 

Tennessee, Colorado was included in 

the southwestern State grouping even 

though that State tends to have an 

overall cooler and wetter climate. 

However, according to the record, 

Colorado leafy green vegetable crops, 

growing and harvest seasons were more 

similar to those in Arizona and New 

Mexico than those in the other 

neighboring States of Nebraska, 

Wyoming, or Kansas. 

States ranking among the top leafy 

green vegetable bearing acreage were 

identified so that each zone was 

anchored with a key leafy green 

vegetable producing State. This is 

consistent with the method applied by 

proponents. 

In summary, the record supports 

increasing the number of proposed 

zones from 5 to 8. The zones would 

delineate smaller geographic areas that 

both reflect similarities in climate, 

geography, and crop production, and 

increase opportunity for participation of 

industry representative on the Board. 

The zone structure would be as 

follows: 

(1) Zone 1 should include the States 

of California and Hawaii; 

(2) Zone 2 should include the States 

of Alaska, Idaho, Montana, Oregon, 

Washington, and Wyoming; 

(3) Zone 3 should include the States 

of Arizona, Colorado, Nevada, New 

Mexico, and Utah; 

(4) Zone 4 should include the States 

of Illinois, Iowa, Minnesota, Nebraska, 

North Dakota, South Dakota, and 

Wisconsin; 

(5) Zone 5 should include the States 

of Arkansas, Kansas, Louisiana, 

Missouri, Oklahoma, and Texas; 

(6) Zone 6 should include the States 

of Delaware, the District of Columbia, 

Indiana, Kentucky, Maryland, Michigan, 

Ohio, Virginia, and West Virginia; 

(7) Zone 7 should include the States 

of Alabama, Florida, Georgia, 

Mississippi, North Carolina, South 

Carolina, and Tennessee; 

(8) Zone 8 should include the States 

of Connecticut, Maine, Massachusetts, 

New Hampshire, New Jersey, New York, 

Pennsylvania, Rhode Island, and 

Vermont. 

These zones, which were previously 

defined in § 970.28 of the Notice of 

Hearing, now appear in § 970.37. 

The Board should have authority to 

recommend future modifications of the 

defined zones and to ensure proper 

geographic division of the production 

area over time. In making such a 

recommendation, the Board would be 

expected to consider factors similar to 

those used in deriving the zones 

proposed in this recommended 

decision. 

Board Membership and Allocation of 

Member Seats Among Zones 

Proponent witnesses advocated a 

Board membership of 23 members 

allocated among five zones, with the 

representation of each zone based on 

that zone’s relative volume of leafy 

green vegetable production. Of the 

23-member Board proposed by the 

proponents, 13 seats would be assigned 

to signatory handlers and 6 seats would 

be assigned to producers delivering to 

signatory handlers. The signatory 

handler and producer member seats 

would be allocated among the proposed 

five zones as follows: Four handlers and 

two producers from Zone 1; three 

handlers and one producer from Zone 2; 

two handlers and one producer from 

Zone 3; two handlers and one producer 

from Zone 4; and two handlers and one 

producer from Zone 5. In addition, the 

proponents’ proposal would assign one 

seat to each of the following interest 

groups: Retailers, foodservice, importers 

(signatory handlers), and the public. As 

proposed by proponents, representation 

of signatory handlers, producers, and 

the other at-large members (retailer, 

foodservice, importer, and public) 

among the 23 seats would be as follows: 

13 handler seats (57 percent), 6 

producer seats (26 percent), and 4 atlarge seats (17 percent). 

Proponents testified that even though 

the proposed agreement would regulate 

signatory handlers, the inclusion of 

producers delivering product to those 

handlers as Board members was 

important given that they would also be 

impacted by any regulations in effect 

under the proposed agreement. The 

proponents testified that the importer, 

retailer, foodservice, and public 

members are needed to represent the 

diverse perspectives of the farm-toconsumer leafy green vegetable supply 

chain. They further stated that each of 

these stakeholders can address unique 

factors associated with their sector. 

Proponents stated that the public 

member seat was intended to provide 

consumer representation on the Board. 

Proponents explained further that 

specific producer and signatory handler 

stakeholder groups should be assured 

representation on the Board and, 

therefore, proposed representation 

requirements for these groups. 

Specifically, the proposed requirements 

state the majority of producer members 

could not be engaged in the act of 

handling leafy green vegetables or 

manufacturing fresh-cut, packaged leafy 

green products. In addition, the Board 

would include at least two small 

producer business entities, and four 

signatory handler members would be 

manufacturers of fresh-cut leafy green 

vegetables. 

Proponents explained that the 

proposal to include producers not 

engaged in handling or manufacturing 

leafy green vegetables or products 

would allow for representation of ‘‘pure’’ 

producer interests on the Board. 

Regarding Board seats allocated to small 

producer entities, proponents explained 

that the United States leafy green 

vegetable production industry is 

comprised of many different sizes of 

producer operations following varying 

production methods, and that each type 

of producer is faced with unique 

challenges when producing for the 

United States leafy green vegetable 

industry. For this reason, proponents 

stated that small producer entities 

should be assured representation on the 

administrative Board. Lastly, 

proponents explained that 

manufacturers of fresh-cut leafy green 

vegetables face unique challenges that 

are different from those faced by other 

sectors of the leafy green vegetable 

industry. For this reason, proponents 


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stated that their representation on the 

Board was important to understanding 

issues that are particular to that part of 

the United States leafy green vegetable 

industry. 

Both witnesses who were opposed to 

the proponents’ proposal and those who 

advocated improvements to the 

proposal stated that USDA should 

revise, as necessary, Board membership 

to ensure that diverse leafy green 

vegetable industry stakeholder groups 

are represented. Witnesses testified that 

the proponents’ proposed Board 

membership, which resulted from their 

proposed zones, appeared to be based 

more on ensuring the strategic voting 

power for certain States. These 

witnesses asserted that the proposed 

zones and corresponding Board 

membership would provide inequitable 

representation of leafy green vegetable 

industry stakeholders, particularly 

small, diversified farm operations. 

The record supports the establishment 

of an administrative Board to administer 

the proposed agreement and provide for 

its effective and efficient operation. The 

record also indicates that the 

membership of the administrative Board 

should represent signatory handlers, 

producers supplying such handlers, 

importers, retailers, foodservice, and the 

public. 

Upon consideration of the record 

evidence, a 3-member increase in the 

total size of the Board would allow for 

greater industry representation yet 

would maintain a membership that is 

manageable and efficient. For these 

reasons, the Board membership should 

be increased from 23 to 26 members. Of 

that total, USDA recommends that 22 

Board member seats be designated as 

producer and signatory handler seats, 

and the remaining 4 seats be designated 

as importer, retailer, foodservice, and 

public member seats. Each member 

should also have an alternate who 

would have the same qualifications as 

the member for whom he or she is an 

alternate. 

In allocating handler and grower 

seats, each zone’s combined share of 

national leafy green acreage and the 

national number of leafy green vegetable 

producing farms were considered. In 

instances where a zone represents a 

greater portion of leafy green vegetable 

acreage or a larger number of leafy green 

vegetable farms, additional producer or 

signatory handler members would be 

allocated. Additionally, record evidence 

supports assigning a minimum of one 

producer member and one signatory 

handler representative to each zone. 

Based on the foregoing discussion, the 

following is the allocation of producer 

and signatory handler members: 

(1) Zone 1 should have four signatory 

handlers and three producers; 

(2) Zone 2 should have one signatory 

handler and one producer; 

(3) Zone 3 should have one signatory 

handler and one producer; 

(4) Zone 4 should have one signatory 

handler and one producer; 

(5) Zone 5 should have one signatory 

handler and one producer; 

(6) Zone 6 should have one signatory 

handler and one producer; 

(7) Zone 7 should have two signatory 

handlers and one producer; and, 

(8) Zone 8 should have one signatory 

handler and one producer. 

In addition to the producer and 

signatory handler seats, four seats 

should represent the following four 

groups: Importers, retailers, foodservice, 

and the public. Representation of these 

stakeholders is needed to represent the 

diverse perspectives of the leafy green 

vegetable supply chain. The 

representation of the proposed 26- 

member Board for signatory handlers, 

producers, and the other members 

(importer, foodservice, retailer, and 

public) would be 12 seats (46 percent), 

10 seats (39 percent), and 4 seats (15 

percent), respectively. 

This revised allocation represents an 

increase in producer representation on 

the Board from the proponents’ 

proposed 26 percent to 39 percent, as 

well as a decrease in at-large 

representation from the proponents’ 

proposed 17 percent to 15 percent. The 

revised signatory handler representation 

would result in 46 percent versus the 

proponents’ 57 percent. 

The proponents’ recommendations 

that the majority of grower members not 

be engaged in handling, that at least two 

of the grower members represent small 

businesses and that at least four of the 

handler members be manufacturers of 

fresh-cut products should remain in 

§ 970.40. Additionally, to the extent 

practicable, Board membership should 

include diversified farm producers and 

organic producers and handlers. 

Section 970.40 of the proposed 

agreement is being revised as discussed 

above. 

Proponents proposed including 

authority to reapportion Board member 

seats among zones, change the number 

of Board members, and revise 

composition (the relative number of 

signatory handler, producer and other 

seats). This authority appeared in the 

hearing notice under § 970.40 and is 

being moved to a new § 970.41. 

In making any recommendation to 

revise membership, the Board would 

have to consider the geographic 

distribution of acreage and the number 

of leafy green vegetable farms among the 

zones. This differs somewhat from what 

the proponent group proposed—that the 

Board would need to consider shifts in 

production. Other criteria to consider 

would be the importance of new 

acreage, the equitable relationship 

between membership and zones, 

economies to result in promoting 

efficient administration of the program, 

and other relevant factors. The 

agreement should require that each zone 

be represented by at least one producer 

one signatory handler seat. 

Eligibility 

The proponents proposed eligibility 

requirements for the purpose of 

identifying persons who would be 

qualified to serve as members on the 

Board. Proponents proposed that in 

order for a signatory handler (including 

importers) or producer to be eligible to 

serve on the Board, each should be an 

owner, officer, or employee of a 

signatory handler or producer at the 

time of their selection and throughout 

their term of office in the zone for which 

selected. 

Proponents proposed that the retail, 

foodservice, and public members and 

their respective alternate members not 

be engaged in the production or 

handling of leafy green vegetables. 

Additionally, the retail and foodservice 

members and their respective alternate 

members should be, at the time of their 

selection and throughout their term of 

office, an owner, officer, or employee of 

the firm represented by the seat 

selected. This would enable these 

members to represent all stakeholders 

involved in the supply chain for that 

sector. 

Regarding the producer and signatory 

handler member seats, there was 

testimony presented at the hearing 

advocating that such members should 

be required to be a legal resident in the 

zone for which selected. However, 

record evidence supports that where a 

producer or handler conducts business 

is a more important criteria than the 

producer or handler’s place of 

residence. 

Multiple witnesses expressed concern 

that the proposed eligibility provisions 

could allow large leafy green vegetable 

producers and handlers—who often 

operate in multiple States—to have 

member seats in several zones. These 

witnesses testified that the agreement 

should limit the number of seats any 

one company could fill to maximize 

industry representation on the Board. 

According to record evidence, 

limiting Board member representation 

to provide that no one company or its 

affiliates could be represented on the 

Board by more than one signatory 


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handler (including importer) or 

producer and their alternate member 

should provide more opportunities for 

diverse representation on the Board. As 

such, a provision is added to the 

proposed agreement to specify that 

company representation for such 

entities would be limited to one member 

seat and one alternate member seat. 

Finally, the remaining members of the 

Board may be from any zone because 

they represent the production area at 

large. The eligibility requirements 

proposed in § 970.41 of the Notice of 

Hearing are revised as discussed above 

and redesignated as § 970.42. 

Alternate Members 

Proponents proposed that each Board 

member should be assigned an alternate 

member for the purpose of assuring 

continuity and stability of Board 

operations. Alternate members would 

act in the place and stead of the Board 

members they are alternates for when 

the Board members cannot fulfill their 

Board obligations. Alternate members 

would succeed their member in the 

event of that member’s death, removal, 

resignation or disqualification. The 

alternate would then serve until a 

successor was selected and qualified. 

According to proponents, alternate 

members would be subject to the same 

eligibility requirements as Board 

members and would be nominated in 

the same manner as Board members. 

Proponents explained that providing 

alternate Board members would ensure 

full representation of the industry, as 

well as full representation of their 

particular zone and group (producers, 

signatory handlers, or other stakeholder 

members). 

The record supports the proponents’ 

proposal regarding alternate members. 

This proposal appeared as § 970.44 of 

the Notice of Hearing and is 

redesignated as § 970.45. The last 

sentence of that section is removed as it 

is duplicative of language that appears 

in § 970.49. 

Nominations 

A nomination mechanism should be 

established through which members and 

alternate members of the Board would 

be nominated, selected, and appointed 

by the Secretary. Record evidence 

supports revising § 970.43 of the Notice 

of Hearing to improve transparency in 

the selection and appointment of Board 

members. 

In their proposal, proponents 

described a nomination process to 

identify Board member nominees and to 

provide for their selection and 

appointment by USDA. Proponents 

explained that names of nominees 

would be collected by USDA (initially) 

and by the Board (for subsequent 

nominations) at producer and signatory 

handler meetings, by mail, or through 

any form of electronically verifiable 

communication. Names received as 

nominees for producer and signatory 

handler member seats would then be 

placed on a ballot and would be voted 

on by their peers, respectively. A list of 

nominees receiving the highest number 

of votes would be forwarded to USDA 

for selection and appointment by the 

Secretary. Proponents explained that 

once the producer and signatory handler 

members had been appointed, those 

members would nominate the retailer, 

foodservice, importer, and public 

members and their alternate members. 

Final selection and appointment of the 

retailer, foodservice operator, importer, 

and public member would be made by 

the Secretary. 

Proponents further explained that, as 

part of the nomination process, 

nominees would be required to indicate 

in advance of selection their interest to 

serve as a member, alternate, or both, 

and that they are willing to accept the 

seat for which selected. According to 

the record, agreeing in advance to serve 

as a Board member or alternate member 

would avoid possible delays in the 

appointment of the Board. 

According to proponents, the 

proposed agreement would provide, in 

times when nominations are not made 

in a timely manner and as specified, the 

Secretary authority to appoint members 

and alternates who meet the proposed 

eligibility requirements. Furthermore, 

proponents explained that in the event 

that any vacancy were to arise on the 

Board due to an individual’s 

disqualification, removal, resignation, or 

death, a successor member or alternate 

member would be nominated and 

selected in accordance with the 

proposed nomination and acceptance 

procedures, or at the discretion of the 

Secretary. 

A considerable number of witnesses, 

both those who were opposed to the 

establishment of the agreement, as well 

as those who supported the concept of 

a national program but suggested 

improvements to the proponents’ 

proposal, raised concerns over the 

proposed nomination and selection 

process outlined by the proponents. 

The primary concern among these 

witnesses focused on what was 

perceived as a closed nomination 

process. These witnesses stated that a 

peer nomination and ballot system, in 

combination with the proponents’ 

proposed zones and limited number of 

Board member seats, would result in the 

inability of diverse stakeholders to 

successfully compete and receive 

nomination and appointment to the 

Board. Substantial concern was raised 

over the potential for large producer and 

signatory handler entities to control the 

nomination process and the resulting 

list of nominees forwarded to the 

Secretary for approval. 

Additional concern was voiced over 

the process outlined by proponents for 

the nomination of the retailer, 

foodservice, importer, and public 

member seats. Witnesses argued that 

because the proponents’ proposal 

allowed nominations for these positions 

to be made exclusively by appointed 

producer and signatory handler 

members to USDA, the proposed 

process lacked transparency or the 

opportunity for input from industry 

representatives not appointed to the 

Board. 

Many witnesses testified that in the 

absence of proposed zones that better 

reflected regional differences and an 

increase in Board membership to allow 

for greater industry participation, all 

Board member selections should be 

made by the Secretary. 

These witnesses advocated the 

establishment of a system under which 

a peer nomination voting process would 

be replaced by an industry-wide 

nomination process, with selection and 

appointment by the Secretary. Others 

suggested that nominations should be 

made by the general public, with 

selection and appointment by the 

Secretary. According to witnesses 

making these suggestions, their 

recommendations would lead to a 

transparent process for the 

identification and selection of Board 

members, and would improve the 

potential for diverse stakeholders to 

participate on the Board. 

Record evidence supports that a 

process for Board member nominations 

is necessary. Further, record evidence 

supports that nominations for producer 

and signatory handler (including 

importer) member seats and their 

alternate member seats of the Board, 

should be made by their respective 

peers. As such, nominations for 

signatory handler member seats and 

their alternates only would be made by 

signatory handlers. Likewise, only 

producers supplying signatory handlers 

would be allowed to nominate eligible 

producers for producer member seats 

and their alternate seats. 

Record evidence supports that the 

nomination process for the retailer, 

foodservice, and public member, and 

their alternates, should be revised to 

allow for nominations to be received at 

meetings, by mail, or by any form of 

electronically verifiable communication 


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24312 Federal Register / Vol. 76, No. 83 / Friday, April 29, 2011 / Proposed Rules 

from any person in the production area. 

This revision would allow for greater 

industry and public participation in the 

nomination of persons representing the 

retail, foodservice, and public 

communities and would allow for 

greater transparency in that process. 

As part of the nomination process, 

nominees would be required to indicate 

in advance of selection their interest to 

serve as a member, alternate, or both, 

and that they are willing to accept the 

seat for which selected. This would 

avoid possible delays in the 

appointment of the Board. 

The record evidence supports revising 

the proponents’ nomination process by 

removing the industry vote on nominees 

received. Instead, all names received 

during the nomination period should be 

forwarded to the Secretary, together 

with necessary information concerning 

their eligibility. 

The Secretary would appoint from 

those nominees the members and 

alternate members of the Board on the 

basis of the representation provided for 

in §§ 970.40 through 970.42 of this 

proposed agreement. 

Finally, the record supports 

nomination provisions with regard to 

acceptance, failure to nominate, and 

vacancies. Sections 970.43(c), (d) and (e) 

as published in the Notice of Hearing 

are redesignated as § 970.44(c), (e) and 

(f). 

Term of Office 

The proponents proposed that the 

term of office for Board members and 

alternates should begin on April 1 and 

continue for two years. The record 

indicates that leafy green vegetables are 

produced year round and that a term of 

office beginning on April 1 corresponds 

to the beginning of the time period 

designated in the definition of crop 

year. This language was published in 

the Notice of Hearing as § 970.42 and is 

redesignated as § 970.43. 

This decision recommends the twoyear term of office as proposed by 

proponents for Board members and their 

alternates to increase industry 

participation in administering the 

proposed agreement. The two-year term 

of office would apply to all Board 

members, including those representing 

the public. The maximum number of 

terms that an individual would be 

allowed to serve as a member on the 

Board would be three consecutive twoyear terms of office, or a maximum of 

six consecutive years. Thus, once a 

person has served as a Board member 

for six consecutive years, that person 

would not be eligible for re-nomination 

to the Board until after 12 consecutive 

months out of office. Such 6-year term 

limits would not apply to alternate 

members to ensure continuity in Board 

operations. 

Compensation and Expenses 

According to record evidence, Board 

members and alternate members, 

committee and subcommittee members, 

including those members serving on the 

Technical Review Committee and the 

Research and Development Committee, 

would necessarily incur some expenses 

while attending meetings, or performing 

other duties under the proposed 

agreement. Proponents propose that 

reasonable expenses, which could 

include expenses associated with travel, 

meals, and lodging, should be 

reimbursed. However, proponents 

explained these same members and 

alternate members would not receive 

any compensation for their time. No 

specific testimony was received in 

opposition to this proposal. A provision 

for compensation and expenses was 

proposed in the Notice of Hearing as 

§ 970.47 and is redesignated as § 970.48. 

Quorum and Voting Provisions 

The proponents proposed that 

provisions establishing quorum and 

voting procedures would be necessary 

for the effective functioning of the 

proposed Board. In their proposal, 

proponents stated that having a quorum 

requirement would ensure a majority of 

Board members be present prior to the 

Board voting on any action. According 

to proponents, a quorum would be met 

when a majority of all Board members 

were present at a meeting, including at 

least one member from each zone. If a 

quorum were met, proponents stated 

that voting requirements for any action 

taken by the Board would require the 

concurrence of a majority of all the 

members present at the meeting. 

The proponents identified three Board 

actions that would require more than a 

simple majority vote. Proponents 

proposed that a minimum concurrence 

of two-thirds of the Board members at 

a meeting be required for Board actions 

related to the acceptance of GAPs, 

GHPs, and GMPs, as well as changes in 

the assessment rate and termination of 

the agreement. Proponents explained 

that for these specific actions a 2⁄3 vote 

requirement would be needed due to the 

importance of changes to audit metrics, 

assessments, or termination. 

One witness testifying in favor of the 

super-majority provision clarified that 

the original language proposed by the 

proponents and published in the Notice 

of Hearing erroneously referred to 

‘‘acceptance of Good Agricultural, 

Handling, and Manufacturing Practices’’ 

instead of audit metrics. The witness 

explained that Good Agricultural, 

Handling, and Manufacturing Practices 

are guidelines that are independent of 

the proposed agreement and, therefore, 

would not be subject to recommended 

revisions proposed by the Board. The 

witness offered that approval of audit 

metrics would better capture the intent 

of the proponent group. Hearing record 

evidence supports replacing ‘‘acceptance 

of Good Agricultural, Handling, and 

Manufacturing Practices’’ with 

‘‘approval of the audit metrics as 

provided in § 970.67’’ in § 970.49 of the 

proposed agreement. 

In the event that a Board member 

were absent from a meeting, witnesses 

explained that that member’s alternate 

could serve in the absent member’s 

place and stead for the purpose of 

constituting a quorum and voting. 

Proponents further explained that if 

both the member and their alternate 

were unable to attend a meeting, the 

absent member or Board could designate 

any other alternate from the same zone 

and group who is present at the meeting 

to serve in the absent member’s place 

and stead. 

For example, Zone 7 is proposed to be 

allocated two signatory handler 

members. If one of the two Zone 7 

signatory handler members were present 

at a meeting and both the other member 

and their alternate were both absent, the 

alternate for the first member could 

serve in the place and stead of the 

absent member because they would 

represent both the same zone and group 

as the absentee. In this scenario, the 

alternate member would be selected to 

serve in the place and stead of the 

absentee by either the absent Board 

member or the Board. In this same 

example, if an available alternate 

member was a signatory handler from a 

different zone or was an alternate 

producer for Zone 7, that alternate could 

not be designated to serve. 

Proponent witnesses testified that 

meetings of the Board should be open to 

the public, and notice of meetings 

should be given to the Secretary in the 

same manner as is given to members of 

the Board. The record indicates that at 

Board meetings, members could cast 

their vote by voice, hand, or in writing. 

Additionally, a member participating 

by telephone would need to confirm his 

or her vote in writing. According to the 

record, a videoconference would be 

considered an assembled meeting and 

all votes would be considered as cast in 

person without need for subsequent 

written confirmation. 

The record supports the need to 

establish quorum requirements and 

voting procedures so that meetings are 

conducted in an orderly manner and 


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that adequate representation in Board 

decisions. However, the proposed 

language should be modified to state 

that a majority of all appointed members 

of the Board shall constitute a quorum. 

This would address situations in which 

a zone may not have any appointed 

members. 

No specific testimony was received in 

opposition to this proposal. 

Accordingly, the provisions regarding 

quorum and voting procedures in 

§ 970.48 would be revised as previously 

discussed above and redesignated as 

§ 970.49. 

Powers 

Proponent witnesses testified that 

certain powers should be assigned to the 

Board in order for it to carry out its 

functions under the proposed 

agreement. Proponents indicated that 

these powers would enable the Board to 

make recommendations to the USDA 

that reflect the conditions in the 

industry based on their knowledge and 

experience. To this end, the proponents 

included six powers in their proposal: 

(1) To administer the proposed 

agreement in accordance with its terms 

and provisions; 

(2) To make such rules and 

regulations, with the approval of the 

Secretary, as may be necessary to 

effectuate the terms and provisions of 

the proposed agreement; 

(3) To adopt, with the approval of the 

Secretary after notice and comment, 

audit metrics to administer the terms 

and provisions of the proposed 

agreement; 

(4) To cooperate with existing State 

boards, commissions and agreements 

through memorandum of understanding 

to affect the purposes of the proposed 

agreement; 

(5) To receive, investigate, and report 

to the Secretary complaints of violation 

of the provisions of the proposed 

agreement; and, 

(6) To recommend to the Secretary 

amendments to the proposed agreement. 

No specific testimony was received in 

opposition to this proposal. 

Certain powers should be granted to 

the Board to enable it to properly 

administer the proposed program. Upon 

review, power 3 above is included in 

power 2 and is therefore duplicative, 

while power 4 is more appropriately 

included under Board duties. The 

section ‘‘Powers’’ originally was 

included in the Notice of Hearing as 

§ 970.49 and is revised and redesignated 

as § 970.50. 

Duties 

Proponents stated that specific duties 

are necessary for the Board to fully 

execute its responsibilities under the 

proposed agreement. They pertain to 

specific activities authorized under the 

proposed agreement, such as 

investigating and compiling information 

regarding leafy green vegetables, and to 

the general administration of the 

proposed agreement including hiring 

employees, appointing officers, and 

keeping records of all Board 

transactions. 

The specific duties of the Board 

proposed by the proponents are as 

follows: 

(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. 

Record evidence indicates that, in 

addition to the duties proposed by the 

proponents, the duty to develop an 

annual budget for review and approval 

by the Secretary should be included. 

Witnesses testifying in favor of this 

addition stated that development of a 

budget is necessary to ensure proper 

financial planning of Board expected 

expenditures and anticipated receipts. 

In addition, the development of an 

annual budget would be instrumental in 

determining, along with production 

estimates, the annual assessment rate. 

The witness stated that the budget 

should be reviewed and approved by 

USDA to ensure the fiscal responsibility 

in the proposed agreement’s 

administration. 

At the hearing, some witnesses raised 

questions regarding the protection of 

confidential information, especially 

within the context of financial reports 

developed by the Board, and audit of 

Board annual financials, including 

receipt of assessments and the 

disbursement of all funds. Witnesses 

expressed concern over the need to 

maintain confidentiality of proprietary 

information when such reports are 

written or audits conducted. 

The duties proposed by the 

proponents and listed above are 

reasonable and necessary. No specific 

testimony was received in opposition to 

this proposal. This proposal was 

included in the Notice of Hearing as 

§ 970.50 and is revised as previously 

discussed and redesignated as § 970.51. 

Material Issue Number 5(c)—Audit 

Metrics and Verification Audits 

According to record evidence, the 

proposed agreement should provide that 

verification audits be conducted to 

verify that signatory handlers are 

complying with the provisions of the 

proposed program. This would include 

audits of signatory handler operations to 

ensure that GHP audit metrics are being 

adhered to, as well as producer 

operations delivering to those handlers 

to ensure that GAP audit metrics are 

being adhered to. Verification audits 

should also be conducted of 

manufacturer operations (for those 

manufacturers who are signatories to the 

proposed agreement) to ensure that 

GMP audit metrics are being adhered to. 

Proposed provisions for verification 

audits are provided for in § 970.66. 

Record evidence supports providing 

the Board with the authority to 

recommend audit metrics. Audit metrics 

established under the proposed program 

would represent a set of auditable 

standards or process control that would 

allow an auditor to determine if a 

producer or handler is in compliance 

with the program. Provisions for the 

development of audit metrics are 

provided for in § 907.67. 

In addition, a Technical Review 

Committee (TRC) should be established 

to assist the Board in the development 

of audit metrics. Members of the TRC 

would represent signatory handlers and 


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producers throughout the production 

area, as well as stakeholder interest 

groups including but not limited to 

organic and non-conventional 

agriculture, small business operations, 

members of the scientific community, 

and interested government agencies. 

Authority for the TRC would be 

provided for in § 970.46 (formerly 

§ 970.45). 

Provisions requiring traceability 

should be established under the 

proposed program. The ability to trace 

produce during all stages of production, 

handling, and distribution would be a 

key factor in ensuring compliance. 

Witnesses stated that traceability would 

also provide for increased information 

about the source and movement of 

produce within the leafy green vegetable 

industry in the event that a 

contamination incident was to occur. 

Provisions relating to traceability are 

provided for under § 970.68. 

According to the hearing record, an 

official mark should be developed for 

the purposes of identifying compliant 

participants in the proposed program. 

The proposed mark would be used on 

bills of lading, manifests or other like 

documentation that is standard in preretail market transactions. In addition, 

the Board should have the authority to 

recommend other uses of the official 

mark. Any other such uses would 

require the approval of the Secretary. 

Provisions for the development and 

usage of the official mark are provided 

for under § 970.69. 

The record also supports the 

establishment of provisions allowing for 

any financially interested person to 

request an administrative review if it is 

believed that the results of an audit are 

in error. These proposed provisions are 

included in § 970.70. 

Provision for the Secretary to modify, 

suspend, or terminate regulations in 

effect under the proposed program 

should also be included in the proposed 

agreement. This is provided for in 

§ 970.71. 

Verification Audits 

As explained in Material Issue 5(a), 

the term ‘‘verification audit’’ should be 

defined to mean an official audit 

conducted by the Inspection Service to 

verify and document that good 

agricultural, handling, and 

manufacturing practices are adhered to 

throughout the growing, harvesting, 

packing and transportation of leafy 

green vegetables. According to the 

record, a verification audit would 

include a physical visit to the farm or 

facility subject to audit while it is in 

operation, to the extent practicable, and 

would represent a snapshot in time 

based on documentation reviewed, 

persons interviewed and operations 

observed. Information gathered during 

the audit would reflect past and ongoing 

activities of the signatory handler or 

their supplying producer(s) to the 

Inspection Service. 

Section 970.66 of the proponents’ 

proposed language describes 

verification audit provisions for GAPs, 

GHPs and GMPs audits. Proponents 

stated that signatory handlers would be 

required to ensure that any leafy green 

vegetables handled by their operation 

have been subject to GAPs verification 

audits. Proponents further stated that 

the GAPs audits should reflect FDA 

production and harvest guidelines, 

referred to in proposed § 970.11, and 

should meet audit metrics provided for 

under proposed § 970.67. 

Proponents also stated that all 

signatory handlers to the proposed 

program should be subject to GHPs or 

GMPs verification audits, whichever is 

applicable. Such audits would verify 

that signatory handlers operate under 

auditable conditions that meet general 

FDA guidelines referred to in § 970.11 

or FDA manufacturing regulations 

referred to in § 970.13, and should meet 

audit metrics provided for under 

proposed § 970.67. 

Proponents explained that audits 

were necessary to ensure the integrity of 

all leafy green vegetables handled under 

the program. Proponents stated that 

quality assurance of leafy green 

vegetables begins in the field where the 

produce is grown, but that the integrity 

of that quality should be maintained 

through all stages post-production 

through delivery to market. By ensuring 

that leafy green vegetables are 

consistently subject to GAPs, GHPs and 

GMPs, proponents asserted that the 

potential for microbial contamination of 

those vegetables would be minimized. 

These practices would support the 

delivery of quality products to the 

marketplace. 

According to the hearing record, 

proponents further stated that signatory 

handlers of the proposed program 

should not be allowed to import leafy 

green vegetables produced or handled in 

foreign countries that have not been 

subject to GAPs, GHPs or GMPs 

verification audits by the Inspection 

Service or agencies approved to audit on 

its behalf. Proponents stated that any 

foreign leafy green vegetables that are 

imported should be subject to 

comparable requirements that would be 

in effect in the United States if this 

proposed program were implemented. 

According to the hearing record, all 

audits should be conducted by the 

Inspection Service or any other such 

agency that is authorized to audit on its 

behalf. Proponents explained that audits 

should be conducted on a regular 

schedule that would ensure every 

handler is audited during their 

corresponding production season. In 

addition, unannounced audits of 

handlers and associated producers 

should be performed during the 

production season in each zone. 

Finally, § 970.66 is revised for clarity. 

Administrative Review 

Under proposed § 970.70, any 

signatory handler denied the use of the 

official certification mark as a result of 

failing an audit should be allowed to 

petition for reconsideration of the 

results. Proponents proposed that such 

person could 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. 

The record evidence also supports 

that a financially interested person 

should have recourse if an auditing 

error is made. Witnesses also stated that 

the person requesting the review should 

pay the cost of the review, and would 

be subsequently provided a copy of the 

review results. 

This section is revised for clarity. 

Audit Metrics 

According to the hearing record and 

as defined in Material Issue 5(a), ‘‘audit 

metric’’ refers to an auditable standard 

or requirement used to verify that a 

production, handling or manufacturing 

system intended to prevent, reduce or 

eliminate a microbiological hazard is 

being effectively and accurately 

followed. A collection of such standards 

is referred to as ‘‘audit metrics’’ and 

together establish the framework within 

which the process controls intended to 

ensure good agricultural, handling or 

manufacturing practices can be verified 

as being met. 

One example of this is an audit metric 

that provides that water used in a 

production field to be verified as 

meeting a quality standard. However, 

the way that an individual producer 

may meet that standard would differ 

depending on whether the water was 

sourced from municipal or private 

wells, delivered via canal irrigation, 

applied to the crop in a foliar or nonfoliar application, or was rain water. 

The applicable process control also 

would differ. 

Each audit metric is a specific 

measure of GAPs, GHPs, or GMPs 

compliance. To the extent that 

production, handling and 


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manufacturing environments present 

different factors that need to be 

controlled during those processes, 

metrics may differ by zone or region. 

Moreover, according to the hearing 

record, the auditable actions taken by a 

producer, handler, or manufacturer to 

meet metric standards may also vary 

due to differences in business size, or 

cultural growing and handling practices. 

According to the record, audit metrics 

should incorporate current industry 

production, harvest and handling 

technologies, and should be based on 

scientific practices. 

Section 970.67 of the proponents’ 

proposed language describes the 

development and implementation of 

audit metrics under the proposed 

program. This language states that audit 

metrics may be recommended by the 

Board to USDA for approval after 

consultation with the Technical Review 

Committee. The Technical Review 

Committee, and any subcommittees 

established thereunder, would provide 

the Board with production and handling 

perspectives of the various regions, 

particular challenges of individual 

regions, as well as scientific review and 

food safety expertise. 

The proponents’ proposal contained a 

list of areas that may be addressed in 

establishing audit metrics for GAPs, 

GHPs, and GMPs. They are included in 

paragraphs (a) and (b), and those 

paragraphs are revised for clarity. 

Hearing record evidence indicates 

concern over the method by which 

critical limits for process controls and 

quality factors would be identified and 

established under the proposed 

program. Witnesses stated that any 

proposed critical limits should be 

science-based, should reflect the broad 

spectrum of industry practices across 

the country, and should reflect or 

coordinate with FDA and other existing 

Federal or State regulation. 

Portions of § 970.67(c) of the Notice of 

Hearing should be divided for clarity 

and redesignated as § 970.67(c), (d), and 

(e). Paragraph (c) should state that 

critical limits for process controls for 

each quality factor identified in GAPs, 

GHPs or GMPs audit metrics may be 

recommended by the Board, after 

consultation with the Technical Review 

Committee, for approval of the 

Secretary, or may be developed by 

USDA. 

Paragraph (d) should state that USDA 

may consult with appropriate 

government entities and consider 

recommendations made by the Board 

after Board consultation with the 

Technical Review Committee. 

Paragraph (e) should state that Board 

recommendations, including critical 

limits, shall incorporate current 

industry production, harvest and 

handling technologies, should be based 

on scientific practices. 

Paragraph § 970.67(d) of the Notice of 

Hearing should be redesignated as a 

new § 970.67(f). This paragraph states 

that audit metrics may be developed 

and recommended to accommodate 

differences in production, harvest, and 

handling environments of different 

regions. 

A new § 970.67(h) should be added to 

state that audit metrics may be 

developed and recommended to 

accommodate differences in production, 

harvest and handling environments of 

imported leafy green vegetables and 

their products. 

Paragraph § 970.67(e) of the Notice of 

Hearing should be redesignated as a 

new § 970.67(g). This paragraph states 

that after consultation with the 

Technical Review Committee, the Board 

may, at any time, recommend changes 

to the audit metrics for approval by the 

Secretary. 

According to the hearing record, the 

Board should be required to review 

audit metrics periodically. Witnesses 

explained that systematic reviews 

needed to occur to ensure that audit 

metrics continually reflect the best 

industry practices, scientific 

information, and industry knowledge. 

This review should occur at least every 

3 years. This language was originally 

included in the Notice of Hearing as 

§ 970.67(f) and should be redesignated 

as § 970.67(h). 

Technical Review Committee 

According to the proponent proposal, 

the audit metrics development process 

would require consultative sessions 

with a subcommittee, the Technical 

Review Committee. TRC membership 

would include industry representation, 

food safety professionals, members of 

the scientific community, and 

representatives from selected 

government agencies. Proponents stated 

that the proposed TRC and its members 

would ensure that current industry 

practices as well as current scientific 

research and technology were integrated 

into any proposed metrics. This 

subcommittee was originally identified 

as the Technical Review Board in the 

Notice of Hearing, and is being renamed 

the Technical Review Committee. 

According to the proponents’ 

proposal, the Technical Review 

Committee would have 14 members 

appointed by the Board. The 14 

members would include: One 

representative from each of the five 

originally proposed zones; one food 

safety representative from a land grant 

university from within each zone; one 

representative of the USDA Natural 

Resources Conservation Service 

appointed by the Secretary; one 

representative of the U.S. 

Environmental Protection Agency 

designated by that agency’s 

Administrator; and, two representatives 

of FDA appointed by that 

administration’s Commissioner. 

Proponents stated that it was their 

intent to provide an administrative 

structure and Technical Review 

Committee that would allow fresh leafy 

green vegetable industry stakeholders to 

proactively engage in the process of 

recommending audit metrics for 

approval and implementation by USDA. 

Proponents explained that their 

proposal provided authority for 

additional subcommittees under both 

the Board and the Technical Review 

Committee to be established. Through 

these subcommittees, industry 

stakeholders could work cooperatively 

to develop and recommend uniform, 

auditable, science-based production and 

handling audit metrics that also 

incorporated any necessary specific 

measures to accommodate differences in 

size of operation, geographic location, or 

other environmental challenges for a 

given region. Also, recommendations 

would be addressed by the full Board, 

would require Secretary approval, and 

would be subject to a public rulemaking 

process. 

During the hearing, several witnesses 

raised concerns over the proposed 

structure of the Technical Review 

Committee. In particular, witnesses 

stated that producer interests, especially 

those of small producers, diversified 

farm operations, and organic farms, 

were not given adequate representation. 

Moreover, witnesses stated that the 

Technical Review Committee, as 

proposed by the proponents, did not 

provide adequate involvement of local, 

State, and other Federal government 

interests in the development of metrics. 

These witnesses explained that any 

metrics established under the proposed 

program could impact existing 

regulation or areas of shared jurisdiction 

by those entities. 

Areas of particular stakeholder 

concern noted during the hearing 

include: Water quality and usage, 

conservation practices, wildlife and 

habitat management, and natural 

resource management. Regulatory 

jurisdiction over some of these topics is 

shared by multiple Federal, State, and 

local government bodies. Witnesses 

concerned over the audit metric 

development process argued the need to 

include input and information from 

representatives of these regulatory 


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bodies to mitigate the potential for 

conflicting requirements being placed 

on producers or handlers. 

Lastly, witnesses who voiced 

concerns over the initial proposal’s five 

geographic zones also voiced concerns 

over the Board’s ability to appoint 

members of the Technical Review 

Committee. Opponents stated that 

without more appropriate stakeholder 

representation on the Board, the 

placement of members on the Technical 

Review Committee would not be 

reflective of the industry’s diversity. 

On the last day of the hearing, 

proponents submitted a modified 

Technical Review Committee structure. 

Proponents presenting modified 

language explained that the revised 

language attempted to address opposing 

witness’ concerns. The revised language 

outlined a new Technical Review 

Committee that would consist of 21 

members to include: One handler and 

one producer representative from each 

of the initial zones elected by the Board 

members of that zone; one producer 

representative considered a small 

business entity under the SBA 

guidelines and one organic producer 

elected by all Board members; one 

produce safety expert from a land grant 

university within each of the initial 

zones elected by the producer and 

handler members from the 

corresponding zone; one representative 

of the USDA Natural Resources 

Conservation Service appointed by the 

Secretary; one representative of the 

United States Environmental Protection 

Agency designated by that agency’s 

Administrator; and, two representatives 

of FDA appointed by that 

administration’s Commissioner. 

Proponents explained that their 

proposed modifications would improve 

producer representation on the TRC. 

Moreover, the addition of seats 

designated for small businesses and 

organic operations would ensure that 

these stakeholder interests were 

represented in the audit metric 

development process. 

The alternative Technical Review 

Committee structure would improve the 

representation of stakeholder interests, 

but needs to be revised to reflect the 

modified zone definitions. 

Each of the eight zones, as 

recommended in § 970.37, would have 

one signatory handler, one producer, 

and one food safety expert. One of the 

eight producer seats would have to be 

filled by a producer meeting the SBA 

definition of small agricultural 

producer, and one must be filled by a 

certified organic producer. In addition, 

the Secretary would appoint one 

representative from the USDA Natural 

Resources Conservation Service. The 

Technical Review Committee would 

therefore consist of 25 members. This 

proposed language is presented in 

§ 970.46. 

Additionally, the Secretary would 

have authority to appoint such USDA 

representation on the Committee as 

deemed appropriate. Record evidence 

indicates that this may include 

representatives of the National Organic 

Program, Agricultural Research Service, 

and National Institute of Food and 

Agriculture. 

Further, USDA may consult with 

other Federal agencies, as appropriate, 

whose interests may be affected by audit 

metrics identified in §§ 970.66 and 

970.67, and may allow for 

representatives of those agencies to 

participate in the work of the Technical 

Review Committee. Agencies identified 

as potentially having a collaborative 

interest include, but are not limited to: 

United States Environmental Protection 

Agency, FDA Center for Food Safety and 

Applied Nutrition, and Department of 

Interior Fish and Wildlife Service. 

The proponent proposal did not 

include specific nomination procedures 

for TRC members. However, record 

evidence supports a process that would 

allow for broad industry participation in 

Committee nominations. Accordingly, 

TRC nomination procedures are being 

added that are similar to those for Board 

members. 

For the purposes of establishing the 

initial TRC, nominations would be 

conducted by the Secretary by means of 

meetings of producer and signatory 

handler representatives, by mail, or by 

any other form of electronically 

verifiable communication (such as fax, 

videoconference, conference call). The 

Secretary would then select and appoint 

the members from such nominations. 

Subsequent to the nomination of the 

initial members, all successor members 

would be nominated by producers and 

signatory handlers. In addition, the 

Board could recommend nominees to 

USDA. The Board would forward the 

entire list of nominees received to 

USDA for final selection and 

appointment by the Secretary. 

Authority should be added for the 

Board to recommend modifications to 

the membership of the TRC. Any such 

recommendations by the Board would 

require approval of the Secretary. This 

authority would provide flexibility to 

recommend adjustments or changes to 

the structure of the TRC over time. 

Finally, the TRC should have the 

authority to appoint subcommittees as 

necessary to facilitate the development 

of audit metrics specific to regions, or 

production, handling, or manufacturing 

environments that produce, handle, or 

manufacture leafy green vegetables. 

Subcommittees may consist of 

producers, handlers, and other 

interested parties as deemed appropriate 

by the TRC. 

USDA recommends that § 970.45 of 

the Notice of Hearing be revised as 

previously discussed and redesignated 

as § 970.46. 

Traceability 

According to proponents of the 

proposed program, the ability to trace a 

product during production, processing, 

and distribution would be a key factor 

in increasing information and 

communication within the market, as 

well as ensuring compliance. 

In the case of a contamination event, 

timely communication about the scope 

of the contamination is essential to 

addressing consumer concerns and 

reducing the economic impact of the 

event on the industry and removing 

contaminated product from the market. 

For this reason, proponents 

recommended including authority to 

implement traceability requirements 

under the proposed program. These 

requirements would allow for a more 

efficient recall of contaminated product 

if a contamination event were to occur. 

Proponents explained that 

information required under a 

traceability system would allow for a 

more rapid and accurate identification 

of both the source location of the 

contamination, and the distribution of 

product coming from that source. 

Signatory handlers would need to have 

in place systems and procedures that 

will allow them to track their products. 

Official Certification Mark 

According to the hearing record, an 

official mark or trademark should be 

developed for the purposes of 

identifying compliant participants in 

the proposed program. Evidence 

presented during the hearing also 

supports that any such mark should be 

developed through the use of funds 

collected under proposed § 970.56 and 

according to the provisions of proposed 

§ 970.55. The mark would be the 

property of the United States 

Government as represented by the Board 

and would be used for the benefit of the 

Board, its signatories and their affiliated 

producers. 

Proponents explained that the 

proposed mark would be used on bills 

of lading, manifests and other like 

documentation that is standard in preretail market transactions. Proponents 

indicated that use of the mark would 

lead to buyer confidence in producer, 

handler, and manufacturer transactions 


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because it would indicate that the 

product being sold met program 

standards. Proponents also stated that 

use of the mark would facilitate 

traceability. 

Proponents stated that their intention 

was to not use the official certification 

mark on retail or consumer packaging. 

While some proponents suggested that 

the mark could be used in literature or 

informational campaigns designed to 

inform participants of the fresh produce 

industry about the scope and mission of 

the proposed program, proponent 

testimony did not anticipate the use of 

the mark at the consumer level for 

marketing purposes. 

Many witnesses who were opposed to 

the proposed program were also 

opposed to the development of the mark 

and stated that the proponents’ 

proposed language did not clearly 

prohibit the use of such mark on 

consumer packaging. These witnesses 

stated that if the mark were used on 

consumer packaging, its use would lead 

to an unfair marketing advantage for 

participants of the program over those 

opting not to participate. 

The proposed agreement should 

provide authority for the Board to 

recommend, subject to approval of the 

Secretary, alternative uses of the official 

certification mark is important to 

ensuring flexibility of the proposed 

provisions and their application under 

the proposed program. However, based 

on record evidence, the use of the mark 

on consumer packages would be 

prohibited. The authority to recommend 

alternative uses would allow the Board 

to address unanticipated circumstances 

that may present themselves in the 

future. 

Lastly, hearing record evidence 

demonstrates that a signatory handler’s 

compliance with the proposed program 

would be a condition precedent and 

subsequent to the signatory handler’s 

use of the mark. As discussed under 

Material Issue 5(f), use of the mark 

would also be subject to verification, 

suspension and revocation provisions of 

the proposed program. 

In summary, the record supports 

authority for the development of a 

registered certification mark. The 

proposed regulatory text published in 

the Notice of Hearing under § 970.69 is 

revised to reflect the change discussed 

above and for clarification. 

Modification, Suspension and 

Termination 

The Secretary may modify, suspend, 

or terminate regulations in effect under 

the proposed program based on Board 

recommendations or otherwise. This 

would allow changes in any regulations 

established under the program. This 

provision appears in § 970.71. 

Material Issue Number 5(d) Expenses, 

Assessments, Accounting and 

Contributions 

The Board should be authorized to 

incur reasonable and necessary 

expenses and to collect assessments to 

fund such expenses. Further, the 

proposed agreement should provide for 

handling of excess assessments 

collected and should authorize the 

Board to accept voluntary contributions. 

Expenses 

The record evidence supports that the 

Board should be authorized, under 

§ 970.55 of the proposed agreement, to 

incur such expense as the Secretary 

finds are reasonable and likely to be 

incurred during each crop year. 

Necessary expenses for the maintenance 

and functioning of the Board would 

generally include, but would not be 

limited to, administrative expenses such 

as employee salaries and benefits; 

establishment of an office and 

equipping that office; telephone and 

mail services; and business and travelrelated expenses for the Board staff. As 

discussed previously, expenses incurred 

by Board members and alternate 

members, committee members, and 

subcommittee members in attending 

meetings or performing other official 

duties should also be reimbursable 

expenses. According to the hearing 

record, the proposed agreement should 

also authorize the Board to incur 

expenses related to research, 

development, and education activities 

pursuant to § 970.75. The types of 

activities that could be funded under 

this authority are discussed under 

Material Issue 5(h). 

According to the hearing record, the 

Board should also pay for GAP audit 

fees for verification audits conducted on 

producers delivering to signatory 

handlers as well as GHP audit fees for 

those signatory handlers. Having 

uniform assessments pay for such audit 

costs should alleviate concerns raised 

about the relative costs of audits for 

operations of varying size and in 

different locations. Having the Board 

pay audit fees could also result in more 

efficiencies for the program. 

The record evidence is that the Board 

would pay for direct audit costs. Any 

additional costs related to inspection 

service travel would be borne by the 

signatory first handler. Specifics as to 

which costs would be paid out of 

assessment funds could be included in 

any memorandum of understanding 

between the Board and the Inspection 

Service. 

The record evidence is that GHP and 

GMP audits conducted on second 

signatory handlers should not be paid 

for by the Board. This is because those 

handlers would not be required to pay 

assessments on the leafy green 

vegetables that they handle or 

manufacture. 

Minor clarifying changes have been 

made to § 970.55. 

Assessments 

The proponents testified that funds to 

cover the Board’s administrative 

expenses should be obtained through 

the collection of assessments from 

signatory first handlers who handle 

leafy green vegetables in the production 

area. These assessments would reflect 

each signatory first handler’s 

proportional share of the volume of 

leafy green vegetables subject to 

regulation under the proposed 

agreement. As such, assessments would 

be based on the total amount of leafy 

green vegetables handled by each 

signatory first handler. 

According to the hearing record, prior 

to the beginning of each crop year and 

as necessary thereafter, the Board 

should prepare and recommend to 

USDA an estimated budget of expenses 

including a rate of assessment 

calculated to adequately cover the cost 

of such projected expenditures. 

Proponents stated that any such 

assessment rate could include a 

supplemental assessment rate if it was 

determined beneficial to the 

administration of the program. A 

supplemental assessment rate could be 

used to address a specific problem. An 

example would be the need to fund a 

research project that only affects 

cabbage. In this example, the Board 

could assess a supplemental assessment 

rate on cabbage, which would be in 

addition to the regular administrative 

assessment rate. Funds derived from 

these supplemental assessment rates 

would then be specifically earmarked to 

pay for the cabbage research project in 

this example. 

Testimony indicates that the 

preparation of a budget prior to the 

beginning of each crop year would 

provide a basis for the Board’s 

assessment rate formulation. Once 

approved at the Board level, the annual 

budget and assessment rate 

recommendations would be submitted 

to USDA for review and approval. 

As supported by the record, the 

proposed agreement contains a 

maximum assessment rate limit of $0.05 

per 24-pound carton of leafy green 

vegetables or equivalent (including any 

supplemental assessment rate). 

According to the hearing record, lettuce 


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has traditionally been shipped in 

24-pound cartons and is widely 

considered a standard of measurement 

for the leafy green vegetable industry. 

For leafy green vegetables not typically 

shipped in 24-pound cartons, the Board 

would recommend appropriate formulas 

to calculate equivalent units of 

measurement for assessment purposes. 

The intent of the maximum limit on 

the assessment rate is to assure 

signatory handlers that program 

expenses would be kept within 

specified limits. Proponents stated that 

the maximum limit is based on 

experience with the State marketing 

agreement programs in California and 

Arizona. They testified that the initial 

California assessment level was two 

cents per 24-count carton equivalent, 

and it was lowered to a penny and a half 

per carton equivalent after the second 

year. Given this experience, the 

proponents anticipate that the actual 

cost of the proposed agreement, if 

implemented, would be covered by an 

assessment rate below the proposed 

maximum limit. 

Should a signatory first handler fail to 

timely pay assessments, record evidence 

indicates that such handler should be 

required to pay the Board, in addition 

to the overdue assessments, an interest 

or late payment charge, or both, on any 

outstanding balance. The time period in 

which assessments should be paid to 

the Board, the rate of interest, and any 

late payment charge would be 

recommended by the Board and 

approved by the Secretary through the 

public rulemaking process. 

According to hearing record evidence, 

late payment charges and interest on 

unpaid balances are reasonable to 

encourage timely payment of 

assessments and to compensate the 

Board for expenses incurred in 

collecting unpaid assessments. 

Witnesses stated that timely collection 

of assessments would be important in 

order to efficiently and effectively 

administer the provisions of this 

proposed agreement. 

The proponents testified that the 

Board may accept, but not require, 

advance payments of assessments, 

which would be credited toward 

assessments levied against that 

signatory first handler for the crop year. 

In addition, the Board would be 

authorized to borrow money to cover 

operating expenses when assessment 

and reserve funds are not sufficient. 

Revisions have been made to § 970.56 

and paragraph (c) of that section has 

been deleted as unnecessary. 

Excess Funds 

The proponents proposed procedures 

for accounting of excess funds in 

§ 970.57 of the proposed agreement. 

They indicated that such procedures 

would be necessary to assure signatory 

handlers and the industry that there 

would be proper disposition of excess 

funds, and that a detailed accounting 

would be made of such disposition. 

This section would allow the Board, 

with the approval of the Secretary, to 

establish an operating monetary reserve. 

This would permit the Board to carry 

over to subsequent crop years any 

excess funds in a reserve, if funds 

already in the reserve do not exceed 

approximately two years’ expenses. If 

reserve funds exceed that amount, the 

assessment rate should be reduced to 

bring the reserve to a more reasonable 

level. These reserve funds could be used 

to defray expenses during any crop year 

before assessment income is sufficient 

to cover such expenses; to cover deficits 

incurred during any crop year when 

assessment income is less than 

expenses; to fulfill any obligations 

under § 970.75; and, to cover necessary 

expenses of liquidation in the event of 

termination of the program. 

In lieu of depositing excess funds in 

a monetary reserve, the proponents 

proposed that § 970.57 would also 

provide the Board with the necessary 

authority to credit each handler’s 

account, or to refund each handler 

directly, with a proportionate share of 

any excess assessment funds at the end 

of each crop year. 

Clarifying changes have been made to 

§ 970.57. 

Voluntary Contributions 

The proponents testified that in 

addition to assessment and other 

income, such as interest, the Board 

should be able to receive voluntary 

contributions for the conduct of 

research, development, and education 

activities authorized under § 970.75 of 

the proposed agreement. Testimony 

supported having such contributions 

free from any encumbrances by the 

donor, and that the Board should retain 

complete control of the use of such 

funds. This authority appears in 

§ 970.58. 

Material Issue Number 5(e)—Reporting 

and Recordkeeping 

The proposed agreement should 

provide that signatory handlers 

periodically submit reports and other 

information to the Board and to 

maintain records regarding the handling 

of leafy green vegetables. Further, to 

ensure compliance with the Act, the 

proposed agreement should provide that 

all reports and other information 

submitted by signatory handlers remain 

in the custody of employees or 

authorized agents of the Board at all 

times. Finally, the proposed agreement 

should authorize agents or employees of 

USDA and the Board to access the 

premises of signatory handlers during 

reasonable business hours to verify 

compliance with the proposed 

agreement. 

Reports and Recordkeeping 

The record indicates that the Board 

should have the authority, with the 

approval of the Secretary, to require 

under § 970.80(a) that signatory 

handlers submit to the Board such 

reports and information as the Board 

may need to perform its functions and 

fulfill its responsibilities under the 

proposed agreement. The Board would 

require reports and information for such 

purposes as collecting assessments; 

analyzing leafy green vegetable markets 

and marketing trends with the objective 

of preparing and evaluating research 

and development projects; developing 

and recommending rules and 

regulations; and determining whether 

signatory handlers are complying with 

the requirements of the proposed 

agreement. 

Hearing testimony includes witness 

statements that reports potentially 

required under the proposed agreement 

could include production, inventory, 

and sales data; customer and supplier 

lists; and testing and audit reports. This 

should not be construed as a complete 

list of information the Board might 

require, nor all of the information 

necessary for the proper conduct of 

Board operations under the proposed 

agreement. Therefore, the Board should 

have the authority, with the approval of 

the Secretary, to require each signatory 

handler to furnish such information as 

it finds necessary to perform its duties 

under the proposed agreement. 

Under § 970.80(b), proponents 

testified that signatory handlers should 

be required to maintain records of all 

receipts and acquisitions of leafy green 

vegetables as may be necessary to verify 

the reports that are submitted to the 

Board. This would also include all 

documentation relating to audit reports. 

All records would be maintained for at 

least two years after the end of the crop 

year of their applicability. The records 

maintained should be sufficient to 

document and substantiate each 

signatory handler’s compliance with the 

proposed agreement. Witnesses testified 

that these records may be needed to 

assist in compliance investigations. 


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Paragraphs (a) and (b) of § 970.80 are 

revised for clarification, and paragraph 

(c) is deleted as it is not necessary. 

Confidential Information 

As required by the Act and supported 

through testimony provided by 

witnesses at the hearing, § 970.81 would 

require that all reports and information 

submitted by signatory handlers be 

received by, and at all times be in the 

custody of, employees or authorized 

agents of the Board. Information 

submitted by signatory handlers 

affecting the trade position, financial 

condition, or business operation of such 

handlers could not be disclosed by the 

employees of the Board, or by any 

agents authorized by the Board, to any 

person or entity other than the 

Secretary. Witnesses testified that 

reports and information that contain 

proprietary market and business 

information could affect the trade 

position, financial condition, or 

business operation of the affected 

signatory handler, and that 

confidentiality would be necessary to 

protect the businesses submitting the 

information. The Board would also 

confidentially hold any data or 

information obtained or extracted from 

reports or information submitted by 

signatory handlers. The proponents also 

stated that, although information from 

reports and information may be 

combined and made available in the 

form of general reports, the identities of 

the individuals furnishing the 

information should not be disclosed. 

Combined information in general 

reports could be helpful to the Board 

and to the leafy green vegetable 

industry. 

Minor revisions have been made to 

§ 970.81 for clarification. 

Verification of Reports 

In § 970.82, the proponents proposed 

procedures for verifying that reports 

filed by signatory handlers are in 

compliance with the requirements of the 

proposed agreement. For this purpose, 

the hearing record indicates that 

authorized agents or employees of the 

Board, and the Secretary, should have 

access to the premises of all signatory 

handlers during reasonable business 

hours. In addition to having access to a 

signatory handler’s premises to verify 

that all reports have been submitted 

accurately, the proponents indicated 

that authorized agents or employees of 

the Board, and the Secretary, should 

also have access to check GAPs audit 

verification records for compliance with 

the proposed agreement. 

Record evidence indicates that 

authorized agents or employees of the 

Board, as well as the Secretary, should 

have reasonable access to any signatory 

handler’s premises during regular 

business hours (those hours when the 

signatory is actually engaged in 

growing, harvesting, packing, or 

transporting leafy green vegetables). The 

record verification should be conducted 

through a visit to the signatory handler’s 

facility, where documentation would be 

reviewed and personnel interviewed to 

ascertain compliance with this part. 

In regards to the general issue of 

reporting and recordkeeping, evidence 

indicates that handlers of leafy green 

vegetables and products already collect 

and maintain much of the information 

proposed for submission to the Board 

under the proposed agreement 

provisions. Furthermore, hearing 

testimony suggests that the proposed 

agreement would be beneficial to the 

industry by helping to standardize how 

information is collected, maintained, 

and disseminated. An additional benefit 

to the reporting and recordkeeping 

requirements of the proposed agreement 

would be enhanced traceability and 

identification of product due to the 

more consistent and generally available 

nature of the digitized information 

likely required by handlers. 

Although some small and organic 

producers and handlers currently not 

associated with any food quality 

verification program expressed concerns 

about the additional personnel and cost 

possibly required for adherence to the 

proposed reporting and recordkeeping 

requirements, others currently 

associated with a food quality 

verification program of some kind 

testified that good recordkeeping has 

helped adhere to the food quality 

verification program and been beneficial 

to overall farm operation. These 

witnesses also expressed the belief that 

the reporting requirements herein 

proposed would not constitute an 

undue burden on leafy green vegetable 

businesses. 

Section 970.82 is modified slightly for 

clarification. 

Material Issue Number 5(f)— 

Compliance 

The proposed agreement should 

provide the Board and USDA with the 

authority to withdraw audit services, 

withdraw the use of the official 

certification mark, or seek remedies or 

penalties should signatory handlers be 

in non-compliance with the proposed 

agreement. In addition, the proposed 

agreement should provide that any 

immediate threat to public health be 

reported to appropriate health officials. 

This is necessary for the program to be 

effective and to help ensure that it is 

administered fairly to all participants. 

Under § 970.83, proponents testified 

that compliance of the proposed 

agreement would be overseen by the 

Board and USDA. The Board would 

establish a policy in the form of a 

compliance program under which noncompliance actions would be identified 

either by the Inspection Service or by 

Board compliance staff. Noncompliance actions may be identified 

during scheduled or unscheduled 

audits, visits to a farm or facility, or 

from anonymous complaints. 

Proponents and other witnesses 

supported the proposal that any 

signatory handler not in compliance 

with the proposed agreement could be 

subject to withdrawal of audit services, 

could lose the privilege of the use of the 

official certification mark, or be subject 

to misbranding or trademark violations, 

depending on the level of noncompliance. It was further proposed by 

proponents under § 970.83(c) that 

failure to comply with the provisions of 

this proposed agreement may also result 

in additional remedies or penalties. 

According to the hearing record, 

signatory handlers would be obligated 

to adhere to program requirements. 

Such requirements would include such 

things as acquiring only leafy green 

vegetables that have been grown in 

accordance with GAPs; receiving 

successful audits verifying that GHPs 

and GMPs (if applicable) are being 

adhered to; filing reports and 

maintaining records; and paying 

assessments. Failure to comply with 

these requirements could result in 

action against the signatory handlers. 

The record shows that the intent of 

the program would be to improve 

vegetable quality by reducing the risk of 

contamination. As such, the focus 

would be to establish and maintain best 

practices. If a signatory handler were 

found to be out of compliance with the 

audit metrics established under the 

program, the first step would be to 

require that handler to take appropriate 

corrective action to address and correct 

any non-conformities. 

According to record evidence, noncompliance by signatory handlers 

would be identified and classified at 

various levels from minor to flagrant 

violations of the proposed agreement. 

Other than in cases of immediate threat 

to public health, any signatory handler 

found in violation of the proposed 

agreement would be allowed to address 

and correct any actions that led to noncompliance of the proposed agreement. 

If a signatory handler were to fail to take 

appropriate verifiable corrective, the 

signatory handler could be subject to 


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withdrawal of audit services or lose the 

use of the official certification mark. 

According to the hearing record, the 

status of a signatory handler’s 

compliance would be public 

information and may be posted on a 

Web site. 

The Notice of Hearing also contained 

a provision in § 970.83(b) that any 

detection of an S threat to public health 

should be reported to FDA. Record 

evidence supports notification of any 

appropriate health officials, not just 

FDA. 

Section 970.83 of the proposed 

agreement is revised for clarification 

and to remove unnecessary language. 

Material Issue Number 5(g)— 

Exemptions 

USDA recommends that the Board 

should have the authority to exempt 

small quantities of leafy green 

vegetables from any or all program 

requirements. 

Section § 970.72, ‘‘Exemptions,’’ of the 

Notice of Hearing stated in part: ‘‘The 

[Board], with the approval of the 

Secretary, may establish such rules, 

regulations, and safeguards that exempt 

from any and all requirements pursuant 

to this part, such quantities of leafy 

green vegetables or products as do not 

interfere with the objective of this part.’’ 

While the proponents’ proposal 

would have permitted the Board to 

exempt a given quantity of leafy green 

vegetables from the requirements of the 

agreement, during the hearing sessions, 

both proponents and the opponents of 

this agreement opposed that any 

quantity of leafy green vegetables 

should become exempt from the 

agreement. Witnesses’ rationale for this 

opposition was that any quantity of 

exempt leafy green vegetables, be it from 

a small, organic, or large farm, may 

jeopardize the ultimate goal of this 

program which is to make the 

production and handling of leafy green 

vegetables safer. 

While the objectives of the program 

should not be compromised, the 

agreement should authorize an 

exemption if an unforeseen 

circumstance arises which would make 

such an exemption reasonable. 

Furthermore, the Board should have 

authority to recommend rules and 

regulations to ensure that such leafy 

green vegetables are handled and used 

only as authorized under the agreement. 

Clarifying changes are made to 

§ 970.72. 

Material Issue Number 5(h)—Research, 

Development, and Education 

The proposed agreement should 

authorize the Board to conduct research, 

including market research, development 

projects, and to develop and implement 

educational and outreach programs 

intended to facilitate the adoption, 

implementation, and administration of 

the agreement. In addition, the proposed 

agreement should establish a Research 

and Development Committee to assist 

the Board in carrying out the 

aforementioned programs. 

Research, Development, Education and 

Outreach 

Proponent witnesses testified that the 

proposed agreement should provide the 

Board authority to establish marketing 

research and development projects, and 

or promotional activities, including paid 

advertising, to assist or promote the 

efficient adoption, implementation, and 

marketplace acceptance of the 

agreement and leafy green vegetables. 

As proposed by proponents, such 

projects and activities would require 

approval by the Secretary, and would be 

funded by collected assessments and 

voluntary contributions as specified in 

proposed §§ 970.56 and 970.58, 

respectively. 

Proponent witnesses testified that the 

authority for market research was 

necessary to better understand and 

communicate with key leafy green 

vegetable industry audiences—such as 

buyers. The authority for the conduct of 

market research and development 

projects generally was supported by 

witnesses. However, some witnesses 

suggested the types of research specified 

under the proposed agreement should 

be expanded beyond market research. 

Specifically, these witnesses stated the 

proposed agreement should authorize 

food safety research such as best 

practices in production, handling, and 

manufacturing of leafy green vegetables, 

contamination risk management 

including reducing the risk of crosscontamination in the food supply chain, 

and identification of measures to reduce 

microbial contamination. While 

proponents supported research 

associated with quality in areas such as 

production, handling, and 

manufacturing practices for leafy green 

vegetables, they did not support the use 

of collected funds for generic research 

on risks associated with leafy green 

vegetables. 

Several witnesses who expressed 

concern about the potential impact 

audit metrics could have on small 

business entities suggested the proposed 

agreement should provide authority to 

the Board to develop and implement 

educational and outreach programs. 

This recommendation was supported by 

the proponents of the proposed 

agreement. 

Witnesses supporting the authority for 

educational and outreach programs 

stated the programs should be designed 

to assist small businesses comply with 

the proposed agreement. They asserted 

these programs could be effective tools 

for providing training to entities, 

particularly small entities, about the 

proposed agreement, its audit metrics 

and other requirements. Such programs, 

the witnesses asserted, also could be 

used to increase awareness of the 

proposed agreement within the leafy 

green vegetable industry supply chain. 

Witnesses supporting inclusion of a 

training component explained that 

training should be made available to 

producers, handlers, and persons 

conducting verification audits under the 

proposed agreement. According to these 

witnesses, training for producers and 

handlers would assist in program 

compliance and ensure a clear 

understanding of the proposed 

agreement and its requirements. 

Witnesses advocating training for 

auditors stated that such would provide 

consistency and accuracy in audit 

verifications. 

Additionally, in implementing 

educational and outreach programs 

under the proposed agreement, 

witnesses advocated cooperation with 

existing state, local, and Federal 

agencies, universities, or other 

organizations already successfully 

operating such programs within their 

regions or communities. 

Based on the record evidence, the 

proposed agreement should authorize 

the Board to conduct research 

(including market research), 

development projects, and education 

and outreach programs. The proposed 

programs would help to expand 

knowledge about the leafy green 

vegetable industry, the proposed 

agreement, its audit metrics, and 

requirements. The programs also would 

assist in increasing awareness on the 

proposed agreement among leafy green 

vegetable stakeholders. Lastly, the 

programs should allow the proposed 

agreement to become more accessible to 

small entities, organic, diversified, and 

unconventional operations within the 

leafy green vegetable industry. 

Record evidence establishes that the 

proposed agreement should authorize 

the Board to provide for the conduct of 

market research and development 

projects as proposed by proponents. 

These projects would allow the Board to 

compile information related to the leafy 

green vegetable industry to better 

understand the industry, facilitate 

communications with industry 

stakeholders, and evaluate the proposed 

agreement. This authority also would 


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help ensure the proposed agreement is 

functioning properly and meeting its 

intended purpose. 

The record evidence further 

establishes that authority to conduct 

research under the proposed agreement 

should be expanded beyond market 

research. The record evidence supports 

authority for the conduct of research 

projects designed to assist or improve 

the development of audit metrics related 

to the production, handling, and 

manufacturing of leafy green vegetables. 

The broader research authority would 

allow for the conduct of research that is 

applicable to various production 

environments and practices, spanning 

from conventional, to organic, to others. 

The proposed authority also would 

allow research concerning 

contamination risk management as well 

as other relevant areas. Record evidence 

supports providing broad research 

authority to ensure relevant areas 

related to leafy green vegetables could 

be researched, if deemed necessary and 

appropriate. 

Record evidence supports the 

inclusion of authority for the 

development and implementation of 

educational and outreach programs 

under the proposed agreement. Record 

evidence indicates that these programs 

would be critical to facilitate awareness 

and education of the proposed 

agreement. 

As supported by record evidence, the 

proposed educational and outreach 

authority would allow the Board to 

develop tools that aid growers and 

handlers, particularly small entities, 

comply with program requirements. 

According to record evidence, these 

tools could include templates to aid 

producers and handlers with 

recordkeeping requirements, and how-to 

guides to assist with complying with 

audit metrics and implementing best 

practices. Additionally, record evidence 

indicates that the proposed authority for 

educational and outreach programs 

would allow for the development and 

implementation of training programs for 

persons responsible for conducting 

audit verifications to ensure consistency 

and accuracy. As supported by the 

record, the proposed authority would 

allow the Board to coordinate with 

local, State, and Federal agencies, and 

other organizations in designing and 

implementing educational and outreach 

programs. 

Record evidence supports that the 

educational and outreach programs 

should be funded by authorized receipts 

of the Board, including assessment 

income, voluntary contributions, and 

miscellaneous income such as interest. 

As provided in the proposed agreement, 

the expenses for the activities described 

above would be budgeted and paid from 

funds collected pursuant to §§ 970.56 

and 970.58, both assessments and 

contributions. 

Based on the record evidence, all 

research, development projects, and 

education and outreach programs to be 

conducted under the proposed 

agreement in a given fiscal period 

should be required to be submitted by 

the Board to the Secretary for approval 

prior to being undertaken. The amount 

of funds to be spent on research, 

development projects, and education 

and outreach programs would be 

included in the annual budget required 

to be submitted to the Secretary for 

review and approval. Additionally, the 

Board would be required to report to the 

Secretary at least annually on the 

progress of each project and at the 

conclusion of each project. These are 

common USDA program requirements 

to ensure the effective conduct of 

authorized projects and the proper use 

of collected funds. 

Promotion and Advertising 

Regarding the proponents’ proposed 

authority for the conduct of promotion 

and advertising activities, proponent 

witnesses testified that the intended 

target audience for outreach and 

promotion of the proposed agreement 

was buyers and others within the leafy 

green vegetable industry. Proponent 

witnesses stated that they 

fundamentally believed funds collected 

under the proposed agreement should 

not be used for consumer advertising or 

other marketing campaigns designed to 

promote food safety and or leafy green 

vegetables. 

Several witnesses—those in support 

of the proposed agreement and those 

opposed to it—expressed concern 

regarding the authority to engage in 

promotion and advertising activities. 

These witnesses opposed any marketing 

efforts targeted to consumers. The 

witnesses further contended that such 

marketing of the proposed agreement 

would imply that leafy green vegetables 

covered under the proposed agreement 

were safer than those that were not 

covered under the agreement, thus 

creating a competitive advantage for 

entities associated with the proposed 

agreement. 

The testimony of a witness supported 

the conduct of generic promotional 

activities under the proposed 

agreement. However, testimony of the 

proponents indicated the proposed 

agreement was not designed to use 

collected assessments to fund the 

generic promotion of leafy green 

vegetables to consumers. 

Based on record evidence, the 

proposed agreement should not provide 

for the conduct of promotion and 

advertising activities. The record clearly 

demonstrates a lack of support for the 

inclusion of such authority. 

As detailed above, § 970.75 ‘‘Research 

and Promotion’’, as proposed by 

proponents, should be revised and 

included in the proposed agreement as 

‘‘Research, Development, and 

Education.’’ 

Research and Development Committee 

The proponents proposed that a 

‘‘Market Review Board’’ as specified in 

§ 970.46 of their proposal be established 

to advise the administrative body on 

retail, foodservice, and consumer issues 

to maximize consumer confidence 

through market acceptance and 

recognition of the proposed agreement. 

Proponent witnesses explained that the 

Market Review Board would assist with 

promotion and acceptance of the 

proposed agreement throughout the 

leafy green vegetable supply chain. 

As proposed by proponents, the 

Market Review Board would be 

appointed by the administrative body 

and would consist of a minimum of 

nine members as follows: Two 

representatives of retail grocers, two 

representatives of foodservice 

operations, three consumers, and two 

representatives from land grant 

universities with expertise in fresh 

vegetable marketing, economics, or 

consumer acceptance. Under the 

proponents’ proposal, the 

administrative body also would have 

the authority to appoint additional 

representatives from consumer, retail, 

and foodservice organizations. 

Several witnesses expressed concerns 

over the potential role of the proposed 

Market Review Board relating to the 

promotion of the proposed agreement to 

maximize consumer acceptance through 

market acceptance of the proposed 

agreement. These witnesses believed 

that marketplace acceptance of the 

proposed agreement related to 

promotion of the program to consumers. 

These witnesses were opposed to the 

proposed marketing and promotion 

authorities, including paid advertising, 

that were outlined in § 970.75 ‘‘Research 

and Promotion’’ of the proponents’ 

proposal. 

Based on the record evidence, the 

proponents’ proposed Market Review 

Board should be removed from the 

proposed agreement and, in its place, a 

Research and Development Committee 

should be established. The name of the 

committee reflects the role and 

responsibilities of the committee as 

described below. 


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As supported by record evidence, the 

Research and Development Committee 

should be established for the purpose of 

assisting the Board in the oversight and 

management of research, development 

projects, and education and outreach 

activities under the proposed 

agreement, as authorized under 

proposed § 970.75. The record evidence 

also indicates that the membership 

structure proposed by proponents for 

the Market Review Board should be 

adopted for the proposed Research and 

Development Committee and modified 

slightly for clarity. However, based on 

record evidence, the nomination and 

selection process for this committee 

should be expanded to ensure broader 

participation by interested parties as 

detailed below. 

Record evidence indicates that 

persons appointed to this committee 

should have expertise in certain areas to 

aid them in performing the committee’s 

roles and responsibilities. As such, the 

proposed agreement should specify that 

persons should have expertise in one of, 

but not limited to, the following areas: 

The production, handling, and 

marketing of leafy green vegetables; 

small, diversified, or organic production 

practices; agricultural economics; or 

educational outreach in the specified or 

related areas. 

The expanded nomination and 

selection process would address 

concerns raised by witnesses regarding 

the selection of members to this 

Committee. Witnesses expressed 

concerns that the proponents’ proposal 

limited the persons that could be 

identified and, thus, selected to be 

members of this Committee. The 

broader process offered in this 

recommended decision would allow for 

more participation from interested 

persons in the nomination process, and 

would provide that selections be made 

by the Secretary. 

Record evidence supports that 

nominations for the Research and 

Development Committee should be 

received from producers and signatory 

handlers at meetings, by mail, or by any 

form of electronically verifiable 

communication. In addition, the Board 

also would be allowed to recommend 

nominees to the Secretary. The 

Secretary would select and appoint the 

members from such nominations or 

from other qualified persons. Record 

evidence also supports providing 

authority for the appointment of 

additional members to this Committee 

by the Secretary. This provision is 

consistent with the proponents’ 

proposal, which would have allowed for 

the appointment of additional 

representatives of retailers, consumers, 

and foodservice companies. 

As supported by record evidence, the 

membership of the Research and 

Development Committee could be 

modified based on recommendations by 

the Board and approval of the Secretary, 

or as otherwise deemed appropriate by 

USDA. Additionally, the Research and 

Development Committee should be 

allowed to appoint subcommittees as 

necessary to assist it in carrying out its 

roles. Subcommittees could be 

comprised of producers, signatory 

handlers, and other interested parties 

such as representatives of consumers, 

retailers, and foodservice organizations 

as deemed appropriate by the Research 

and Development Committee. The above 

described proposed language should be 

included in the proposed agreement as 

§ 970.47 ‘‘Research and Development 

Committee’’, and should take the place 

and stead of the proponents’ proposed 

Market Review Board. 

Material Issue Number 5(i)—Common 

Terms 

The provisions of proposed §§ 970.85 

through 970.96 are common to 

marketing agreements and orders now 

operating. All such provisions are 

necessary to effectuate the other 

provisions of the marketing agreement 

and to effectuate the declared policy of 

the Act. The record evidence supports 

inclusion of each provision. These 

provisions are identified by the section 

number and heading as follows: 

§ 970.85 Effective time; § 970.86 Rights 

of 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 and § 970.96 

Counterparts. Minor changes to these 

sections are made for clarification. 

Material Issue Number 6—Handler 

Sign-up and Withdrawal 

Based on a review of the hearing 

record, the proposed agreement should 

provide for two handler sign-up phases 

to facilitate initial implementation of 

the program, including the nomination 

and selection of the initial Board. Also, 

the agreement should provide for 

handler withdrawal from the agreement. 

Handler Sign-Up 

A two-phase approach to the handler 

sign-up process would be used. An 

initial phase of at least 60 days would 

be established. This would allow for the 

nomination of producer and signatory 

handler members and alternate 

members of the Board, and the selection 

of an initial Board by the Secretary. The 

specific time frame would be 

established at the time the agreement 

becomes effective. 

Handlers who sign up during this 

initial sign-up period would be eligible 

to serve as initial members of the Board. 

Proponent witnesses explained that the 

initial sign-up period should be for a 

specified period of time so that handlers 

know in what time frame they may signup for this agreement to be eligible to 

serve on the initial Board. After this 

initial sign-up period, a handler may 

become a signatory to this agreement at 

any time. 

Section 970.97 has been changed to 

add an initial sign-up phase and change 

the title of the section from ‘‘Additional 

parties’’ to ‘‘Handler Sign-up’’. 

Handler Withdrawal From the 

Agreement 

The agreement should also provide 

that signatory handlers may withdraw 

from the program. Record evidence 

supported a process wherein a signatory 

handler could file a written notice of 

withdrawal with the Board during any 

crop year. The withdrawal would 

become effective at the beginning of the 

subsequent crop year. The signatory 

handler would remain responsible for 

any obligations (including payment of 

assessments) incurred during the period 

that handler was a signatory handler. 

In addition, a signatory handler could 

receive immediately withdrawal from 

the program if they cease to be a handler 

of leafy green vegetables and give notice 

to the Board in writing. Again the 

signatory handler would be responsible 

for any obligations incurred during the 

period of participation in the program. 

Section 970.98 has been revised for 

clarity, including the addition of 

language to state that upon withdrawing 

from the agreement, the withdrawing 

party would no longer be permitted to 

use any official certification mark 

developed under the agreement. 

Small Business Consideration 

Pursuant to the requirements set forth 

in the Regulatory Flexibility Act 

(5 U.S.C. 601–612) (RFA), AMS has 

considered the economic impact of this 

action on small entities. Accordingly, 

AMS has prepared this initial regulatory 

flexibility analysis. 

The purpose of the RFA is to fit 

regulatory actions to the scale of 

business subject to such actions so that 

small businesses will not be unduly or 

disproportionately burdened. Small 

agricultural service firms, which 

include handlers that would be eligible 

to be signatories under the proposed 


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agreement, have been defined by the 

Small Business Administration (SBA) 

(13 CFR 121.201) as those having annual 

receipts of less than $7,000,000. 

According to data published in the Blue 

Book, there are over 2,200 handlers, 

which include approximately 300 

importers and over 100 fresh cut 

processors, of leafy green vegetables in 

the U.S. As noted earlier, there may be 

additional small handler businesses, 

specifically producers who are engaged 

in handling, not included in this total. 

While the hearing record does not 

contain data to estimate average annual 

sales for handlers, the majority of 

handlers who testified at the hearing 

indicated they had annual sales of leafy 

green vegetables in excess of the SBA 

definition for a small agricultural 

service firm. 

The hearing record indicates that, 

according to the latest Census of 

Agriculture, 8,216 farms harvested leafy 

green vegetables from 433,023 acres for 

the fresh market in 2007. Statistics for 

the leafy green industry presented at the 

hearing show that the total value for 

leafy green vegetable crops was 

approximately $2.5 billion in 2008. 

Small agricultural producers have 

been defined by the SBA as those with 

annual receipts of less than $750,000. 

Based on the information presented at 

the hearing, 89 percent of farms 

producing leafy green vegetables in the 

United States would be considered 

small businesses as defined by the SBA. 

In addition to handlers and 

producers, other persons including 

retailers, food service representatives, 

food safety experts, and other members 

of the public could nominate or serve on 

the boards or committees as appropriate. 

The reporting burden on such persons is 

discussed in the Paperwork Reduction 

Act section that follows. 

In 2007, 69 percent of leafy green 

vegetable farms had annual gross sales 

under $100,000, 12 percent had annual 

gross sales between $100,000 and 

$299,000, 8 percent had annual gross 

sales between $300,000 and $749,000, 

with the remaining 11 percent of farms 

producing leafy green vegetables in the 

United States having annual gross sales 

over $750,000. 

Since the spinach outbreak in 2006, 

large and small leafy green vegetable 

producers and handlers in all parts of 

the country have had to become more 

knowledgeable about produce 

contamination. This has led many of 

them to initiate or increase good 

agricultural, handling and 

manufacturing practices and programs. 

Other initiatives include the 

implementation of the California and 

Arizona State marketing agreement 

programs which are designed to 

minimize the potential of contamination 

from leafy green vegetables produced 

within the respective States. 

An economist with a science-based 

consulting firm (Intertox) testified as a 

proponent witness. This witness 

presented evidence that a majority of 

the volume of leafy green vegetables 

production is currently being produced 

under the California or Arizona State 

marketing agreements. In California, 

which accounts for 75 percent of U.S. 

leafy green vegetables production, 99 

percent of this production is covered 

under the LGMA. Arizona represents 15 

percent of U.S. production; 90 percent 

of that volume is covered by the Arizona 

agreement. For those producers and 

handlers, implementation of a national 

marketing agreement would not likely 

cause significant additional costs. 

If adopted, the proposed agreement 

would authorize the development and 

implementation of audit metrics that are 

consistent with FDA GAPs and GMPs, 

and current USDA GHPs. While the 

proposed program would be voluntary, 

handlers who choose to become 

signatories would be required to 

comply. Many of the farms that produce 

leafy green vegetables would be subject 

to certain requirements under the 

proposed marketing agreement if they 

opt to sell to signatory handlers. 

Evidence provided at the hearing 

indicates that large farms almost always 

sell to handlers under seasonal contracts 

and that these relationships are usually 

long-term. These large farms produce 

most of the volume of leafy green 

vegetables in the U.S., and are quite 

likely to supply handlers who would be 

signatories under the proposed 

agreement. 

A key economic issue to examine in 

considering the proposed agreement is 

the benefits and costs to signatory 

handlers, and to producers supplying 

such handlers. 

Benefits of the Proposed Program 

The record evidence from handlers 

and producers who handle and produce 

a vast majority of the volume of leafy 

green vegetables in the U.S. is that 

although the proposed program would 

impose some additional costs on 

signatory handlers and the growers who 

sell to them, those costs would be 

outweighed by the benefits expected to 

accrue to the U.S. leafy green vegetable 

industry. 

A primary benefit of the proposed 

agreement is the reduced likelihood of 

food contamination outbreaks in leafy 

green vegetables and products handled 

in the United States. Two witnesses 

presented estimates of the impacts of 

food contamination outbreaks in terms 

of lost sales. A measure of the benefit of 

the proposed program is the avoidance 

of lost sales. 

An economist on the faculty at 

Arizona State University testifying as a 

proponent witness stated that, based on 

his research, the cost of a food 

contamination outbreak is high and 

borne by all producers in that industry. 

He estimated that a food contamination 

outbreak event could lead to a 10 

percent long-term reduction in demand 

for leafy green vegetables. In addition, 

the witness stated that without 

intervention, such as a national 

agreement, the leafy green vegetable 

industry could face a major food 

contamination incident, on average, 

every 10 years, leading to significant 

financial losses. 

Record testimony indicates that 

producers and handlers can derive some 

benefit from their investments to 

minimize food contamination but the 

value of that investment is diminished 

if others do not similarly invest. The 

record further indicates that a collective 

action program with government 

oversight, such as a marketing 

agreement, can be used to intervene in 

a market system if the market is not 

producing enough of a public good; in 

this case investment to minimize food 

contamination outbreaks. 

In the absence of collective action, 

individual producers may not have 

sufficient incentive to invest in food 

quality verification programs since it is 

not a tangible food characteristic for 

their buyers or final consumers. The 

witness noted that producers who do 

not invest, or who under-invest, in such 

quality or best practices programs create 

a ‘‘free rider’’ problem, since they do not 

pay their fair share of the production 

cost for what consumers expect to buy— 

a fresh leafy green product that is not 

contaminated. 

Additional evidence about sales and 

price impacts to producers and handlers 

from the 2006 spinach outbreak was 

presented by a witness from California 

State University-Fresno. The witness 

stated that although the contaminated 

spinach was grown in California, 

producer sales throughout the nation 

were affected. Even after the source was 

isolated and consumers were assured 

that eating fresh spinach was again safe, 

sales lagged for a significant period of 

time and the commodity may have 

experienced long term loss of goodwill. 

Due to reduced shipments and lower 

prices from August through December 

2006, the farm level loss in U.S. spinach 

sales was estimated at $12 million; the 

estimated loss at the retail level was $63 

million. 


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1Exhibit 43 ‘‘Producers’ Compliance Costs for the 

Leafy Greens Marketing Agreement and Other Food 

Safety Programs’’, by S. Hardesty and Y. Kusunose, 

UC Davis; and Exhibit 34A ‘‘Marketing Data and 

Cost Overview’’ by Diane Wetherington, Intertox. 

2 ‘‘Cost per acre of leafy greens’’ on the bottom row 

of Table 4 of the UC Report. 

The record testimony indicates that 

the benefits to a producer of 

implementing a best practices or food 

safety plan can include higher prices 

received by producers, maintaining and 

growing sales, reducing liability costs 

and improving operational efficiency. 

The witness also noted that the benefits 

tend to accrue over time and are 

uncertain. 

The proposed program has the 

potential to increase the number of 

producers, including small producers, 

following standard GAPs. This could 

result in handlers buying leafy green 

vegetables from more small producers. 

The proposed agreement also has the 

potential to reduce the redundancy of 

multiple audit verifications to which 

many handlers are currently subjected 

due to specific buyer requirements. 

Reducing multiple audit verifications 

will reduce costs and improve efficiency 

for both signatory handlers and their 

supplying producers. 

Evidence was presented at the hearing 

that, due to food contamination 

outbreaks in recent years, producers of 

the vast majority of leafy green vegetable 

production currently have contracts that 

stipulate production standards that need 

to be met to deliver their leafy green 

vegetables to handlers. These standards 

are generally mandated to handlers by 

retail and food service buyers, but 

consequently have an impact on 

producers who must also conform to the 

standards in order to sell to handlers. 

A USDA Economic Research Service 

and University of Arizona research 

report was submitted at the hearing 

regarding the fresh-cut vegetable 

industry. Fifteen lettuce and bagged 

salad shippers were interviewed in 

1999–2000. This research indicated that 

most leafy greens shippers were 

diversified mixed-vegetable shippers 

and many engaged in some degree of 

processing. In 1999, 80 percent of these 

shippers had requests from retailers for, 

and were providing, third-party food 

safety certification. 

Evidence was presented at the 

hearings that the lack of one set of 

production and handling standards in 

the leafy green vegetable industry often 

results in producers having to comply 

with different sets of standards for 

different customers. 

Based on record testimony by those 

who favor the proposed agreement, 

support was expressed for a government 

program that would become an industry 

standard. If this proposal is 

implemented, supporters of the 

proposed agreement believe that the 

multiplicity of private standards would 

be replaced or minimized with a 

science-based, consistent, and scalable 

program that standardizes GAPs, GHPs, 

and GMPs throughout the industry. The 

leafy green vegetable industry also may 

benefit from the proposed agreement’s 

ability to make timely adjustments to 

GAP and GHP audit metrics, as 

appropriate, through the mechanisms of 

the agreement. 

The record evidence shows that the 

proposed agreement would likely result 

in some cost increases for producers and 

handlers, especially in the short run 

(both start-up costs and ongoing annual 

costs), but in the long run there could 

be some cost decreases from 

streamlining of differing buyer 

standards and being subject to fewer 

audits. 

Compliance Cost Estimates 

Based on record evidence, the 

proposed agreement would result in 

total one-time modification costs at the 

farm level for all leafy green acreage 

outside of California and Arizona 

estimated to range between $1.2 and 

$3.0 million, and an estimated average 

range of $14–$34 per acre for 

modification costs. The record evidence 

indicates that this modification costs 

estimate is in addition to an estimated 

$6.1–$14.7 million already expended at 

the farm level for producers under State 

marketing agreement programs. 

Under the proposed agreement, total 

seasonal (annual) cost increases at the 

farm level for all leafy green acreage 

outside of California and Arizona are 

estimated to range from $2.7 to $4.4 

million, which is an estimated average 

range of $30–$50 per acre annual 

compliance costs. These annual cost 

estimates would be in addition to the 

estimated $13.0–$21.7 million being 

expended at the farm level for producers 

under State marketing agreement 

programs. We are relying primarily on 

cost estimates published in a University 

of California report submitted at the 

hearing. However, a wider range of cost 

estimates was submitted by a proponent 

witness and is included subsequently in 

Table 2. 

Based on record data, annual handler 

assessments that would be collected 

under the proposed agreement are 

estimated to range between $5.7 and 

$28.6 million. Annual per acre 

compliance costs, not including 

assessments, for handlers who also are 

producers are estimated to range 

between $48 and $105 per acre. 

Producer Cost Impact Estimates 

Under the proposed agreement, 

signatory handlers would be required to 

ensure that producers that supply them 

with leafy green vegetables are 

producing in accordance with a set of 

‘‘best’’ practices. The most immediate 

and significant changes for producers, 

especially small ones, would be the 

increased expenses of supplying 

signatory handlers. While some 

producers may currently be applying 

and implementing GAPs, many 

producers would have to make physical 

modifications in their operations, add to 

their current recordkeeping 

requirements, and increase their 

administrative oversight over certain 

aspects of their farming enterprise. 

Record evidence supports a program 

where the costs resulting from 

participation are proportional to the size 

of businesses involved and do not 

unduly or disproportionately impact 

small entities. 

Witnesses at the hearing provided 

evidence of the cost of compliance with 

food quality verification requirements 

that were used in this document to 

compute producer cost estimates of 

implementation of the proposed 

program. Cost per acre data was 

combined with estimates of the number 

of acres to provide overall national cost 

estimates. 

Data derived from the 2007 Census of 

Agriculture (2007 Census), which was 

presented at the hearing, showed that 

the total number of U.S. acres of leafy 

greens outside of California and Arizona 

was 88,572, representing 20 percent of 

total U.S. acres. Combined acres for 

California and Arizona total 344,451. 

Acres Percentage 

of U.S. acres 

United States ...... 433,023 ......................

California ............. 271,040 63 

Arizona ................ 73,411 17 

All other States ... 88,572 20 

Source: NASS, USDA 

Two reports submitted as evidence at 

the hearing (the ‘‘UC report’’ and the 

‘‘Intertox report’’) included estimates of 

compliance cost per acre.1 The cost 

impact estimates are summarized in 

three tables, two of which focus on 

producer costs, and a third one covers 

first handler assessment costs. 

Table 1 presents computations of 

producer costs using cost data from the 

UC report and acreage data from the 

2007 Census. The $14 per acre figure 

appearing in the 2nd column of Table 4 

was rounded off from a $13.60 cost 

estimate in the UC Report.2 The 

standard deviation was rounded off to 


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3 In table 5 in the UC report, the bottom rows 

show that the mean food safety costs per acre were 

$24.04 and $54.63. The difference between those 

figures ($30.59, rounded to $30) represents one 

estimate of increased California producer 

expenditure on food safety after the California 

LGMA went into effect in 2007, compared to 

seasonal food safety expenses already incurred 

prior to the LGMA. In table 6 of the UC report, 

mean per acre costs of $36.46 and $84.36 appear in 

the bottom rows. The difference between them is 

$47.90, which is rounded to $50. The $30 and $50 

costs represent a range of estimates of the cost 

impact of the additional requirements to comply 

with the California LGMA. Since cost data from 

other regions of the U.S. were not submitted at the 

hearing, it is assumed that a similar range of 

additional expenditures would be likely in other 

states under the proposed program. 4Table 13 on page 13 of the Intertox report 

indicates costs of $35 and $45 for a producer 

growing 200 acres of leafy greens. Table 14 on page 

14 presents per acre cost estimates of $20, $30 and 

$50 for a 10,000-acre producer. Tables 15 and 16 

(on page 16 of the Intertox report) present costs for 

producer-handlers. For a producer-handler 

shipping 200,000 cartons annually, the per acre cost 

estimates were $67 and $95. For an operation 

shipping 9.5 million cartons, the food safety costs 

were $48 and $105. The cost elements in the tables 

included personnel, water testing, third party 

audits, recordkeeping, training, equipment, and a 

category called ‘‘ranch care, pest control, chlorine.’’ 

Given this range of total costs from the Intertox 

report, it is assumed that a range of cost increases 

(averaged over all producers) could range from $10 

to $70 per acre. 

$202 and added to the mean cost to give 

an upper range estimate of $34 per acre. 

Multiplying the cost figures of $14 

and $34 per acre by 88,572 acres yields 

a range of estimated farm modification 

costs of $1.2 to $3.0 million for all leafy 

green acreage outside of California and 

Arizona. 

To provide an estimate of the total 

cost for modifications for the industry as 

a whole, the fourth column adds the 

costs in column three to an estimated 

cost expended by producers in 

California and Arizona. However, 

additional California and Arizona farm 

modification costs for compliance 

would likely be minimal, since most 

acreage is already participating in the 

leafy green marketing agreements in 

those two States and/or have already 

completed modifications in response to 

contractual GAPs and audit verification 

cost obligations from buyers. 

TABLE 1—RANGE OF FARM MODIFICATION COST ESTIMATES FOR PRODUCER COMPLIANCE WITH THE PROPOSED

PROGRAM

[one time expenditures, not seasonal] 

Per acre cost 

in California* 

Total modification cost for 

farms outside 

of CA, AZ*** 

Total modification cost for 

farms in the 

U.S.*** 

– – – – – – $ million – – – – – – 

Mean cost of producers in survey ............................................................................................... $14 $1.2 $6.1 

Mean cost plus $20 per acre* * ................................................................................................... 34 3.0 14.7 

*Farm modification cost based on 2009 UC report of impact of California LGMA by S. Hardesty, presented at the hearing in Monterey. 

**Approximately one standard deviation from the mean cost of producers surveyed in the 2009 UC report. 

***To get Total Modification Cost, per acre cost is multiplied by acreage data from 2007 Census (88,572 acres of leafy greens outside of CA 

and AZ; total U.S. leafy green acres of 433,023 is the sum of 344,451 acres in California and Arizona plus 88,572 outside of those two States). 

The most common changes in leafy 

green farming operations made by 

respondents (to the survey that was the 

basis of the UC report) were installing 

or improving fencing and bathroom/ 

hand-washing facilities. The total cost of 

the investments/modifications for 

LGMA compliance averaged $21,490, or 

$13.60 per acre, with a range from $0 to 

$150,500. The cost for modifications 

reported by small farms was $14.82 per 

acre. The figures for medium and large 

farms were $18.05 and $8.29 per acre, 

respectively. In the UC report, a small 

farm was defined as a farm with annual 

gross revenue from leafy green 

vegetables of under $1 million. Revenue 

of $1 million to $10 million was defined 

as medium, and a large farm had leafy 

green revenues over $10 million 

annually. 

The survey results indicated that onethird of respondents reduced 

production area under cultivation, 

averaging a 1.5 percent reduction, to 

meet buffer zone requirements. 

Evidence presented at the hearing 

indicates small producers tend to have 

numerous small plots of land. Buffer 

zone land loss, if required under the 

proposed agreement, could be a much 

larger percent for those producers with 

small, scattered plots. 

Another key impact to examine is the 

increased seasonal cost that would be 

incurred every year by producers for 

compliance with the proposed program. 

A range of compliance cost increases is 

presented in Table 2, based on cost data 

drawn from the UC and Intertox 

reports.3 Table 2 presents a range of per 

acre of cost increases for producer 

compliance—four cost levels at $20 

increments: $10, $30, $50, and $70.4

Individual producer costs could vary 

substantially from these estimates of 

mean costs per acre. 

TABLE 2—RANGE OF SEASONAL COST INCREASE ESTIMATES FOR PRODUCER COMPLIANCE WITH THE PROPOSED

PROGRAM

Increased cost per acre 

Seasonal cost 

increases for 

farms outside 

of CA, AZ* 

Seasonal cost 

increases for 

farms in the 

U.S.* 

$ million 

$10 ........................................................................................................................................................... * * * $0.9 $4.3 

30 ............................................................................................................................................................. * * 2.7 13.0 

50 ............................................................................................................................................................. * * 4.4 21.7 


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TABLE 2—RANGE OF SEASONAL COST INCREASE ESTIMATES FOR PRODUCER COMPLIANCE WITH THE PROPOSED

PROGRAM—Continued 

Increased cost per acre 

Seasonal cost 

increases for 

farms outside 

of CA, AZ* 

Seasonal cost 

increases for 

farms in the 

U.S.* 

70 ............................................................................................................................................................. * * * 6.2 30.3 

* Acreage data from 2007 Census, 88,572 acres of leafy greens outside of CA and AZ plus 271,040 acres of leafy greens in CA and AZ 

equals U.S. leafy green acres of 433,023. 

** In the UC report, a producer survey yielded a mean estimated increase of about $30. A separate estimate of ‘‘Seasonal Food Safety Losses 

and Activities’’ showed increased per acre expenditure of about $48, which is rounded to $50 in the table above. 

*** The Intertox report included producer food safety costs from ranging from $20 to $50 per acre, and for producer/handlers, from $48 to $105 

per acre, for all food safety expenses, not just those incurred for compliance. Given this range of total costs, it is assumed that a range of net increased costs (averaged over all producers) could range from $10 to $70 per acre. Individual producer costs could vary substantially from these 

estimates of mean costs per acre. 

Multiplying the cost figures of $30 to 

$50 per acre by 88,572 acres yields a 

range of seasonal cost increase estimates 

for program compliance of $2.7 to $4.4 

million for all leafy green acreage 

outside of California and Arizona. 

Adding Intertox submitted estimates 

increases the range to $900,000 to $6.2 

million. Just as with modification costs 

discussed above, it is assumed that 

California and Arizona farm seasonal 

cost increases for program compliance 

would be minimal, since most acreage is 

already participating in the leafy green 

marketing agreements in those two 

States and/or have already undertaken 

seasonal GAPs or audit verification 

expenditures in response to contractual 

obligations from buyers. However, to 

provide an estimate of the total seasonal 

costs for the industry as a whole, the 

fourth column adds the costs in column 

three to an estimated cost expended by 

producers in California and Arizona, 

most of who are covered by State 

marketing agreements. 

Results of the UC report included per 

acre seasonal (annual) food safety cost 

estimates of $0 to $200 in 2007. This 

estimate includes requirements of 

private standards audits in addition to 

LGMA compliance. The average 

increase in seasonal compliance cost for 

producers of all sizes was $30.59 per 

acre. Total seasonal compliance costs 

reported by small farms were $38.57 per 

acre. The figures for medium and large 

farms were $85.89 and $33.22 per acre, 

respectively. Taking all costs into 

consideration, average compliance costs 

totaled 1.0–1.3 percent of producers’ 

leafy green vegetable revenues. 

A researcher on the faculty at 

California State University at Fresno 

testified as a proponent witness. The 

witness reported results of a survey 

taken on the costs of complying with the 

LGMA. Three significant cost increases 

as a result of the LGMA were $400–500 

per audit per farm for compliance 

audits, one additional employee for food 

quality and best practices procedures, 

and increased water testing averaging a 

total of $3,657 per month. 

Record evidence indicates that a large 

proportion of commercial leafy green 

vegetable production is already 

complying with the California and or 

Arizona marketing agreements, 

therefore, the proposed agreement 

would not cause these producers to 

incur significant cost increases since 

they have already invested in food 

quality verification and related 

compliance. 

Record evidence indicates that, based 

on a 2008 survey of LGMA participants, 

the types of costs associated with the 

agreement included additional 

personnel costs, additional water and 

soil amendment tests, traceability 

processes and increased recordkeeping. 

According to the record evidence, small 

producers reported costs associated 

with the LGMA of $35 to $45 per acre; 

for large producers, costs were $20 to 

$50 per acre. Small producers in the 

survey had made little investment prior 

to the LGMA. In the absence of specific 

buyer or program requirements, such as 

the National Organic Program, costs 

were small and/or not broken out from 

other operating expenses in the survey. 

The costs cited in the Intertox 

testimony represent 1–2 percent of total 

operating costs and include all food 

quality and best practices procedure 

costs, not just those associated with the 

LGMA. Numerous proponent witnesses 

testified that these costs were 

representative of their costs as a 

producer or handler. 

Evidence provided at the hearing 

indicates that most, if not all, large 

producers have initiated some food 

quality and best practices procedures 

even if they were not regulated under 

either of the two State marketing 

agreements currently in effect. 

Some small producers testified that 

they had initiated good agricultural 

practices in recent years, including 

some which increased cash costs, such 

as new or added testing of the growing 

environment. Many stated that they 

were spending more of their time on 

food safety issues, including attending 

training. Most small producers testifying 

were concerned with potential 

recordkeeping requirements that they 

believed would be burdensome under 

the proposed agreement. Evidence 

presented at the hearing suggested that 

most producers are spending time and/ 

or money trying to reduce the potential 

for food contamination, but the efforts 

are not consistent and vary from 

producer to producer. It is anticipated 

that the proposed agreement would 

have minimal impact on small 

producers that market directly through 

local farmers’ markets or similar 

community outlets, because these 

handling entities would likely not be 

signatories to the proposed agreement. 

Producer/Handler Cost Impact 

Estimates 

According to record evidence, a large 

producer who also is a large handler 

would have food quality and best 

practices procedure costs ranging from 

$48 to $105 per acre. The evidence 

indicates the largest cost increase for 

large producers was hiring or assigning 

food safety personnel to manage food 

quality and best practices procedure 

compliance. Further evidence indicates 

that a small handler who is also a small 

producer would have audit verification 

or compliance related costs ranging 

from $67 to $95 per acre. This is based 

on a representative farm growing and 

shipping 200,000 cartons of leafy green 

vegetables per year (approximately 950 

acres). 

Assessment Cost Impacts on Handlers 

Under the proposed agreement, 

signatory first handlers would be 

assessed based on their volume of leafy 

green vegetables handled for the fresh 

market. These assessments would cover 


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the administrative costs of the proposed 

program as well as audit verification 

fees for signatory first handlers and their 

producers. Additionally, signatory 

handlers other than first handlers would 

pay costs associated with the conduct of 

audit verifications. The record evidence 

indicates that USDA’s current rate is 

$92 per hour per auditor. 

Table 3 shows alternative assessment 

rates and a computation illustrating the 

total cost to all U.S. leafy green 

vegetable signatory handlers of the 

California and Arizona marketing 

agreements, and signatory first handlers 

under the proposed agreement. An 

assessment rate of one cent per carton 

is equivalent to $13.04 per acre. This 

computation is based on a carton weight 

of 24 pounds and an average yield. The 

three-year average U.S. yield (2007– 

2009) for the 5 major leafy greens is 313 

hundredweight (cwt.) per acre. 

Multiplying $13.04 per acre times 

California and Arizona acreage of 

344,451 yields an estimate of $4.5 

million in total assessments for those 

two States. The $4.5 million assessment 

figure represents an approximation of 

the average of annual payments by 

handlers since the State LGMAs were 

implemented in 2007; those States 

would therefore likely not see a 

significant change in assessment 

payments if the rate was approximately 

one cent per carton. At one cent per 

carton, the total assessment cost to 

handlers in all other States is estimated 

at $1.2 million, based on 88,172 acres, 

if all producers in those States sold their 

entire leafy green production to 

signatory handlers. 

In 2009, 167.7 million pounds of fresh 

lettuce, spinach and cabbage were 

imported in the U.S. Record evidence 

indicates that some of the leafy green 

vegetables imported into the United 

States are produced and/or shipped by 

large U.S. companies. Assessments on 

the quantity of imports are estimated to 

add $70,000 to potential total 

assessments at the assessment rate of 

one cent per carton. 

TABLE 3—ESTIMATE OF POTENTIAL HANDLER ASSESSMENTS UNDER ALTERNATIVE PAYMENT RATES

Assessment rates Total assessments ** 

Per carton Per acre 

equivalent * 

California 

and Arizona 

All other 

states 

Assessments 

on domestic 

production 

Imports *** Total assessments 

$ $ per acre – – – – – – – – $ million – – – – – – – – 

0.01 .......................................................................... 13.04 4.49 1.16 5.65 0.07 5.72 

0.03 .......................................................................... 39.13 13.48 3.47 16.94 0.21 17.15 

0.05 .......................................................................... 65.21 22.46 5.78 28.24 0.35 28.59 

* Computation of per acre equivalent: $0.05 per carton/24 lbs. per carton = $0.002083 per pound, or $0.2083 per cwt; Average yield for 5 

major leafy greens (2007–2009) = 313 cwt. per acre; $0.2083 per cwt. × 313 cwt. per acre = $65.21 per acre. 

** Computed by multiplying Per Acre Equivalent Assessment Rate by Acres (California and Arizona = 344,451; all other States = 88,172). 

*** Imports are assumed to be 167.7 million pounds. 

If the rate were five cents per carton, 

the per-acre equivalent rate would be 

$65.21. California and Arizona handlers 

would pay $22.5 million, an increase of 

$18 million from the estimated $4.5 

million that they have been paying in 

recent years to their respective State 

LGMAs. Handlers in all other States 

would pay $5.8 million. If all U.S. 

producers sold their entire leafy green 

production to signatory first handlers 

under the proposed agreement, if 

imports were equal to 2009 levels and 

if the assessment rate were five cents 

per carton, the estimate of total 

assessment payments would be $28.6 

million. The three cent per carton rate 

shown in the table represents an 

intermediate level of assessment. 

Concerns of Small Handlers and 

Producers 

Hearing evidence indicates that 

participants representing small 

businesses and organic operations were 

concerned about the potential costs 

associated with any proposed best 

practices resulting from the 

implementation of this proposed 

agreement. A number of those who 

testified at the hearing expressed 

concern that, if implemented, the 

proposed agreement might have a 

disproportionate impact on small 

producers relative to larger producers. 

The cost to producers of implementing 

GAPs requirements is likely to be highly 

variable, based on individual farm 

situations, and may or may not be 

disproportionately different for small 

producers in relation to their larger 

counterparts. 

In AMS’s analysis of the proposed 

agreement, consideration was given to 

its potential impact on small producers. 

In particular, this proposed rule 

broadens Board representation and 

membership of the proposed Technical 

Review Committee, provides for 

coordination with programs and other 

independent entities, and would 

include the addition of education and 

outreach authority to support the 

transition of small businesses into 

compliance with the proposed 

agreement. 

In response to comments received 

during the hearing, AMS is 

recommending changes to the proposal 

to make the Board and Committee more 

fully representative of the varied 

business sizes and diverse production 

cultures which comprise the domestic 

leafy green vegetables industry. The 

changes to representation on the Board 

and Technical Review Committee 

would ensure that the interests of small 

entities would be considered in the 

establishment of the audit metrics under 

the agreement. 

The proposed modifications are 

intended to ensure representation in the 

process so that the audit metrics 

developed would be scale-appropriate 

and would not disproportionately 

burden small entities. As recommended 

in this proposed rule, the Secretary 

would have final approval of audit 

metrics. 

The establishment of audit metrics 

would include considering the 

recommendations in a public forum. A 

super majority vote by the Board is 

required for recommendations to be 

forwarded to the Secretary for approval 

through the informal rulemaking 

process. That process would include 

public notice, the opportunity for public 

comment, and final approval by USDA. 

Since audits paid for by the Board 

with assessment funds are based on 

volume handled, small handlers should 

not be at a disadvantage in participating 

in the proposed program in relation to 

large handlers. In addition, since 

producers within the production area 

(U.S. grown) would not be required to 

pay either assessments or auditing costs, 

small producers should not be at a 


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disadvantage in relation to larger 

producers for these costs. 

The hearing record indicates support 

for moving forward with the proposed 

agreement as revised to ensure that 

concerns of small, organic and 

diversified operations are addressed. 

Paperwork Reduction Act 

In accordance with the Paperwork 

Reduction Act of 1995 (44 U.S.C. 

Chapter 35), AMS announces its 

intention to request an approval of a 

new information collection for the 

proposed National Marketing 

Agreement Regulating Leafy Green 

Vegetables. 

Title: National Marketing Agreement 

Regulating Leafy Green Vegetables. 

OMB Number: 0581–NEW. 

Expiration Date of Approval: Three 

years from approval date. 

Type of Request: New information 

collection. 

Abstract: The information collection 

requirements in this request are 

essential to carry out the intent of the 

Act, to provide the respondents the type 

of service they request, and to 

administer the proposed National 

Marketing Agreement Regulating Leafy 

Green Vegetables. 

The proposed agreement for leafy 

green vegetables would authorize the 

development and implementation of 

production and handling regulations 

(audit metrics). Such audit metrics 

would reflect GAPs, GHPs, and GMPs. 

AMS is the agency that would provide 

oversight of the proposed agreement, 

and any administrative rules and 

regulations issued under the proposed 

program. 

Upon implementation of the proposed 

agreement or during amendatory 

proceedings, handlers would be offered 

the opportunity to sign an agreement to 

indicate their willingness to comply 

with the provisions of the new or 

amended agreement. The proposed 

agreement would be voluntary in that 

only handlers who sign the proposed 

agreement would become signatory 

handlers who are subject to its 

requirements. AMS also would provide 

a certificate of resolution for each 

signatory handler organization to sign, 

documenting the handler’s approval of 

the proposed agreement. 

If the proposed agreement is 

established, nomination forms for 

signatory handlers and producers and 

background information forms would be 

used to nominate and appoint Board 

members and alternates. Producer, 

signatory handler, and importer 

members would be nominated to serve 

as representatives on the Board by their 

peers who also are subject to the 

National Marketing Agreement 

Regulating Leafy Green Vegetables. The 

general public would nominate three 

additional members and their alternates 

to represent one from each of the 

following: Retailers, foodservice 

operators, and the public. Each 

producer, signatory handler, importer, 

retailer, foodservice operator, and 

person of the general public would be 

allowed to nominate oneself to the 

Board as a member or alternate. Each 

person nominated would be required to 

complete a background information 

form. All nominations would be 

submitted to the Secretary for selection 

and appointment as Board members and 

alternate members. 

Following the selection of the Board, 

committee nomination forms and 

background information forms would be 

used to nominate and appoint members 

to the Technical Review Committee and 

the Research and Development 

Committee. Each producer and 

signatory handler would have the 

opportunity to submit a nomination 

form with the names of persons to be 

considered for nomination to these 

committees. Persons who are nominated 

would be required to complete a 

background information form. All 

nominations would be submitted to the 

Secretary for selection and appointment 

as committee members. 

The forms covered under this 

information collection request would be 

for the submission of minimum 

information necessary to ascertain 

handler support for the proposed 

agreement, to appoint Board members 

and their alternates, and appoint 

members to specific committees of the 

Board. Additional reporting and 

recordkeeping requirements may 

subsequently be recommended by the 

Board for its use in administering the 

proposed agreement. The burden 

imposed by any additional requirements 

would be submitted for approval by the 

OMB. 

The information collected would be 

used only by authorized representatives 

of USDA, including AMS, Fruit and 

Vegetable Programs’ regional and 

headquarters staff, and authorized 

employees of the Board, if established. 

Section 608(d)(2) of the Act provides for 

confidential treatment of information. 

Total Annual Estimated Burden 

The total burden for the information 

collection request under the proposed 

agreement is as follows: 

Estimate of Burden: Public reporting 

burden for this collection of information 

is estimated to average .25 hours per 

response. 

Estimated Number of Respondents: 

2,370 (2,200 handlers, 140 producers, 30 

public). 

Estimated Number of Annual 

Responses: 4,790. 

Estimated Number of Responses per 

Respondent: 2.02. 

Estimated Total Annual Burden on 

Respondents: 522 hours. 

Estimated Annual Burden for Each 

Form 

For each new form, the proposed 

request for approval of new information 

collections under the proposed 

agreement are as follows: 

FV–307 National Marketing 

Agreement Regulating Leafy Green 

Vegetables. Handlers would use this 

form to indicate their willingness to 

comply with the provisions of the 

proposed agreement. The proposed 

National Marketing Agreement 

Regulating Leafy Green Vegetables form 

would be completed if the proposed 

agreement is implemented and in any 

future amendment of the agreement. 

Estimate of Burden: Public reporting 

burden for this collection of information 

is estimated to average 5 minutes per 

response. 

Respondents: Handlers of leafy green 

vegetables. 

Estimated Number of Respondents: 

2,200. 

Estimated Number of Responses per 

Respondent: 1. 

Estimated Total Annual Burden on 

Respondents: 183.26 hours. 

FV–308A Certificate of Resolution. 

This form would document corporate 

handlers’ support for the proposed 

agreement. The certificate of resolution 

would be completed if the proposed 

agreement is implemented and in any 

future amendment of the agreement. 

Estimate of Burden: Public reporting 

burden for this collection of information 

is estimated to average 5 minutes per 

response. 

Respondents: Incorporated handlers 

of leafy green vegetables. 

Estimated Number of Respondents: 

2,100. 

Estimated Number of Responses per 

Respondent: 1. 

Estimated Total Annual Burden on 

Respondents: 174.93 hours. 

FV–309 Nomination Form by 

Producers/Signatory Handlers. 

Producers and signatory handlers of 

leafy green vegetables would use this 

form to nominate themselves or other 

producers and signatory handlers to 

serve on the Board. This form also 

would include the nomination of the 

importer member and their alternate. 

For the purpose of this calculation, it is 

estimated that 70 producers and 70 


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signatory handlers would offer 

nominations. 

Estimate of Burden: Public reporting 

burden for this collection of information 

is estimated to average 10 minutes per 

response. 

Respondents: Producers and signatory 

handlers of leafy green vegetables. 

Estimated Number of Respondents: 

140. 

Estimated Number of Responses per 

Respondent: 1. 

Estimated Total Annual Burden on 

Respondents: 23.38 hours. 

FV–310 Nomination Form by General 

Public. Any person located in the 

production area would use this form to 

nominate themselves or other persons 

from the public to serve as a retailer, 

foodservice representative, and public 

member or alternate member on the 

Board. For the purpose of this 

calculation, it is estimated that 30 

persons would offer nominations. 

Estimate of Burden: Public reporting 

burden for this collection of information 

is estimated to average 10 minutes per 

response. 

Respondents: General Public. 

Estimated Number of Respondents: 

30. 

Estimated Number of Responses per 

Respondent: 1. 

Estimated Total Annual Burden on 

Respondents: 5.10 hours. 

FV–311 Background Information. This 

proposed rule recommends the Board be 

comprised of 26 members and 26 

alternates. This form would be used by 

nominated candidates to provide their 

qualifications to serve on the Board. For 

the purpose of this calculation, it is 

estimated that 170 persons would agree 

to be candidates to serve on the Board. 

Estimate of Burden: Public reporting 

burden for this collection of information 

is estimated to average 30 minutes per 

response. 

Respondents: Signatory handlers, 

importers, producers, retailers, 

foodservice representatives, and general 

public nominees. 

Estimated Number of Respondents: 

170. 

Estimated Number of Responses per 

Respondent: 1. 

Estimated Total Annual Burden on 

Respondents: 85.0 hours. 

FV–312 Committee Nomination Form. 

Producers and signatory handlers of 

leafy green vegetables would use this 

form to nominate persons to serve on 

the Technical Review Committee or the 

Research and Development Committee. 

For the purpose of this calculation, it is 

estimated that 40 producers and 35 

signatory handlers would offer 

nominations. 

Estimate of Burden: Public reporting 

burden for this collection of information 

is estimated to average 10 minutes per 

response. 

Respondents: Producers and signatory 

handlers of leafy green vegetables, and 

the Board. 

Estimated Number of Respondents: 

75. 

Estimated Number of Responses per 

Respondent: 1. 

Estimated Total Annual Burden on 

Respondents: 12.75 hours. 

FV–313 Committee Background 

Information. This recommended 

decision proposes that the Technical 

Review Committee consist of a 

minimum of 10 members and the 

Research and Development Committee 

consist of a minimum of 9 members. 

This form would be used by candidates 

that have been nominated to provide 

their qualifications to serve on the 

Technical Review Committee or the 

Research and Development Committee. 

For the purpose of this calculation, it is 

estimated that 20 producers, 15 

signatory handlers, and 40 other persons 

would agree to be candidates to serve on 

these committees. 

Estimate of Burden: Public reporting 

burden for this collection of information 

is estimated to average 30 minutes per 

response. 

Respondents: Producers and signatory 

handlers of leafy green vegetables, 

retailers, foodservice representatives, 

food safety experts, and other persons. 

Estimated Number of Respondents: 

75. 

Estimated Number of Responses per 

Respondent: 1. 

Estimated Total Annual Burden on 

Respondents: 37.50 hours. 

If this proposed agreement is 

established by USDA, the Board could 

recommend to the Department other 

forms (such as monthly assessment 

report, contact information form, 

withdrawal form, etc.) which would be 

needed to administer the proposed 

agreement. All such forms would be 

subject to USDA and OMB review and 

approval. 

Comments: Comments are invited on: 

(1) Whether the proposed collection of 

information is necessary for the proper 

performance of the functions of the 

agency, including whether the 

information would have practical 

utility; (2) the accuracy of the agency’s 

estimate of the burden of the proposed 

collection of information, including the 

validity of the methodology and 

assumptions used; (3) ways to enhance 

the quality, utility, and clarity of the 

information to be collected; and (4) 

ways to minimize the burden of the 

collection of information on those who 

are to respond, including the use of 

appropriate automated, electronic, 

mechanical, or other technological 

collection techniques or other forms of 

information technology. 

Comments should reference OMB No. 

0581–NEW and the Proposed National 

Marketing Agreement Regulating Leafy 

Green Vegetables, and be sent to USDA 

in care of the Docket Clerk at the 

previously-mentioned address. All 

comments received will be available for 

public inspection during regular 

business hours at the same address. 

All responses to this notice will be 

summarized and included in the request 

for OMB approval of the abovedescribed forms. All comments will 

become a matter of public record. 

AMS is committed to complying with 

the E–Government Act, to promote the 

use of the Internet and other 

information technologies to provide 

increased opportunities for citizen 

access to Government information and 

services, and for other purposes. 

Civil Justice Reform 

The marketing agreement proposed 

herein has been reviewed under 

Executive Order 12988, Civil Justice 

Reform. It is not intended to have 

retroactive effect. There are no 

administrative procedures that must be 

exhausted prior to any judicial 

challenge to the provisions of marketing 

agreements issued under the Act. 

Rulings on Briefs of Interested Persons, 

Proposed Findings and Conclusions 

Briefs, proposed findings and 

conclusions, and the evidence in the 

record were considered in making the 

findings and conclusions set forth in 

this recommended decision. To the 

extent that the suggested findings and 

conclusions filed by interested persons 

are inconsistent with the findings and 

conclusions of this recommended 

decision, the requests to make such 

findings or to reach such conclusions 

are denied. 

General Findings 

1. The proposed agreement and all of 

the terms and conditions thereof, would 

tend to effectuate the declared policy of 

the Act; 

2. The proposed agreement regulates 

the handling of leafy green vegetables 

grown in the production area in the 

same manner as, and is applicable only 

to, persons in the respective classes of 

commercial and industrial activity 

specified in the proposed agreement 

upon which a hearing has been held; 

3. The proposed agreement prescribes, 

insofar as practicable, such different 

terms applicable to different parts of the 

production area as are necessary to give 

due recognition to the differences in the 


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production and marketing of leafy green 

vegetables in the production area; and 

4. All handling of leafy green 

vegetables grown in the production, or 

handled as imported product from 

outside the production area, as defined 

in the proposed agreement, is in the 

current of interstate or foreign 

commerce or directly burdens, 

obstructs, or affects such commerce. 

A 90-day comment period is provided 

to allow interested persons to respond 

to this proposal. All written exceptions 

timely received will be considered. 

After consideration of any comments 

received, the Secretary will issue a 

Secretary’s Decision which, if 

warranted, would include a handler 

sign-up period. 

List of Subjects in 7 CFR Part 970 

Marketing agreements, Reporting and 

recordkeeping requirements, Vegetables. 

Title 7, Chapter IX is proposed to be 

amended by adding 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 metric. 

970.3 Audit. 

970.4 Broker. 

970.6 Critical limit. 

970.7 Crop year. 

970.8 Foodservice operator. 

970.9 Fresh. 

970.10 Fresh-cut. 

970.11 Good agricultural and handling 

practices. 

970.13 Good manufacturing practices or 

GMPs. 

970.14 Handle. 

970.15 Handler. 

970.16 Importer. 

970.17 Inspection Service. 

970.18 Leafy green vegetables. 

970.19 Manufacture. 

970.20 Manufacturer. 

970.22 National Leafy Green Vegetable 

Board or Board. 

970.23 Packaged. 

970.24 Part. 

970.25 Person. 

970.26 Process control. 

970.27 Producer. 

970.28 Production area. 

970.29 Region. 

970.30 Retailer. 

970.31 Secretary. 

970.32 Signatory first handler. 

970.33 Signatory handler. 

970.35 United States Department of 

Agriculture or USDA. 

970.36 United States Food and Drug 

Administration or FDA. 

970.37 Zone. 

Purpose 

970.39 Purpose. 

National Leafy Green Vegetable Board 

970.40 Establishment and membership. 

970.41 Reallocation of membership. 

970.42 Eligibility. 

970.43 Term of office. 

970.44 Nominations. 

970.45 Alternate members. 

970.46 Technical Review Committee. 

970.47 Research and Development 

Committee. 

970.48 Compensation and expenses. 

970.49 Procedure. 

970.50 Powers. 

970.51 Duties. 

Expenses and Assessments 

970.55 Expenses. 

970.56 Assessments. 

970.57 Accounting. 

970.58 Contributions. 

Duties and Responsibilities of Signatory 

Handlers 

970.65 Signatory handlers. 

970.66 Verification audits. 

970.67 Audit metrics. 

970.68 Traceability. 

970.69 Official certification mark. 

970.70 Administrative review of audits. 

970.71 Modification, suspension, or 

termination of regulations. 

970.72 Exemptions. 

Research and Development 

970.75 Research, development, and 

education. 

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 Handler sign-up. 

970.98 Withdrawal. 

970.99 OMB control number. 

Authority: U.S.C. 601–674. 

Subpart—Agreement Regulating 

Signatory Handlers 

Definitions 

§ 970.1 Act. 

Act means Public Act No. 10, 73rd 

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. 601–674). 

§ 970.2 Audit metric. 

Audit metric means an auditable 

standard or requirement within a 

process control prescribed pursuant to 

§ 970.67. 

§ 970.3 Audit. 

Audit means an official review 

conducted by the Inspection Service to 

verify and document that good 

agricultural, handling, and 

manufacturing practices are adhered to 

throughout the growing, harvesting, 

packing, manufacturing, and 

transportation of leafy green vegetables. 

The audit includes a physical visit to 

the farm or facility subject to audit 

while it is in operation, where 

practicable, and represents a ‘‘snapshot 

in time’’ based on documentation 

reviewed, persons interviewed, and 

operations observed, and is intended to 

reflect past and ongoing activities. 

§ 970.4 Broker. 

Broker means a person who 

coordinates the sale and transportation 

of leafy green vegetables for retail or 

foodservice operators, without taking 

ownership of such leafy green 

vegetables. 

§ 970.6 Critical limit. 

Critical limit means a maximum or 

minimum value that is assigned to a 

process control when a biological, 

chemical, or a physical parameter must 

be controlled to prevent or minimize the 

occurrence of a food safety hazard. 

§ 970.7 Crop year. 

Crop year is synonymous with fiscal 

year and means the 12-month period 

beginning on April 1 of any year and 

ending on March 31 of the following 

year, or any other period recommended 

by the Board and approved by the 

Secretary. 

§ 970.8 Foodservice operator. 

Foodservice operator means a 

business (including but not limited to 

an industrial caterer or hospital) that 

receives or purchases leafy green 

vegetables from handlers and delivers 

such vegetables to consumers, either by 

sale or by offering for direct 

consumption. 

§ 970.9 Fresh. 

Fresh means any leafy green vegetable 

in the raw or natural form. 

§ 970.10 Fresh-cut. 

Fresh-cut is synonymous with 

products and means leafy green 

vegetables that have been altered from 


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their fresh 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. 

§ 970.11 Good agricultural and handling 

practices. 

Good agricultural practices or GAPs 

and Good handling practices or GHPs 

refer to general practices to reduce 

microbial food safety hazards in leafy 

green vegetables, as described in 

sections of the current FDA ‘‘Guide to 

Minimize Microbial Food Safety 

Hazards for Fresh Fruits and Vegetables’’ 

and the current FDA ‘‘Guide to 

Minimize Microbial Food Safety 

Hazards for Fresh-cut Fruits and 

Vegetables’’ that are applicable to the 

production and harvesting activities of 

leafy green vegetables, or any other 

revised or modified versions thereof, or 

any other documents or regulations, as 

recommended by the Board and 

approved by the Secretary for use in 

audits conducted by the Inspection 

Service under this part. 

§ 970.13 Good manufacturing practices or 

GMPs. 

Good manufacturing practices or 

GMPs means any FDA regulations that 

appear in 21 CFR Part 110 or as 

otherwise amended, which describe the 

methods, equipment, facilities, and 

controls required for producing freshcut processed food, including packaged 

leafy green vegetables, or FDA guidance 

documents, regulations, or any other 

documents recommended by the Board 

and approved by the Secretary for use 

in audits conducted by the Inspection 

Service under this part. 

§ 970.14 Handle. 

Handle means to receive, acquire, 

sell, process, ship, distribute, or import 

leafy green vegetables: Provided, that 

handle does not include brokering, 

retail sales, or foodservice sales of leafy 

green vegetables. 

§ 970.15 Handler. 

Handler means any person who 

handles leafy green vegetables: 

Provided, that, this definition does not 

include a retailer, foodservice operator, 

or a broker, except to the extent such 

person is otherwise engaged in 

handling. 

§ 970.16 Importer. 

Importer means a handler located in 

the production area who imports leafy 

green vegetables that are produced or 

handled outside of the production area.’’ 

§ 970.17 Inspection Service. 

Inspection Service means the Fruit 

and Vegetable Programs, Agricultural 

Marketing Service, USDA, its designees, 

or any other entity approved or 

recognized by USDA to conduct audits 

on leafy green vegetables. 

§ 970.18 Leafy green vegetables. 

(a) Leafy green vegetables means the 

mature and immature leafy portions of 

any of the following vegetables and any 

varieties thereof that are for human 

consumption in their fresh or fresh-cut 

form: arugula, cabbage (red, green, and 

savoy), chard, cilantro, cress, dandelion, 

endigia, endive (escarole), kale, lettuce 

(head, leaf, and romaine), maˆche, 

mizuna, parsley, radicchio, spinach, tat 

soi, winter purslane, or any other leafy 

green vegetable recommended by the 

Board and approved by the Secretary. 

The Board may recommend, subject to 

the approval of the Secretary, the 

removal of any leafy green vegetable 

from this definition. 

(b) Combinations of the above listed 

leafy green vegetables are covered by the 

requirements established under this 

part. This includes spring mix. 

(c) All non-leafy green vegetables or 

non-produce ingredients commingled 

with fresh-cut leafy green vegetables in 

packaged products (e.g., salad kits 

which may contains carrots, meat, 

cheese, and/or dressings) are not 

covered by this part. 

§ 970.19 Manufacture. 

Manufacture is synonymous with 

process and means to change fresh leafy 

green vegetables to fresh-cut leafy green 

vegetables: Provided, that manufacture 

does not include leafy green vegetables 

packed in the field or apply to retailing, 

foodservice operators, or brokering, 

except to the extent that a retailer, 

foodservice operator, or broker is other 

wised engaged in manufacturing for 

non-retail purposes. 

§ 970.20 Manufacturer. 

Manufacturer means any person who 

manufactures: Provided, that, this 

definition does not include a retailer, a 

foodservice operator, or broker, except 

to the extent that such a person is 

otherwise engaged in handling. 

§ 970.22 National Leafy Green Vegetable 

Board or Board. 

National Leafy Green Vegetable Board 

or Board means the administrative 

board established pursuant to § 970.40, 

or as affected pursuant to § 970.41. 

§ 970.23 Packaged. 

Packaged is synonymous with 

containerized and means leafy green 

vegetables that are uniformly wrapped 

or sealed, such as cellophane, 

clamshells, cartons or totes. 

§ 970.24 Part. 

Part means the marketing agreement 

regulating the handling of leafy green 

vegetables by signatory handlers and all 

rules, regulations and supplementary 

subparts issued thereunder. 

§ 970.25 Person. 

Person means an individual, 

partnership, corporation, association, or 

any other business unit. 

§ 970.26 Process control. 

Process control means a step or point 

within a production, harvesting, 

handling, manufacturing, or 

transportation process at which the 

potential for microbiological 

contamination can be reduced. 

§ 970.27 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 handler. 

§ 970.28 Production area. 

Production area means all fifty States 

and the District of Columbia of the 

United States of America. 

§ 970.29 Region. 

Region means a production or 

growing area distinguished by common 

environmental or growing conditions 

including, but not limited to, geography, 

climate, production practices, water 

sources and distribution systems, or 

wildlife. Regions are not synonymous 

with zones. 

§ 970.30 Retailer. 

Retailer means any person that sells 

leafy green vegetables directly to the 

consumer. 

§ 970.31 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. 

§ 970.32 Signatory first handler. 

Signatory first handler means the 

person located in the production area 

that first handles leafy green vegetables 

and who is party to this part. 

§ 970.33 Signatory handler. 

Signatory handler means a handler 

located in the production area who is 

party to this part. 


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§ 970.35 United States Department of 

Agriculture or USDA. 

United States Department of 

Agriculture or USDA means 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. 

§ 970.36 United States Food and Drug 

Administration or FDA. 

United States Food and Drug 

Administration or FDA means the 

government agency within the United 

States Department of Health and Human 

Services. 

§ 970.37 Zone. 

Zone means the applicable one of the 

following described subdivisions of the 

production area or such other 

subdivisions as recommended by the 

Board and approved by the Secretary: 

(a) Zone 1 shall include the States of 

California and Hawaii. 

(b) Zone 2 shall include the States of 

Alaska, Idaho, Montana, Oregon, 

Washington, and Wyoming; 

(c) Zone 3 shall include the States of 

Arizona, Colorado, Nevada, New 

Mexico, and Utah; 

(d) Zone 4 shall include the States of 

Illinois, Iowa, Minnesota, Nebraska, 

North Dakota, South Dakota, and 

Wisconsin; 

(e) Zone 5 shall include the States of 

Arkansas, Kansas, Louisiana, Missouri, 

Oklahoma, and Texas; 

(f) Zone 6 shall include the States of 

Delaware, District of Columbia, Indiana, 

Kentucky, Maryland, Michigan, Ohio, 

Virginia, and West Virginia; 

(g) Zone 7 shall include the States of 

Alabama, Florida, Georgia, Mississippi, 

North Carolina, South Carolina, and 

Tennessee; and, 

(h) Zone 8 shall include the States of 

Connecticut, Maine, Massachusetts, 

New Hampshire, New Jersey, New York, 

Pennsylvania, Rhode Island, and 

Vermont. 

Purpose 

§ 970.39 Purpose. 

The purpose of this agreement is to: 

Implement a uniform, auditable, 

science-based food quality verification 

program conducted by the USDA; 

enhance the quality of leafy green 

vegetables available in the marketplace 

through the application of good 

agricultural production, handling, and 

manufacturing practices; foster greater 

cooperation with local, State, and 

Federal agencies and other 

organizations; and, improve consumer 

confidence in leafy green vegetables. 

National Leafy Green Vegetable Board 

§ 970.40 Establishment and membership. 

(a) A National Leafy Green Vegetable 

Board is hereby established to 

administer the terms and provisions of 

this part. Such Board shall consist of 

twenty-six 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. 

Board membership shall be allocated as 

follows: 

(1) Four signatory handlers and three 

producers from Zone 1; 

(2) One signatory handler and one 

producer from Zone 2; 

(3) One signatory handler and one 

producer from Zone 3; 

(4) One signatory handler and one 

producer from Zone 4; 

(5) One signatory handler and one 

producer from Zone 5; 

(6) One signatory handler and one 

producer from Zone 6; 

(7) Two signatory handlers and one 

producer from Zone 7; 

(8) One signatory handler and one 

producer from Zone 8; 

(9) One importer representative from 

the production area; 

(10) One retailer representative from 

the production area; 

(11) One foodservice representative 

from the production area; and, 

(12) One public member 

representative from the production area. 

(b) A majority of the producer 

members of the Board shall not be 

engaged in the handling of leafy green 

vegetables or the manufacturing of 

fresh-cut products, and two producers 

must be small producers. Further, at 

least four handler members must be 

engaged in the manufacturing of freshcut leafy green products. 

(c) To the extent practicable, Board 

membership shall include 

representation of the following 

stakeholder groups: 

(1) Producers that meet the Small 

Business Administration’s (SBA) 

definition small agricultural producers. 

(2) Diversified farm producers who 

produce a variety of crops or animals, or 

both, on one farm, as distinguished from 

specialization of a single commodity. 

For the purposes of this subpart, variety 

of crops means any crop in addition to 

those included in the definition of leafy 

green vegetables. 

(3) Producers and signatory handlers 

representing certified organic businesses 

meeting the SBA definition of small 

business entity. 

(4) Producers and signatory handlers 

representing certified organic businesses 

that exceed the SBA definition of small 

business entity. 

§ 970.41 Reallocation of membership. 

The Board may recommend, subject to 

the approval of the Secretary, 

reallocation of Board members among 

zones, changes in the number of Board 

members, and changes in the 

composition of the Board by revising the 

number of members representing 

various industry sectors, Provided, that 

each zone must be represented by at 

least one producer and one signatory 

handler. In making such 

recommendations, the Board shall 

consider the following factors: 

(a) Shifts in acreage and number of 

producers within zones; 

(b) The importance of new acreage in 

its relation to existing zones; 

(c) The equitable relationship between 

membership and zones; 

(d) Economies to result in promoting 

efficient administration due to 

reallocation or changing the 

composition of membership; and, 

(e) Other relevant factors. 

§ 970.42 Eligibility. 

(a) Each signatory handler member 

(including importer) and his or her 

alternate member at the time of his or 

her selection and throughout his or her 

term of office shall be a signatory 

handler (including importer), or an 

officer or employee of a signatory 

handler in the zone for which selected. 

(b) Each producer member and his or 

her alternate member at the time of his 

or her selection and through his or her 

term of office shall be a producer, or an 

officer or employee of a producer in the 

zone for which selected. 

(c) No signatory handler (including 

importer) or producer shall be 

represented on the Board by more than 

one member and one alternate member. 

(d) The retailer, foodservice, and 

public members and their alternate 

members may not be engaged in the 

production or handling of leafy green 

vegetables. The retailer and foodservice 

members and their alternates shall be, at 

the time of their selection and 

throughout their term of office, an 

owner, officer or employee for the seat 

selected. 

§ 970.43 Term of office. 

Members and alternate members of 

the Board 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. 


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§ 970.44 Nominations. 

Nomination of Board members and 

alternate members shall follow the 

procedure set forth in this section, or 

such other procedure as may be 

recommended by the Board and 

approved by the Secretary. 

(a) Producer and signatory handler 

(including importer) nominations. 

Nominations for the producer and 

signatory handler (including importer) 

members and alternate members shall 

be received at meetings, by mail, or by 

any form of electronically verifiable 

communication. Only persons eligible 

to serve on the Board as producers and 

signatory handlers shall be eligible to 

nominate producer and signatory 

handler (including importer) members 

and alternate members. 

(b) Retailer, foodservice and public 

member nominations. Nominations for 

the retailer, foodservice, and public 

members and their alternate members 

shall be received at meetings, by mail, 

or by any form of electronically 

verifiable communication. Any person 

from the production area shall be 

eligible to nominate the retailer, 

foodservice, and public members and 

their alternate members. 

(c) Acceptance. Each nominee shall 

qualify by advising the Secretary that, if 

selected, such person agrees to serve in 

the seat and position appointed. 

(d) Selection. A report shall be 

provided to the Secretary detailing all 

nominations prior to the beginning of 

each two- year term of office, together 

with all necessary data and other 

information as requested by the 

Secretary. The Secretary shall appoint 

from those nominees or from other 

qualified persons, the members and 

alternate members of the Board on the 

basis of the representation provided for 

in §§ 970.40 through 970.42. 

(e) 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 members and 

alternate members of the Board on the 

basis of the representation provided for 

in §§ 970.40 through 970.42. 

(f) Vacancies. To fill a vacancy on the 

Board 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 (a) and (b) of this section. If 

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 

appoint from other qualified persons 

without regard to nominations on the 

basis of representation provided for in 

§§ 970.40 through 970.42. 

§ 970.45 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 death, removal, 

resignation, or disqualification, until a 

successor for such member’s unexpired 

term has been selected and has 

qualified. 

§ 970.46 Technical Review Committee. 

A Technical Review Committee is 

hereby established for the purpose of 

assisting the Board in developing audit 

metrics in § 970.67. 

(a) The Technical Review Committee 

shall consist of one producer, one 

signatory handler, and one food safety 

expert from each zone. Of the producer 

members, at least one must be a small 

producer as defined by the Small 

Business Administration and one must 

be a certified organic producer. In 

addition, the Technical Review 

Committee shall include one 

representative from the USDA Natural 

Resources Conservation Service to be 

appointed by the Secretary. 

(b) The Secretary may appoint 

additional representatives from USDA 

agencies including, but not limited to: 

National Organic Program, Agricultural 

Research Service, and National Institute 

of Food and Agriculture. 

(c) USDA may consult with and invite 

representation from agencies outside of 

USDA including, but not limited to: the 

United States Environmental Protection 

Agency, FDA, and the United States 

Department of Interior Fish and Wildlife 

Service. 

(d) Nomination and selection. 

Nominations for positions prescribed in 

paragraph (a) of this section shall be 

received from producers and signatory 

handlers at meetings, by mail, or by any 

form of electronically verifiable 

communication. In addition, the Board 

may recommend nominees to USDA. 

The Secretary may select and appoint 

the members from such nominations or 

from other qualified persons. 

(e) The membership of the Technical 

Review Committee may be modified 

based on recommendations by the Board 

and approval of the Secretary, or as 

otherwise deemed appropriate by 

USDA. 

(f) The Technical Review Committee 

may appoint subcommittees as 

necessary to facilitate the development 

of audit metrics. Subcommittees may 

consist of producers, signatory handlers, 

and other interested persons as deemed 

appropriate by the Technical Review 

Committee. 

§ 970.47 Research and Development 

Committee. 

The Research and Development 

Committee is hereby established for the 

purpose of providing advice to the 

Board on research, development, and 

educational and outreach programs as 

authorized under § 970.75. 

(a) The Research and Development 

Committee shall consist of 9 members as 

follows: Two representatives of retailers; 

two representatives from foodservice 

companies; three public representatives, 

and two representatives from land grant 

universities with expertise in one, but 

not limited to, the following areas: The 

production, handling, and marketing of 

leafy green vegetables; small, 

diversified, or organic production and 

handling practices; agricultural 

economics; or educational outreach in 

the specified or related areas. 

(b) Nomination and selection. 

Nominations shall be received from 

producers and signatory handlers at 

meetings, by mail, or by any form of 

electronically verifiable communication. 

The Board may recommend nominees to 

USDA. The Secretary shall select and 

appoint the members from such 

nominations or from other qualified 

persons. 

(c) The membership of the Research 

and Development Committee may be 

modified based on recommendations by 

the Board and approval of the Secretary, 

or as otherwise deemed appropriate by 

USDA. 

(d) The Research and Development 

Committee may appoint subcommittees 

as necessary. Subcommittees may 

consist of producers, signatory handlers, 

and other interested persons as deemed 

appropriate by the Research and 

Development Committee. 

§ 970.48 Compensation and expenses. 

All Board members, alternate Board 

members, committee 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. 

§ 970.49 Procedure. 

(a) A majority of all the appointed 

members of the Board shall constitute a 

quorum: Provided, That each zone with 

an appointed member shall be 

represented by at least one member or 

his or her alternate at any meeting of the 

full Board. Board action shall require 

the concurrence of a majority of present 

members except that recommendations 


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for the Secretary’s approval of audit 

metrics, assessment rates, and 

termination of the agreement must be 

approved by a 2⁄3 vote of present 

members. 

(b) In the event that a producer or 

signatory handler member of the Board 

and their alternate are unable to attend 

the meeting, the absent member or the 

Board may designate any other alternate 

from the same zone and group 

(signatory handler, producer) who is 

present at the meeting to serve in the 

member’s place. 

(c) The Board shall give to the 

Secretary the same notice of each 

meeting that is given to the members of 

the Board. 

(d) The Board 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 

members present shall cast votes in 

person. A videoconference shall be 

considered an assembled meeting and 

all votes shall be considered as cast in 

person. 

§ 970.50 Powers. 

The Board shall have the following 

powers: 

(a) To administer this part 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 

this part; 

(c) To receive, investigate, and report 

to the Secretary complaints of violations 

of the provisions of this part; and 

(d) To recommend to the Secretary 

amendments to the part. 

§ 970.51 Duties. 

The Board shall have, among others, 

the following duties: 

(a) To select from among its members 

a chairperson and such other officers as 

may be necessary, and to define the 

duties of such officers; 

(b) To adopt such bylaws for the 

conduct of its business as it may deem 

advisable; 

(c) To keep minutes, books, and 

records which clearly reflect all the acts 

and transactions of the Board, 

committees, and subcommittees, and 

these shall be subject to examination by 

the Secretary at any time; 

(d) To appoint such employees or 

agents as it may deem necessary, and to 

determine the compensation and define 

the duties of each; 

(e) To submit a budget to the 

Secretary for each crop year; 

(f) To cause its books to be audited by 

a certified public accountant at least 

once each crop year and at such other 

times as the Board may deem necessary 

or as the Secretary may request. Such 

audit shall include an examination of 

the receipt of income and the 

disbursement of all funds. The Board 

staff shall provide the Secretary with a 

copy of all audits and shall make copies 

of such audits available for examination 

at the office of the Board; Provided, That 

all confidential information is treated 

pursuant to § 970.81; 

(g) To investigate the production, 

handling, and manufacturing of leafy 

green vegetables and to assemble data in 

connection therewith; 

(h) To establish subcommittees to aid 

the Board in the performance of its 

duties under this part; 

(i) To collaborate with existing State 

boards, commissions, and governing 

bodies of State agreements through 

memoranda of understanding to affect 

the purposes of this part; 

(j) To recommend, after consultation 

with the Technical Review Committee, 

for approval of the Secretary audit 

metrics as provided for in § 970.67; 

(k) To act as intermediary between the 

Secretary and any signatory handler 

with respect to the operations of this 

part; and 

(l) To furnish such available 

information as may be deemed pertinent 

or as requested by the Secretary. 

Expenses and Assessments 

§ 970.55 Expenses. 

The Board is authorized to incur such 

expenses as the Secretary finds are 

reasonable for the maintenance and 

functioning of the Board during each 

crop year, including the payment of 

audit fees, activities provided for under 

§ 970.75, 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 § 970.56 and other funds 

available to the Board. 

§ 970.56 Assessments. 

(a) Each signatory first handler shall 

be responsible for paying the Board 

such handler’s pro-rata share of the 

Board’s expenses authorized by the 

Secretary for each crop year. The 

payment of assessments for the 

maintenance and functioning of the 

Board, as described in § 970.55, 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 Board, or other available data, the 

Secretary shall fix a base rate of 

assessment for all leafy green vegetables 

that signatory first handlers shall pay 

during each crop year. The Board may 

recommend and the Secretary may 

approve supplemental assessments, but 

no combination of assessment and 

supplemental assessments may exceed 

the cap established in paragraph (c) of 

this section. 

(c) Based on the recommendation of 

the Board, or other available data, the 

Secretary may change or modify the 

base rate assessment. The assessment 

shall be set at the lowest rate practical 

to carry out the objectives of this part. 

The assessment rate shall not exceed 

$0.05 per 24-pound carton or equivalent 

of leafy green vegetables. 

(d) Assessments not paid by a 

signatory first handler within a 

prescribed period of time may be subject 

to an interest or late payment charge, or 

both. The period of time, rate of interest, 

and late payment charge may be 

recommended by the Board and 

approved by the Secretary. 

(e) In order to provide funds for the 

administration of this part, the Board 

may accept, but not require, advance 

payments of assessments, which shall 

be credited toward assessments levied 

against such signatory first handler 

during the crop year. The Board may 

also borrow money, subject to approval 

by the Secretary, for such purposes 

when assessment and reserve funds are 

not sufficient to cover Board expenses. 

§ 970.57 Accounting. 

If, at the end of a crop year, the 

assessments collected are in excess of 

expenses incurred, the Board, with the 

approval of the Secretary, may carry 

over such excess into subsequent crop 

years as an operating monetary reserve, 

except that total funds already in such 

reserve shall not exceed approximately 

two (2) crop years’ budgeted expenses. 

Funds in such reserve shall be available 

for use by the Board for expenses 

authorized pursuant to § 970.55 and 

§ 970.75, 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 

signatory 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. 

§ 970.58 Contributions. 

The Board may accept voluntary 

contributions but these shall only be 

used to pay expenses incurred pursuant 

to § 970.75. Such contributions shall be 

free from any encumbrances by the 

donor and the Board shall retain 

complete control of their use. 


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Duties and Responsibilities of Signatory 

Handlers 

§ 970.65 Signatory handlers. 

No signatory handler to this part shall 

handle leafy green vegetables for human 

consumption unless such are verified as 

meeting the verification audit 

provisions of this part. Such verification 

shall take the form of an official audit 

conducted by the Inspection Service 

pursuant to § 970.66. 

§ 970.66 Verification audits. 

(a) GAPs audits. (1) Signatory 

handlers shall ensure that any leafy 

green vegetables handled by a handler’s 

facilities have been subject to GAPs 

audits conducted by the Inspection 

Service. Such audits shall verify that the 

leafy green vegetables were produced 

under auditable conditions that meet 

production and harvest guidelines 

referred to in § 970.11 and any 

applicable audit metrics under § 970.67. 

(2) No signatory handler subject to the 

provisions of this part shall receive leafy 

green vegetables produced outside the 

production area that have not been 

subject to GAPs audits conducted by the 

Inspection Service. Such audits shall 

verify that such product was produced 

under auditable conditions that meet 

production and harvest requirements 

referred to in § 970.11 and in applicable 

audit metrics under § 970.67. 

(b) GHPs or GMPs audits. (1) All 

signatory handlers shall be subject to 

audits. Such audits shall verify that 

such handlers operate under auditable 

conditions that meet guidelines 

provided for in the GHPs or GMPs 

referred to in § 970.11 and § 970.13 and 

in applicable audit metrics under 

§ 970.67. 

(2) No signatory handlers subject to 

the provisions of this part shall receive 

leafy green vegetables from handlers 

outside the production area that have 

not been subject to GHPs or GMPs 

audits conducted by the Inspection 

Service. Such audits shall verify that the 

leafy green vegetables were produced 

under auditable conditions that meet 

production and harvest guidelines 

referred to in § 970.11 and applicable 

audit metrics provided for in § 970.67. 

(c) Audits shall be conducted on a 

regular schedule that ensures every 

signatory handler is audited at least 

once a crop year. In addition, random 

unannounced audits of signatory 

handlers and associated producers shall 

be performed during the production 

season in each zone. 

§ 970.67 Audit metrics. 

After consultation with the Technical 

Review Committee, the Board may 

recommend audit metrics to the 

Secretary for approval. 

(a) GAPs audit metrics. Audit metrics 

for GAPs may include verification of 

process controls 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, 

encroachment of animals of significant 

risk, and urban settings. 

(b) GHPs and GMPs audit metrics. 

Audit metrics for GHPs and GMPS may 

include verification of process controls 

related but not limited to: 

(1) Post-harvest handling processes: 

Cooling, water, reuse of field containers, 

bulk-bin modified atmosphere process, 

condition and sanitation of 

transportation vehicles, and employee 

hygiene. 

(2) Handling and manufacturing 

processes: Wash water, wash system 

capacity, bulk-bin modified atmosphere 

process, condition and sanitation of 

transportation vehicles, employee 

hygiene, labeling of Raw Agricultural 

Commodity versus ready-to-eat 

products, and finished product 

packaging. 

(3) Distribution handling processes: 

Condition and sanitation of 

transportation vehicles, condition and 

sanitation of distribution and cooler 

facilities, and temperature measurement 

of product. 

(c) Critical limits for process controls 

for each step or point identified in 

GAPs, GHPs, or GMPs audit metrics 

may be recommended by the Board, 

after consultation with the Technical 

Review Committee, for approval of the 

Secretary, or may be developed by 

USDA. 

(d) Technical Review Committee 

recommendations, including critical 

limits, shall incorporate current leafy 

green vegetable industry production, 

harvest and handling technologies, and 

be based on scientific practices. 

(e) Audit metrics may be developed 

and recommended to accommodate 

differences in production, harvest, and 

handling environments of different 

regions and of different leafy green 

vegetables. 

(f) After consultation with the 

Technical Review Committee, the Board 

may, at any time, recommend changes 

to audit metrics for approval by the 

Secretary. 

(g) The Board shall review audit 

metrics a minimum of once every three 

years to ensure that they continually 

reflect the best leafy green vegetable 

industry practices, scientific 

information, and industry knowledge. 

§ 970.68 Traceability. 

(a) The traceability of leafy green 

vegetables by signatory handlers shall 

be established at production, handling, 

manufacturing, and distribution. 

(b) Signatory handlers shall have the 

ability to track their leafy green 

vegetables from their supplier(s) to their 

customer(s) and shall have in place 

systems and procedures that allow for 

this information to be made available 

during an audit by the Inspection 

Service. 

(c) Documents necessary for 

verification shall be maintained for two 

years. 

§ 970.69 Official certification mark. 

(a) Any registered certified mark 

developed under this part are the 

property of the United States 

Government as represented by the Board 

and shall inure to the benefit of the 

Board. This mark shall be used in 

accordance with this section and 

consistent with the mark’s registration. 

(b) The Board may license signatory 

handlers to affix the official certification 

mark to bills of lading or manifests, or 

any other such uses recommended by 

the Board and approved by the 

Secretary to carry out the purpose of 

this part, Provided, that such mark may 

not be used on consumer packages. The 

use of the official certification mark 

shall be subject to the verification, 

suspension, or revocation requirements 

of this part. 

(c) A signatory handler’s compliance 

with the regulations under this part is 

a condition precedent and subsequent to 

the signatory handler’s entitlement to 

use the official certification mark. 

§ 970.70 Administrative review of audits. 

(a) Any financially interested person 

may request an administrative review of 

an audit if it is believed that the original 

audit is in error. 

(b) Any signatory handler denied the 

use of the official certification mark may 

request an administrative review of an 

audit if it is believed that a material fact 

of the original audit was misinterpreted. 

(c) Administrative reviews will be 

conducted in accordance with the 

USDA audit verification procedures for 

any audit program in effect under this 

part. The person requesting the review 

shall pay for the cost of the review. The 

review results shall be issued to the 

person making the request. 


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§ 970.71 Modification, suspension, or 

termination of regulations. 

(a) In the event that the Board, at any 

time, finds that any regulations issued 

under this part should be modified or 

suspended, it shall, pursuant to 

§ 970.49, so recommend to the 

Secretary. 

(b) Whenever the Secretary finds from 

the recommendations and information 

submitted by the Board or from other 

available information, that any 

regulations issued under this part 

should be modified, suspended, or 

terminated in order to effectuate the 

declared policy of the Act, the Secretary 

shall modify, suspend or terminate 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. 

§ 970.72 Exemptions. 

With the approval of the Secretary, 

the Board may recommend rules, 

regulations, and safeguards that exempt 

leafy green vegetables from any or all 

requirements pursuant to this part. The 

Board may require reports or 

certifications, or impose other 

conditions as are necessary to ensure 

that such exempted leafy green 

vegetables are handled only as 

authorized. 

Research and Development 

§ 970.75 Research, development, and 

education. 

The Board, with the approval of the 

Secretary, may establish or provide for 

the establishment of research, including 

market research, related to production, 

handling, and manufacturing leafy green 

vegetables, developments projects, and 

educational and outreach programs, 

designed to assist, improve, or promote 

the efficient adoption, implementation, 

and administration of this part. The 

expenses of such projects shall be 

budgeted and paid from funds collected 

pursuant to §§ 970.56 and 970.58. 

Reports and Records 

§ 970.80 Reports and recordkeeping. 

(a) Each signatory handler shall report 

all receipts and acquisitions of all leafy 

green vegetables and such other reports 

or information as recommended by the 

Board and approved by the Secretary 

that may be necessary to enable the 

Board to carry out the provisions of this 

part. 

(b) Each signatory handler shall 

maintain records of all receipts and 

acquisitions of leafy green vegetables 

and all documentation relating to audit 

reports. Such records shall be 

maintained for at least two years after 

the end of the crop year of their 

applicability. Such recordkeeping shall 

be sufficient to document and 

substantiate the signatory handler 

compliance with this part. 

§ 970.81 Confidential information. 

All reports and information submitted 

by signatory handlers pursuant to the 

provisions of this part shall be received 

by, and at all times be in the custody of, 

employees or authorized agents of the 

Board. No such employees or authorized 

agents shall disclose to any person, 

other than the Secretary upon request 

therefore, data, or information obtained 

or extracted from such reports and 

information which might affect the trade 

position, financial condition, or 

business operation of the particular 

signatory handler from whom received: 

Provided, That such data and 

information may be combined and made 

available in the form of general reports 

in which the identities of the individual 

persons furnishing the information is 

not disclosed. 

§ 970.82 Verification of reports. 

(a) For the purpose of checking and 

verifying reports filed by signatory 

handlers, the Board, through its 

authorized agents or employees, and the 

Secretary shall have access to any 

signatory handler’s premises during 

regular business hours, and shall be 

permitted at any such time to: 

(1) Examine such premises and any 

leafy green vegetables held by such 

signatory handler, and any and all 

records of the signatory handler with 

respect to such signatory handler’s 

acquisition, sales, uses and shipments 

thereof; and 

(2) Examine any and all records of 

such signatory handler with respect to 

activities carried out pursuant to 

§ 970.66. 

(b) Each signatory handler shall 

furnish all labor and equipment 

necessary. 

§ 970.83 Compliance. 

(a) A signatory handler may be subject 

to withdrawal of audit services or may 

lose the privilege of the use of the 

official certification mark if the 

signatory handler: 

(1) Produces or acquires leafy green 

vegetables without an Inspection 

Service audit pursuant to §§ 970.66 and 

970.67; 

(2) Fails to obtain audit on the 

production, handling, or manufacturing 

of leafy green vegetables handled 

pursuant to § 970.66 and ships such 

leafy green vegetables for human 

consumption; 

(3) Fails to successfully pass any audit 

conducted under this part, or fails to 

take appropriate verifiable corrective 

action to address non-conformities; 

(4) Ships or places into the current of 

commerce leafy green vegetables for 

human consumption that fail to meet 

requirements under this part pursuant 

to §§ 970.66 and 970.67; 

(5) Comingles leafy green vegetables 

that fail to meet the requirements of this 

part with leafy green vegetables and 

ships the comingled lot for human 

consumption; 

(6) Fails to maintain and provide 

access to records pursuant to § 970.80; 

or 

(7) Otherwise violates any of the 

provisions of this part. 

(b) Any lot, or portion thereof, of leafy 

green vegetables that is deemed to be an 

immediate threat to public health by 

Inspection Service staff during the 

course of an audit shall be reported by 

USDA to appropriate health officials. 

(c) Failure to comply with the 

provisions of this part may result in 

additional remedies or penalties. 

Miscellaneous 

§ 970.85 Effective time. 

The provisions of this part, as well as 

any amendments, shall continue in 

force and effect until modified, 

suspended, or terminated. 

§ 970.86 Rights of the Secretary. 

Members and alternates of the Board, 

committees, subcommittees, 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, 

or other act of the Board shall be subject 

to the continuing right of the Secretary 

to disapprove of the same at any time. 

Upon such disapproval, the 

disapproved action of the Board shall be 

deemed null and void. 

§ 970.87 Personal liability. 

No member or alternate member of 

the Board or the committees, and no 

employee or agent of the Board or the 

committees, 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. 

§ 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 


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remainder of this part or the 

applicability thereof to any other 

person, circumstance, or thing shall not 

be affected thereby. 

§ 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 to 

exercise any powers granted by the Act 

or otherwise, or, in accordance with 

such powers, to act in the premises 

whenever such action is deemed 

advisable. 

§ 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. 

§ 970.91 Agents. 

The Secretary may, by designation in 

writing, name any officer or employee of 

the United States, or name any agency 

or program in the USDA, to act as the 

Secretary’s agent or representative in 

connection with any of the provisions of 

this part. 

§ 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. 

§ 970.93 Proceedings upon termination. 

Upon the termination of this part, the 

then functioning members of the Board 

shall continue as joint trustees, for the 

purpose of liquidating the affairs of the 

Board. 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 Board 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 Board or the joint trustees, pursuant 

to this part. Any person to whom funds, 

property, or claims have been 

transferred or delivered by the Board or 

the joint trustees, pursuant to this 

section, shall be subject to the same 

obligations imposed upon the members 

of said Board and upon said joint 

trustees. 

§ 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. 

§ 970.95 Amendments. 

Amendments to this part may be 

proposed from time to time by the 

Board, or by any interested person 

affected by its provisions, including the 

Secretary. 

§ 970.96 Counterparts. 

This part 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. 

§ 970.97 Handler sign-up. 

(a) After the effective date of this part, 

there shall be an initial sign-up period 

of a length to be determined by the 

Secretary for handlers to become 

signatories. Handlers who sign up 

during the initial sign-up period and 

their corresponding producers are 

eligible to serve as initial members of 

the Board pursuant to § 970.42. 

(b) After the initial sign-up period 

ends, a handler may become a signatory 

at any time by executing a counterpart 

to this part and delivering it 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. 

§ 970.98 Withdrawal. 

Release from this agreement may be 

obtained under the following 

conditions: 

(a) A signatory may file with the 

Board a written request for withdrawal 

at any time, but such withdrawal will 

become effective at the beginning of the 

next crop year. 

(b) Immediate withdrawal may be 

effectuated when a signatory handler 

ceases to be a handler of leafy green 

vegetables and gives written notice 

thereof to the Board. 

(c) A signatory handler’s withdrawal 

does not relieve the signatory handler of 

any obligation incurred while a 

signatory to this agreement. 

(d) A signatory handler that 

withdraws shall not use the official 

certification mark once no longer a 

signatory handler. 

Dated: April 22, 2011. 

Rayne Pegg, 

Administrator, Agricultural Marketing 

Service. 

[FR Doc. 2011–10199 Filed 4–26–11; 4:15 pm] 

BILLING CODE 3410–02–P 


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