Proposed National Marketing Agreement Regulating Leafy Green Vegetables; Recommended Decision and Opportunity To File Written Exceptions to Proposed Marketing Agreement No. 970, 24292-24337 [2011-10199]

Agencies

• Agricultural Marketing Service
• DEPARTMENT OF AGRICULTURE

[Federal Register Volume 76, Number 83 (Friday, April 29, 2011)]
[Proposed Rules]
[Pages 24292-24337]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-10199]



[[Page 24291]]

Vol. 76

Friday,

No. 83

April 29, 2011

Part V





Department of Agriculture





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Agricultural Marketing Service



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7 CFR Part 970



Proposed National Marketing Agreement Regulating Leafy Green 
Vegetables; Recommended Decision and Opportunity To File Written 
Exceptions to Proposed Marketing Agreement No. 970; Proposed Rule

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

[[Page 24292]]


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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.

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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 https://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: https://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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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 https://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 International-USA, 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 non-conventional 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

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(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.

------------------------------------------------------------------------
                                                           Recommended
       Notice of hearing         Changes and revisions      decision
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970.1.........................  ......................             970.1
                                NEW...................             970.2
970.2.........................  REDESIGNATED AND                   970.3
                                 REVISED.
970.3.........................  REDESIGNATED AND                   970.4
                                 REVISED.
                                NEW...................             970.5
970.4.........................  REDESIGNATED AND                   970.6
                                 REVISED.
970.6.........................  REDESIGNATED AND                   970.8
                                 REVISED.
                                NEW...................             970.9
970.7.........................  REDESIGNATED AND                  970.10
                                 REVISED.
970.8.........................  REDESIGNATED AND                  970.11
                                 REVISED.
970.9.........................  REDESIGNATED AND                  970.12
                                 REVISED.
970.10........................  REDESIGNATED AND                  970.13
                                 REVISED.
970.11........................  REDESIGNATED AND                  970.14
                                 REVISED.
970.12........................  REDESIGNATED AND                  970.15
                                 REVISED.
970.13........................  REDESIGNATED AND                  970.16
                                 REVISED.
970.14........................  REDESIGNATED AND                  970.17
                                 REVISED.
970.15........................  REDESIGNATED AND                  970.18
                                 REVISED.
970.16........................  REDESIGNATED AND                  970.19
                                 REVISED.
970.17........................  REDESIGNATED AND                  970.20
                                 REVISED.
                                NEW...................            970.21
                                NEW...................            970.22
970.18........................  REDESIGNATED AND                  970.23
                                 REVISED.
                                NEW...................            970.24
970.19........................  REDESIGNATED..........            970.25
970.20........................  REDESIGNATED AND                  970.27
                                 REVISED.
970.21........................  REDESIGNATED AND                  970.19
                                 REVISED.
970.22........................  REDESIGNATED AND                  970.26
                                 REVISED.
970.23........................  REDESIGNATED..........            970.28
                                NEW...................            970.29
970.24........................  REDESIGNATED AND                  970.30
                                 REVISED.
970.25........................  REDESIGNATED..........            970.31
                                NEW...................            970.32
970.26........................  REDESIGNATED AND                  970.33
                                 REVISED.
                                NEW...................            970.34
970.27........................  REDESIGNATED AND                  970.35
                                 REVISED.
                                NEW...................            970.36
970.28........................  REDESIGNATED AND                  970.37
                                 REVISED.
970.35........................  REDESIGNATED AND                  970.39
                                 REVISED.
970.40........................  REVISED...............            970.40
                                NEW...................            970.41
970.41........................  REDESIGNATED AND                  970.42
                                 REVISED.
970.42........................  REDESIGNATED AND                  970.43
                                 REVISED.
970.43........................  REDESIGNATED AND                  970.44
                                 REVISED.
970.44........................  REDESIGNATED AND                  970.45
                                 REVISED.
970.45........................  REDESIGNATED AND                  970.46
                                 REVISED.
970.46........................  REDESIGNATED AND                  970.47
                                 REVISED.
970.47........................  REDESIGNATED AND                  970.48
                                 REVISED.
970.48........................  REDESIGNATED AND                  970.49
                                 REVISED.
970.49........................  REDESIGNATED AND                  970.50
                                 REVISED.
970.50........................  REDESIGNATED AND                  970.51
                                 REVISED.
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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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 Sec.  970.85 through Sec.  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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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 https://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 year-round 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

[[Page 24297]]

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

[[Page 24298]]

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 co-mingled 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.

[[Page 24299]]

    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 contra-indicated 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 co-mingled 
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

[[Page 24300]]

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 pre-2006 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 nation-wide. 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 ``one