209.02.20 Ark. Code R. 001
Produce Safety is valuable to Arkansas' agricultural production and the protection of man from microbial contaminants attained during the growing, harvesting, packing and holding of produce for human consumption. It is essential to the public health and welfare that produce be handled properly to prevent adverse microbial effects on man.
The purpose of the rule is to provide a fair and consistent mechanism by which compliance with the Standards for the Growing, Harvesting, Packing, and Holding of Produce for Human Consumption (CFR Title 21 Part 112), also known as the Produce Safety Rule (PSR), as amended, and the rules written pursuant thereto can be achieved.
(As used in this policy)
. Serious adverse health consequences or death from the consumption of or exposure to covered produce;
. An imminent public health hazard is posed if corrective action is not taken immediately (example: edible portions of produce contacting a potential source of contamination).
Covered produce means: produce that is subject to the requirements of 21 CFR Part 112, in accordance with 21 CFR 112.1 and 112.2. The term "covered produce" refers to the harvestable or harvested part of the crop (see 21 CFR 112.3).
Under the preceding Arkansas Codes, the Arkansas Department of Agriculture has several options for enforcement action. These are:
. Excluding Level 3 violations.
An incident investigation will be initiated when:
The processing sequence for an incident investigation is outlined in Figure I.
FIGURE I
Processing Sequence
An apparent violation of law and/or rule must be documented to initiate an enforcement action.
Documentation must conform to the requirements of the Plant Industries Division.
The sequence of events within the enforcement response policy is as follows:
FIGURE II
Staff will carefully review all documentation and records to determine:
Concurrence with the Program's finding by the staff must be unanimous before further action can be taken on the case.
The informal hearing officer and/or the appropriate Committee and/or the Full Board will carefully review the documentation and hear cases of alleged violations.
Should it be determined a violation(s) has occurred, the severity and level of enforcement of each violation will be determined by the three (3) factors in Section VII; as they are applied to the Penalty Matrix (Appendix A).
If a violation is determined in this sequence; the following factors will be considered:
The Hearing Officer/Committee/Board may use these factors to accelerate or mitigate enforcement action. When a civil penalty is the preferred action, the base penalty may be increased or decreased based on these factors. The civil penalty will not be more or less than the range for the specific violation listed in Appendix A.
The Full Board will take action to determine the final disposition of the case.
Any person aggrieved by any action of the Full Board may obtain a review thereof, by filing in circuit court within 30 days of notice of the action, a written petition praying that the action of the Full Board be set aside.
APPENDIX - A
PENALTY MATRIX
ADA Produce Safety Compliance and Enforcement Penalty Matrix
Compliance History
SEVERITY | Initial Inspection | Routine Inspection | Non-Compliance |
Level 1 Conditions that will not cause contamination of produce | - The observation is discussed with the farm during the inspection and reviewed at the next routine inspection. | - The observation is discussed with the farm during the inspection and potentially documented on an inspection form. - A timeline for corrective actions and preventive measures is established. The observation may be reviewed during a follow-up inspection. | - The uncorrected observation is discussed with the farm during the inspection and documented on an inspection form. - A timeline for corrective actions and preventive measures is established. A follow-up inspection may be scheduled within 30, 60, or 90 days. - Additional enforcement actions may be taken to ensure compliance, which may include issuing a Notice of Warning (NOW) letter or Notice of Violation (NOV) with administrative penalties of up to $500 per violation. |
Level 2 Conditions that may cause contamination of produce if conditions or practices continue | - The observation is discussed with the farm during the inspection and reviewed at the next routine inspection. | - The observation is discussed with the farm during the inspection and documented on an inspection form. - A timeline for corrective actions and preventive measures is established. A follow-up inspection may be scheduled within 30, 60, or 90 days. - A Notice of Warning (NOW) letter may be issued detailing possible enforcement actions that may be taken if the observation is not corrected. | - The uncorrected observation is discussed with the farm during the inspection and documented on an inspection form. - A timeline for corrective actions and preventive measures is established. A follow-up inspection may be scheduled within 30, 60, or 90 days. - Additional enforcement actions may be taken to ensure compliance, which may include issuing a Notice of Violation (NOV) with administrative penalties of up to $1,000 per violation. |
Level 3 Produce is contaminated, or conditions wilt likely cause an imminent public health hazard if not corrected | - The observation is discussed with the farm during the inspection and documented on an inspection form. - An evaluation is made to determine whether contaminated produce has entered commerce and whether an embargo, stop sale, or recall is required. Immediate actions must be initiated to ensure adequate mitigation and correction of the egregious conditions. A timeline for further corrective actions and preventive measures is established and a follow-up inspection is scheduled within 10, 30, 60, or 90 days. - Additional enforcement actions may be taken to ensure compliance, which may include issuing a Notice of Violation (NOV) with administrative penalties of up to $1,000 per violation. | ||
FINAL RULE
AGENCY NO. 209.02
PRODUCE SAFETY RULE
Incorporation by reference of federal produce safety regulations
The Department hereby incorporates by reference Title 21 of the Code of Federal Regulations, Part 112 (most current revision) regarding standards for the growing, harvesting, packing, and holding of produce for human consumption as provisions of this rule as though set forth herein line for line and word for word, except that unless the context otherwise dictates, references to "We", "the United States Food and Drug Administration", and "FDA" shall refer to the "Arkansas Department of Agriculture" or "Department", and all words or terms defined or used in the federal regulations incorporated by reference shall mean the state equivalent or counterpart to those words or terms.
Definitions
The following words or terms, when used in this rule, shall have the following meaning, unless the context clearly indicates otherwise:
"Covered farm" means a farm or farm mixed-type facility with an average annual monetary value of produce sold during the previous 3-year period of more than $25,000 (on a rolling basis), adjusted for inflation using 2011 as the baseline year for calculating the adjustment. Covered farms subject to this part must comply with all applicable requirements of this part when conducting a covered activity on covered produce.
A farm is not a covered farm if it satisfies the requirements in 21 C.F.R § 112.5 and the Department has not withdrawn the farm's exemption in accordance with the requirements of Part 112, Subpart R.
"Department" means the Arkansas Department of Agriculture.
"Produce" means any fruit or vegetable (including mixes of intact fruits and vegetables) and includes mushrooms, sprouts (irrespective of seed source), peanuts, tree nuts, and herbs. A fruit is the edible reproductive body of a seed plant or tree nut (such as apple, orange, and almond) such that fruit means the harvestable or harvested part of a plant developed from a flower. A vegetable is the edible part of an herbaceous plant (such as cabbage or potato) or fleshy fruiting body of a fungus (such as white button or shiitake) grown for an edible part such that vegetable means the harvestable or harvested part of any plant or fungus whose fruit, fleshy fruiting bodies, seeds, roots, tubers, bulbs, stems, leaves, or flower parts are used as food and includes mushrooms, sprouts, and herbs (such as basil or cilantro). Produce does not include food grains meaning the small, hard fruits or seeds of arable crops, or the crops bearing these fruits or seeds, that are primarily grown and processed for use as meal, flour, baked goods, cereals and oils rather than for direct consumption as small, hard fruits or seeds (including cereal grains, pseudo cereals, oilseeds and other plants used in the same fashion). Examples of food grains include barley, dent- or flint-corn, sorghum, oats, rice, rye, wheat, amaranth, quinoa, buckwheat, and oilseeds (e.g., cotton seed, flax seed, rapeseed, soybean, and sunflower seed).
Farm Registration
Penalties
Any person who violates a provision of this rule may be subject to one or more of the following:
209.02.20 Ark. Code R. 001