Thursday, February 16, 2017

Agricultural Law Weekly Review—February 16, 2017

Written by M. Sean High – Staff Attorney

The following information is an update of recent, local, state, national, and international legal developments relevant to agriculture:

Animal Welfare: California Farm Faces Cruelty Charges
On February 7, 2016, the Los Angeles Times reported that a California egg farm has been charged with 39 counts of animal cruelty.  According to the article, the charges in question are for the alleged violation of the state’s Prevention of Farm Animal Cruelty Act.  Known also as California Proposition 2, the law “prohibits the confinement of farm animals in a manner that does not allow them to turn around freely, lie down, stand up, and fully extend their limbs.” Passed by voters on November 4, 2008, the Prevention of Farm Animal Cruelty Act became effective on January 1, 2015.

Endangered Species List: Delay in Inclusion of Rusty Patch Bumble Bee
On February 10, 2017, the Fish and Wildlife Service published notice in the Federal Register delaying a final rule classifying the rusty patch bumble bee as an endangered species under the Endangered Species Act of 1973 (82 FR 10285).  According to the notice, the delay is the result of the January 20, 2017, Memorandum from the Assistant to the President and Chief of Staff, entitled, Regulatory Freeze Pending Review.  As a result, the effective date of the final rule is delayed from February 10, 2017, to March 21, 2017.

Marketing Orders: USDA Recommends California Milk Marketing Order
On February 14, 2017, the United States Department of Agriculture (USDA) Agricultural Marketing Service (AMS) published notice in the Federal Register of a “Recommended Decision propos[ing] the issuance of a Federal Milk Marketing Order (FMMO) regulating the handling of milk in California” (82 FR 10634).  According to AMS, “[t]he proposed FMMO incorporates the entire state of California and would adopt the same dairy product classification and pricing provisions used throughout the current FMMO system.” The comment period for the proposed rule closes April 17, 2017.

GMOs: Extension of Comment Period for Certain Genetically Engineered Organisms
On February 10, 2017, the United States Department of Agriculture (USDA) Animal and Plant Health Inspection Service (APHIS) published notice in the Federal Register extending the comment period for the agency’s proposed rule revising regulations regarding the importation, interstate movement, and environmental release of certain genetically engineered organisms (82 FR 10312).  As a result, the comment period has been extended from May 19, 2017 to June 19, 2017.  According to APHIS, the proposed rule is “in response to advances in genetic engineering and understanding of the plant pest and noxious weed risk posed by genetically engineered organisms” and is intended to reduce the “burden for regulated entities whose organisms pose no plant pest or noxious weed risks.”

Plant Pest Regulations: Extension of Comment Period
On February 13, 2017, the United States Department of Agriculture (USDA) Animal and Plant Health Inspection Service (APHIS) published notice in the Federal Register extending the comment period regarding regulatory changes to the movement of plant pests (82 FR 10444).  The comment period is extended from March 20, 2017, to April 19, 2017.  According to APHIS, the proposed rule would (1) revise regulations regarding the movement and environmental release of biological control organisms; (2) grant permitting exceptions for certain types of plant pests; and (3) revise regulations regarding the movement of soil.

Disease Control: Notice of Changes to National Poultry Improvement Plan
On February 13, 2017, the United States Department of Agriculture (USDA) Animal and Plant Health Inspection Service (APHIS) published notice in the Federal Register regarding the availability of proposed changes to the National Poultry Improvement Plan Program Standards (NPIP) (82 FR 10452).  According to APHIS, NPIP is a voluntary program that “is a cooperative Federal-State-Industry mechanism for controlling certain poultry diseases.” The comment period regarding the proposed changes closes March 15, 2017.

Organic Regulations: Organic Livestock and Poultry Practices Rule Delayed
On February 9, 2017, the United States Department of Agriculture (USDA) Agricultural Marketing Service (AMS) published notice in the Federal Register of a 60 day effective date delay regarding the Organic Livestock and Poultry Practices rule (82 FR 9967).  According to the notice, the delay is the result of the January 20, 2017, Memorandum from the Assistant to the President and Chief of Staff, entitled, Regulatory Freeze Pending Review.  As a result, “[t]he effective date of the final rule published on January 19, 2017 (82 FR 7042) is delayed from March 20, 2017, to a new effective date of May 19, 2017.”

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Thursday, February 9, 2017

Agricultural Law Weekly Review—February 9, 2017

Written by M. Sean High – Staff Attorney

The following information is an update of recent, local, state, national, and international legal developments relevant to agriculture:

Organic: AMS to Delay Organic Livestock and Poultry Effective Date
On February 8, 2017, the United States Department of Agriculture (USDA) Agricultural Marketing Service (AMS) announced that the effective date of the Organic Livestock and Poultry Practices final rule, published on January 19, 2017, has been delayed from March 20, 2017, to May 19, 2017.  The new requirements cover livestock handling and transport for slaughter, avian living conditions, livestock care and production practices, and mammalian living conditions.  According to AMS, the delay is the result of the January 20, 2017, Memorandum from the Assistant to the President and Chief of Staff, entitled, Regulatory Freeze Pending Review

GIPSA: USDA Announces Comment Extension for Unfair Practices and Undue Preferences Violations
On February 7, 2017, the United States Department of Agriculture (USDA) Grain Inspection, Packers and Stockyards Administration (GIPSA) announced a 30 day extension of the proposed rule—published at 81 FR 92723—“clarify[ing] the conduct or action by packers, swine contractors, or live poultry dealers that GIPSA considers unfair, unjustly discriminatory.  The comment period now closes on March 24, 2017. According to GIPSA, the delay is the result of the January 20, 2017, Memorandum from the Assistant to the President and Chief of Staff, entitled, Regulatory Freeze Pending Review

GIPSA: USDA Announces Extension of Comment Period for Poultry Grower Ranking System  
On February 7, 2017, the United States Department of Agriculture (USDA) Grain Inspection, Packers and Stockyards Administration (GIPSA) announced a 30 day extension of the proposed rule published at 81 FR 92723.  The proposed rule “identifies criteria that the Secretary may consider when determining whether a live poultry dealer's use of a poultry grower ranking system for ranking poultry growers for settlement purposes is unfair, unjustly discriminatory, or deceptive or gives an undue or unreasonable preference, advantage, prejudice, or disadvantage.”
The comment period now closes on March 24, 2017.  According to GIPSA, the delay is the result of the January 20, 2017, Memorandum from the Assistant to the President and Chief of Staff, entitled, Regulatory Freeze Pending Review 

Food Safety: FAO Issues Food Chain Crisis Management Document
In February 2017, the Food and Agriculture Organization of the United Nations (FAO) released a publication entitled Averting Risks to the Food Chain.  The purpose of the document is to “prevent animal disease, plant pest outbreaks, and food safety incidents before they occur.” According to FAO, the intended use of the document is to assist “experts, policy makers, national institutions, and development workers” in the pursuit of ending world hunger.

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Thursday, February 2, 2017

Agricultural Law Weekly Review—February 2, 2017

Written by M. Sean High – Staff Attorney

The following information is an update of recent, local, state, national, and international legal developments relevant to agriculture:

WOTUS: Court Rules against Army Corps’ Clean Water Act Jurisdiction
On January 24, 2017, the U.S. District Court for the District of Minnesota held that United States Army Corps of Engineers had incorrectly claimed Clean Water Act jurisdiction over a peat mining operation in Minnesota (Hawkes Co. v. U.S. Army Corps of Eng’rs, Civil No. 13-107 ADM/TNL, 2017 WL 359170).  The decision set aside the Corps’ jurisdictional determination regarding the wetland at issue and enjoined the Corps from further attempts to assert jurisdiction over the property.  For more analysis of this case, please see the Center’s recent Agricultural Law in the Spotlight article found here.

Federal Regulations: President Signs Executive Order Aimed at Regulation Reduction
On January 30, 2017 President Donald J. Trump signed an Executive Order entitled: Reducing Regulations and Controlling Regulatory Costs.  According to the Executive Order, “[u]nless prohibited by law, whenever an executive department or agency publicly proposes for notice and comment or otherwise promulgates a new regulation, it shall identify at least two existing regulations to be repealed.” Additionally, the Executive Order stated, “[f]or fiscal year 2017, which is in progress, the heads of all agencies are directed that the total incremental cost of all new regulations, including repealed regulations, to be finalized this year shall be no greater than zero, unless otherwise required by law or consistent with advice provided in writing by the Director of the Office of Management and Budget.”

Farm Credit: FCSIC Adjusts Penalties for Inflation
On January 30, 2017, the Farm Credit System Insurance Corporation (FCSIC) published notice in the Federal Register of a final rule “implement[ing] inflation adjustments to civil money penalties that [FCSIC] may impose under the Farm Credit Act of 1971” (82 FR 8670).  According to FCSIC, under the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 agencies are required to make annual adjustments for inflation.  FCSIC stated that these “[a]nnual inflation adjustments are based on the percent change between the October Consumer Price Index for all Urban Consumers (CPI-U) preceding the date of the adjustment, and the prior year's October CPI-U.”

Crop Insurance: Missouri Farmer Indicted for Fraud
On January 31, 2017, the United States Attorney’s Office Western District of Missouri announced that a federal grand jury has indicted a Missouri farmer on charges of crop insurance fraud.  The announcement stated that the farmer, Ryan Ruckman, allegedly engaged in a scheme to defraud the government out nearly $800,000.  According to the United States attorney’s, Ruckman allegedly “claim[ed] federal benefits in his son’s name in order to receive additional payments from the U.S. Department of Agriculture under the Supplemental Revenue Assistance Program (SURE), the Direct and Counter-cyclical Payment program and the Multiple Peril Crop Insurance program.”

Invasive Species: Pennsylvania Expands Spotted Lanternfly Quarantine   
On January 30, 2017, the Pennsylvania Department of Agriculture (PDA) announced that three additional townships have been added to the Commonwealths spotted lanternfly quarantine.  The three townships are East Pikeland and Warwick townships in Chester County, and Haycock Township in Bucks County.  The number of townships under the quarantine—which restricts movement of any material or object that can spread the pest—currently stands at seventy four.

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Tuesday, January 31, 2017

Agricultural Law in the Spotlight: Federal Court Addresses Clean Water Act Jurisdiction

Written by Errin McCaulley – Research Assistant

On January 24, 2017, the U.S. District Court for the District of Minnesota issued an opinion in the latest iteration of the dispute between Hawkes Co., Inc. and the U.S. Army Corps of Engineers regarding a peat mining operation in Minnesota. Hawkes Co. v. U.S. Army Corps of Eng’rs, Civil No. 13-107 ADM/TNL, 2017 WL 359170 (D. Minn.). This case, which has been developing since 2010, represents one of the latest Clean Water Act  cases to confront the application of the “significant nexus” test developed by Justice Kennedy in Rapanos v. United States, 547 U.S. 715, 778-82 (2006) (Kennedy, J., concurring). After a series of decisions leading to the Supreme Court last year, this most recent decision ended with the District Court setting aside the Corps’ Revised jurisdictional determination and enjoining the Corps from further attempts to assert jurisdiction over the wetland at issue. This case did not reach a decision on the joint Army Corps of Engineers-Environmental Protection Agency “Waters of the United States” Rule, but the Supreme Court has granted certiorari in another case to make a final determination on that rule. See Nat’l Ass’n of Mfrs. v. Dep’t of Def., No. 16-299, 2017 WL 125667 (U.S. Jan. 13, 2017).

Background. In December of 2010, Hawkes Co., Inc. sought a CWA “jurisdictional determination” (JD) by the U.S. Army Corps of Engineers regarding 150 acres of wetlands upon which Hawkes Co. intended to expand its peat mining operation. The Corps, following the Rapanos “significant nexus” test, ultimately found that the 150 acres fell under the Corps’ jurisdiction under the Clean Water Act (CWA), thus Hawkes Co. would be required to obtain from the Corps a § 404 dredge/fill permit. Hawkes Co. disputed the Initial JD and, after an administrative appeal, the Corps was ordered to review the chemical, physical, and biological connections between the 150 acre tract and the nearest navigable water, the Red River, 120 miles away.

The internal review invalidated the Initial JD for numerous reasons, most of which sprung from the Corps’ lack of site-specific measurements and evaluations. Ultimately, the internal review process found that the Corps’ documentation used to establish CWA jurisdiction was insubstantial and speculative with regard to the chemical, physical and biological integrity of the Red River. The Corps made several changes to the wording of the Initial JD and subsequently issued its Revised JD, yet the Corps did not carry out further on-site measurements or evaluations. Rather, the Corps substituted the Initial JD’s speculative language with “more definitive wording.” Hawkes Co., 2017 WL 359170, at *6. In sum, the record used by the Corps in issuing its Initial JD was substantially the same as the one used for the Revised JD.

After a series of disputes over whether the Revised JD was a “final agency action” within the meaning of the Administrative Procedures Act, the Supreme Court held that the Revised JD was a final agency action. U.S. Army Corps of Eng’rs v. Hawkes Co., 136 S. Ct. 1807, at 1813-16 (2016). The Court then remanded the case back to the District Court to determine whether the Revised JD established a “significant nexus” between the Red River and the 150 acre tract. Significantly, however, during oral arguments, Justice Kennedy, the author of the “significant nexus” test, appeared to retreat from his position in Rapanos and stated “the Clean Water Act is unique in both being quite vague in its reach, arguably unconstitutionally vague.” Oral Argument at 19:05 (statement by Justice Kennedy), Corps of Engineers v. Hawkes Co., 136 S. Ct. 1807 (2016) (No. 15-290), https://www.oyez.org/cases/2015/15-290.

The Significant Nexus Test. The “significant nexus” test developed by Justice Kennedy requires the agency asserting CWA jurisdiction over a wetland to establish:

[T]he wetlands, either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as “navigable.” When, in contrast, wetlands’ effects on water quality are speculative or insubstantial, they fall outside the zone fairly encompassed by the statutory term “navigable waters.”

Rapanos, 547 U.S. at 780. Despite the use of the word “and” between “physical” and “biological,” the test has been read to be satisfied if the relevant agency can prove any one of the three attributes: chemical, physical, or biological connectivity to a navigable water. Hawkes Co., 2017 WL 359170, at *2. The test is not satisfied, however, if the wetland’s “effect on water quality is speculative or insubstantial.” Id.

District Court Ruling. The District Court, in holding the Revised JD was arbitrary and capricious, worked its way through the Corps’ evidence regarding each of the three attributes that can support a significant nexus finding. The court based its ruling on the reasoning that, since the administrative review process found the Corps’ evidence for the Initial JD insubstantial and speculative, id. at *4, the same must be true for the Revised JD as the Corps conducted no water quality assessments, made no site-specific measurements, and carried out no further evaluations of the site, id. at *11. Simply, the Corps relied upon substantially the same record in its Revised JD as it had in its Initial JD. The court then moved on to the question of remedy. The court noted that, under normal circumstances, the next step would be to remand to the Corps for further proceedings and another JD. The court refused to do this, noting that another JD would prolong an already long case and would entitle the Corps to a third “bite of the apple.” Id. at 11. The court also reasoned that, by prolonging the dispute, remand would “fuel . . . the Corps’ ‘transparently obvious litigation strategy’” whereby the Corps “‘achieve[s]the result its local officers desire, abandonment of the peat mining project’—without ever having to establish CWA jurisdiction.” Id. at 12.

Conclusion. The Minnesota District Court’s ruling has been hailed as a victory for land use rights advocates and the agricultural community overall, yet the more pressing question concerning the validity of the Waters of the United States (WOTUS) rule, promulgated jointly by the Corps and the Environmental Protection Agency, still looms large.

Thursday, January 26, 2017

Agricultural Law Weekly Review—January 26, 2017

Written by M. Sean High – Staff Attorney

The following information is an update of recent, local, state, national, and international legal developments relevant to agriculture:

Federal Regulations: President Issues Freeze on New and Pending Regulations
On January 20, 2017, Reince Priebus, Assistant to the President and Chief of Staff, issued a Memorandum on behalf of the President placing a freeze on any new or pending federal regulations.  First, the memorandum stated that no new regulations may be sent to the Office of the Federal Register (OFR) until an agency or department head appointed by the President reviews and approves the regulation.  Second, any regulation already sent to OFR, but not published in the Federal Register (FR), must be immediately withdrawn. Third, any regulations published in the FR, but which have not taken effect, will have their effective date delayed for 60 days from the date of the memorandum (January 20, 2017).

Genetically Engineered: USDA Proposes Changes to Biotechnology Regulations
On January 19, 2017, the United States Department of Agriculture (USDA) Animal and Plant Health Service (APHIS) published notice in the Federal Register that the agency is “revis[ing] its regulations regarding the importation, interstate movement, and environmental release of certain genetically engineered organisms” (82 FR 7008).  According to APHIS, the proposed revision is “in response to advances in genetic engineering and understanding of the plant pest and noxious weed risk posed by genetically engineered (GE) organisms, thereby reducing burden for regulated entities whose organisms pose no plant pest or noxious weed risks.” The comment period for the proposed rule closes May 19, 2017.

Plant Technology: FDA Requests Comment for Genome Editing of Plants Used for Human and Animal Food
On January 19, 2017, the United States Food and Drug Administration (FDA) published notice in the Federal Register announcing the “establishment of a docket to receive comments on the use of genome editing techniques to produce new plant varieties that are used for human or animal food” (82 FR 6564).  According to FDA, “[r]ecently, new technologies have emerged that are intended to alter the genomes of various organisms…[which] make it easier for plant developers to produce new plant varieties with targeted genetic modifications.” As a result, FDA seeks comment to help inform the agency’s thinking regarding foods derived from new plant varieties using these technologies.  The comment period closes April 19, 2017. 

International Trade: President Withdraws US from Tran-Pacific Partnership
On January 25, 2017, President Donald J. Trump published notice in the Federal Register of a Memorandum entitled: Withdrawal of the United States from the Trans-Pacific Partnership Negotiations and Agreement (82 FR 8497).  According to the Memorandum, the President directs the United States Trade Representative to withdraw the United States as a signatory to the Trans-Pacific Partnership (TPP) and to permanently withdraw the United States from TPP negotiations.

Labeling: Revision to Nutrition Facts Label for Meat and Poultry Products 
On January 19, 2017, the United States Department of Agriculture (USDA) Food Safety and Inspection Service (FSIS) published notice in the Federal Register of a proposed rule to amend the nutrition labeling requirements for meat and poultry products (82 FR 6732).  Included among FSIS’s proposed changes are a revision to the format and appearance of the Nutrition Facts label and an update to the list of nutrients that are required or permitted to be declared.  The comment period for the proposed rule closes March 20, 2017.

Dairy: Pennsylvania Milk Marketing Board Meeting Scheduled
On January 21, 2017, the Pennsylvania Milk Marketing Board (Board) published notice in the Pennsylvania Bulletin that the Board will conduct a public hearing for Milk Marketing Areas 1—6 on February 27, 2017, at 10 a.m. in Room 309, Agriculture Building, 2301 North Cameron Street, Harrisburg, PA (47 Pa.B. 396).  According to the notice, “[t]he purpose of the hearing is to receive testimony and exhibits concerning the level and duration of the Class I over-order premium to be effective April 1, 2017.”

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Thursday, January 19, 2017

Agricultural Law Weekly Review—January 19, 2017

Written by M. Sean High – Staff Attorney

The following information is an update of recent, local, state, national, and international legal developments relevant to agriculture:

Water: Supreme Court to Hear WOTUS Case
On January 13, 2017, the Supreme Court of the United States agreed to hear a petition regarding the proper venue for challenging the Environmental Protection Agency’s Waters of the United States rule (WOTUS) (National Association of Manufacturers v. Department of Defense, Docket No. 16-299).  According to the Court, the issue involves “whether the U.S. Court of Appeals for the 6th Circuit erred when it held that it has jurisdiction under…the Clean Water Act's judicial review provision…to decide petitions to review the waters-of-the-United-States rule, even though the rule does not ‘issu[e] or den[y] any permit’ but instead defines the waters that fall within Clean Water Act jurisdiction.”

COOL: USDA Proposes Provisions to Include Venison Meat
On January 13, 2017, the United States Department of Agriculture (USDA) Agricultural Marketing Service (AMS) published notice in the Federal Register that the agency was proposing “to amend the country of origin labeling (COOL) regulation to add muscle cuts of venison and ground venison to mandatory COOL requirements” (82 FR 4198).  The comment period for the proposed rule closes March 14, 2017.

Quarantine: Pennsylvania Deer Tests Positive for Chronic Wasting Disease
On January 13, 2017, the Pennsylvania Department of Agriculture (PDA) announced that a deer harvested on a hunting preserve in Franklin County, has tested positive for Chronic Wasting Disease (CWD).  According to PDA, this is “the first new case [of CWD] in a captive deer farm since 2014.” The deer, which was harvested in November 2016, was “raised on a deer farm in Fulton County until it was sold to the Franklin County facility in August 2016.” PDA stated that both farms are currently under quarantine.

Trade: U.S. to Lift Ban on French Beef
On January 13, 2017, the European Commission (EC) issued a statement that the United States was removing a 19 year-old ban on the importation of beef from France.  According to EC, “[t]he American market has been closed to beef from the EU since January 1998, the date on which the United States introduced restrictions on the import of bovine, ovine and caprine meat following the Bovine Spongiform Encephalopathy (BSE) epidemic.”

Organic: USDA Proposes Rule for Organic Research, Promotion, and Information Order
On January 18, 2017, the United States Department of Agriculture (USDA) Agricultural Marketing Service (AMS) published notice in the Federal Register “invit[ing] comments on procedures for conducting a referendum to determine whether the issuance of a proposed Organic Research, Promotion, and Information Order is favored by certified organic producers, certified organic handlers, and importers of certified organic products” (82 FR 5438).  The comment period for the proposed rule closes March 20, 2017.

Medical Marijuana: PDH Publishes Amendments to Temporary Regulations  
On January 14, 2017, the Pennsylvania Department of Health (PDH) published notice in the Pennsylvania Bulletin regarding amendments to the temporary regulations under the Medical Marijuana Act relating to general provisions; and growers/processors (47 Pa.B. 199).  According to PDH, “Interested persons are invited to submit written comments, suggestions or objections regarding the amendments to the temporary regulations to John J. Collins, Office of Medical Marijuana, Department of Health, Room 628, Health and Welfare Building, 625 Forster Street, Harrisburg, PA 17120, (717) 787-4366, RA-DHMedMarijuana@pa.gov.”   

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Agricultural Law in the Spotlight—FSMA Regulatory Update

Written by Errin McCaulley – Research Assistant

On January 19, 2017 the Food and Drug Administration (FDA) announced the issuance of draft guidance titled Compliance with and Recommendations for Implementation of the Standards for the Growing, Harvesting, Packing, and Holding of Produce for Human Consumption for Sprout Operations (FDA-2017-D-0175). Specifically, FDA has published this draft guidance to aid sprout operations comply with Subpart M (21 C.F.R. §§ 112.141-112.150) of the Produce Safety Rule. Interested parties wishing to comment upon this draft guidance may do so through https://www.regulations.gov/. Alternatively, written comments should be submitted to: Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852. All comments should include reference to docket number FDA-2017-D-0175.

Scope of Draft Guidance

Generally, Subpart M applies to operations engaged in the “growing, harvesting, packing and holding of all sprouts,” as those terms are defined in the Rule, not otherwise exempted from coverage. Subpart M does not, however, apply to sprouts that are grown in soil or non-soil substrates which are harvested above the soil or substrate line without roots. This draft guidance does not cover all other applicable requirements for sprout operations under the Produce Safety Rule, such as Subpart F (relating to biological soil amendments), but does include reference to key provisions which are supplemented by Subpart M. For example, Subpart M includes sprout-specific building, tools, and equipment standards (21 C.F.R. § 112.143(a)-(b)) that apply in addition to Subpart L’s buildings, tools, and equipment standards (21 C.F.R. § 112.122). The majority of this draft guidance is devoted to the various testing requirements under Subpart M relating to E. coli, Salmonella, Listeria, and L. monocytogenes. Lastly, this draft guidance includes advice regarding voluntary compliance with Subpart M for sprout operations that are otherwise exempted from coverage under the Produce Safety Rule.