Produce Rule Water Testing Requirements – Am I Covered?

In January 2016, Standards for the Growing, Harvesting, Packing, and Holding of Produce for Human Consumption, otherwise known as the Produce Rule, became law. This rule, as part of the Food Safety and Modernization Act, sets a standard for produce food safety. The water testing component of the produce rule requires growers to regularly test irrigation water. While a previous article dealt with water testing requirements, I’ve received questions as to exactly who is required to test water. As a result, I wanted to review the steps in determining whether or not one is held to the water testing requirement.

The first step is to determine if you are covered by the produce rule. An excellent flowchart to help determine coverage may be found at http://www.fda.gov/downloads/Food/GuidanceRegulation/FSMA/UCM472499.pdf. If you’re gross produce sales averaged $25,000 or less in the last three years or you are growing produce for your own personal consumption only, then your farm is not covered by the rule and is not subject to water testing requirements. If your gross sales for the last three years average $500,000 or less and a majority of your food sales are to a qualified end-user, then you may receive a qualified exemption and will not be held to the water testing requirements in the rule. A qualified end-user is defined as the consumer of the food or a restaurant or retail food establishment that is located in the same state or same Indian reservation as the farm that produced the food or not more than 275 miles from where the food was produced.

If your farm is covered by the rule, then the next step is to determine whether or not your produce is covered by the rule. FDA has established a list of commodities that have been identified as rarely consumed raw. Many of these commodities are grown in Indiana, such as pumpkins, sweet corn, and potatoes. Commodities identified as rarely consumed raw are not covered by the rule. Also, produce grown for processing receives a qualified exemption from the rule, provided that certain documentation requirements are met. Produce destined for a processor must be accompanied with documentation that identifies the crop as not having been processed adequately to reduce the presence of microorganisms of public health significance. Additionally, growers will need to obtain documentation annually from processors that demonstrates that their crops are, upon delivery, processed adequately to reduce the presence of microorganisms of public health significance.

If you determine that your farm and particular crop are covered by the rule, Section 112.41 of the rule states that, “All agricultural water must be safe and of adequate sanitary quality for its intended use”. In following sections, the rule outlines the requirements for testing agricultural water, maintaining delivery systems, and the treating of agricultural water that does not meet standards.

The term “Agricultural Water” adds yet another layer of complexity. This term is defined earlier in the rule in Section 112.3(c) as, “water used in covered activities on covered produce where water is intended to, or is likely to, contact covered produce or food contact surfaces, including water used in growing activities (including irrigation water applied using direct water application methods, water used for preparing crop sprays, and water used for growing sprouts) and in harvesting, packing, and holding activities (including water used for washing or cooling harvested produce and water used for preventing dehydration of covered produce).”

Note that the definition of agricultural water covers water applied using “direct water application methods”. This term is also defined in Section 112.3(c), which says, “Direct water application method means using agricultural water in a manner whereby the water is intended to, or is likely to, contact covered produce or food contact surfaces during use of the water.” For purposes of the rule, the term “produce” also has a specific, and fairly lengthy, definition given in Section 112.3(c).  Produce is defined, in part, as the harvestable part of a crop.

What do all of these definitions mean? Taken as a whole, it actually simplifies the process of determining when activities and crops are covered by the water testing requirements. Instead of differentiating between irrigation methods or other qualifiers, crops are covered by water testing requirements any time water is directly applied to the harvestable portion of the crop, either as irrigation or crop sprays.

In summary, these are the questions to ask in determining when crops are covered by the water testing requirement:

  1. Is my farm covered by the produce rule?
  2. Is this particular crop covered by the produce rule?
  3. Will I be applying water, as irrigation or crop sprays, to the harvestable part of the crop?

If you can answer “yes” to all three questions, then in your particular situation you are covered under the water testing requirements of the produce rule.

If you have any questions regarding FSMA Produce Rule coverage, please feel free to contact me at (812) 886-0198 or jsmonroe@purdue.edu

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