PROPOSED RULES
Original Notice.
Preproposal statement of inquiry was filed as WSR 00-23-047.
Title of Rule: Organic producer and transitional producer certification.
Purpose: Chapter 16-156 WAC are the rules for the certification of organic farmers. The rules provide the application, inspection, sampling, fee schedule and certification criteria for obtaining organic and transition to organic certification.
Statutory Authority for Adoption: Chapter 15.86 RCW.
Statute Being Implemented: Chapter 15.86 RCW.
Summary: The Department of Agriculture is proposing to require that prior to obtaining organic certification producers will need to be certified as transition to organic producers. The department is proposing new fees for new sites and export certificates to recover the cost of administering the organic certification program.
Reasons Supporting Proposal: The Department of Agriculture has developed the proposal in coordination with the state's Organic Advisory Board. The proposed changes are needed to improve the integrity of the organic certification process.
Name of Agency Personnel Responsible for Drafting, Implementation and Enforcement: Miles McEvoy, Olympia, (360) 902-1924.
Name of Proponent: Organic Food Program, Washington State Department of Agriculture, governmental.
Rule is not necessitated by federal law, federal or state court decision.
Explanation of Rule, its Purpose, and Anticipated Effects: Organic producer and transitional producer certification, chapter 16-156 WAC, provides the certification procedures and requirements for producers of organic food products. The standards specify application, inspection, sampling, certification and decertification procedures as well as the requirements for recordkeeping and use of the Washington State Department of Agriculture (WSDA) organic food producer logo. The rule includes the fee structure for fees charged to applicants for the application and certification services.
The purpose for the proposed amendments to organic producer and transitional producer certification, chapter 16-156 WAC, is to require producers to obtain certification during the transitional time period when their farm is being converted to organic crop production. These changes will improve the integrity and validity of the organic certification process by requiring inspection and sampling during the transitional years. The rules also modify the fee schedule for new sites, transition to organic certification, and export certificates.
Proposal Changes the Following Existing Rules: Introduction: The organic producer and transitional producer certification, chapter 16-156 WAC, are designed to protect the integrity of organic food products. The rules include the organic certification requirements for producers of organic and transition to organic food products. The requirements include the sampling and inspection requirements; certification and decertification criteria; record-keeping requirements; application criteria and procedures; and fees for certification.
The WSDA Organic Advisory Board has been working with organic food program staff to develop the proposed amendments. The amendments are being proposed to increase the integrity of the organic certification process.
Notes on Amendments:
WAC 16-156-004 Definition, adds definitions of crop and pasture.
WAC 16-156-030 Certification, this section is amended to improve the verification criteria for obtaining organic certification. New certification criteria include requiring the completion of the organic farm plan and verification that the plan has been implemented. The section is amended to clarify the process for issuing organic certification to a producer for a site in organic food production.
The amendments require certification during the transition from conventional farming to organic farming. In 2002, in order for a site to be granted organic certification; it would need to be previously certified as organic; certified in the past year as second year transition; documented to not have been in farm production in the previous year; or verified that the producer was exempt from certification under the small farm exemption criteria (direct sales under $5,000 per year).
In 2003, in order for a site to be granted second year transitional certification, it would need to be previously certified as first year transitional, or documented to not have been in farm production in the previous year.
WAC 16-156-035 Decertification, this section is amended to specify that failure to allow inspection to take place is a condition for revoking organic certification.
WAC 16-156-050 Application for certification, this section is amended to clarify that producers must be certified unless they sell direct to consumers less than $5,000 in agricultural products. It also specifies that applications must be received at least sixty days prior to the harvest of organic food products. It also specifies March 31 as the expiration date for organic food producer certificates.
WAC 16-156-060 Fee schedule, the fee schedule is amended to base organic certification fees solely on the sales of organic food products. Certification of transitional sites is proposed to be based on a per acre fee of five dollars per acre. The fee schedule is also amended to require a fifty dollar fee for adding an additional site to a certificate.
WAC 16-156-070 Export and transaction certificates, this is a new section that would charge a thirty dollar fee for each export and transaction certificate that is issued by the agency. Export and transaction certificates are issued to verify that a specific shipment of organic food products complies with organic standards. This new section would allow the agency to recover the cost of providing this service.
A small business economic impact statement has been prepared under chapter 19.85 RCW.
Purpose for the Rule Amendment: The purpose for the proposed amendments to organic producer and transitional producer certification, chapter 16-156 WAC, is to require producers to obtain certification during the transitional time period when their farm is being converted to organic crop production. These changes will improve the integrity and validity of the organic certification process by requiring inspection and sampling during the transitional years. The rules also modify the fee schedule for new sites, transitional certification, and export certificates.
Businesses Affected by the Rule Amendment: Organic producer and transitional producer certification, chapter 16-156 WAC, affects all individuals and businesses that produce or are planning on producing organic food in Washington state. Producers are defined as any person or organization who or which grows, raises or produces an agricultural product. Last year, the department certified 518 producers of organic food. All organic producers are small businesses with less than fifty full-time, year round employees.
Reporting Requirements: No new reporting requirements are being proposed.
Record-keeping Requirements: No new record-keeping requirements for organic and transitional producers are being proposed.
Compliance Requirements: There will be no additional costs for transitional producers currently certified. The proposed changes will impose additional compliance costs to those transitional producers that are not certified. The additional costs will include direct certification costs and administrative costs for the time it takes to complete application forms and to be inspected by a state inspector.
Cost of Compliance: Requiring Transition to Organic Certification: Under the current organic certification rules, producers must not apply any prohibited substances for at least three years prior to the harvest of organic food. In order to verify that the organic crop production standards have been followed the department conducts inspection of organic producers and producers that are in transition to organic food production. Under the organic food products statute, chapter 15.86 RCW, organic producers are required to obtain certification prior to selling organic food products. Transitional producers are not required to obtain certification during the three years that they are converting their farm to organic food production.
The majority of producers choose to obtain certification during the transitional time period in order to ensure that they are meeting the requirements for certification. Some producers do not obtain certification during this transitional time period and maintain records that document that they have complied with the organic standards. Requiring certification during the transitional period will affect only the producers that choose not to obtain certification during the transitional period.
Additional New Site Fee: The proposed amendments include a new fee for adding new sites to the organic certification program. Sites are defined as a defined field, orchard, block, pasture, paddock, garden, circle, plot or other designated area. Many organic producers have more than one site in the organic certification program. The organic certification process requires that each site is inspected on an annual basis. In order to add an additional site to their certification, producers must submit a site information form and maps for the new site. The department conducts a separate inspection and review of the new site. The department is proposing to recover some of the additional costs involved in inspecting and certifying additional sites through the additional new site fee. The fee for adding additional sites is a one time fee of $50 per site.
Changes to the Assessment of Fees for Transitional Certification: Under the current fee schedule producers pay fees based on the value of crops grown on acres certified under the program. For many producers it has been difficult to determine the value of transitional crops. We are proposing that the certification fees for transitional certification be based on the acres certified rather than the value of the crop. The fees for transitional certification under the proposed new schedule will be comparable to the old fee schedule and will make calculation of the appropriate fee easier to determine for most producers.
Export and Transaction Certificate Fee: Over the last few years the number of export and transaction certificates issued by the organic food program has increased dramatically. In order to recover the costs involved in preparing and issuing these export and transaction certificates the agency is proposing to charge a thirty dollar fee to process each certificate.
Professional Services: The reporting, record-keeping and compliance requirements would not necessitate the need for professional services. No professional service expenses would be incurred by the small businesses affected by the amendments to chapter 16-156 WAC.
Industries Impacted by the Rule Amendment: All producers of organic and transitional food products in Washington state within the following SIC codes are impacted by chapter 16-156 WAC: 019 general farms, primarily crop; 0241 dairy farms; 029 general farms, primarily livestock and animal specialties; 201 meat products; 202 dairy products; 203 canned, frozen, preserved fruits, vegetables and food specialties; 205 bakery products; 515 farm product -- raw materials; 542 meat and fish (seafood) markets; and 545 dairy product stores. All producers of organic food in Washington state are impacted by chapter 16-156 WAC. All organic producers are small businesses with less than fifty full-time, year round employees.
Impact On Small Businesses: The proposed amendments to chapter 16-156 WAC would not impose a disproportionate economic impact on small businesses because all producers of organic and transitional food in Washington state are considered small businesses (less than fifty full-time, year-round employees). The proposed amendments to organic producer and transitional producer certification, chapter 16-156 WAC, would not impose a disproportionate economic impact on small businesses because all producers of organic food are required to submit application fees based on their gross organic sales and pay additional fees for adding new sites to their certification. All producers of transitional food would pay fees based on the acres that they enrolled into the program. No new record-keeping requirements would be imposed.
Producers converting their farms to organic food production will be required to obtain certification during the transitional time period. Many producers already choose to obtain certification during this transitional time period.
Mitigation: The organic food program provides information and technical assistance for complying with the organic and transitional certification standards. Information and technical assistance is available through the telephone, United States mail, e-mail, and the organic food program's web page.
Industry Outreach: The WSDA has worked with the Organic Advisory Board (OAB) on the proposed amendments to chapter 16-156 WAC. The OAB is comprised of organic industry members including farmers, packers, processors, consumers and farm input suppliers. The proposed amendments are being sent to all organic producers, processors and handlers. The proposal will include a comment form in order to facilitate the affected industry's ability to comment on the proposal.
A copy of the statement may be obtained by writing to Miles McEvoy, Organic Food Program, P.O. Box 42560, Olympia, WA 98504-2560, phone (360) 902-1924, fax (360) 902-2087.
Section 201, chapter 403, Laws of 1995, does not apply to this rule adoption. The Washington State Department of Agriculture is not a listed agency in section 201.
Hearing Location: Natural Resources Building, Room 259, 1111 Washington Street, Olympia, WA 98504-2560, on July 11, 2001, at 11 a.m.
Assistance for Persons with Disabilities: Contact Julie Carlson by July 5, 2001, TDD (360) 902-1996, or (360) 902-1880.
Submit Written Comments to: Miles McEvoy, Organic Food Program, P.O. Box 42560, Olympia, WA 98504-2560, fax (360) 902-2087, by 5 p.m., July 11, 2001.
Date of Intended Adoption: July 20, 2001.
June 5, 2001
John Daly
Assistant Director
OTS-4564.4
ORGANIC PRODUCER AND ((TRANSITION TO ORGANIC)) TRANSITIONAL
PRODUCER CERTIFICATION
(1) "Crop" means a plant or part of a plant intended to be marketed as an agricultural product or fed to livestock.
(2) "Department" means the department of agriculture of the state of Washington.
(((2))) (3) "Director" means the director of the department
of agriculture or his or her duly authorized representative.
(((3))) (4) "Drift" is defined as the movement of prohibited
substances by air, water or soil from the intended target and
results in residues of prohibited substances on organic or
transition to organic food in excess of five percent of the EPA
tolerance level.
(((4))) (5) "Gross sales" means the sales of organic ((and
transition to organic)) food sold during the calendar year.
(((5))) (6) "Labeling" means all written, printed, or
graphic matter upon any article or any of its containers or
wrappers, or accompanying such article, or used in the
advertisement of such article.
(((6))) (7) "New applicant" means any person or organization
who or which applies for organic or ((transition to organic))
transitional certification for the first time, or when previous
certification status has expired for at least one year.
(((7))) (8) "Organic food" means any agricultural product,
including meat, dairy, and beverage, that:
(a) Is marketed using the term organic or any derivative of organic in its labeling or advertising; and
(b) That has had no applications of prohibited substances within three years prior to the harvest of the crop; and
(c) That is produced in compliance with standards defined in chapter 15.86 RCW and rules adopted thereunder.
(((8))) (9) "Pasture" means ground covered with vegetation
that is used by animals for grazing purposes.
(10) "Producer" means any person or organization who or which grows, raises or produces an agricultural product.
(((9))) (11) "Prohibited substance" means a material which
is disallowed in organic food production, handling, or
processing.
(((10))) (12) "Renewal applicant" means any person or
organization who or which has applied for organic or ((transition
to organic)) transitional certification in the previous year.
(((11))) (13) "Site" means a ((defined)) designated farm
field, orchard, block, pasture, paddock, garden, circle, plot or
other ((designed area)) contiguous area under the same management
(e.g., organic or transitional). A site may contain multiple
crops.
(((12) "Transition to organic)) (14) "Transitional food"
means any agricultural product that:
(a) Is marketed using the term ((transition to organic or))
transitional in its labeling and advertising; and
(b) Satisfies all of the requirements of organic food except that it has had no applications of prohibited substances within one year prior to the harvest of the crop.
[Statutory Authority: Chapter 15.86 RCW. 97-02-008 (Order 6011), 16-156-004, filed 12/20/96, effective 1/20/97.]
(a) Inspection of the producer by the department of agriculture showed no use of prohibited practices as defined in chapter 15.86 RCW or unless adopted thereunder; and
(b) Recordkeeping practices meet the requirements specified in WAC 16-156-040 or rules adopted under chapter 15.86 RCW; and
(c) Soil building programs, organic pest control programs, and buffer zones required under chapter 16-154 WAC were established on each site; and
(d) Completion of the organic farm plan and verification that it has been implemented; and
(e) Analysis of samples taken by the department of agriculture showed no prohibited substance usage or drift from other contaminants; and
(((e))) (f) No application of prohibited substances, as
defined in chapter 16-154 WAC, have been used for:
| At least three years prior to the harvest of organic food; or | |
| At least one year prior to the harvest of (( |
(3) For each site, a certificate will be issued when the director determines that the producer has complied with the conditions for organic or transitional food producer certification on that site.
(4) Beginning in the year 2002, prior to the issuance of an organic food producer certificate:
(a) The site must have been previously certified as organic; or
(b) The site must have been certified as second year transitional in the previous year; or
(c) The producer has documentation that verifies that the site was in pasture or not being farmed during the previous two years.
(5) Beginning in the year 2003, prior to the issuance of a second year transitional food producer certificate:
(a) The site must have been certified as first year transitional in the previous year; or
(b) The producer has documentation that verifies that the site was in pasture or not being farmed during the previous year.
(6) Producers of organic food who ((apply)) are certified
under this program will be able to use the words, "produced in
accordance with the Washington state department of agriculture
organic food certification program" in their labeling as long as
their practices comply with chapter 15.86 RCW or any rules
adopted thereunder.
Food produced under this organic food certification program
may be identified by the use of one of the attached logos (WAC 16-156-060, Illus. 1((, 1A))). These logos shall only be used
for food produced by producers who have been certified organic by
the Washington state department of agriculture ((organic food
certification program)).
(((3))) (7) Producers of ((transition to organic))
transitional food who ((apply)) are certified under this program
will be able to use the words "produced in accordance with the
Washington department of agriculture ((transition to organic))
transitional food certification program" in their labeling as
long as their practices comply with this chapter and chapter 15.86 RCW and rules adopted thereunder.
Food produced under this ((transition to organic))
transitional food certification program may be identified by use
of one of the attached logos (WAC 16-156-060, Illus. 2((, 2A))). These logos shall only be used for ((transition to organic))
transitional food produced by producers who have been certified
transitional by the Washington state department of
agriculture(('s organic food certification program)).
(((4))) (8) In no event shall food be sold as Washington
certified organic or Washington certified ((transition to
organic)) transitional prior to the issuing of an organic or
((transition to organic)) transitional food producer certificate
by the department of agriculture for that crop year. First year
applicants and new sites shall be inspected by the department
before an organic or ((transition to organic)) transitional food
producer certificate is issued.
(((5))) (9) The logos to identify organic food and
((transition to organic)) transitional food shall not be changed
except for increases or decreases in size, as appropriate.
[Statutory Authority: Chapter 15.86 RCW. 97-02-008 (Order 6011), 16-156-030, filed 12/20/96, effective 1/20/97; 92-11-001, 16-156-030, filed 5/6/92, effective 6/6/92. Statutory Authority: Chapter 15.86 RCW. 90-02-001, 16-156-030, filed 12/21/89, effective 1/21/90; 88-07-024 (Order 1968), 16-156-030, filed 3/8/88.]
(1) Violated the standards for certification which are set forth in RCW 15.86.030 or any rules adopted under chapter 15.86 RCW;
(2) Filed an application for certification which is false or misleading in any particular;
(3) Violated any of the provisions of this chapter; ((or))
(4) Failed to provide records as required by this chapter, WAC 16-154-060 or 16-162-100; or
(5) Failed to allow inspection to take place.
The director may issue an order revoking that producer's certification under this program or he may issue an order directing the producer to take other appropriate action to correct the violation. If appropriate action is taken, the producer will be returned to its previous status under the program.
Any producer who has received notice that its certification may be revoked under this section may apply for a hearing under the Washington Administrative Procedure Act, chapter 34.05 RCW.
[Statutory Authority: Chapter 15.86 RCW. 97-02-008 (Order 6011), 16-156-035, filed 12/20/96, effective 1/20/97; 92-11-001, 16-156-035, filed 5/6/92, effective 6/6/92. Statutory Authority: Chapter 15.86 RCW. 91-09-028, 16-156-035, filed 4/11/91, effective 5/12/91; 90-02-001, 16-156-035, filed 12/21/89, effective 1/21/90.]
Applications made after the set deadline may be processed as the department can schedule the initial inspections. Except for producers who sell no more than five thousand dollars annually in value of agricultural products directly to consumers, all producers of organic or transition to organic food must be certified by the department.)) (1) All producers of organic food products must be certified by the department or through a recognized organic certification agency, except for producers that sell less than five thousand dollars annually in value of agricultural products directly to consumers.
(2) Applications to the department for organic food certification must be made on an annual basis at least sixty days prior to the harvest of organic food products. The application, accompanied by the appropriate fee, must be submitted to the department on forms furnished by the department.
(3) Organic food producer and transitional food producer certificates shall expire on March 31st of the year following their issuance.
[Statutory Authority: Chapter 15.86 RCW. 97-02-008 (Order 6011), 16-156-050, filed 12/20/96, effective 1/20/97; 92-11-001, 16-156-050, filed 5/6/92, effective 6/6/92. Statutory Authority: Chapter 15.86 RCW. 90-02-001, 16-156-050, filed 12/21/89, effective 1/21/90; 88-07-024 (Order 1968), 16-156-050, filed 3/8/88.]
((For)) Renewal applicants -
Application fees shall be based on the previous calendar
year's gross sales of organic ((and transition to organic)) food.
In the event that the current calendar year's gross sales exceed
the previous year's gross sales, the department may bill the
producer for the additional fee. In the event that the current
calendar year's gross sales is less than the previous year's
gross sales, the producer may request a refund for the reduced
fee. In addition, renewal applications postmarked after March 1,
shall pay a late fee of fifty dollars. Renewal applicants that
are adding additional sites to their organic certification must
pay a new site fee of fifty dollars for each additional site.
((For)) New applicants -
Application fees shall be based on an estimate of the
current year's gross sales of organic ((and transition to
organic)) food. In the event that the current calendar year's
gross sales exceed the estimate, the department may bill the
producer for the additional fee. In the event that the current
calendar year's gross sales is less than the estimate, the
producer may request a refund for the reduced fee. In addition,
new applicants pay a seventy-five dollar new applicant fee. New
applicants that are seeking organic certification for more than
one site must pay a site fee of fifty dollars for each additional
site. The fee shall accompany the application.
| Gross Sales | Annual Fee |
|||||
| $ | 0 | - | $ | 12,000 | $ | 165 |
| $ | 12,001 | - | $ | 15,000 | $ | 200 |
| $ | 15,001 | - | $ | 20,000 | $ | 220 |
| $ | 20,001 | - | $ | 25,000 | $ | 275 |
| $ | 25,001 | - | $ | 30,000 | $ | 330 |
| $ | 30,001 | - | $ | 35,000 | $ | 385 |
| $ | 35,001 | - | $ | 42,500 | $ | 465 |
| $ | 42,501 | - | $ | 50,000 | $ | 550 |
| $ | 50,001 | - | $ | 65,000 | $ | 660 |
| $ | 65,001 | - | $ | 80,000 | $ | 825 |
| $ | 80,001 | - | $ | 100,000 | $ | 990 |
| $ | 100,001 | - | $ | 125,000 | $ | 1,100 |
| $ | 125,001 | - | $ | 150,000 | $ | 1,150 |
| $ | 150,001 | - | $ | 175,000 | $ | 1,320 |
| $ | 175,001 | - | $ | 200,000 | $ | 1,375 |
| $ | 200,001 | - | $ | 240,000 | $ | 1,540 |
| $ | 240,001 | - | $ | 280,000 | $ | 1,595 |
| $ | 280,001 | - | $ | 325,000 | $ | 1,650 |
| $ | 325,001 | - | $ | 375,000 | $ | 1,720 |
| $ | 375,001 | - | $ | 425,000 | $ | 2,200 |
| $ | 425,001 | - | $ | 500,000 | $ | 2,300 |
| $ | 500,001 | - | $ | 750,000 | $ | 2,750 |
| $ | 750,001 | and up | $ | 2,000 | ||
| plus one-tenth of one percent (0.10%) of gross organic sales |
||||||
(3) Two inspections per year within the state of Washington are provided for under the above fee schedule. Additional inspections (in addition to two inspections provided for), if required for certification or maintenance of certification by the director, or requested by the producer, shall be at $30/hr. plus mileage set at the rate established by the state office of financial management.
Out-of-state inspections, if necessary or requested, shall be at the rate of $30/hr. plus transportation costs.
(((3))) (4) One sample per year is provided for under the
above fee schedule. Additional samples (in addition to one
sample provided for), if required for certification or
maintenance of certification by the director, or requested by the
organic producer, shall cost an additional lab fee of one hundred
ten dollars. If an additional visit must be arranged to obtain a
sample, it shall be at $30/hr. plus mileage set at the rate
established by the state office of financial management.
| (( |
| Place illustration here. |
| (( |
| Place illustration here. |
[Statutory Authority: Chapter 15.86 RCW. 97-24-006, 16-156-060, filed 11/21/97, effective 12/22/97; 97-02-008 (Order 6011), 16-156-060, filed 12/20/96, effective 1/20/97; 91-09-028, 16-156-060, filed 4/11/91, effective 5/12/91; 90-02-001, 16-156-060, filed 12/21/89, effective 1/21/90; 88-07-024 (Order 1968), 16-156-060, filed 3/8/88.]
(2) Applications for export and transaction certificates must be submitted on forms furnished by the department. The applicant must furnish all information requested on the application. A separate application must be made for each export and transaction certificate.
(3) The fee for export and transaction certificates shall be thirty dollars per application.
[]