WSR 97-22-102

PROPOSED RULES

DEPARTMENT OF AGRICULTURE

[Filed November 5, 1997, 9:37 a.m.]

Original Notice.

Preproposal statement of inquiry was filed as WSR 97-15-028.

Title of Rule: Chapter 16-158 WAC, Standards for the certification of processors of organic food.

Purpose: The purpose for the proposed amendments to chapter 16-158 WAC is to clarify and strengthen the rules for the processing of organic food products, provide a more equitable method of assessing certification fees.

Statutory Authority for Adoption: RCW 15.86.060 and 15.86.070.

Statute Being Implemented: Chapter 15.86 RCW.

Summary: These rules provide the certification procedures and requirements for processors of organic food products. The purpose for the proposed amendments to chapter 16-158 WAC is to clarify and strengthen the rules for the processing of organic food products, provide a more equitable method of assessing certification fees and reduce fees for processors that make minimal organic claims on the retail package labels.

Reasons Supporting Proposal: The organic food processing rule needs to be amended to reflect the national developments in organic certification and to prepare the Washington State Department of Agriculture for accreditation by the United States Department of Agriculture organic food program.

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: These rules provide the certification procedures and requirements for processors of organic food products. The purpose for the proposed amendments to chapter 16-158 WAC is to clarify and strengthen the rules for the processing of organic food products, provide a more equitable method of assessing certification fees. Amendments to chapter 16-158 WAC clarify the language for the compliance requirements and add restrictions on irradiation, volatile amines, solvent extractions, ion exchange filters, and storage with thiobenzadole treated foods. The compliance requirements for processors of organic food are strengthened by the proposed amendments. The clear, succinct language promotes voluntary compliance and thus reduces compliance costs for the organic food program.

Proposal Changes the Following Existing Rules: Briefing Memo: Chapter 16-158 WAC, Standards for the certification of processors of organic food, was originally adopted in 1990. These rules provide the certification procedures and requirements for processors of organic food products. The purpose for the proposed amendments to chapter 16-158 WAC is to clarify and strengthen the rules for the processing of organic food products, provide a more equitable method of assessing certification fees and reduce fees for processors that make minimal organic claims on the retail package labels. The organic food program has been working with the Washington State Department of Agriculture appointed Organic Advisory Board on these changes since the summer of 1996.

Notes on Amendments: WAC 16-158-010 Purpose, amended to simplify and clarify the rule purpose.

WAC 16-158-020 Definitions, adds definitions for "gross sales," "ingredients list," "labeling," "new applicant," "package," "principal display panel," "processing aids," "producer/processor applicant," "product identity," and "renewal applicant." Clarifies definitions for "material" and "prohibited."

WAC 16-158-025 Organic certification of processors, repealed. Requirement that all processors of organic food be certified by the department or a recognized organic certification agency is now addressed in WAC 16-158-027.

WAC 16-158-027 Application for certification, removes "expiration date" from section title, adds requirement that all processors of organic food be certified by the department or a recognized organic certification agency, requires applicants to submit an application at least thirty days prior to processing of organic food, removes the late fee (now handled in WAC 16-158-130), adds list of information needed with application, states requirement for label review, adds application submittal information previously covered in WAC 16-158-025.

WAC 16-158-028 Confidentiality, new section explains that business related information is exempt from public inspection and copying.

WAC 16-158-030 Organic processing standards, amended to clarify the language and adds restrictions on irradiation, volatile amines, solvent extractions, ion exchange filters, and storage with thiobenzadole treated foods. Reformatted to list fourteen different areas covered in the requirements: Organic ingredients and recordkeeping; separate processing runs for organic products from processing production of nonorganic food products; prohibits irradiation, solvent extraction, and ion exchange filters; limits use of processing aids to those which are approved by the department; and specifications for water, steam, solvent extraction, cleaning and sanitization practices, packaging materials, identification of organic products, storage, controlled atmosphere and pest control.

WAC 16-158-040 Labeling, amendments simplify the language for labeling requirements and adds example illustrations for clarification; deletes category for processed food products with 100% organic ingredients which is covered in category for foods with at least 95% organic ingredients; and requires all organic ingredients to be labeled as organic on the ingredient panel.

WAC 16-158-050 Recordkeeping requirements, amendments simplify the language and clarifies the recordkeeping requirements.

WAC 16-158-060 Minor ingredients and processing aids, retitled and amended to include the list of minor ingredients and processing aids approved by the department for use in processed organic food products.

WAC 16-158-080 Use of processed organic food certification logo, amended to require organic food processors certified by the department to label their products as "certified organic by Washington State Department of Agriculture" and the Washington State Department of Agriculture certified processors and handlers--with at least 95% organic ingredients excluding water, salt, and leavening agents--may use the organic food processor logo on processed product label.

WAC 16-158-090 Inspection, minor amendment to create clear and readable language.

WAC 16-158-100 Sampling, minor amendment to create clear and readable language.

WAC 16-158-110 Other requirements, no changes.

WAC 16-158-120 Decertification, amended to create clear and readable language; allows directory to issue an order for denied certification; provides an opportunity for processors who are served a notice for denied or suspended certification to request a hearing.

WAC 16-158-130 Application fees, amended to specify applicant fees for new applicants, renewal applicants, and producer/processor applicant; deletes assessment fee which is now addressed in WAC 16-158-135 as certification fees. Renewal and new applicants pay $150 application fee for each facility. In addition, renewal applicants pay a $50 late fee for applications received after March 1 and new applicants pay a $75 new applicant fee. Producer/processor applicants pay fees under chapter 16-156 WAC, the producer certification rule.

WAC 16-158-135 Certification fees, new section defines four processor categories and the associated certification fee assesses the value of gross organic sales or value of custom processing service fees. Restructuring of certification fees allows processors which only make organic claims on the ingredient panel to pay a lower certification fee.

Category I - Organic foods with 95% or more organic ingredients. The assessment rate is 0.25% for the 1st million dollars and 0.10% above one million dollars in sales.

Category II - Products made with organic foods that contain between 50 - 95% organic ingredients. The assessment rate is 0.175% for the 1st million dollars and 0.06% above one million dollars in sales.

Category III - Foods which restrict organic claims to the ingredients panel on a retail package. The assessment rate is 0.10% for the first million dollars and 0.03% above one million dollars in sales.

Category IV - Custom processors who receive service fees for processing organic food. The assessment rate is 0.35% for the 1st million of service fees and 0.10% above one million in service fees.

WAC 16-158-140 Processed organic food logo, repealed (addressed in WAC 16-158-150).

WAC 16-158-150 Processed organic food certification logo, no changes.

A small business economic impact statement has been prepared under chapter 19.85 RCW.

Introduction: Standards for the certification of processors of organic food, chapter 16-158 WAC, provides the certification procedures and requirements for processors of organic food products. The standards specify application, inspection, sampling, certification and decertification procedures as well as the requirements for the processing, storage, labeling, recordkeeping, and use of the Washington State Department of Agriculture processed organic food logo for processed organic food products. Standards also specify the fee structure charged to applicants for the application and certification services.

Purpose for the Rule Amendment: The purpose for the proposed amendments to chapter 16-158 WAC is to clarify and strengthen the rules for the processing of organic food products and provide a more equitable method of assessing certification fees. The organic food program has been working with the Washington State Department of Agriculture appointed Organic Advisory Board on these changes since the fall of 1993.

Businesses Affected by the Rule Amendment: Chapter 16-158 WAC affects all individuals and businesses that process organic food in Washington state. The department currently certifies sixty-four processors of organic food in the state of Washington. Approximately one-half (thirty-two) of the certified processors of organic food are small businesses with less than fifty full-time, year-round employees.

Reporting and Recordkeeping Requirements: Recordkeeping requirements, RCW 15.86.080 and WAC 16-158-050, have been effective for all processors of organic food in the state of Washington since 1990. No new recordkeeping requirements would be imposed; the amendments would merely reiterate the current requirements in clear succinct language. The recordkeeping requirements proposed in the amended WAC 16-158-050 specifies that the processors must maintain sufficient records to track ingredients and organic food products from receiving through to distribution or sale of processed products. Examples of such records are provided and also processors are also required to have organic food certificates available at all times for all organic ingredients processed at their facility. The records must be properly maintained by the processor for a minimum of five years from the date of processing.

Compliance Requirements: Amendments to chapter 16-158 WAC clarify the language for the compliance requirements and add restrictions on irradiation, volatile amines, solvent extractions, ion exchange filters, and storage with thiobenzadole treated foods. The compliance requirements for processors of organic food are strengthened by the proposed amendments. The clear, succinct language promotes voluntary compliance and thus reduces compliance enforcement costs for the organic food program.

Professional Services: The reporting, recordkeeping and compliance requirements would not necessitate the need for professional services. No professional service expenses would be incurred by the small businesses affected by chapter 16-158 WAC.

Industries Impacted by the Rule Amendment: All processors of organic food in Washington state are impacted by chapter 16-156 WAC. The following SIC codes represent the types of processors certified by the Washington State Department of Agriculture Organic Food Program: 204 grain mill products, 205 bakery products, 208 beverages, 209 miscellaneous food preparations and kindred products, 514 groceries and related products, 518 wine beverages, and 723 crop preparation. Sixty-four processors of organic food products in Washington state are currently affected by chapter 16-156 WAC. Approximately one-half of the processors are small businesses with less than fifty full-time, year-round employees.

Cost of Compliance: The proposed amendments to the fee schedule classifies processors in four different categories:

Category I - Organic foods with 95% or more organic ingredients. The assessment rate is 0.25% for the 1st million dollars and 0.10% above one million dollars in organic sales.

Category II - Products made with organic foods that contain more than 50% organic ingredients. The assessment rate is 0.175% for the 1st million dollars and 0.06% above one million dollars in organic sales.

Category III - Foods packaged for retail sales which restrict organic claims to the ingredients list. The assessment rate is 0.10% for the 1st million dollars and 0.03% above one million dollars in organic sales.

Category IV - Custom processors who receive service fees for processing organic food. The assessment rate is 0.35% for the 1st million dollars of service fees and 0.10% above one million dollars in organic service fees.

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Impact On Small Businesses: The proposed revisions to the fees maintain or reduce current fees charged to processor applicants. The proposed amendments to chapter 16-158 WAC would not impose a disproportionate economic impact on small businesses because all processors, whether small businesses or large corporations, of organic food are required to submit application and certification fees based on a percentage of their gross organic sales or organic service fee revenues. Processors are also required to maintain records that track ingredients and organic food products from receiving through to distribution or sale of processed organic products. No new recordkeeping requirements would be imposed; the amendments would merely reiterate the current requirements in clear and succinct language. Therefore the amendments to the recordkeeping requirements would not impose a disproportionate burden on small businesses.

Presolicitation and Research Efforts: The organic food program has worked with the Washington State Department of Agriculture appointed Organic Advisory Board since the spring of 1996 in the development of the proposed amendments. In addition, rule amendment memos are sent to all processors of certified organic food as well as individuals and organizations involved in the organic food industry.

Memos to Constituents:

August 15, 1996 OAB minutes, discussion on Processor Committee proposal for revisions to fee schedule;

October 28, 1996 Processor fee analysis sent to OAB;

November 13, 1996, OAB meeting minutes, processor fee discussion;

January 15, 1996, OAB meeting minutes, processor fee committee notes and discussion;

April 16, 1997, OAB meeting minutes, approval of processor fee restructuring proposal;

October 8, 1997, memo to OAB includes proposal to alter processor fee schedule from the version approved at April 16th meeting;

October 15, 1997, OAB meeting minutes, processor fee discussion; and

October 28, 1997, OAB Processor Fee Committee conference call discussion notes.

A copy of the statement may be obtained by writing to Washington State Department of Agriculture Organic Food Program, P.O. Box 42560, Olympia, WA 98504-2560, phone (360) 902-1877, or 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 Jefferson, Olympia, WA 98504, on December 10, 1997, at 9 a.m.

Assistance for Persons with Disabilities: Contact Julie Carlson by November 25, 1997, TDD (360) 902-1996, or (360) 902-1880.

Submit Written Comments to: Miles McEvoy, P.O. Box 42560, Olympia, WA 98504-2560, FAX (360) 902-2087, by December 9, 1997.

Date of Intended Adoption: December 19, 1997.

November 5, 1997

Candace Jacobs, DVM

Assistant Director

AMENDATORY SECTION (Amending Order 5068, filed 6/20/95, effective 7/21/95 WAC 16-158-010 Purpose. This chapter ((is promulgated pursuant to RCW 15.86.060 wherein the director is authorized to adopt rules for the proper administration of the Organic Food Products Act and pursuant to RCW 15.86.070 wherein the director is authorized to adopt rules establishing a certification program for processors of organic food)) provides standards for the certification of processors of organic food, pursuant to RCW 15.86.060 and 15.86.070.

[Statutory Authority: Chapter 15.86 RCW. 95-13-072 (Order 5068), 16-158-010, filed 6/20/95, effective 7/21/95. Statutory Authority: RCW 15.86.060 and chapter 15.86 RCW. 90-12-097 (Order 2042), 16-158-010, filed 6/5/90, effective 7/6/90.]

AMENDATORY SECTION (Amending Order 5068, filed 6/20/95, effective 7/21/95 WAC 16-158-020 Definitions. As used in this chapter:

(1) "Approved" means any material or practice which meets the required criteria or standards for use in the processing or handling of organic agricultural products.

(2) "Department" means the department of agriculture of the state of Washington.

(3) "Director" means the director of the department of agriculture or his or her duly authorized representative.

(4) "Facility" includes, but is not limited to, any premises, plant, establishment, facilities and the appurtenances thereto, in whole or in part, where organic food is prepared, handled, or processed in any manner for resale or distribution to retail outlets, restaurants, and any such other facility selling or distributing to the ultimate consumer.

(5) "Gross sales" means the total monetary value of processed organic food sold.

(6) "Ingredient list" means the list on a food label of each ingredient in descending order of predominance.

(7) "Labeling" means all labels and other written, printed, or graphic matter:

(a) Upon any article or any of its containers or wrappers; or

(b) Accompanying or representing such article.

(8) "Material" means any substance or mixture of substances that is used in the processing or handling of organic agricultural products, including packaging material.

(((6))) (9) "New applicant" means any person that applies for organic certification for the first time, or when previous certification status has expired for at least one year.

(10) "Organic food product" means any food product, including fruit, vegetable, meat, dairy, beverage and grocery, that is marketed using the term organic or any derivative of the term organic in its labeling or advertising, including using the term organic on the principal display panel, ingredients list, or other locations on the label.

(((7))) (11) "Package" means a container, box, bin, carton or other wrapping that contains or holds organic food products.

(12) "Person" means any natural person, firm, partnership, exchange, association, trustee, receiver, corporation, and any other member, officer, or employee thereof or assignee for the benefit of creditors.

(((8))) (13) "Principal display panel" means that portion of the package label that is most likely seen by the consumer at the time of purchase.

(14) "Procedure" means an act, method, or manner of proceeding in some process or course of action.

(((9))) (15) "Processed organic food" means food that in whole or in part is organically grown and which in its processing has not been treated with synthetically or artificially derived preservatives, colorings, flavorings, or any other artificial or synthetic additive, except as otherwise approved for use under WAC 16-158-060.

(((10))) (16) "Processing aids" means materials used in processing that do not become an ingredient in the food product (e.g., enzymes, boiler water additives, pressing aids, and filtering aids).

(17) "Processor" means any person engaged in the canning, freezing, drying, dehydrating, cooking, pressing, powdering, packaging, baking, heating, mixing, grinding, churning, separating, extracting, cutting, fermenting, eviscerating, preserving, jarring, slaughtering or otherwise processing organic food.

(((11))) (18) "Producer/processor applicant" means any person that is certified under chapter 16-156 WAC, processes organic food, and applies for certification under this chapter.

(19) "Product identity" means the name of the food as described on the principal display panel.

(20) "Prohibited" means any material or practice which ((is disallowed)) does not meet the required criteria or standards for use in the processing or handling of organic agricultural products.

(((12))) (21) "Recognized organic certification agency" means any third-party organization that is accepted by the director as being one which verifies compliance with standards consistent with chapter 15.86 RCW or rules adopted thereunder.

(22) "Renewal applicant" means any person that has applied for organic certification in the previous year.

[Statutory Authority: Chapter 15.86 RCW. 95-13-072 (Order 5068), 16-158-020, filed 6/20/95, effective 7/21/95. Statutory Authority: RCW 15.86.060 and chapter 15.86 RCW. 90-12-097 (Order 2042), 16-158-020, filed 6/5/90, effective 7/6/90.]

AMENDATORY SECTION (Amending Order 5068, filed 6/20/95, effective 7/21/95 WAC 16-158-027 Application for certification((--Expiration date)). ((Organic food processors must apply)) (1) All processors must be certified by the department or through a recognized organic certification agency.

(2) Applications to the department for organic food certification ((by March 1 of each year)) must be made on an annual basis at least thirty days prior to the processing of organic food. The application, accompanied by the appropriate fee ((shall)) must be submitted to the department on forms furnished by the department.

(3) All organic food processor certificates ((shall)) expire on March 31st of the year following their issuance. The deadline for submitting renewal applications ((made after the set deadline may be processed as the department can schedule the initial inspections, provided that the applicant pays a late fee of fifty dollars)) to the department is March 1st.

(4) When applicable, the application must include the following information:

List of organic and nonorganic ingredients and the percentage, by weight, of each ingredient in each organic food product;

Organic food product labels;

Schematic diagram of the processing method and a description of processing method;

List of all processing aids used in processing organic food.

(5) Organic labeling will be reviewed to insure that processors comply with WAC 16-158-040.

(6) Upon approval of the application by the director, an organic food processor certificate will be issued. New applicants must be inspected prior to issuance of an organic food processor certificate.

[Statutory Authority: Chapter 15.86 RCW. 95-13-072 (Order 5068), 16-158-027, filed 6/20/95, effective 7/21/95.]

NEW SECTION

WAC 16-158-028 Confidentiality. Except for applications and laboratory analysis submitted for certification under this chapter, the department keeps confidential any business related information obtained under this chapter. All business related information submitted to the department under this chapter is exempt from public inspection and copying consistent with RCW 15.86.110 and 42.17.310.

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AMENDATORY SECTION (Amending Order 5068, filed 6/20/95, effective 7/21/95 WAC 16-158-030 Organic processing standards. (1) Ingredients for processed organic foods:

(a) All organic ingredients used in processed organic food must be produced in compliance with organic food production standards as required by rules adopted under chapter 15.86 RCW. Processors must keep organic food producer or processor certificates for all organic ingredients used in processing ((must be kept)) on file ((by the processor)) and available to the department upon request. All organic producers or processors that supply ingredients to processor(s) must be certified by the department or a recognized organic certifying agent.

(b) All nonorganic ingredients which are used in product formulation and that are not specifically approved under WAC 16-158-060 must be approved by the director and their sources must be listed as part of the ((audit)) certification process.

(2) ((Identification and storage:

All organic food products must be clearly identified as organic at all times on all boxes, bins, bags, or other containers that contain organic food products. All organic food products must be stored so that there is no cross contamination from or confusion with nonorganic food products.

Insect and rodent control programs must be in place for organic product storage areas. Any materials used in the organic product storage areas must be approved for use in organic food production under chapter 16-154 WAC or this chapter.

In areas where entire facilities are periodically fumigated, the processor must demonstrate that any fumigants used will not contaminate organic products.

Compounds for cleaning storage areas must be used in a manner that does not contaminate organic food products.

Organic and nonorganic food products may be stored in the same storage room as long as there is adequate separation of products and product identification assures no mixing of products.

Storage techniques may be used to alter the nitrogen, oxygen, and carbon dioxide levels in the storage room atmosphere. Organic food products shall not be stored in controlled atmosphere storage with diphenylamine treated food products.

(3))) Processing of organic food products:

((In addition to meeting all state and federal manufacturing standards, the processor of organic foods must submit a complete description of the processing method to the director. This description should detail how all ingredients are handled, changed, and ultimately packaged.

All packaging and products must be free of fungicides, preservatives, fumigants, and any other materials which are not approved for use on organic products under chapter 16-154 WAC or this chapter.)) The processing of organic food must be done during a separate production run from the processing of nonorganic food. Prior to the processing of organic food, the processing line must be cleaned or cleared of nonorganic products.

(3) Water:

All water used in processing as an ingredient or as a processing aid must be potable and comply with all local, state, and federal guidelines for potable water.

((Cleaning and sanitizing must be done with appropriate cleansers and sanitizers that will ensure clean and sanitary facilities and do not leave any residues of cleansers or sanitizers on the organic food products.)) (4) Irradiation:

Irradiation is prohibited in organic food processing.

(5) Steam:

Volatile amines are prohibited as boiler water additives when steam comes into direct contact with organic food.

(6) Solvent extraction:

Solvent extraction with synthetic materials is prohibited in organic food processing.

(7) Ion exchange filters:

Ion exchange filters are prohibited in organic food processing.

(8) Processing aids:

Processing aids used in organic processing must be approved under WAC 16-158-060.

(9) Cleaning and sanitizing:

Cleaning and sanitizing must be done with appropriate cleansers and sanitizers that will ensure clean and sanitary facilities and do not leave any residues of cleansers or sanitizers on the organic food products.

(10) Packages:

All packages must be free of fungicides, preservatives, fumigants, and any other materials which are not approved for use on organic products under chapter 16-154 WAC or this chapter.

(11) Identification:

All organic food products must be clearly identified as organic at all times on all boxes, bins, bags or other containers that contain organic food products.

(12) Storage:

All organic food products and organic ingredients must be stored so that there is no cross contamination or confusion with nonorganic food products. Organic and nonorganic food products may be stored in the same storage area as long as there is adequate separation of products and product identification assures no mixing of products.

(13) Controlled atmosphere storage:

Storage techniques may be used to alter the nitrogen, oxygen and carbon dioxide levels in the storage room atmosphere. Organic food products must not be stored in controlled atmosphere storage with diphenylamine or thiobenzadole treated food products.

(14) Pest control:

The processor must demonstrate that materials used in pest control programs do not contaminate organic products.

[Statutory Authority: Chapter 15.86 RCW. 95-13-072 (Order 5068), 16-158-030, filed 6/20/95, effective 7/21/95. Statutory Authority: RCW 15.86.060 and chapter 15.86 RCW. 90-12-097 (Order 2042), 16-158-030, filed 6/5/90, effective 7/6/90.]

AMENDATORY SECTION (Amending Order 5068, filed 6/20/95, effective 7/21/95 WAC 16-158-040 Labeling. All processed organic foods processed or sold in Washington state must comply with the following labeling regulations.

(1) All organically processed foods must be labeled in accordance with Title 21, C.F.R., Part 101.

(2) No organic food product may be labeled "organic when available."

(3) ((For foods which are composed of one hundred percent organic ingredients: The terms "organic" or "organically grown" may be used without restriction on the principal display panel of a processed food product if that product is a single or multi-ingredient food where all ingredients, excluding water and salt, are organically grown.

(4) For foods which are composed of)) Organic food products:

(a) For processed food products which contain more than ninety-five percent organic ingredients((: The terms "organic" or "organically grown" may be used in the product identity on the principal display panel when less than five percent)) by weight ((of the total product contains minor ingredients or additives which are approved under WAC 16-158-060 or by the director.

(5) For foods which are composed of between fifty percent and ninety-five percent organic ingredients: In)) excluding water, salt, and leavening agents, the term organic may be used without restriction on the principal display panel (see example illustration WAC 16-158-040 (3)(b)). Up to five percent of the ingredients, by weight, may be minor ingredients or additives which are approved under WAC 16-158-060 or by the director.

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(4) Made with organic food products:

(a) For multi-ingredient food products which contain ((some nonorganic ingredients, excluding water and salt, the use of)) more than fifty percent organic ingredients by weight, excluding water, salt and leavening agents, the term((s)) "organic" ((or "organically grown")) can only ((be used to)) modify the organic ingredient(s) and ((must restrict)) the type size of the word((s)) "organic" ((or organically grown etc.,)) is restricted to not larger than three-quarters type size of the product identity (see example illustration WAC 16-158-040 (4)(b)).

(((6) For foods which are composed of less than fifty percent organic ingredients: If organically grown ingredients comprise less than fifty percent)) (5) Food products with organic ingredients:

(a) For food products which contain less than fifty percent organic ingredients by weight, excluding water ((and)), salt((, of the ingredients in a multi-ingredient food the word organic or any derivative of the word organic can only be used on the ingredients list)) and leavening agents, the term "organic" can only modify the organic ingredients on the ingredients panel (see example illustration WAC 16-158-040 (5)(b)).

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(6) Ingredients list must identify each organic ingredient.

[Statutory Authority: Chapter 15.86 RCW. 95-13-072 (Order 5068), 16-158-040, filed 6/20/95, effective 7/21/95. Statutory Authority: RCW 15.86.060 and chapter 15.86 RCW. 90-12-097 (Order 2042), 16-158-040, filed 6/5/90, effective 7/6/90.]

AMENDATORY SECTION (Amending Order 5068, filed 6/20/95, effective 7/21/95 WAC 16-158-050 Recordkeeping requirements. (((1) All organic food products must be clearly identified through appropriate labeling on all boxes, bins, bags, or other containers that contain organic food products from the time of receiving through the sale of the final product. Records must be maintained)) Processors must maintain records that track ingredients and organic food products from receiving through distribution or sale. Such records ((must)) may include ((when applicable,)) invoices, bills of lading, and ((grower)) producer certificates for incoming raw product; date and quantity of product processed; repack data and production run reports; and invoices and bills of lading of products shipped out. ((These records must be maintained)) Processors must maintain these records for a minimum of five years from date of processing.

(((2))) All processors ((shall)) must have available ((to the department the following documents and information for the organic ingredients used in processing:

(a) For raw ingredients a copy of the producer's organic food producer certificate.

(b) For ingredients from intermediate processors or copackers a copy of the processor's or copacker's organic food processor certificate.)) at all times, copies of organic food certificates for all organic ingredients. Organic food certificates must be current and correspond to the organic ingredients used in processing. All organic food producer and processor certificates ((shall)) must be from the department or recognized organic certification agencies.

(((3) Except for applications for organic certification or lab analysis pertaining to that certification, the department shall keep confidential any business related information obtained under this chapter concerning an entity certified under this chapter or an applicant for such certification and such information shall be exempt from public inspection and copying consistent with RCW 15.86.110 and 42.17.310 (1)(dd).))

[Statutory Authority: Chapter 15.86 RCW. 95-13-072 (Order 5068), 16-158-050, filed 6/20/95, effective 7/21/95. Statutory Authority: RCW 15.86.060 and chapter 15.86 RCW. 90-12-097 (Order 2042), 16-158-050, filed 6/5/90, effective 7/6/90.]

AMENDATORY SECTION (Amending Order 2042, filed 6/5/90, effective 7/6/90)

WAC 16-158-060 ((Permitted substances for organic food processing.)) Minor ingredients and processing aids. ((A list of permitted substances and good manufacturing practices will be made available by the department.)) In general, all ((substances)) minor ingredients that are agricultural ingredients used in organic food processing should be grown organically in accordance with chapter 15.86 RCW and rules adopted thereunder. The following minor ingredients and processing aids are approved for use in processed organic foods:

(a) Acetic acid.

(b) Agar.

(c) Ascorbic acid.

(d) Atmospheric gases including nitrogen, oxygen, and carbon dioxide.

(e) Baker's yeast.

(f) Baking powder, aluminum free.

(g) Bentonite.

(h) Brewer's yeast.

(i) Calcium carbonate.

(j) Calcium chloride.

(k) Calcium citrate.

(l) Calcium hydroxide.

(m) Calcium phosphates.

(n) Calcium sulfate.

(o) Carrageenan.

(p) Charcoal as a filtering aid.

(q) Citric acid, must be produced by microbial fermentation of carbohydrate substances.

(r) Cornstarch.

(s) Dairy cultures, may not be a product of recombinant DNA technology.

(t) Diatomaceous earth as a filtering aid.

(u) Enzymes. No preservatives allowed, may not be a product of recombinant DNA technology.

(v) Ferrous sulfate - when required for iron fortification of foods.

(w) Glycerin, must be from hydrolysis of fats and oils.

(x) Gums, plant-derived. Must be mechanically or water extracted.

(y) Kaolin.

(z) Lactic acid.

(aa) Lecithin.

(bb) Lignin sulfonates as a chelating agent, flotation agent and dust suppressant.

(cc) Magnesium carbonate.

(dd) Magnesium chloride, must be extracted from sea water.

(ee) Magnesium sulfate.

(ff) Malic acid.

(gg) Minerals when required by regulation.

(hh) Mono and diglycerides, for use in drum drying of food only.

(ii) Natural flavors. All flavor constituents must be from natural sources and have not been chemically modified. May not contain propylene glycol or any artificial preservatives and may not be hexane extracted.

(jj) Ozone.

(kk) Pectin.

(ll) Potassium chloride.

(mm) Potassium citrate.

(nn) Potassium iodide, natural.

(oo) Potassium tartrate.

(pp) Rice hulls for juice pressing.

(qq) Salt.

(rr) Sand, steamed.

(ss) Seaweed and seaweed extracts for example kelp, carrageenin, nori.

(tt) Silicon dioxide.

(uu) Sodium bicarbonate.

(vv) Sodium chloride.

(ww) Sodium citrate.

(xx) Sodium phosphate for dairy processing only.

(yy) Sulfur dioxide for use in organic wine processing only. May not be added to wine at levels greater than 100 ppm; the level of free sulfites may not exceed 35 ppm in the final product.

(zz) Tartaric acid.

(aaa) Vitamins when required by regulation.

(bbb) Water.

(ccc) Yeasts and other starter cultures. No synthetic preservatives or stabilizers allowed. May not be a product of recombinant DNA technology.

[Statutory Authority: RCW 15.86.060 and chapter 15.86 RCW. 90-12-097 (Order 2042), 16-158-060, filed 6/5/90, effective 7/6/90.]

AMENDATORY SECTION (Amending Order 5068, filed 6/20/95, effective 7/21/95 WAC 16-158-080 Use of processed organic food certification logo. ((Organic food)) (1) Processors certified under the Washington department of agriculture organic food program ((will be able to)) must use the words (("processed in accordance with)) certified organic by the Washington state department of agriculture ((organic food certification program")) in their labeling as long as their practices comply with this chapter, chapter 15.86 RCW, and chapter 16-154 WAC. ((Food processed and sold under this organic food processor certification program and which are composed of more than ninety-five percent organic ingredients may be identified by the use of one of the attached logos adopted in WAC 16-158-140.))

(2) Processors certified under this chapter and handlers certified under chapter 16-164 WAC, Standards for the certification of handlers of organic food may use one of the attached logos adopted in WAC 16-158-150 on processed food which is composed of ninety-five percent or more organic ingredients, excluding water, salt and leavening agents.

[Statutory Authority: Chapter 15.86 RCW. 95-13-072 (Order 5068), 16-158-080, filed 6/20/95, effective 7/21/95. Statutory Authority: RCW 15.86.060 and chapter 15.86 RCW. 90-12-097 (Order 2042), 16-158-080, filed 6/5/90, effective 7/6/90.]

AMENDATORY SECTION (Amending Order 5068, filed 6/20/95, effective 7/21/95 WAC 16-158-090 Inspection. The director ((shall)) must make at least one visit and any additional visits deemed necessary to each facility each year for the purpose of inspection for compliance with this chapter ((and)), chapter 15.86 RCW and rules adopted ((pursuant to chapter 15.86 RCW.

This)) thereunder. Application and certification fees cover the cost of two inspections per year. The inspection may entail a survey of required records, examination of handling, processing and storage areas, and any other information deemed necessary to the requirements of this chapter.

[Statutory Authority: Chapter 15.86 RCW. 95-13-072 (Order 5068), 16-158-090, filed 6/20/95, effective 7/21/95. Statutory Authority: RCW 15.86.060 and chapter 15.86 RCW. 90-12-097 (Order 2042), 16-158-090, filed 6/5/90, effective 7/6/90.]

AMENDATORY SECTION (Amending Order 5068, filed 6/20/95, effective 7/21/95 WAC 16-158-100 Sampling. A representative sample of the product processed, packed, sold, or distributed may be tested for pesticide residues or other contaminants whenever the director deems it necessary for certification or maintenance of certification. Application and certification fees cover the cost of one sample analysis per year. It ((shall)) will be the processor's responsibility to arrange for and bear the costs for any additional testing (beyond the one sample analysis provided by application and certification fees) which is deemed necessary by the director.

[Statutory Authority: Chapter 15.86 RCW. 95-13-072 (Order 5068), 16-158-100, filed 6/20/95, effective 7/21/95. Statutory Authority: RCW 15.86.060 and chapter 15.86 RCW. 90-12-097 (Order 2042), 16-158-100, filed 6/5/90, effective 7/6/90.]

AMENDATORY SECTION (Amending Order 5068, filed 6/20/95, effective 7/21/95 WAC 16-158-120 Decertification. Whenever the director finds that a processor ((who has been certified under this program)) has:

(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) ((Has filed an)) Filed a renewal application for ((certification)) recertification which is false or misleading in any particular;

(3) ((Has)) Violated any of the provisions of this chapter;

(4) ((Has)) Failed to provide records as required by WAC 16-158-050 or rules adopted under chapter 15.86 RCW; or

(5) Failed to allow inspection to take place.

The director may issue an order denying, suspending, or revoking that processor's certification under this program ((or he may issue an order directing the processor to take other appropriate action to correct the violation. If the appropriate action is taken, the processor will be returned to its previous status under the program)).

Any processor who has received notice that its certification may be denied, suspended, or 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. 95-13-072 (Order 5068), 16-158-120, filed 6/20/95, effective 7/21/95. Statutory Authority: Chapter 15.86 RCW. 91-09-028, 16-158-120, filed 4/11/91, effective 5/12/91. Statutory Authority: RCW 15.86.060 and chapter 15.86 RCW. 90-12-097 (Order 2042), 16-158-120, filed 6/5/90, effective 7/6/90.]

AMENDATORY SECTION (Amending Order 5068, filed 6/20/95, effective 7/21/95 WAC 16-158-130 Fees. (1) ((The cost per application shall be)) Renewal applicants - Application fees are one hundred fifty dollars per facility. In addition, ((an assessment fee based on the following fee schedule shall accompany the application. Gross value of production means the value of processed organic food produced during the previous calendar year. In the event that the current calendar year's production exceeds the previous year's production, the department may bill the processor for the additional fee. In the event that the current calendar year's production is less than the previous year's production, the processor may request a refund for the reduced fee. The appropriate fee shall accompany the application)) renewal applications postmarked after March 1, pay a late fee of fifty dollars.

gross value of production assessment rate

For up to one million dollars 0.25%

For over one million:

1st one million dollars 0.25%

Value over one million dollars 0.10%))

(2) ((Initial)) New applicants - Application fees are one hundred fifty dollars per facility. In addition, new applicants pay a seventy-five dollar new applicant fee.

(3) Producer/processor applicants - Application fees for producer/processor applications are paid under chapter 16-156 WAC.

(4) Two inspections within the state of Washington are provided for under the ((above fee schedule)) application and certification fee. Additional inspections, (((in addition to two inspections provided for),)) or out-of-state inspections if necessary or requested, ((shall)) will be charged to the applicant at the rate of thirty dollars per hour 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 thirty dollars per hour plus transportation costs.

(3))) One sample((s, (in addition to one sample provided for))) analysis is provided under the application and certification fee. Additional samples, if required for certification or maintenance of certification by the director, or requested by the applicant, ((shall)) will be charged to the applicant at a rate established by the laboratory services division of the department of agriculture. If an additional visit must be arranged to obtain a sample, it shall be at the rate of thirty dollars per hour ($30/hr.) plus mileage set at the rate established by the state office of financial management.

[Statutory Authority: Chapter 15.86 RCW. 95-13-072 (Order 5068), 16-158-130, filed 6/20/95, effective 7/21/95. Statutory Authority: RCW 15.86.060 and chapter 15.86 RCW. 90-12-097 (Order 2042), 16-158-130, filed 6/5/90, effective 7/6/90.]

NEW SECTION

WAC 16-158-135 Certification fees. A certification fee based on the following fee schedule must accompany the application and application fee, except for producer/processor applicants who pay fees under chapter 16-156 WAC. Certification fees are assessments on the organic products in each category. Applicants may have food products in more than one category.

Category I - Organic food products: Products labeled as "organic" ((and which)) that contain ninety-five percent or more organic ingredients as per WAC 16-158-040(3) are assessed at one-quarter of one percent (0.25%) of the previous calendar year's gross sales for the first million dollars and one-tenth of one percent (0.10%) for gross sales above one million dollars.

Category II - Made with organic food products: Products labeled as "made with organic ingredients" ((and)) that contain ((between)) more than fifty percent ((and ninety-five percent)) organic ingredients as per WAC 16-158-040(4) are assessed at ((one-fifth)) one hundred seventy-fifth of one percent (((0.20%))) (0.175%) of the previous calendar year's gross sales for the first million dollars and ((one-tenth)) one-six hundredths of one percent (((0.10%))) (0.06%) for gross sales above one million dollars.

Category III - Food products with organic ingredients: ((Foods whose retail package labels)) Products packaged for retail sales that limit their organic claims to the ingredients ((panel)) list as per WAC 16-158-040(5) are assessed at one-((half)) tenth of one percent (((0.05%))) (0.10%) of the previous calendar year's gross sales for the first million dollars and one three-hundredths of one percent (0.03%) for gross sales above one million dollars.

Category IV - Custom organic food products: Products produced by processors who charge a service fee to organic manufacturers for processing organic food are assessed at ((one-quarter)) one thirty-fifth of one percent (((0.25%))) (0.35%) of the previous calendar year's service fees received for processing organic food for the first million dollars and one-tenth of one percent (0.10%) ((percent)) for service fees above one million dollars.

In the event that the current calendar year's gross sales (or service fees) exceeds the previous year's gross sales (or service fees), the department may bill the processor for the additional certification fee. In the event that the current calendar year's gross sales (or service fees) is less than the previous year's gross sales (or service fees), the processor may request a refund for the reduced certification fee.

[]

Reviser's note: The unnecessary underscoring and deletion marks in the above section occurred in the copy filed by the agency and appears in the Register pursuant to the requirements of RCW 34.08.040.

REPEALER

The following sections of the Washington Administrative Code are repealed:

WAC 16-158-025 Organic certification of processors.