WSR 02-22-087

PROPOSED RULES

DEPARTMENT OF AGRICULTURE


[ Filed November 5, 2002, 4:41 p.m. ]

Original Notice.

Preproposal statement of inquiry was filed as WSR 02-16-097.

Title of Rule: Registration of brand name materials for organic food production.

Purpose: Chapter 16-160 WAC are the rules for the registration of materials (e.g. pesticides, fertilizers, post-harvest materials, etc.) for use in organic food production. The rules specify the application process and review criteria for registering brand name materials used in organic food production, processing and handling. The Department of Agriculture is proposing to amend chapter 16-160 WAC in order to adopt the National Organic Program and increase fees for brand name material registration to cover the costs of the program. The Washington state legislature amended RCW 15.86.070 to authorize the Washington State Department of Agriculture (WSDA) to increase fees in excess of the fiscal growth factor in order to ensure that fees cover the full cost of the program.

Statutory Authority for Adoption: RCW 15.86.060 and 15.86.070.

Statute Being Implemented: Chapters 15.86, 34.05 RCW.

Summary: The proposed amendments to chapter 16-160 WAC adopt the requirements under the 2001 National Organic Program final rule and increase fees.

Reasons Supporting Proposal: The National Organic Program sets requirements for materials used in organic food production and handling. The National Organic Program requirements must be adopted in order for the rule to be compliant with federal organic standards. Under RCW 15.86.070 the program must collect fees to cover the cost of the program. Fees must be increased to cover the cost of reviewing materials for organic food production.

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 necessary because of federal law, Title 7 C.F.R. Part 205.

Explanation of Rule, its Purpose, and Anticipated Effects: Chapter 16-160 WAC contains the rules for the registration of materials (pesticides, fertilizers, post-harvest materials, processing aids, etc.) for use in organic food production, processing and handling. Under the chapter, materials used in organic food production are evaluated to determine whether they meet organic standards. Materials that comply with organic standards may be registered under the chapter as approved for use in organic food production.

The WSDA is amending chapter 16-160 WAC to be in compliance with the National Organic Program, Title 7 C.F.R. Part 205. Registration fees are increased to cover the cost of reviewing materials and maintaining the brand name materials list. Proposed fee increases account for increases in the department's cost of reviewing materials.

Proposal Changes the Following Existing Rules: Chapter 16-160 WAC, Registration of brand name materials for organic food production, contains the rules for the registration of materials (pesticides, fertilizers, post-harvest materials, processing aids, etc.) for use in organic food production, processing and handling. Under the chapter, materials used in organic food production are evaluated to determine whether they meet organic standards. Materials that comply with organic standards may be registered under the chapter as approved for use in organic food production.

The WSDA is amending chapter 16-160 WAC to be in compliance with the National Organic Program, Title 7 C.F.R. Part 205. Registration fees are increased to cover the cost of reviewing materials and maintaining the brand name materials list. Proposed fee increases account for increases in the department's cost of registering materials.


Notes on Proposed Changes:

WAC 16-160-010 Purpose, amends section to be consistent with chapter 15.86 RCW.

WAC 16-160-020 Definitions, a number of definitions are deleted as they are no longer used in the rule. The deleted definitions include active ingredient, approved generic material, defoliant, desiccant, EPA, generic material, genetic engineering, inert ingredient, plant regulator, prohibited material, and Washington application rate.

WAC 16-160-025 What materials are approved for use in organic food production, processing and handling?, this section is no longer needed and is repealed.

WAC 16-160-035 Brand name materials list, the amendments clarify that the brand name materials list includes all material registered for use in organic food production, processing and handling.

WAC 16-160-060 What criteria are used to determine if a brand name material is approved?, amends section to use the criteria established under the National Organic Program.

WAC 16-160-070 Application fees.


Fee Old fee New fee
Initial application fee (pesticides, spray adjuvants, processing aids, post-harvest materials) $200 $300
Initial application fee (fertilizers, composts, soil amendments, organic waste derived materials, animal manures, crop production aids, livestock production aids) $100 $200
Renewal application fee (pesticides, spray adjuvants, processing aids, post-harvest materials) $100 $200
Renewal application fee (fertilizers, composts, soil amendments, organic waste derived materials, animal manures, crop production aids, livestock production aids) $50 $100
Late fee (pesticides, spray adjuvants, processing aids, post-harvest materials) $20 $30
Late fee (fertilizers, composts, soil amendments, organic waste derived materials, animal manures, crop production aids, livestock production aids) $10 $30

No small business economic impact statement has been prepared under chapter 19.85 RCW. Chapter 16-160 WAC provides a voluntary registration program for registering brand name materials for use in organic production and handling. Since the material registration program is voluntary there are no costs imposed on businesses and under RCW 19.85.030 a small business economic impact statement is not required. The material registration fees provide the funds necessary to support this voluntary program for those that wish to avail themselves of these services. The program is required to recover the full cost of the program under RCW 15.86.070.

Businesses are not required to register their products in order to provide their products to organic producers, processors, and handlers. In addition, businesses may register their products with other organizations.

RCW 34.05.328 does not apply to this rule adoption. WSDA is not a listed agency in section 201.

Hearing Location: Natural Resources Building, Room 259, 1111 Washington Street, 2nd Floor, Olympia, WA 98504-2560, on December 26, 2002, at 1:00 p.m.

Assistance for Persons with Disabilities: Contact Julie Carlson by December 19, 2002, 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 5:00 p.m., December 26, 2002.

Date of Intended Adoption: No earlier than January 3, 2003.

November 5, 2002

K. Diane Dolstad

Acting Assistant Director

OTS-5949.3


AMENDATORY SECTION(Amending WSR 99-16-054, filed 7/30/99, effective 8/30/99)

WAC 16-160-010   What is the purpose of this rule?   This chapter specifies the review process and criteria for registering brand name materials used in organic food production, processing and handling. This chapter is promulgated pursuant to RCW 15.86.060 in which the director is authorized to adopt rules for the proper administration of chapter 15.86 RCW and ((establish a list of approved substances that may be used in the production, processing and handling of organic food and)) RCW 15.86.070 in which the director is authorized to adopt rules governing the certification of producers of organic food.

[Statutory Authority: Chapter 15.86 RCW. 99-16-054, 16-160-010, filed 7/30/99, effective 8/30/99; 91-05-007, 16-160-010, filed 2/7/91, effective 3/10/91.]


AMENDATORY SECTION(Amending WSR 99-16-054, filed 7/30/99, effective 8/30/99)

WAC 16-160-020   Definitions.   As used in this chapter:

(1) (("Active ingredient" means any ingredient which will prevent, destroy, repel, control, or mitigate pests, or which will act as a plant regulator, defoliant, desiccant, or spray adjuvant.

(2))) "Animal manure" means a material composed of excreta, with or without bedding materials and/or animal drugs and collected from poultry, ruminants or other animals except humans.

(((3))) (2) "Applicant" means the person who submits an application to register a material pursuant to the provisions of this chapter.

(((4) "Approved generic material" means any material which is approved for use in organic food production, processing or handling under chapter 15.86 RCW (Organic food products) and rules adopted pursuant to chapter 15.86 RCW.

(5))) (3) "Brand name material" means any material that is supplied, distributed or manufactured by a person.

(((6))) (4) "Compost" means a material produced from a controlled process in which organic materials are digested aerobically or anaerobically by microbial action.

(((7))) (5) "Crop production aid" means any substance, material, structure, or device, that is used to aid a producer of an agricultural product except for fertilizers and pesticides.

(((8) "Defoliant" means any substance or mixture of substances intended to cause the leaves or foliage to drop from a plant with or without causing abscission.

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

(((10) "Desiccant" means any substance or mixture of substances intended to artificially accelerate the drying of plant tissues.

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

(((12))) (8) "Distribute" means to offer for sale, hold for sale, sell, barter, deliver, or supply materials in this state.

(((13) "EPA" means the United States Environmental Protection Agency.

(14))) (9) "Fertilizer" means any substance containing one or more recognized plant nutrients.

(((15) "Generic material" means any type, class or group of materials that is specified under chapter 15.86 RCW or rules adopted pursuant to chapter 15.86 RCW.

(16) "Genetic engineering" means techniques that alter the molecular or cell biology of an organism by means that are not possible under natural conditions or processes. Genetic engineering includes recombinant DNA, cell fusion, micro- and macro-encapsulation, gene deletion, and doubling, introducing a foreign gene, and changing the positions of genes. It does not include breeding, conjugation, fermentation, hybridization, in-vitro fertilization and tissue culture.

(17) "Inert ingredient" means an ingredient which is not an active ingredient.

(18))) (10) "Label" means the written, printed, or graphic matter on, or attached to, the material or its immediate container.

(((19))) (11) "Labeling" includes all written, printed, or graphic matter, upon or accompanying a material, or advertisement, brochures, posters, television, and radio announcements used in promoting the distribution or sale of the material.

(((20))) (12) "Livestock production aid" means any substance, material, structure, or device, that is used to aid a producer in the production of livestock (e.g., parasiticides, medicines, feed additives).

(((21))) (13) "Material" means any substance or mixture of substances that is intended to be used in agricultural production, processing or handling.

(((22))) (14) "Organic waste-derived material" means grass clippings, leaves, weeds, bark, plantings, prunings, and other vegetative wastes, uncontaminated wood waste from logging and milling operations, food wastes, food processing wastes, and materials derived from these wastes through composting. "Organic waste-derived material" does not include products that include biosolids as defined in chapter 70.95 RCW.

(((23))) (15) "Person" means any individual, partnership, association, corporation, or organized group of persons whether or not incorporated.

(((24))) (16) "Pesticide" means, but is not limited to:

(a) Any substance or mixture of substances intended to prevent, destroy, control, repel, or mitigate any insect, rodent, nematode, mollusk, fungus, weed, and any other form of plant or animal life or virus (except virus on or in living man or other animal) which is normally considered to be a pest or which the director may declare to be a pest;

(b) Any substance or mixture of substances intended to be used as a plant regulator, defoliant, or desiccant;

(c) Any substance or mixture of substances intended to be used as a spray adjuvant; and

(d) Any other substances intended for such use as may be named by the director by regulation.

(((25) "Plant regulator" means any substance or mixture of substances intended through physiological action, to accelerate or retard the rate of growth or maturation, or to otherwise alter the behavior of ornamental or crop plants but shall not include substances insofar as they are intended to be used as plant nutrients, trace elements, nutritional chemicals, plant inoculant, or soil amendments.

(26))) (17) "Post-harvest material" means any substance, material, structure, or device, that is used in the post-harvest handling of agricultural products.

(((27))) (18) "Processing aid" means any material used in processing that does not become an ingredient in the food product (e.g., enzymes, boiler water additives, pressing aids, and filtering aids).

(((28) "Prohibited material" means any material which is prohibited for use in organic food production, handling, or processing under chapter 15.86 RCW (Organic food products) and rules adopted pursuant to chapter 15.86 RCW.

(29))) (19) "Registered material" means any material that has applied for registration under this chapter, has met the criteria for approval and has been issued written approval by the department.

(((30))) (20) "Registrant" means the person registering any material pursuant to the provisions of this chapter.

(((31))) (21) "Soil amendment" means any substance that is intended to improve the physical characteristics of the soil, except for fertilizers and pesticides.

(((32))) (22) "Spray adjuvant" means any wetting agent, spreading agent, deposit builder, adhesive, emulsifying agent, deflocculating agent, water modifier, or similar agent with or without toxic properties of its own intended to be used with any other pesticide as an aid to its application or to its effect, and which is in a package or container separate from that of the pesticide with which it is to be used.

(((33) "Washington application rate" is calculated by using an averaging period of up to four consecutive years that incorporates agronomic rates that are representative of soil, crop rotation, and climatic conditions in Washington state.))

[Statutory Authority: Chapter 15.86 RCW. 99-16-054, 16-160-020, filed 7/30/99, effective 8/30/99; 91-05-007, 16-160-020, filed 2/7/91, effective 3/10/91.]


AMENDATORY SECTION(Amending WSR 99-16-054, filed 7/30/99, effective 8/30/99)

WAC 16-160-035   Brand name materials list.   The department maintains a list of registered materials ((and brand name materials that have been denied registration)) that are approved for use in organic food production, processing or handling. The list is provided to all producers, processors and handlers of organic food who apply for certification with the department. A registered material that appears on the brand name materials list has been reviewed to verify that all of its ingredients comply with organic standards.

[Statutory Authority: Chapter 15.86 RCW. 99-16-054, 16-160-035, filed 7/30/99, effective 8/30/99.]


AMENDATORY SECTION(Amending WSR 99-16-054, filed 7/30/99, effective 8/30/99)

WAC 16-160-060   What criteria are used to determine if a brand name material is approved?   The director reviews the information provided under WAC 16-160-040. A brand name material that meets the ((following criteria)) requirements under the 2001 National Organic Program final rule, section 205.105 and sections 205.600 through 205.606 will be registered.

(((1) General requirements.

(a) Its composition is such as to warrant the proposed claims for it;

(b) Its labeling and other material required to be submitted comply with state and federal laws;

(c) It does not contain ingredients that are genetically engineered;

(d) It does not contain ingredients that appear on the EPA's List 1 or 2 of inert pesticide ingredients.

(2) Pesticide and spray adjuvants.

(a) The material does not contain ingredients that are prohibited under chapter 16-154 WAC; and

(b) The ingredients are approved under chapter 16-154 WAC; or

The ingredients are naturally derived, except for those naturally derived materials prohibited under chapter 16-154 WAC; or

The ingredients appear on the EPA's List 4A or 4B of Inert Pesticide Ingredients; or

The ingredients meet the following conditions:

(i) Would not be harmful to human health or the environment;

(ii) Are necessary to the production or handling of organic products; and

(iii) Are consistent with organic principles.

(3) Fertilizers, organic waste derived materials, compost, animal manures, soil amendments, and crop production aids.

(a) All fertilizers, organic waste derived materials, compost, animal manures and soil amendments must meet standards for allowable levels of nonnutritive substances under chapter 15.54 RCW. Washington application rates shall be used to ensure that the maximum acceptable cumulative metal additions to soil are not exceeded.

(b) All organic waste derived materials, compost and animal manures must consist of acceptable feedstocks. Acceptable feedstocks include materials approved under WAC 16-154-070. Prohibited feedstocks include mixed municipal solid waste, sewage sludge, biosolids, glossy paper, recycled gypsum, dangerous waste, special waste, waste or by-product from processes that create organochlorines, cement kilns, secondary steel mills, waste categorically excluded from the dangerous waste regulations and other materials prohibited under this chapter. Applications for registering organic waste derived materials, composts and animal manures must include an inspection of the facility. Inspections of facilities entail an examination of the feedstocks and may entail an examination of any other information deemed necessary to the requirements of chapter 15.86 RCW and this chapter.

(c) The material does not contain ingredients that are prohibited under chapter 16-154 WAC.

(d) The ingredients are approved under chapter 16-154 WAC; or the ingredients are naturally derived, except for those naturally derived materials prohibited under chapter 16-154 WAC; or the ingredients appear on the EPA's List 4A or 4B of Inert Pesticide Ingredients; or the ingredients meet the following conditions:

(i) Would not be harmful to human health or the environment;

(ii) Are necessary to the production of organic products; and

(iii) Are consistent with organic principles.

(4) Post harvest materials.

(a) The material does not contain ingredients that are prohibited under chapter 16-164 WAC or WAC 16-154-120; and

(b) The ingredients are approved under WAC 16-154-120 or chapter 16-164 WAC; or

The ingredients are naturally derived, except for those naturally derived materials prohibited under chapter 16-154 WAC; or

The ingredients appear on the EPA's List 4A or 4B of Inert Pesticide Ingredients; or

The ingredients meet the following conditions:

(i) Would not be harmful to human health or the environment;

(ii) Are necessary to the handling of the organic products; and

(iii) Are consistent with organic principles.

(5) Processing aids.

(a) The material does not contain ingredients that are prohibited under chapter 16-158 WAC; and

(b) The ingredients are approved under chapter 16-158 WAC; or

The ingredients are naturally derived, except for those naturally derived materials prohibited under chapter 16-158 WAC; or

The ingredients appear on the United States Food and Drug Administration list of food additives generally regarded as safe; or

The ingredients meet the following conditions:

(i) Would not be harmful to human health or the environment;

(ii) Are necessary to the processing of organic products; and

(iii) Are consistent with organic principles.

(6) Livestock production aids (parasiticides and medicines, vitamins, minerals, livestock feed additives).

(a) The material does not contain ingredients that are prohibited under chapter 16-162 WAC; and

(b) The ingredients are approved under chapter 16-162 WAC; or

The ingredients are naturally derived, except for those naturally derived materials prohibited under chapter 16-162 WAC; or

The ingredients appear on the United States Food and Drug Administration list of food additives generally regarded as safe; or

The ingredients meet the following conditions:

(i) Would not be harmful to human health or the environment;

(ii) Are necessary to the production or handling of the organic livestock products; and

(iii) Are consistent with organic principles.))

[Statutory Authority: Chapter 15.86 RCW. 99-16-054, 16-160-060, filed 7/30/99, effective 8/30/99; 91-20-013, 16-160-060, filed 9/20/91, effective 10/21/91; 91-05-007, 16-160-060, filed 2/7/91, effective 3/10/91.]


AMENDATORY SECTION(Amending WSR 99-16-054, filed 7/30/99, effective 8/30/99)

WAC 16-160-070   Application fees.   Whenever the department receives an application for registration of materials under this chapter, the department may conduct an inspection. This inspection may entail a survey of required records, examination of facilities, testing representative samples for prohibited materials, and any other information deemed necessary to the requirements of this chapter.

The application fee for initial registration of a pesticide, spray adjuvant, processing aid or post-harvest material is ((two)) three hundred dollars per material. The application fee for initial registration of a fertilizer, soil amendment, organic waste derived material, compost, animal manure, crop production aid, or livestock production aid is ((one)) two hundred dollars per material.

The application fee for renewing a registration for a pesticide, spray adjuvant, processing aid or post-harvest material is ((one)) two hundred dollars per material. The application fee for renewing a registration for a fertilizer, soil amendment, organic waste derived material, compost, animal manure, crop production aid, or livestock production aid is ((fifty)) one hundred dollars per material.

Renewal registrations postmarked after October 31 pay a late fee of ((twenty)) thirty dollars ((per pesticide, spray adjuvant, processing aid or post harvest material; and ten dollars per fertilizer, soil amendment, organic waste derived material, compost, animal manure, crop production aid, or livestock production aid.

Additional)). Inspections, if required, will be billed at ((twenty)) forty dollars per hour plus mileage which shall be charged at the rate established by the state office of financial management.

((Additional)) Samples (((in addition to one sample provided for), if required shall cost an additional lab fee of one hundred ten dollars)), if required for registration, or requested by the applicant, 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, it shall be at ((twenty)) forty dollars per hour plus mileage which shall be charged at the rate established by the state office of financial management.

[Statutory Authority: Chapter 15.86 RCW. 99-16-054, 16-160-070, filed 7/30/99, effective 8/30/99; 91-05-007, 16-160-070, filed 2/7/91, effective 3/10/91.]


REPEALER

     The following section of the Washington Administrative Code is repealed:
WAC 16-160-025 What materials are approved for use in organic food production, processing and handling?

Washington State Code Reviser's Office