Date of Adoption: January 10, 2003.

     Purpose: Chapter 16-157 WAC sets standards for the certification of organic producers, processors, and handlers. The rule provides the application, inspection, sampling, fee schedule and certification criteria for obtaining organic and transitional certification. The rule adopts the 2001 National Organic Program. Fees are increased to recover the full cost of the program as required by statute.

     Citation of Existing Rules Affected by this Order: Repealing WAC 16-157-100, 16-157-110, 16-157-200 and 16-157-280; and amending WAC 16-157-020, 16-157-030, 16-157-220 through 16-157-270, and 16-157-290.

     Statutory Authority for Adoption: Chapter 15.86 RCW.

      Adopted under notice filed as WSR 02-22-088 on November 5, 2002; and WSR 02-24-006 on November 21, 2002.

     Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted on the Agency's Own Initiative: New 1, Amended 10, Repealed 4.

     Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0;      Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 0, Repealed 0.

     Other Findings Required by Other Provisions of Law as Precondition to Adoption or Effectiveness of Rule: RCW 15.86.070(2) as amended. Reference chapter 220, Laws of 2002, legislative permission was granted to exceed the fiscal growth factor requirements.
     Effective Date of Rule: Thirty-one days after filing.

January 10, 2003

William E. Brookreson

for Valoria H. Loveland

Director

OTS-5948.5

AMENDATORY SECTION(Amending WSR 02-10-090, filed 4/29/02, effective 5/30/02)

WAC 16-157-020   Adoption of the National Organic Program.   The 2001 National Organic Program final rule, ((subparts A, C, D, E, sections 205.102 through 205.105, and sections 205.600 through 205.606)) 7 CFR Part 205, effective April 21, 2001, is adopted by reference as Washington state standards for the production and handling of organic crops, livestock and processed food products. The ((applicable sections of the)) 2001 National Organic Program final rule may be obtained from the department.

[Statutory Authority: Chapter 15.86 RCW. 02-10-090, § 16-157-020, filed 4/29/02, effective 5/30/02.]

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

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

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

     (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) "Growing medium" means the material utilized by fungi as a substrate for growth.

     (6) "Growing medium amendment" means a nutritional supplement added to the growing medium to enhance vigor and yields.

     (7) "Handle" means to sell, arrange the sale of, represent, process, distribute or package organic food products.

     (8) "Handler" means any person who sells, arranges the sale of, represents, processes, distributes, or packs organic food products.

     (9) "Label" means all written, printed, or graphic material on the immediate container or accompanying or representing the product.

     (10) "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.

     (11))) (4) "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.

     (((12) "Organic food product" means any agricultural 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.

     (13) "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.

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

     (15))) (5) "Processor" means any handler 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.

     (((16) "Producer" means any person or organization who or which grows, raises or produces an agricultural product.

     (17) "Prohibited" means any material or practice which does not meet the required criteria or standards for use in the production or handling of organic or transitional agricultural products.

     (18))) (6) "Renewal applicant" means any person that has received organic certification from the department in the previous year.

     (((19) "Retail facility" means any facility, in whole or in part, that sells organic food products directly to consumers.

     (20))) (7) "Retailer" means any handler that sells organic food products directly to consumers.

     (((21))) (8) "Sale" means selling, offering for sale, holding for sale, preparing for sale, trading, bartering, offering a gift as an inducement for sale of, and advertising for sale in any media.

     (((22))) (9) "Site" means a defined field, orchard, block, pasture, paddock, garden, circle, plot or other designated area.

     (((23) "Spawn" means a medium that has been colonized with the desired fungal mycelia. It is used to inoculate growing medium.

     (24))) (10) "Transitional ((food)) product" means any agricultural product that (a) is marketed using the term 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. 02-10-090, § 16-157-030, filed 4/29/02, effective 5/30/02.]

     (1) The cost per application shall be based on the following fee schedule.

     (a) Renewal applicants -

     Application fees ((are)) must be based on the previous calendar year's sales of organic food. In the event that the current calendar year's sales exceed the previous year's sales, the department may bill the producer for the additional fee. In the event that the current calendar year's sales are less than the previous year's sales, the producer may request a refund for the reduced fee. In addition, renewal applications postmarked after March 1, ((shall)) must pay a late fee of ((fifty)) seventy-five 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.

     (b) New applicants -

     Application fees ((shall)) must be based on an estimate of the current year's sales of organic food. In the event that the current calendar year's sales exceed the estimate, the department may bill the producer for the additional fee. In the event that the current calendar year's sales are less than the estimate, the producer may request a refund for the reduced fee. In addition, new applicants must pay a ((seventy-five)) one hundred 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.

SALES			ANNUAL FEE
$ 0	-	(($ 12,000	. . . . . . . . . . . . . . . . . . . . . $ 165
$ 12,001	-))	$ 15,000	. . . . . . . . $ 200
$ 15,001	-	$ 20,000	. . . . . . . . . . . . . . . . . . . . . $ ((220)) 225
$ 20,001	-	$ 25,000	. . . . . . . . . . . . . . . . . . . . . $ ((275)) 280
$ 25,001	-	$ 30,000	. . . . . . . . . . . . . . . . . . . . . $ ((330)) 335
$ 30,001	-	$ 35,000	. . . . . . . . . . . . . . . . . . . . . $ ((385)) 390
$ 35,001	-	$ 42,500	. . . . . . . . . . . . . . . . . . . . . $ ((465)) 470
$ 42,501	-	$ 50,000	. . . . . . . . . . . . . . . . . . . . . $ ((550)) 560
$ 50,001	-	$ 65,000	. . . . . . . . . . . . . . . . . . . . . $ ((660)) 670
$ 65,001	-	$ 80,000	. . . . . . . . . . . . . . . . . . . . . $ ((825)) 835
$ 80,001	-	$100,000	. . . . . . . . . . . . . . . . . . . . . $ ((990)) 1,000
$100,001	-	$125,000	. . . . . . . . . . . . . . . . . . . . . $((1,100)) 1,150
$125,001	-	$150,000	. . . . . . . . . . . . . . . . . . . . . $((1,150)) 1,300
$150,001	-	$175,000	. . . . . . . . . . . . . . . . . . . . . $((1,320)) 1,450
$175,001	-	$200,000	. . . . . . . . . . . . . . . . . . . . . $((1,375)) 1,600
$200,001	-	$240,000	. . . . . . . . . . . . . . . . . . . . . $((1,540)) 1,750
$240,001	-	$280,000	. . . . . . . . . . . . . . . . . . . . . $((1,595)) 1,900
$280,001	-	$325,000	. . . . . . . . . . . . . . . . . . . . . $((1,650)) 2,050
$325,001	-	$375,000	. . . . . . . . . . . . . . . . . . . . . $((1,720)) 2,200
$375,001	-	$425,000	. . . . . . . . . . . . . . . . . . . . . $((2,200)) 2,450
$425,001	-	$500,000	. . . . . . . . . . . . . . . . . . . . . $((2,300)) 2,700
$500,001	-	$750,000	. . . . . . . . . . . . . . . . . . . . . $((2,750)) 3,000
(($750,001	and up		. . . . . . . . . . . . . . . . . . . . . $2,000 plus 0.10% of gross organic sales))
$750,001	-	$7,000,000	. . $2,200 plus 0.11% of gross organic sales
over		$7,000,000	. . . . . . . . . . . . . . . . . . . . . $10,000

     (2) Transitional acreage fee - In addition to the producer application fee, each applicant ((shall)) must pay a fee of five dollars per acre for the land for which they are requesting transitional certification.

[Statutory Authority: Chapter 15.86 RCW. 02-10-090, § 16-157-220, filed 4/29/02, effective 5/30/02.]

     (1) Application fee.

     (a) Renewal applicants - Application fees are ((one)) two hundred ((fifty)) dollars per facility. In addition, renewal applications postmarked after March 1, must pay a late fee of ((fifty)) seventy-five dollars.

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

     (2) Certification fee - A certification fee based on the following fee schedule must accompany the application. Certification fees are assessments on the organic products in each category. New applicants must base certification fees on an estimate of sales in each category. Renewal applicants must base certification fees on the previous calendar year's sales in each category. Applicants may have food products in more than one category.

     Category I - Organic food products: Products labeled as "organic" or "one hundred percent organic" are assessed ((at 0.275%)) 0.30% of the previous calendar year's sales for the first million dollars and ((0.10%)) 0.11% for sales above one million dollars.

     Category II - Made with organic food products: Products labeled as "made with organic ingredients" are assessed ((0.175%)) 0.20% of the previous calendar year's sales for the first million dollars and ((0.06%)) 0.07% for sales above one million dollars.

     Category III - Food products with organic ingredients: Products packaged for retail sales that limit their organic claims to the information panel are assessed ((0.10%)) 0.11% of the previous calendar year's sales for the first million dollars and ((0.30%)) 0.04% for 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 ((0.35%)) 0.40% of the previous calendar year's service fees received for processing organic food for the first million dollars and ((0.10%)) 0.11% for service fees above one million dollars.

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

[Statutory Authority: Chapter 15.86 RCW. 02-10-090, § 16-157-230, filed 4/29/02, effective 5/30/02.]

     (1) Renewal applicants. Application fees must be based on the previous calendar year's sales of organic food. In the event that the current calendar year's sales exceed the previous year's sales, the department may bill the handler for the additional fee. In the event that the current calendar year's sales are less than the previous year's sales, the ((producer)) handler may request a refund for the reduced fee. In addition, renewal applications postmarked after March 1 must pay a late fee of ((fifty)) seventy-five dollars.

     (2) New applicants. Application fees must be based on an estimate of the current year's sales of organic food. In the event that the current calendar year's sales exceed the estimate, the department may bill the handler for the additional fee. In the event that the current calendar year's sales are less than the estimate, the handler may request a refund for the reduced fee. In addition, new applicants must pay a ((seventy-five)) one hundred dollar new applicant fee.

     (3) The cost per facility must be based on the following fee schedule. The appropriate fee must accompany the application.

ORGANIC SALES			FEE
((Sales under	$ 25,000		. . . . . . . . . . . . . . . . . $ 75
$ 25,001)) $ 0	-	$ 50,000	. . . . . . . . . . . . . . . . . $ ((150)) 200
$ 50,001	-	$ 75,000	. . . . . . . . . . . . . . . . . $ ((225)) 250
$ 75,001	-	$ 100,000	. . . . . . . . . . . . . . . . . $ ((300)) 330
$ 100,001	-	$ 200,000	. . . . . . . . . . . . . . . . . $ ((400)) 440
$ 200,001	-	$ 300,000	. . . . . . . . . . . . . . . . . $ ((500)) 550
$ 300,001	-	$ 400,000	. . . . . . . . . . . . . . . . . $ ((600)) 660
$ 400,001	-	$ 500,000	. . . . . . . . . . . . . . . . . $ ((700)) 770
$ 500,001	-	$ 750,000	. . . . . . . . . . . . . . . . . $ ((900)) 990
$ 750,001	-	$ 1,000,000	. . . . . . . . . . . . . . . . . $ ((1,000)) 1,100
$1,000,001	-	$ 1,250,000	. . . . . . . . . . . . . . . . . $ ((1,250)) 1,375
$1,250,001	-	$ 1,500,000	. . . . . . . . . . . . . . . . . $ ((1,500)) 1,650
$1,500,001	-	$ 2,000,000	. . . . . . . . . . . . . . . . . $ ((2,000)) 2,200
$2,000,001	-	$ 2,500,000	. . . . . . . . . . . . . . . . . $ ((2,500)) 2,750
$2,500,001	-	$ 3,000,000	. . . . . . . . . . . . . . . . . $ ((3,000)) 3,300
$3,000,001	-	$ 4,000,000	. . . . . . . . . . . . . . . . . $ ((3,500)) 3,850
$4,000,001	-	$ 5,000,000	. . . . . . . . . . . . . . . . . $ ((4,000)) 4,400
$5,000,001	-	$ 6,000,000	. . . . . . . . . . . . . . . . . $ ((5,000)) 5,500
$6,000,001	-	$ 7,000,000	. . . . . . . . . . . . . . . . . $ ((6,000)) 6,600
$7,000,001	-	$ 8,000,000	. . . . . . . . . . . . . . . . . $ ((7,000)) 7,700
$8,000,001	-	$ 9,000,000	. . . . . . . . . . . . . . . . . $ ((8,000)) 8,800
$9,000,001	-	$10,000,000	. . . . . . . . . . . . . . . . . $ ((9,000)) 9,900
over	$((10,000,001)) 10,000,000		. . . . . . . . . . . . . . . . $ ((10,000)) 11,000

[Statutory Authority: Chapter 15.86 RCW. 02-10-090, § 16-157-240, filed 4/29/02, effective 5/30/02.]

     (1) Renewal applicants. Application fees must be based on the previous calendar year's sales of organic products. In the event that the current calendar year's sales exceed the previous year's sales, the department may bill the retailer for the additional fee. In the event that the current calendar year's sales are less than the previous year's sales, the retailer may request a refund for the reduced fee. In addition, renewal applications postmarked after March 1 must pay a late fee of seventy-five dollars.

     (2) New applicants. Application fees must be based on an estimate of the current year's sales of organic food. In the event that the current calendar year's sales exceed the estimate, the department may bill the retailer for the additional fee. In the event that the current calendar year's sales are less than the estimate, the retailer may request a refund for the reduced fee. In addition, new applicants must pay a one hundred dollar new applicant fee.

     (3) The cost per facility must be based on the following fee schedule. The appropriate fee must accompany the application.

ORGANIC SALES			FEE
$ 0	-	$100,000	. . . . . . . . . . . . . . . . . $330
$100,001	-	$500,000	. . . . . . . . . . . . . . . . . $500
$500,001	-	$1,000,000	. . . . . . . . . . . . . . . . . $750
$1,000,001	-	$2,000,000	. . . . . . . . . . . . . . . . . $1,000
$2,000,001	-	$3,000,000	. . . . . . . . . . . . . . . . . $1,500
$3,000,001	-	$4,000,000	. . . . . . . . . . . . . . . . . $2,000
$4,000,001	-	$5,000,000	. . . . . . . . . . . . . . . . . $2,250
over	-	$5,000,000	. . . . . . . . . . . . . . . . . $2,500

[]

     ((Two inspections)) The annual on-site inspection and any additional inspections conducted for collecting samples or for surveillance within the state of Washington are provided for under the application and certification fees. Additional inspections, if necessary to determine compliance or requested, will be charged to the applicant at the rate of ((thirty)) forty 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 (($30)) $40/hr. plus transportation costs.

[Statutory Authority: Chapter 15.86 RCW. 02-10-090, § 16-157-250, filed 4/29/02, effective 5/30/02.]

[Statutory Authority: Chapter 15.86 RCW. 02-10-090, § 16-157-255, filed 4/29/02, effective 5/30/02.]

     • At least one year prior to the harvest of transitional food.))

     Organic producers certified under this chapter may use the ((attached)) organic producer logo, found in WAC 16-157-275, to identify organic ((food)) products.

     Transitional producers certified under this chapter may use the ((attached)) transitional producer logo, found in WAC 16-157-275, to identify transitional ((food)) products.

     (2) ((For each site,)) The director must review the application, inspection report and results of any samples collected to determine that the producer has complied with the conditions for organic or transitional ((food)) certification ((on that site)). ((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)).

     (((3) In no event shall organic food products be distributed or sold prior to the issuing of an organic food certificate by the department of agriculture for that year. New applicants and new sites must be inspected by the department before an organic food certificate is issued.

     (4) Beginning in the year 2002, each site must meet the following conditions prior to the issuance of an organic food producer certificate for that site:

     (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; or

     (d) The department determines that the site was producing organic crops in the previous year and the producer was exempted from certification under RCW 15.86.090 (2)(b).

     (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; or

     (c) The department determines that the site was producing first year transitional crops in the previous year and the producer was exempted from certification under RCW 15.86.090 (2)(b).))

[Statutory Authority: Chapter 15.86 RCW. 02-10-090, § 16-157-260, filed 4/29/02, effective 5/30/02.]

     (2))) The director must review the application, inspection report and results of any samples collected to determine that the processor or handler has complied with the conditions for organic food certification. An organic food certificate will be issued when the director determines that the processor or handler has complied with the conditions for organic food certification.

     (((3) In no event shall organic food products be processed or handled by a facility prior to the issuing of an organic food certificate by the department of agriculture for that year. New applicants must be inspected by the department before an organic food certificate is issued.

     (4))) (2) Processors certified under this chapter may use the ((attached)) organic processor logo, found in WAC 16-157-275, to identify organic ((food)) products processed by the facility.

     (((5))) (3) Handlers certified under this chapter may use the ((attached)) organic handler logo, found in WAC 16-157-275, to identify organic ((food)) products handled by the facility.

[Statutory Authority: Chapter 15.86 RCW. 02-10-090, § 16-157-270, filed 4/29/02, effective 5/30/02.]

     (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)) forty dollars per application.

[Statutory Authority: Chapter 15.86 RCW. 02-10-090, § 16-157-290, filed 4/29/02, effective 5/30/02.]

     The following sections of the Washington Administrative Code are repealed:

WAC 16-157-100	Land requirements.
WAC 16-157-110	Records.
WAC 16-157-200	Application for certification.
WAC 16-157-280	Decertification.

© Washington State Code Reviser's Office