9.01.
Adopted 7-7-89 - Effective
7-7-89.
Adopted 8-24-89 - Effective 10-1-89.
Pursuant to the provisions and requirements of the Organic
Certification Act to regulate the production and certification of agricultural
crops offered for sale as "organically grown products," Title 35, Article 11.5,
CRS, the following rules and regulations are hereby promulgated.
The purpose of these rules and regulations is to comply with
the provisions of the associated statute to provide specific guidelines for the
production and certification of agricultural products sold or offered for sale
as organically grown.
The regulations are designed to:
Set standards for producing agricultural products that may be
certified as having been produced without the use of any synthetically
compounded fertilizer or pesticide.
To set certifications procedures to:
Issue evidence of the crop certification and for the sale and
distribution of the "organic label" to licensed producers.
To establish procedures for:
Examining and evaluating products offered for sale to
"organic producers" as a "plant amendment."
Establish inspection procedures and policies for enforcement
of the Act;
Determine license and inspection fees.
9.02.
Adopted 5-1-90 - Effective
5-1-90.
This rule is adopted under the Colorado Organic Certification
Act pursuant to Section
35-11.5-104, C.R.S. and deals with
the definition of "synthetic pesticide".
Organic producers may not use synthetic pesticides when
growing crops on certified organic farms. In a number of pesticides the active
ingredient is naturally derived but the inert ingredients are in some way
synthetic. These products are synthetic under the definition of synthetic
pesticide in the Rules and Regulations adopted on July 7, 1989. At this time
the list of pesticides which do not fall under the July 7, 1989, definition of
synthetic is very limited.
The amended definition will permit organic producers a
broader selection of pesticide products to choose from and still be able to use
natural active ingredients.
These pesticide products will be needed for use by organic
producers in the very near future. The time required to go through the public
hearing process would prevent many of the growers from using these products in
the 1990 growing season. This will result in a financial loss to growers
because of uncontrolled insect and disease problems.
The immediate adoption of rule 1.19 is imperatively necessary
for the preservation of public health, safety, and welfare, and compliance with
the notice and hearing requirements of Section
24-4-103 of the Colorado
Administrative Procedure Act would be contrary to the public interest.
9.03.
Adopted 6-22-90 -
Effective 7-30-90.
The following rule is hereby promulgated under the authority
of the Colorado Organic Certification Act, pursuant to Section
35-11.5-104, C.R.S. It deals with
the definition of "synthetic pesticide".
Organic producers may not use synthetic pesticides when
growing crops on certified organic farms. In a number of pesticides the active
ingredient is naturally derived but the inert ingredients are in some way
synthetic. These products are synthetic under the definition of synthetic
pesticide in the Rules and Regulations adopted on July 7, 1989. At this time
the list of pesticides which do not fall under the July 7, 1989, definition of
synthetic is very limited.
The amended definition will permit organic producers a
broader selection of pesticide products to choose from and still be able to use
natural active ingredients. Without the use of these products certified organic
growers may suffer financial losses because of uncontrolled insect and disease
problems.
Section 1 of the Rules and Regulations promulgated pursuant
to the Colorado Organic Certification Act is amended by substituting the
following for subsection 1.19.:
1.19.
"Synthetic Pesticide" means any pesticide whose active ingredient contains any
synthetically manufactured substance. Any pesticide whose active ingredient
does not contain any synthetically manufactured substance is not a "synthetic
pesticide" even though it contains an inert ingredient which inert ingredient
contains a synthetically manufactured substance. This subsection shall expire
on January 1, 1992.
9.04.
Adopted 10-18-91 - Effective 11-30-91.
The following rules are hereby promulgated under the
authority of the Colorado Organic Certification Act, pursuant to Section
35-11.5-104, C.R.S. They deal with
the definition of "synthetic pesticide" and with the subsection which exempts
seed and seedlings from the requirements for organic production.
The definition of "synthetic pesticide" expires on January 1,
1992. At the time it was adopted in 1990, the State Agricultural Commission
instructed proponents of this definition to re-evaluate it prior to 1992. The
concern was over the blanket acceptance of synthetic inert ingredients in
pesticides deemed acceptable for use in organic crop production. However, in
the fall of 1990 the federal "Organic Foods Production Act of 1990" was passed
by the United States Congress. It calls for state organic certification
programs to meet certain standards to comply with federal requirements, to take
effect on October 1, 1993. This federal legislation will make it necessary to
amend the Colorado Organic Certification Act and the Rules and Regulations
pertaining to it before this deadline.
It will be appropriate to re-evaluate the definition of
"synthetic pesticide" at the same time that other changes, needed to comply
with the federal statute, are made to the state legislation and regulations.
The expiration date of this definition is therefore extended to October 1,
1993.
Subsection 4.02 exempts seed and seedlings from the
requirements for organic production. This provision expires on January 1, 1992.
The subsection was included in the regulations because of the great lack of
availability of untreated seeds and seedlings in the Colorado organic
production areas. This lack of availability is still a problem to Colorado
organic producers and termination of this exemption within the next year will
create a hardship for many organic producers and cause them to suffer financial
losses.
In order to give organic producers more time to find sources
of untreated seed, as more of these sources are made available, the expiration
date of the provisions of this subsection are therefore extended until October
1, 1993 for seed. The expiration date for seedlings remains at January 1,
1992.
9.05.
Adopted
11-19-93 - Effective 12-30-93.
The following rule is hereby promulgated under the authority
of the Colorado Organic Certification Act, pursuant to Section
35-11.5-104, C.R.S., (1993 Supp).
It defines "synthetic pesticide" and includes an expiration date in the
definition.
The definition states that a pesticide is not a synthetic
pesticide because it contains a synthetic inert ingredient. This definition
thus allows for synthetic inert ingredients in pesticides which may be used by
organic producers and it is now set to expire on October 1, 1995. At the
present time there are virtually no pesticides being manufactured that do not
have synthetic inert ingredients. Organic producers would have great difficulty
growing crops without using these pesticides. It is anticipated that by October
1, 1995, federal regulations will provide lists of pesticides acceptable for
use in organic production. At that time it will be appropriate to reevaluate
this definition.
Section 1 of the Rules and Regulations promulgated pursuant
to the Colorado Organic Certification Act is amended by substituting the
following for subsection 1.19:
1.19.
"Synthetic Pesticide" means any pesticide whose active ingredient contains any
synthetically manufactured substance. Any pesticide whose active ingredient
does not contain any synthetically manufactured substance is not a "synthetic
pesticide" even though it contains an inert ingredient which inert ingredient
contains a synthetically manufactured substance. This subsection shall expire
on October 1, 1995.
9.06.
Adopted 11-18-94 - Effective 12-30-94.
These amendments to the rules and regulations are adopted
pursuant to §
35-11.5-104, C.R.S. (1994
Supp.).
The purposes of these amendments to the rules and regulations
are to establish standards for the use of any other organic labels on
agricultural products sold within the state, pursuant to §
§
35-11.5-104(1)(h)
and
109(2), C.R.S.
(1994 Supp.) and to provide guidance pertinent to the sanction imposed upon an
organic producer's license pursuant to §
35-11.5-111, C.R.S. (1994
Supp.).
SECTION 4.5 STANDARDS FOR THE USE OF OTHER ORGANIC LABELS ON
AGRICULTURAL PRODUCTS SOLD WITHIN THE STATE
4.51. Other organic labels are those labels
defined in §
35-11.5-103(6)
of the Act, specifically, any label, other than the organic certification seal
described in Section 7 below, which signifies to a consumer that the labelled
product was organically grown. Such other labels may include, but are not
limited to, a sign, label, seal, advertisement, or other type of promotional
material pertaining to a product containing the words "organic," "organically
grown," , "certified," "certified organic," "verified," "verified organic," any
derivation of said words, or words with similar meaning. Failure to comply with
this Section 4.5 is a prohibited act as set forth in §
35-11.5-109(2),
C.R.S. (1994 Supp.).
4.52. No such
other organic labels shall be utilized in any fashion unless:
(a) The product was produced without the use
of artificial irradiation, synthetic pesticides, synthetic plant or soil
amendments, or fertilizer materials except natural organic fertilizers. Soaps
for insecticidal purposes, lime sulphur, and horticultural oils are
permissible;
(b) In the case of
perennial crops, was grown in soil or growth medium free of the application of
synthetic pesticides, synthetic soil and plant amendments, and synthetic
fertilizer materials for three years prior to harvest; and
(c) In the case of annual crops and two-year
crops, was grown without the use of synthetic pesticides, synthetic soil and
plant amendments, and synthetic fertilizer materials for three years prior to
harvest.
9.07.
Adopted 1-19-96 - Effective 3-1-96.
This amendment to the rules and regulations is adopted
pursuant to §
35-11.5-104, C.R.S. (1985). It
amends the expiration date which is part of the definition of "synthetic
pesticide".
The definition states that a pesticide is not a synthetic
pesticide because it contains a synthetic inert ingredient. This definition
thus allows for synthetic inert ingredients in pesticides which may be used by
organic producers and it is now set to expire on October 1, 1997. At the
present time there are virtually no pesticides being manufactured that do not
have synthetic inert ingredients. Organic producers would have great difficulty
growing crops without using these pesticides. It is anticipated that by October
1, 1997, federal regulations will provide lists of pesticides acceptable for
use in organic production. At that time it will be appropriate to reevaluate
this definition.
Section 1 of the Rules and Regulations promulgated pursuant
to the Colorado Organic Certification Act is amended by substituting the
following for subsection 1.19:
1.19.
"Synthetic Pesticide" means any pesticide whose active ingredient contains any
synthetically manufactured substance. Any pesticide whose active ingredient
does not contain any synthetically manufactured substance is not a "synthetic
pesticide" even though it contains an inert ingredient which inert ingredient
contains a synthetically manufactured substance. This subsection shall expire
on October 1, 1997.
9.08.
Adopted 11-13-97 - Effective 12-30-97.
This amendment to the rules and regulations is adopted
pursuant to §
35-11.5-104, C.R.S. (1997).
The purposes of this amendment are to delete the expiration
date which is found in the definition of "synthetic pesticide" and to require
review of this definition upon adoption of applicable federal rules.
FACTUAL FINDINGS
The United States Department of Agriculture is in the process
of rulemaking pursuant to the Organic Foods Production Act of 1990, codified at
7 U.S.C. §
6501 et. seq. It is anticipated that these
federal rules, which would be controlling, will resolve all issues concerning
"synthetic pesticides." The federal rules will likely not be adopted prior to
the expiration date found in the definition of "synthetic pesticide."
Section 1 is amended as follows:
SECTION 1. TERMS DEFINED AND CONSTRUED
1.19. "Synthetic Pesticide" means any
pesticide whose active ingredient contains any synthetically manufactured
substance. Any pesticide whose active ingredient does not contain any
synthetically manufactured substance is not a "synthetic pesticide" even though
it contains an inert ingredient which inert ingredient contains a synthetically
manufactured substance. This subsection shall be reviewed upon adoption by the
United States Department of Agriculture of rules pursuant to the Organic Foods
Production Act of 1990, codified at
7 U.S.C. §
6501 et. seq.
9.09.
Adopted 10-16-02 - Effective
10-16-02.
STATUTORY AUTHORITY:
These emergency rules are adopted by the Commissioner of
Agriculture pursuant to his authority under the Organic Certification Act
§
35-11.5-104, C.R.S. (2002).
PURPOSE:
The purpose of these emergency rules is to comply with and
implement the provisions of H.B. 02-1186 directing the Colorado Department of
Agriculture ("Department") to establish an organic certification program that
is accredited under the United States Department of Agriculture's National
Organic Program, which takes effect October 21, 2002.
NEED FOR EMERGENCY RULE:
The Commissioner of Agriculture hereby finds that immediate
adoption of emergency rules for the establishment and implementation of the
organic certification program provided for in H.B. 02-1186 is imperatively
necessary to comply with federal regulation and to preserve the public welfare.
The factual basis for this finding is as follows:
1. The Organic Certification Act §
§
35-11.5-101 - 117, C.R.S. (2002),
was originally enacted in 1989 to establish and implement a state program
administered by the Department to help identify and assist Colorado farmers in
marketing organically raised agricultural products.
2. In 1990, Congress passed the Organic Food
Production Act, 7 U.S.C.
§
6501 et seq., which authorized the
United States Department of Agriculture ("USDA") to establish a national
organic certification program that would supercede all state and private
certification programs.
3. On
December 21, 2000, USDA published its Final Rule at 7 C.F.R. part
205 ,
establishing a National Organic Program ("NOP"). When this program takes effect
on October 21, 2002, the Colorado organic certification program established in
1989 will be preempted by the federal program. As of that date, all
certifications issued under the 1989 Colorado law will be invalid. From that
date on, any person that sells any agricultural product labeled as "organic"
must be certified under the federal NOP instead.
4. In response to requests from Colorado
organic producers, the General Assembly passed H.B. 02-1186, amending the
Organic Certification Act effective June 3, 2002. This bill directed the
Department to apply for accreditation to act as a certifying agent for USDA to
certify producers and handlers of organic produce under the NOP.
5. The Department applied for accreditation
at the end of July, 2002, and was notified within the last month that it can
expect to receive accreditation before the October 21, 2002 effective date of
the Final NOP Rule. This notification was unanticipated because USDA review of
other state's applications for accreditation took more than six months to
complete.
6. In order to serve the
needs of organic producers and handlers to become certified before October 21,
2002, the Department plans to begin certifying producers and handlers as soon
as it receives accreditation. If the Department is not able to certify handlers
and producers prior to that date, they will have to try to obtain NOP
certification from private certifying agents based outside of the state in
order to continue their organic business. These emergency rules will allow the
Department to issue certifications during the interim period until the
effective date of the permanent rules, which are scheduled to take effect on
January 1, 2003.
9.10.
Adopted 10-30-02 - Effective 1-30-03.
STATUTORY AUTHORITY:
These permanent rules are adopted by the Commissioner of
Agriculture pursuant to his authority under the Organic Certification Act
§
35-11.5-104, C.R.S. (2002).
PURPOSE:
The purpose of these permanent rules is to:
(1) repeal all of the existing permanent
rules for the administration and enforcement of the Organic Certification Act,
§
§
35-11.5-101 - 117, C.R.S. (2002),
currently published at 8 C.C.R.
1203-9 (including the Statement of Basis and
Purpose as well as Rules 1 through 11) and;
(2) replace the current permanent rules with
new permanent rules which comply with and implement the provisions of H.B.
02-1186 directing the Colorado Department of Agriculture ("Department") to
establish an organic certification program that is accredited under the United
States Department of Agriculture's National Organic Program.
FACTUAL AND POLICY ISSUES:
The factual and policy issues encountered in the proposal of
these permanent rules are as follows:
1. The Organic Certification Act §
§
35-11.5-101 - 117, C.R.S. (2002),
was originally enacted in 1989 to establish and implement a state program
administered by the Department to help identify and assist Colorado farmers in
marketing organically raised agricultural products.
2. In 1990, Congress passed the Organic Food
Production Act, 7 U.S.C.
§
6501 et seq., which authorized the
United States Department of Agriculture ("USDA") to establish a national
organic certification program that would supercede all state and private
certification programs.
3. On
December 21, 2000, USDA published its Final Rule at 7 C.F.R. part
205 ,
establishing a National Organic Program ("NOP"). When this program takes effect
on October 21, 2002, the Colorado organic certification program established in
1989 will be preempted by the federal program. As of that date, all
certifications issued under the 1989 Colorado law will be invalid. From that
date on, any person that sells any agricultural product labeled as "organic"
must be certified under the federal NOP instead.
4. In response to requests from Colorado
organic producers, the General Assembly passed H.B. 02-1186, amending the
Organic Certification Act effective June 3, 2002. This bill directed the
Department to apply for accreditation to act as a certifying agent for USDA to
certify producers and handlers of organic produce under the NOP.
5. The Department applied for accreditation
at the end of July, 2002, and expects to receive accreditation by early
October.
6. In order to serve the
needs of organic producers and handlers to become certified before October 21,
2002, the Department plans to begin certifying producers and handlers as soon
as it receives accreditation. In the interim period before these permanent
rules take effect, therefore, the Department plans to incorporate the text of
these proposed rules in temporary emergency rules.
9.11.
Adopted 2-21-03 -
Effective 6-2-03.
STATUTORY AUTHORITY:
These amendments to the permanent rules are adopted by the
Commissioner of Agriculture pursuant to his authority under the Organic
Certification Act §
35-11.5-104, C.R.S. (2002).
PURPOSE:
The purpose of these amendments to the permanent rules is to
repeal the current Section 2 of the existing permanent Rules incorporating the
federal Organic Food Production Act of 1990 and the National Organic Program
Final Rule and replace it with a new Section 2 that contains identical language
to the current Rule plus additional language explaining how to obtain the
incorporated materials. Nonsubstantive changes will be made to the rule to
include the history of Statements of Basis and Purpose in Section 9.
FACTUAL AND POLICY ISSUES:
The factual and policy issues encountered in the proposal of
these permanent rules are as follows:
1. On October 30, 2002, the Department
adopted new rules pursuant to the Organic Certification Act §
§
35-11.5-101 - 117, C.R.S. (2002),
which established a certification fee system and incorporated by reference the
federal Organic Food Production Act of 1990 and the National Organic Program
Final Rule.
2. On December 5, 2002,
the Department received notice from the Colorado General Assembly Office of
Legislative Legal Services that, in order to comply with §
24-4-104 (12.5)(d), C.R.S., of the
State Administrative Procedure Act, Section 2 of the new permanent Rules must
specify how the public may obtain or examine the incorporated
material.
9.12.
Adopted 4-16-09 - Effective 5-30-09.
Statutory Authority
The amendments to the rules are adopted pursuant to the
Organic Certification Act, §
35-11.5-104, C.R.S. (2008).
The purpose of these amendments is to carry out the
provisions of the Organic Certification Act by:
1) updating the zip code for the Department
of Agriculture to reflect the current zip code;
2) removing the requirement that the annual
fee for certification be due to the Department of Agriculture on the
anniversary date of initial certification; and
3) increasing the reimbursement rate that can
be charged for mileage for the inspector's travel to reflect the cost charged
to the Department of Agriculture by Fleet Management for the vehicle.
The factual and policy issues encountered in the proposal of
this amendment to the rules are as follows:
1) The United States Postal Service changed
the last four numbers in the zip code several years ago. This change will
correct this item in the rule.
2)
The current rule requires the annual fee for certification be payable each year
on the anniversary date of the initial certification. Because the annual fee is
paid at the time the updated Organic Systems Plan is provided, this is not
always appropriate. The Organic Systems Plan is a forward looking document that
needs to submitted prior to the growing season for crops. When the initial
certification is received in August, this sets up an inappropriate time frame
for renewal in future years. Removal of this clause will allow the Department
of Agriculture to set the date the annual fee is due to coincide with the best
time for submission of the Organic Systems Plan.
3) The current limit for the reimbursement
rate of $0.30 per mile that can be charged by for mileage for the inspector's
travel is lower than what Fleet Management changed the Department of
Agriculture when gas prices were high. Fleet Management raised the
reimbursement rate to $0.37 per mile in late 2008. This will allow the
Department of Agriculture to be reimbursed at the rate needed to meet Fleet
Management's fee should gas prices rise in the future.
9.13.
Adopted 12-16-10 - Effective
1-30-11.
Statutory Authority
The amendments to the rules are adopted pursuant to the
Organic Certification Act, §
35-11.5-104, C.R.S. (2010).
The purpose of these amendments is to carry out the
provisions of the Organic Certification Act by:
1) Identifying factors which lead to cost
differentiation and the range of application fees charged to entities apply for
organic certification; and
2)
Stating the minimum standards for contract inspectors. The option is now
possible as the Organic Act was modified in 2010 adding the provision to allow
for the use of contract inspectors.
Factual and Policy Issues
The factual and policy issues encountered when developing
these rules include:
1) Clarification
was needed as to what type of factors are considered when determining the
application fee for certified entities.
2) In 2010 the Organic Certification Act was
amended to allow for contract inspectors. To implement this new provision,
standards were needed to state what training, knowledge and experience the
Department would require of potential inspectors. This provides the minimum
qualification for the department to use in determining if a potential inspector
is qualified. In addition it provides information to potential inspectors as to
what credentials will be needed to apply as a contract inspector.
9.14
Adopted June 12, 2019 -
Effective July 30, 2019
Statutory Authority
The amendments to the rules are adopted pursuant to the
Organic Certification Act, §
35-11.5-104, C.R.S.
The purpose of these amendments is to carry out the
provisions of the Organic Certification Act by:
1) Updating the versions of all material
incorporated by reference and combining all incorporated by reference language
into a new section of the rules;
2)
Updating the address for the Colorado Department of Agriculture's Organic
Program;
3) Removing the cap on
fees for providing certification services and including a fee schedule in the
Rules;
4) Increasing the rate for
inspection fees; and
5) Removing
the limit on reimbursement rates for mileage. Factual and Policy
Issues
The factual and policy issues encountered when developing
these rules include:
1) The Rules were
last updated in 2011. In that Time, newer versions of material incorporated by
reference have been issued. Therefore, the Department is updating its Rules to
reflect the most recent versions of incorporated material. In addition, because
incorporated material appears in multiple sections of the Rules, the Department
is consolidating all incorporation by reference information in a new Section
5.
2) The Department has moved its
headquarters from Lakewood, Colorado, to Broomfield, Colorado. The amended
language updates the Department's address.
3) The Organic Program fees currently do not
cover the cost of providing certification services, and, therefore, the
Department must increase base fees and scope fees to cover the cost of
providing those services. Because the Organic Certification Act authorizes the
Department to charge for all direct and indirect cost of administering and
implementing the Act and because the Act does not require a cap on fees, the
Department has revised the language of the Rule to remove the cap and to be
more consistent with the language in §
35-11.5-104(1)(a)
concerning fees to fund the
Program.
4) The Department has
historically calculated certification fees based upon the completion of an
online form. To provide more certainty to the regulated community with respect
to fees charged, the Organic Program has included the information in this form
in the Rules. Because the operations of participants in the Organic Program
have increased in size and complexity since 2011, the Program has revised the
scope fee categories and values included in the on-line form to reflect those
changes. Save for large dairy or beef cattle operations, fees have increased
step-wise across the board. The scope fee for beef or dairy cattle operations
with over 1,000 head of cattle have increased beyond the step-wise amount
because these operations frequently cover multiple geographic areas and have
more complex organic system plans than smaller operations, which makes the
operations more time-consuming and costly to certify.
5) The current rate charged for inspections
only covers the actual cost for the inspector's time based on the current
salary and benefits. It does not cover indirect costs associated with the
inspection, such as inspector training or specialized or emergency inspections,
nor does it allow for inspectors' future salary and benefit cost increases. By
establishing a base inspection fee of $150.00, the Department can defray
indirect costs, such as mileage, travel, and pre- and post-inspection review.
An increase in the per hour inspection fee to $45.00 enables the program to
charge an amount closer to the actual costs of providing services.
6) Because travel is now included in the base
inspection fee of $150.00 per inspection, a specific mileage reimbursement
provision is not necessary. This increase will also cover the amount currently
charged to the Organic Program for mileage and vehicle use.
