8 CCR 1202-18 Part 2 - VARIANCE PROCEDURE AND REQUIREMENTS

2.1 An agricultural employer must receive a variance certificate from the Department prior to having any agricultural worker, including workers working through a contract service, hand weed agricultural or horticultural products greater than 20 percent of the worker's weekly work time on an agricultural property(ies) owned or leased by an agricultural employer.

2.1.1 When determining whether an agricultural worker will hand weed "greater than 20 percent of the worker's weekly work time," the agricultural employer must account for the hours performed hand weeding on the entire agricultural property(ies), including time spent hand weeding on portions of the agricultural property(ies) where Exempt Activities occur.

2.2 The agricultural employer seeking a variance certificate must submit an application for a variance on a form provided by the Commissioner at least 10 business days prior to the commencement of hand weeding activities on the subject agricultural property(ies).

2.2.1 The application must include, but is not limited to, the following:

2.2.1.1 The name and contact information for the person or entity requesting the variance;

2.2.1.2 An explanation of why the variance is being requested;

2.2.1.3 An explanation of why, to the best of the agricultural employer's knowledge, the hand weeding performed under the requested variance will not involve prolonged and unnecessary stooping, kneeling, or squatting and does not create a risk of acute, chronic, or debilitating injuries to agricultural workers;

2.2.1.4 An explanation of why, to the best of the agricultural employer's knowledge, there is no suitable long-handled tool or other alternative means of performing the work that is suitable and appropriate to both the production of the agricultural or horticultural commodity and the scale of the operation;

2.2.1.5 Confirmation that the hand weeding to be performed under the variance certificate is not hand weeding that can be performed under any Exempt Activity;

2.2.1.6 Confirmation that an agricultural employer will not have any agricultural worker use a short-handled hoe for weeding and thinning in a stooped, kneeling or squatting position;

2.2.1.7 Confirmation that an agricultural employer will provide any agricultural worker engaged in hand weeding and hand thinning an additional five minute rest period in the middle of each work period;

2.2.1.8 Confirmation that the agricultural employer will provide gloves and knee pads, as necessary, to each agricultural worker engaged in hand weeding or thinning;

2.2.1.9 A description of any other procedures, methods, and strategies, including, but not limited to, agronomy practices and weed management methods to be applied on the subject agricultural property(ies), that the agricultural employer will use to protect agricultural workers from risk of acute, chronic, or debilitating injury during hand weeding or thinning conducted under the requested variance certificate; and

2.2.1.10 Any other information required by the Commissioner to administer §§ 8-13.5-203(d) and (e), C.R.S., (as herein incorporated by reference).

2.3 All variance certificates, including those issued to agricultural employers actively transitioning to organic agriculture, are valid for one calendar year.

2.4 All variance certificates apply to the agricultural employer and the agricultural property(ies) identified in the application, unless that property(ies) description has been modified as described in Part 2.6 below.

2.4.1 A separate variance certificate is required for additional properties not so identified or modified.

2.5 Variance certificates may not be assigned or transferred to a different agricultural employer.

2.6 If, after receipt of a variance certificate from the Department, the agricultural employer wishes to modify the agricultural property(ies) covered by the variance certificate, that agricultural employer must file a request to modify the variance certificate.

2.6.1 Any such request must be filed on a form provided by the Commissioner at least 10 business days prior to permitting more than occasional or intermittent hand weeding or thinning on the modified agricultural property(ies).

2.7 Variance certificates do not cover hand weeding during otherwise Exempt Activities.

2.8 Applications for a variance must be signed by an authorized representative of the agricultural employer who possesses the legal authority to make binding decisions for the agricultural employer.

2.9 Farm records and other business-related information shared with the Department, including information provided as part of the application process, are confidential pursuant to § 24-72-204, C.R.S., and 7 C.F.R. § 205.501(a)(10) (both as incorporated herein by reference).

Notes

8 CCR 1202-18 Part 2

45 CR 01, January 10, 2022, effective 1/30/2022