8 CCR 1202-18, pt. 7 - STATEMENTS OF BASIS, SPECIFIC STATUTORY AUTHORITY AND PURPOSE

7.1 Adopted December 8, 2021- Effective January 30, 2022

STATUTORY AUTHORITY:

The Commissioner of Agriculture adopts these rules pursuant to §§ 8-13.5-203(2)(d) and (e), C.R.S.

PURPOSE:

To comply with Senate Bill 21-87 by establishing rules concerning allowances, limitations, and variances for agricultural employers to permit certain hand weeding and/or thinning activities by agricultural workers by:

1. Defining key terms;

2. Establishing the requirements and process for requesting a variance from the Colorado Department of Agriculture ("Department") that allows more than occasional or intermittent hand weeding by agricultural workers; and

3. Establishing allowances and limitations for hand weeding and hand thinning for agricultural employers actively engaged in the transition to certified organic agriculture while ensuring that agricultural workers are not at risk of acute, chronic, or debilitating injuries.

FACTUAL AND POLICY ISSUES:

The factual and policy issues encountered while drafting these rules are as follows:

1. The Department identified multiple terms that were not defined in §§ 8-13.5-201 and 203, C.R.S. To provide clarity to the regulated community both as to the meaning of terms used in these rules and to the types of activities that are not subject to limitations on hand weeding or thinning, the Department has included definitions in Part 1.

2. The Department has excluded properties owned or leased by the state or political subdivisions of the state, including state institutions of higher education, from the definition of agricultural property at Part 1.3 because neither the state nor political subdivisions of the state are regulated employers pursuant to § 8-3-104(12)(b), C.R.S. As such, the state and political subdivisions of the state, including institutions of higher education in the state, are not subject to limitations on hand weeding or thinning. However, individuals or entities who lease land from the state or a political subdivision of the state and who conduct agricultural activities on those leased lands are subject to these rules.

3. A variance certificate is not required if an agricultural employer only engages in activities that are already exempt from hand weeding and thinning limitations by statute. Specifically, § 8-13.5-203(2)(c), C.R.S., establishes classes of activities that are not subject to variance requirements ("Exempt Activities"). In other words, a variance certificate allowing agricultural workers to hand weed more than occasionally or intermittently is not required for Exempt Activities.

4. However, the Department understands that many agricultural employers conduct Exempt Activities and non-Exempt Activities on the same agricultural property(ies). Although agricultural employers do not need to seek a variance certificate for Exempt Activities, those employers must consider the hours spent hand weeding or thinning during those activities when determining if hand weeding during a worker's weekly work time will exceed the occasional or intermittent threshold, defined as "twenty percent or less of an agricultural worker's weekly work time." § 8-13.5-201(b), C.R.S. This is because the governing statute does not define "weekly work time," and the plain meaning of that phrase encompasses any and all work conducted as part of the worker's employment. Therefore, Part 2.2.1 requires that, when determining whether a variance certificate is required to hand weed more than occasionally or intermittently, the agricultural employer 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.

5. The activities conducted by an agricultural employer are closely tied to the agricultural property(ies) that the agricultural employer owns, leases, or otherwise controls, maintains, and operates. Because the variance will cover specific hand weeding operations conducted on specific properties, the Department needs information on those properties in order to assess whether the agricultural employer has made the necessary statutory showing required to receive a variance. For this reason, the Department has determined that variances are employer- and property-specific, and, therefore, Part 2 of these rules requests information on agricultural properties and activities on those specific properties.

6. Section 8-13.5-203(2)(e), C.R.S., only allows the Department to approve a request for a variance when the agricultural employer has established that three, specific criteria are met. As such, the burden is on the agricultural employer to establish that:

i) the hand weeding performed under the variance does not involve prolonged and unnecessary stooping, kneeling, or squatting and does not create a risk of acute, chronic, or debilitating injuries for agricultural workers;

ii) 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; and

iii) the applicant is not engaged in any of the seven other exempt activities listed at § 8-13.5-203(2)(c), C.R.S.

7. This statutory mandate does not grant any inspection or enforcement authority to the Department concerning the variances. Therefore, neither Part 2 nor Part 3 of the Department's rules provide for pre-variance inspections, post-variance inspections, or oversight concerning whether an agricultural employer complies with the requirements necessary for the Department to issue a variance. Instead, the Department must rely on information provided by the agricultural employer to establish that the requirements for a variance are met. In so doing, the Department recognizes that each agricultural operation is unique; thus, the agricultural employer will be in the best position to, for example, analyze the suitability of various long-handled or other tools to their operations or the appropriateness of hand weeding certain agricultural or horticultural commodities. Therefore, Parts 2.2.1.3 through 2.2.1.5 of the Department's rules require explanations from the applicant as to how the criteria described immediately above have been met.

8. Because the variance process includes a consideration of risk of acute, chronic, or debilitating injury to an agricultural worker, Parts 2.2.1.6 through 2.2.1.8 of the Department's rules require confirmation from the applicant that statutory requirements at §§ 8-13.5-203(2)(a), (3), and (4), C.R.S., setting forth protections afforded to agricultural workers, have been met. The Department has no oversight authority over an applicant's compliance with these statutory requirements; such compliance is the responsibility of the applicant. That said, Part 2.2.1.9 requests information on other procedures or methods the agricultural employer intends to provide to protect agricultural workers from risk of acute, chronic, or debilitating injury.

9. A variance certificate applies to the specific agricultural employer and all agricultural properties identified in the application for a variance. The Department recognizes, however, that agricultural properties owned, leased, or otherwise worked may change in any given year. To account for this reality, Part 2.6 establishes a process by which an agricultural employer may modify the agricultural properties to which the variance certificate applies. This ensures that an agricultural employer's variance extends to new properties or parcels where hand weeding or thinning may occur, provided all requirements in Part 2.6 have been met.

10. Section 8-13.5-203(2)(d) charges the Department with promulgating rules that establish allowances and limitations for hand weeding and hand thinning for agricultural employers actively engaged in the transition to certified organic agriculture, while ensuring that agricultural workers are not at risk of acute, chronic, or debilitating injuries. The Department identified three classes of agricultural employers most likely to be transitioning to organic agriculture in Part 3 of its rules:

i) those who are actively certified but are transitioning conventional fields to organic fields pursuant to their Organic System Plan;

ii) those who are transitioning their operations or specific portions of their operations to organic agriculture pursuant to a formal transition program offered by an accredited certifier; and

iii) those considering or operating in the three-year transition period required to become certified organic (i.e., where the fields or greenhouses have had no prohibited substances applied or methods used).

11. There is no way for the Department to track the identity or progress of the third category of transitioning agricultural employers who are not part of a formal transitioning program. And, because § 8-13.5-203(d), C.R.S., does not grant the authority to the Department to inspect transitioning fields, the Department lacks general oversight authority over any such transition. Therefore, the Department has determined that the most effective way to limit hand weeding in these instances is pursuant to the variance process described in Part 2 of the rules.

12. Section 8-13.5-203(c)(III), C.R.S., exempts certified organic operations from limits on hand weeding or thinning. Some transitioning agricultural employers operate under an existing Organic System Plan or under a formal transitioning program overseen by an accredited certifier. Such transitioning operations are carefully monitored by USDA NOP or the certifier and, because those transitioning operations will soon be certified organic, the Department has determined that no variance will be required for these groups of transitioning agricultural employers who operate under oversight by certifiers or USDA NOP.

13. Part 3.1 establishes the general rule that agricultural employers actively engaged in the transition to certified organic agriculture are only eligible to receive a variance certificate for up to three consecutive years. This three-year limitation matches the three-year period where a transitioning grower may not use or apply prohibited methods or substances to the transitioning land. However, the Department's experience as an organic certifier demonstrates that there are situations where this three-year period must be extended. For example, third parties may apply or otherwise allow prohibited substances to contact transitioning fields without the permission of the transitioning grower (e.g., pesticides applied to non-conventional fields drift onto transitioning fields; fire suppression activities require the application of prohibited substances to transitioning fields to stop the spread or threat of fire to other areas). Therefore, provided the requirements in § 8-13.5-203(2)(e), C.R.S., are met, Part 3.1.1.1 allows the Commissioner to issue a variance certificate for additional consecutive periods to account for such situations. However, the Department cannot enumerate the myriad ways in which a transition to organic agriculture may be interrupted without the knowledge or permission of the transitioning grower. To address this issue, Part 3.1.1.2 allows the Commissioner to exercise his or her discretion to consider the extenuating circumstance(s) presented by the applicant and then exercise his or her discretion to issue variance certificates consistent with § 8-13.5-203(2)(e), C.R.S., for additional consecutive periods.

Notes

8 CCR 1202-18, pt. 7

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