Colorado Department of Agriculture
Plant Industry Division
Administration and Enforcement of the Organic Certification Act
8 CCR 1203-9
Statement of Basis, Purpose and Statutory Authority
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	The Organic Certification Act §§ 35-11.5-101 — 117, C.R.S. (2002), was originally enacted in 1989 to establish and implement a state program administered by the Department to help identify and assist Colorado farmers in marketing organically raised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 permanent rules in temporary emergency rules.
REPEAL OF PERMANENT RULES AT 8 C.C.R. 1203-9:
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), including the Statement of Basis and Purpose, and Rules 1 through 11 inclusive appearing at 8 C.C.R. 1203-9, are hereby repealed and replaced by the following new permanent rules as set forth below.
ADOPTION OF NEW PERMANENT RULES:
The following new permanent rules for the administration and enforcement of the Organic Certification Act, §§ 35-11.5-101 — 117, C.R.S. (2002), are hereby adopted.
SECTION 1.	PURPOSE
1.01	These permanent rules are intended to facilitate certification of organic producers and handlers by the Colorado Department of Agriculture (“Department”) under the United States Department of Agriculture's National Organic Program.
SECTION 2.	CERTIFICATION OF PRODUCERS AND HANDLERS UNDER THE NATIONAL ORGANIC PROGRAM
2.01.	All certification of organic producers and handlers shall be done by the Department in its capacity as an accredited certifying agent for the United States Department of Agriculture's National Organic Program and in accordance with the provisions of the Organic Food Production Act of 1990, 7 U.S.C. § 6501 et seq, (2002) (later amendments not included), incorporated by reference herein, and the National Organic Program Final Rule, 7 C.F.R. part 205 (2002) (later amendments not included), incorporated by reference herein.
SECTION 3.	FEES
3.01.	Each applicant for certification shall be charged an annual, non-refundable certification fee of not more than $5,000.00. Applicants shall submit payment of this fee with their application for certification. Once certified, all producers and handlers certified under the program shall pay this fee on an annual basis for each subsequent year in which they wish to remain certified by the Department. This annual fee shall be payable each year on the anniversary date of the initial certification.
3.02.	In addition to the above annual fees, all applicants for and holders of certifications issued by the Department shall be required to pay the costs of any inspections necessary to obtain and maintain certification as follows:
a.	Inspection time, including travel, will be charged at a rate of not more than $40.00 per hour.
b.	Mileage for the inspector's travel will be charged at a rate of not more than $0.30 per mile.
c.	If travel and inspection cannot reasonably be accomplished within one day, the inspector's travel and per diem expenses will be charged according to the policies and rates set forth in Rule 5-1 of the State Fiscal Rules, 1 C.C.R. 101-1.
SECTION 1.	PURPOSE
1.01.	These permanent rules are intended to facilitate certification of organic producers and handlers by the Colorado Department of Agriculture (“Department”) under the United States Department of Agriculture's National Organic Program.
SECTION 2.	CERTIFICATION OF PRODUCERS AND HANDLERS UNDER THE NATIONAL ORGANIC PROGRAM
2.01.	All certification of organic producers and handlers shall be done by the Department in its capacity as an accredited certifying agent for the United States Department of Agriculture's National Organic Program and in accordance with the provisions of the Organic Food Production Act of 1990, 7 U.S.C. § 6501 et seq, (2002) (later amendments not included), incorporated by reference herein, and the National Organic Program Final Rule, 7 C.F.R. part 205 (2002) (later amendments not included), incorporated by reference herein.
2.02.	Certified copies of the above incorporated material are available for public inspection during regular business hours and may be obtained or examined by contacting the Organic Program Coordinator, Colorado Department of Agriculture, 700 Kipling Street, #4000, Lakewood, CO 80215-5894 8000. The incorporated material may also be examined at any state publications depository library.
SECTION 3.	FEES
3.01.	Each applicant for certification shall be charged an annual, non-refundable certification fee of not more than $5,000.00. Applicants shall submit payment of this fee with their application for certification. Once certified, all producers and handlers certified under the program shall pay this fee on an annual basis for each subsequent year in which they wish to remain certified by the Department. This annual fee shall be payable each year on the anniversary date of the initial certification.
3.02.	In addition to the above annual fees, all applicants for and holders of certifications issued by the Department shall be required to pay the costs of any inspections necessary to obtain and maintain certification as follows:
a.	Inspection time, including travel, will be charged at a rate of not more than $40.00 per hour.
b.	Mileage for the inspector's travel will be charged at a rate of not more than $0.30 $0.40 per mile.
c.	If travel and inspection cannot reasonably be accomplished within one day, the inspector's travel and per diem expenses will be charged according to the policies and rates set forth in Rule 5-1 of the State Fiscal Rules, 1 C.C.R. 101-1.
SECTION 4 – 8	RESERVED
SECTION 9	STATEMENTS OF BASIS, SPECIFIC STATUTORY AUTHORITY AND PURPOSE
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.