1. (a) Certification.

   1. (1) The department shall certify producers, processors, distributors, and retailers of organic food or fiber in this state.

   2. (2) A person may not label, market, advertise, or represent as organic or transitional any food or fiber that is sold, kept, offered, or exposed for sale, unless that person is:

      1. (A) certified directly by the department under this chapter; or
      2. (B) certified by an organic certifying agent registered with the department under this chapter; or
      3. (C) a retailer eligible for voluntary certification as described in §18.14 (b) of this title (relating to Retailers).
   3. (3) A producer may not label, market, advertise, or represent as organic or transitional any agricultural product harvested within 90 days of receipt of application by the department.

   4. (4) Notwithstanding paragraph (a) (3) of this section, if a certified organic farm is sold or leased during the crop production season, crops may be sold as organic or transitional provided:

      1. (A) the new owner or operator provides a notarized affidavit of compliance with organic standards;
      2. (B) the new owner or operator immediately applies for certification;
      3. (C) the department approves the application; and
      4. (D) the department issues the certification.
   5. (5) Producers, processors, distributors, and retailers will be certified on an annual basis from January 1 to December 31 of each year, except initial applicants whose certification will expire December 31.

2. (b) Application.

   1. (1) Applications submitted under this chapter shall be in writing on a form prescribed by the department and submitted to the Coordinator for Organic Programs, Regulatory Programs Division, Texas Department of Agriculture, P.O. Box 12076, Austin, Texas 78711-2076.
   2. (2) A separate application shall be submitted for certification of each producer, processing facility, distribution facility, and retail location, or registration of an organic certifying agent.
   3. (3) An application shall consist of the prescribed application form and any additional supporting documentation for each farm or field unit(s), processing facility, distributor location, or retailer location to be evaluated for certification.
   4. (4) Additional verification documents as prescribed in §18.13 of this title (relating to Producers), including inspection reports and the results of any required laboratory analysis as prescribed in §18.11 of this title (relating to Fertility, Water Quality, and Residue Testing), shall be submitted to the department upon request.

   5. (5) Applicants who rely on restricted practices or sources shall bear the burden of establishing:

      1. (A) that these practices or sources are agronomically or scientifically required; and
      2. (B) that the applicant has a plan to discontinue the use of these restricted practices over a set period of time.
   6. (6) Upon the department's request, the Certification Review and Standards Advisory Committee shall review and make recommendations on any application or registration under this chapter.
   7. (7) Upon receipt of all required verification documents, including inspection reports and the results of any required laboratory analysis, the department shall make an initial determination of whether such certification should be granted or denied, and notify the applicant in writing, setting forth the reasons for such grant or denial.

3. (c) Inspections of producers, processors, distributors, and retailers.

   1. (1) Initial inspections.

      1. (A) The department or organic certifying agent, upon receipt of an application for certification that fulfills initial screening requirements under these rules, shall schedule an inspection of the applicant's farm, facility, or site.
      2. (B) If the initial inspection is not conducted at a time of year when normal production or sales activity can be observed, a follow-up inspection shall be conducted at the appropriate time.
      3. (C) Initial inspections shall be reported on a form prescribed by the department or the organic certifying agent.

   2. (2) Annual renewal inspections.

      1. (A) The department, or an organic certifying agent, shall conduct at least one on-site inspection per year of every farm, facility, or location for which a certification has been granted.
      2. (B) The department, or organic certifying agent, shall perform routine annual inspections for recertification at a time when normal production or sales activity can be observed.
      3. (C) The department, or an organic certifying agent, shall conduct at least one on-site inspection prior to or during harvest of certified producers and processors who produce and process annual crops for processed products.
   3. (3) Enforcement inspections. The department may conduct unannounced inspections in cases of suspected violations of the department's Organic Standards and Certification, or violations of such standards by an organic certifying agent registered under this chapter.

4. (d) Complaints.

   1. (1) Any person with cause to believe that any provision of this chapter has been violated may file a written complaint with the department setting forth the facts of the alleged violation.
   2. (2) The department may investigate written complaints related to certified organic food or fiber.
   3. (3) The department shall maintain for ten years, records of all complaints, investigations, and remedial actions. These records shall become part of the reviewing record of any proceeding involving a certified person or applicant for certification by the department or by an organic certifying agent registered under this chapter.

Source Note:The provisions of this §18.2 adopted to be effective June 7, 1994, 19 TexReg 4009; amended to be effective September 10, 1997, 22 TexReg 8947; amended to be effective April 23, 1998, 23 TexReg 3824; amended to be effective June 22, 2000, 25 TexReg 5886.