[Federal Register Volume 70, Number 126 (Friday, July 1, 2005)]
[Notices]
[Pages 38090-38091]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-12969]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

[TM-05-08]


National Organic Program (NOP), Final Judgment and Order in the 
Case Harvey v. Johanns

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Notice.

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SUMMARY: The U.S. Department of Agriculture's (USDA) Agricultural 
Marketing Service is publishing this notice pursuant to a June 9, 2005, 
consent final judgment and order issued by the United States District 
Court, District of Maine, in the case Harvey v. Johanns. The court 
issued a declaratory judgment that 7 CFR 205.606 shall be interpreted 
to permit the use of a nonorganically produced agricultural product 
only when the product has been listed in section 205.606 pursuant to 
National List procedures, and when an accredited certifying agent has 
determined that the organic form of the agricultural product is not 
commercially available. The court's order limits an accredited 
certifying agent's commercially available determinations for nonorganic 
agricultural products used in or on processed organic products to the 5 
substances contained in 7 CFR 205.606. The products are native 
cornstarch, water extracted gums, kelp when used as a thickener and 
dietary supplement, unbleached lecithin, and high methoxy pectin.

FOR FURTHER INFORMATION CONTACT: Keith Jones, Director, Program 
Development, National Organic Program, 1400 Independence Ave., SW., 
Room 4008-S, Ag Stop 0268, Washington, DC 20250-0268; Telephone: (202) 
720-3252; Fax: (202) 205-7808; e-mail: [email protected].

SUPPLEMENTARY INFORMATION: This notice is issued under the authority of 
the Organic Foods Production Act of 1990 (OFPA) as amended (7 U.S.C. 
6501 et seq.). In October 2003, Arthur Harvey, a certified organic 
blueberry grower, filed a complaint under the Administrative Procedures 
Act in the United States District Court, District of Maine. Harvey 
alleged that several subsections of the NOP regulations violated OFPA, 
were arbitrary and were not in accordance with law.
    The USDA prevailed on all counts of Harvey's suit in a decision 
issued by the district court on January 7, 2004. On March 8, 2004, 
Harvey appealed the district court's decision to the United States 
Court of Appeals for the First Circuit. On January 26, 2005, the First 
Circuit issued a decision in the case. The First Circuit court upheld 
the NOP rule in general, but remanded the case to the U.S. District 
Court, District of Maine, for, among other things, the entry of a 
declaratory judgment that 7

[[Page 38091]]

CFR 205.606 does not establish a blanket exemption to the National List 
requirements for nonorganic agricultural products that are not 
commercially available. On June 9, 2005, the district court issued its 
final judgment and order in the case. A copy of the final judgment and 
order may be found at https://www.ams.usda.gov/nop.
    The First Circuit's decision recognized that some producers, 
handlers and certifiers may have misinterpreted 7 CFR 205.606 to mean 
that any nonorganic agricultural product which was determined by an 
accredited certifying agent to be not commercially available in organic 
form could be used in organic products, without being individually 
listed pursuant to the National List procedures. The court held that 
such an interpretation is contrary to the plain meaning of OFPA. 
However, because of the potential for confusion, and to enable an 
orderly transition to compliance with the regulation, the district 
court's order regarding the meaning of 7 CFR 205.606 shall become 
effective and enforceable two years (June 9, 2007) from the date of its 
judgment and order.

    Dated: June 27, 2005.
Kenneth C. Clayton,
Acting Administrator, Agricultural Marketing Service.
[FR Doc. 05-12969 Filed 6-30-05; 8:45 am]
BILLING CODE 3410-02-P