[Federal Register Volume 72, Number 11 (Thursday, January 18, 2007)]
[Rules and Regulations]
[Pages 2167-2170]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-596]



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 Rules and Regulations
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  Federal Register / Vol. 72, No. 11 / Thursday, January 18, 2007 / 
Rules and Regulations  

[[Page 2167]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 205

[Docket No. AMS-TM-06-0223; TM-06-12]


National Organic Program--Submission of Petitions of Substances 
for Inclusion on or Removal From the National List of Substances 
Allowed and Prohibited in Organic Production and Handling

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Notice of Guidelines on Procedures for Submitting National List 
Petitions.

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SUMMARY: This notice supersedes prior Department of Agriculture's 
(USDA) National Organic Program's (NOP) published guidelines used to 
submit petitions to amend the National List of Allowed and Prohibited 
Substances (National List). The National List identifies the synthetic 
substances that may be used and the non-synthetic substances that may 
not be used in organic production. The National List also identifies 
synthetic and non-synthetic substances that may be used in organic 
handling. This notice provides guidance on who may submit petitions, 
what substances may be petitioned and the information that is required 
to be included within a submitted petition. Additionally, this notice 
establishes new commercial availability evaluation criteria that will 
be applied during the petition review of non-organic agricultural 
substances for inclusion onto or removal from Sec.  205.606 of the 
National List.

DATES: Effective Date: These guidelines will be in effect on January 
19, 2007.

ADDRESSES: Petitions should be submitted in duplicate to: Program 
Manager, USDA/AMS/TM/NOP, Room 4008-So., Ag Stop 0268, 1400 
Independence Ave., SW., Washington, DC 20250. Phone: (202) 720-3252. 
Fax: (202) 205-7808. To submit petitions electronically, contact the 
USDA NOP for additional instructions.

FOR FURTHER INFORMATION CONTACT: National List Coordinator, National 
Organic Program, USDA/AMS/TM/NOP, Room 4008-So., Ag Stop 0268, 1400 
Independence Ave., SW., Washington, DC 20250. Phone: (202) 720-3252. 
Fax: (202) 720-3252.

SUPPLEMENTARY INFORMATION:

Background

    The Organic Foods Production Act of 1990 (OFPA), as amended (7 
U.S.C. 6501 et seq.), authorizes the establishment of the NOP 
regulations including the National List of Allowed and Prohibited 
Substances (National List). This National List identifies the synthetic 
substances that may be used and the non-synthetic substances that may 
not be used in organic production, and also identifies synthetic and 
non-synthetic substances that may be used in organic handling. The OFPA 
and NOP regulations, in Sec.  205.105, specifically prohibit the use of 
any synthetic substance for organic production and handling unless the 
synthetic substance is on the National List. Section 205.105 also 
requires that any non-organic, non-synthetic substance used in organic 
handling must also be on the National List. Since the NOP regulations 
became effective on October 21, 2002, the National List can only be 
amended through rulemaking by either the National List Petition Process 
or the National List Sunset Process. The guidelines contained in this 
notice apply only to the National List Petition Process.
    The ability for any person to petition to amend the National List 
is authorized by the OFPA (7 U.S.C. 6518(n)) and the NOP regulations, 
in Sec.  205.607. This authorization provides that any person may 
petition the National Organic Standards Board (NOSB) for the purpose of 
having a substance evaluated by the NOSB for recommendation to the 
Secretary for inclusion on or removal from the National List. The NOSB 
is authorized to review petitions under specified evaluation criteria 
in OFPA (7 U.S.C 6518(m)), and forward recommendations for amending the 
National List to the Secretary. Since the NOP regulations became 
effective in October 2002, several petitions to include synthetic or 
non-synthetic substances in their respective sections of the National 
List have been reviewed by the NOSB. However, only a few of these 
petitions were for inclusion of non-organic agricultural substances 
onto the National List in Sec.  205.606.
    Until recently, some producers, handlers and certifiers may have 
misinterpreted Sec.  205.606 to mean that any non-organic 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. In January 2005, the First Circuit decision in Harvey 
v. Johanns held that such an interpretation is contrary to the plain 
meaning of the OFPA and ordered that 7 CFR 205.606 shall not be 
interpreted to create a blanket exemption to the National List 
requirements specified in Sec. Sec.  6517 and 6518 of the OFPA (7 
U.S.C. 6517-6518). Consistent with the district court's final judgment 
and order, dated June 9, 2005, on July 1, 2005, the NOP published a 
notice regarding Sec.  205.606 (70 FR 38090), and on June 7, 2006, 
published a final rule revising Sec.  205.606 to clarify that the 
section shall be interpreted to permit the use of a non-organically 
produced agricultural product only when the product has been listed in 
Sec.  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 (71 FR 32803). As a 
result, industry information provided to the NOP indicates that there 
may be many non-organic agricultural substances that are being used in 
organic products which will render currently certified products in non-
compliance when the court final order and judgment on Harvey v. Johanns 
becomes fully effective on June 9, 2007.
    This Federal Register Notice, developed in collaboration with the 
NOSB and based on its October 2006 recommendation, modifies the 
information to be included in a petition to provide for the review of 
non-organic agricultural substances to be included onto Sec.  205.606. 
This notice also clarifies the information to be submitted for all 
types of petitions submitted to amend the National List.

[[Page 2168]]

Procedures for Submitting National List Petitions

    Any person may submit a petition requesting a substance to be 
reviewed by the NOP and NOSB at any time. Each substance to be 
evaluated for the National List must be submitted in a separate 
petition. Only single substances may be petitioned for evaluation; 
formulated products cannot appear on the National List. When submitting 
petitions, an official petition contact should be designated for all 
correspondence and the petition should provide specific contact 
information including name, address, phone number, fax number and e-
mail address.
    To facilitate timely NOP review and NOSB consideration of 
petitions, petitioners must provide concise yet comprehensive responses 
to the required petition information items described under the 
guideline heading ``Information to be included in a Petition.'' Upon 
receipt, the NOP will review the petition for completeness of the 
required petition information. If the required petition information is 
incomplete, the petition will be returned to the petitioner with a 
request for additional information.
    Petitions for substance evaluations to add a substance onto, remove 
a substance from, or amend a substance presently on the National List 
involves a public and open process. Petition information not 
categorized and accepted by USDA, pursuant to 7 CFR 1.27(d), as 
Confidential Business Information (CBI) will be considered available to 
the public for inspection. Published information usually cannot be 
claimed as confidential. When a petition is considered complete and 
forwarded for NOSB evaluation, except for CBI, the petition will be 
made available for public inspection. Substance petitions that are 
complete and under evaluation by the NOSB will be posted on the NOP Web 
site at: http://www.ams.usda.gov/nop. Public comments may be submitted 
to either the NOSB or the NOP for any petitioned substance being 
evaluated by the NOSB. Comments also will be posted on the NOP Web 
site.

Overview of Petition Review by the NOSB

    For each completed petition, the responsible NOSB committee reviews 
petition information, technical reports and public comments, then 
develops the recommendation for full NOSB consideration at a scheduled 
public meeting. The NOSB determines when petitions will be reviewed at 
their public meetings and when recommendations are forwarded to the 
Secretary.
    As provided for in OFPA (7 U.S.C 6518(m)), when evaluating 
petitioned substances for amendment of the National List, the NOSB 
shall consider:
    (1) The potential of such substances for detrimental chemical 
interactions with other materials used in organic farming systems;
    (2) The toxicity and mode of action of the substance and of its 
breakdown products or any contaminants, and their persistence and areas 
of concentration in the environment;
    (3) The probability of environmental contamination during 
manufacture, use, misuse or disposal of such substance;
    (4) The effect of the substance on human health;
    (5) The effects of the substance on biological and chemical 
interactions in the agroecosystem, including the physiological effects 
of the substance on soil organisms (including the salt index and 
solubility of the soil), crops and livestock;
    (6) The alternatives to using the substance in terms of practices 
or other available materials; and
    (7) Its compatibility with a system of sustainable agriculture.
    If an agricultural substance is petitioned for amendment onto Sec.  
205.606 of the National List, the NOSB shall verify that the material 
is agricultural. Once the substance is verified to be agricultural, the 
NOSB will determine if the substance is potentially commercially 
unavailable. The NOSB will consider:
    (A) Why the substance should be permitted in the production or 
handling of an organic product;
    (B) The current industry information regarding availability of and 
history of unavailability of an organic form in the appropriate form, 
quality, or quantity of the substance. Industry information includes, 
but is not limited to the following: (1) Regions of production, 
including factors such as climate and number of regions; (2) Number of 
suppliers and amount produced; (3) Current and historical supplies 
related to weather events such as hurricanes, floods, and droughts that 
may temporarily halt production or destroy crops or supplies; (4) Trade 
related issues such as evidence of hoarding, war, trade barriers, or 
civil unrest that may temporarily restrict supplies, and (5) Other 
issues which may present a challenge to a consistent supply.
    After considering the petition at a scheduled public meeting, the 
NOSB will forward its recommendation to the Secretary. Upon receipt, 
the Secretary will evaluate the recommendation for inclusion onto or 
removal from the National List. Proposed amendments to the National 
List are published in the Federal Register as a Proposed Rule. After 
considering and responding to public comments on the proposed rule, 
amendments to the National List are effective only after publication in 
the Federal Register as a Final Rule. A substance that has been 
petitioned and recommended to be allowed for use by the NOSB is not 
allowed for use in organic production or handling until the final rule 
for amending the National List, if any, is effective.
    When a substance is added onto the National List, it will remain on 
the List for 5 years after final rule becomes effective. As required by 
the Sunset provision in OFPA (7 U.S.C 6517(e)), the NOSB must review 
substances added to the National List at least once every 5 years per 
the National List Sunset Process, to reaffirm or not reaffirm, the 
status of each substance on the National List. Petitions to reevaluate 
prior NOSB recommendations to include a substance onto or remove a 
substance from the National List will be considered by the NOSB when 
substantial new petition substance information is provided.

Submitting Petitions for Sec.  205.606

    When submitting petitions to include a non-organic agricultural 
substance onto Sec.  205.606, the petitioner must state in the petition 
justification statement, why the substance should be permitted in the 
production or handling of an organic product. Specifically, the 
petition must include current industry information on availability of, 
and history of unavailability of an organic form of the substance. When 
providing information on commercial availability of the organic form of 
an agricultural product, petitioners must be aware that the global 
market is the universe of supply; commercial availability is not 
dependent upon geographic location or local market conditions.
    For petitions to remove a non-organic agricultural substance from 
Sec.  205.606, the petitioner must state why the substance should be 
prohibited from use in a non-organic form. Any information acquired 
since the original petition to add the substance to the National List 
should be provided.

Information To Be Included in a Petition

    The guidelines for required information to be included in a 
petition are as follows:
    Item A--Please indicate which section or sections the petitioned

[[Page 2169]]

substance will be included on and/or removed from the National List.
     Synthetic substances allowed for use in organic crop 
production, Sec.  205.601.
     Non-synthetic substances prohibited for use in organic 
crop production, Sec.  205.602.
     Synthetic substances allowed for use in organic livestock 
production, Sec.  205.603.
     Non-synthetic substances prohibited for use in organic 
livestock production, Sec.  205.604.
     Non-agricultural (non-organic) substances allowed in or on 
processed products labeled as ``organic'' or ``made with organic 
(specified ingredients),'' Sec.  205.605.
     Non-organic agricultural substances allowed in or on 
processed products labeled as ``organic,'' Sec.  205.606.
    Item B--Please provide concise and comprehensive responses in 
providing all of the following information items on the substance being 
petitioned:
    1. The substance's chemical or material common name.
    2. The manufacturer's or producer's name, address and telephone 
number and other contact information of the manufacturer/producer of 
the substance listed in the petition.
    3. The intended or current use of the substance such as use as a 
pesticide, animal feed additive, processing aid, nonagricultural 
ingredient, sanitizer or disinfectant. If the substance is an 
agricultural ingredient, the petition must provide a list of the types 
of product(s) (e.g., cereals, salad dressings) for which the substance 
will be used and a description of the substance's function in the 
product(s) (e.g., ingredient, flavoring agent, emulsifier, processing 
aid).
    4. A list of the crop, livestock or handling activities for which 
the substance will be used. If used for crops or livestock, the 
substance's rate and method of application must be described. If used 
for handling (including processing), the substance's mode of action 
must be described.
    5. The source of the substance and a detailed description of its 
manufacturing or processing procedures from the basic component(s) to 
the final product. Petitioners with concerns for confidential business 
information may follow the guidelines in the Instructions for 
Submitting CBI listed in 13.
    6. A summary of any available previous reviews by State or private 
certification programs or other organizations of the petitioned 
substance. If this information is not available, the petitioner should 
state so in the petition.
    7. Information regarding EPA, FDA, and State regulatory authority 
registrations, including registration numbers. If this information does 
not exist, the petitioner should state so in the petition.
    8. The Chemical Abstract Service (CAS) number or other product 
numbers of the substance and labels of products that contains the 
petitioned substance. If the substance does not have an assigned 
product number, the petitioner should state so in the petition.
    9. The substance's physical properties and chemical mode of action 
including (a) Chemical interactions with other substances, especially 
substances used in organic production; (b) toxicity and environmental 
persistence; (c) environmental impacts from its use and/or manufacture; 
(d) effects on human health; and, (e) effects on soil organisms, crops, 
or livestock.
    10. Safety information about the substance including a Material 
Safety Data Sheet (MSDS) and a substance report from the National 
Institute of Environmental Health Studies. If this information does not 
exist, the petitioner should state so in the petition.
    11. Research information about the substance which includes 
comprehensive substance research reviews and research bibliographies, 
including reviews and bibliographies which present contrasting 
positions to those presented by the petitioner in supporting the 
substance's inclusion on or removal from the National List. For 
petitions to include non-organic agricultural substances onto the 
National List, this information item should include research concerning 
why the substance should be permitted in the production or handling of 
an organic product, including the availability of organic alternatives. 
Commercial availability does not depend upon geographic location or 
local market conditions. If research information does not exist for the 
petitioned substance, the petitioner should state so in the petition.
    12. A ``Petition Justification Statement'' which provides 
justification for any of the following actions requested in the 
petition:

A. Inclusion of a Synthetic on the National List, Sec. Sec.  205.601, 
205.603, 205.605(b)

     Explain why the synthetic substance is necessary for the 
production or handling of an organic product.
     Describe any non-synthetic substances, synthetic 
substances on the National List or alternative cultural methods that 
could be used in place of the petitioned synthetic substance.
     Describe the beneficial effects to the environment, human 
health, or farm ecosystem from use of the synthetic substance that 
support its use instead of the use of a non-synthetic substance or 
alternative cultural methods.

B. Removal of a Synthetic From the National List, Sec. Sec.  205.601, 
205.603, 205.605(b)

     Explain why the synthetic substance is no longer necessary 
or appropriate for the production or handling of an organic product.
     Describe any non-synthetic substances, synthetic 
substances on the National List or alternative cultural methods that 
could be used in place of the petitioned synthetic substance.

C. Inclusion of a Prohibition of a Non-Synthetic, Sec. Sec.  205.602 
and 205.604

     Explain why the non-synthetic substance should not be 
permitted in the production of an organic product.
     Describe other non-synthetic substances or synthetic 
substances on the National List or alternative cultural methods that 
could be used in place of the petitioned substance.

D. Removal of a Prohibited Non-Synthetic From the National List, 
Sec. Sec.  205.602 and 205.604

     Explain why the non-synthetic substance should be 
permitted in the production of an organic product.
     Describe the beneficial effects to the environment, human 
health, or farm ecosystem from use of the non-synthetic substance that 
supports its use instead of the use of other non-synthetic or synthetic 
substances on the National List or alternative cultural methods.

E. Inclusion of a Non-Synthetic, Non-Agricultural Substance Onto the 
National List, Sec.  205.605(a)

     Explain why the substance is necessary for use in organic 
handling.
     Describe non-synthetic or synthetic substances on the 
National List or alternative cultural methods that could be used in 
place of the petitioned synthetic substance.
     Describe any beneficial effects on the environment, or 
human health from the use of the substance that support its use instead 
of the use of non-synthetic or synthetic substances on the National 
List or alternative cultural methods.

F. Removal of a Non-Synthetic, Non-Agricultural Substance From the 
National List, Sec.  205.605(a)

     Explain why the substance is no longer necessary for use 
in organic handling.

[[Page 2170]]

     Describe any non-synthetic or synthetic substances on the 
National List or alternative cultural methods that could be used in 
place of the petitioned substance.

G. Inclusion of a Non-Organically Produced Agricultural Substance Onto 
the National List, Sec.  205.606

     Provide a comparative description on why the non-organic 
form of the substance is necessary for use in organic handling.
     Provide current and historical industry information/
research/evidence that explains how or why the substance cannot be 
obtained organically in the appropriate form, appropriate quality, and 
appropriate quantity to fulfill an essential function in a system of 
organic handling.
     Describe industry information on substance non-
availability of organic sources including but not limited to the 
following guidance regarding commercial availability evaluation 
criteria: (1) Regions of production, including factors such as climate 
and number of regions; (2) Number of suppliers and amount produced; (3) 
Current and historical supplies related to weather events such as 
hurricanes, floods, and droughts that may temporarily halt production 
or destroy crops or supplies; (4) Trade related issues such as evidence 
of hoarding, war, trade barriers, or civil unrest that may temporarily 
restrict supplies, and (5) Other issues which may present a challenge 
to a consistent supply.

H. Removal of a Non-Organically Produced Agricultural Substance From 
the National List, Sec.  205.606

     Provide a comparative description as to why the non-
organic form of the substance is not necessary for use in organic 
handling.
     Provide current and historical industry information/
research/evidence that explains how or why the substance can be 
obtained organically in the appropriate form, appropriate quality, and 
appropriate quantity to fulfill an essential function in a system of 
organic handling.
     Provide new industry information on substance availability 
of organic sources including but not limited to the following guidance 
commercial availability evaluation criteria: (1) Region of production, 
including factors such as climate and number of regions; (2) Number of 
suppliers and amount produced; (3) Current and historical supplies 
related to weather events such as hurricanes, floods, or droughts that 
temporarily halt production or destroy crops or supplies; (4) Trade 
related issues such as evidence of hoarding, war, trade barriers, and 
civil unrest that may temporarily restrict supplies and; (5) Any other 
issues which may present a challenge to a consistent supply.
    13. A Confidential Business Information Statement which describes 
the specific required information contained in the petition that is 
considered to be Confidential Business Information (CBI) or 
confidential commercial information and the basis for that 
determination. Petitioners should limit their submission of 
confidential information to that needed to address the areas for which 
this notice requests information. Final determination regarding whether 
to afford CBI treatment to submitted petitions will be made by USDA 
pursuant to 7 CFR 1.27(d). Instructions for submitting CBI to the 
National List Petition process are presented in the instructions below:
    (a) Financial or commercial information the petitioner does not 
want disclosed for competitive reasons may be claimed as CBI. 
Applicants must submit a written justification to support each claim.
    (b) ``Trade secrets'' (information relating to the production 
process, such as formulas, processes, quality control tests and data, 
and research methodology) may be claimed as CBI. This information must 
be (1) commercially valuable, (2) used in the applicant's business, and 
(3) maintained in secrecy.
    (c) Each page containing CBI material must have ``CBI Copy'' marked 
in the upper right corner of the page. In the right margin, mark the 
CBI information with a bracket and ``CBI.''
    (d) The CBI-deleted copy should be a facsimile of the CBI copy, 
except for spaces occurring in the text where CBI has been deleted. Be 
sure that the CBI-deleted copy is paginated the same as the CBI copy 
(The CBI-deleted copy of the application should be made from the same 
copy of the application which originally contained CBI). Additional 
material (transitions, paraphrasing, or generic substitutions, etc.) 
should not be included in the CBI-deleted copy.
    (e) Each page with CBI-deletions should be marked ``CBI-deleted'' 
at the upper right corner of the page. In the right margin, mark the 
place where the CBI material has been deleted with a bracket and ``CBI-
deleted.''
    (f) If several pages are CBI-deleted, a single page designating the 
numbers of deleted pages may be substituted for blank pages. (For 
example, ``pages 7 through 10 have been CBI-deleted.'')
    (g) All published references that appear in the CBI copy should be 
included in the reference list of the CBI-deleted copy. Published 
information cannot be claimed as confidential.
    (h) Final determination regarding whether to afford CBI treatment 
to submitted petitions will be made by USDA pursuant to 7 CFR 1.27(d). 
If a determination is made to deny CBI treatment, the petitioner will 
be afforded an opportunity to withdraw the submission.
    No additional collection or recordkeeping requirements are imposed 
on the public by this rule.
    Accordingly, OMB clearance is not required by Sec.  305(h) of the 
Paperwork Reduction Act of 1995, 44 U.S.C. 3501, et seq., or OMB's 
implementation regulation at 5 CFR, part 1320.

    Authority: 7 U.S.C. 6501-6522.

    Dated: January 10, 2007.
Lloyd C. Day,
Administrator, Agricultural Marketing Service.
[FR Doc. E7-596 Filed 1-17-07; 8:45 am]
BILLING CODE 3410-02-P