[Federal Register Volume 78, Number 163 (Thursday, August 22, 2013)]
[Proposed Rules]
[Pages 52100-52107]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-20476]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 205

[Document Number AMS-NOP-13-0011; NOP-13-01PR]
RIN 0581-AD33


National Organic Program; Proposed Amendments to the National 
List of Allowed and Prohibited Substances (Crops and Processing)

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Proposed rule.

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SUMMARY: This proposed rule would amend the U.S. Department of 
Agriculture's (USDA's) National List of Allowed and Prohibited 
Substances (National List) to reflect recommendations submitted to the 
Secretary of Agriculture (Secretary) by the National Organic Standards 
Board (NOSB) on May 25, 2012 and October

[[Page 52101]]

18, 2012. The recommendations addressed in this proposed rule pertain 
to establishing exemptions (uses) for one substance in organic crop 
production and two substances in organic processing. Consistent with 
the recommendations from the NOSB, this proposed rule would add the 
following substances, along with any restrictive annotations, to the 
National List: biodegradable biobased mulch film; Citrus hystrix, 
leaves and fruit; and curry leaves (Murraya koenigii). This action also 
proposes a new definition for biodegradable biobased mulch film. This 
proposed rule would also remove two listings for nonorganic 
agricultural products on the National List, hops (Humulus lupulus) and 
unmodified rice starch, as their use exemptions expired on January 1, 
2013, and June 21, 2009, respectively.

DATES: Comments must be received by October 21, 2013.

ADDRESSES: Interested persons may comment on the proposed rule using 
the following procedures:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Mail: Toni Strother, Agricultural Marketing Specialist, 
National Organic Program, USDA-AMS-NOP, 1400 Independence Ave. SW., 
Room 2646-So., Ag Stop 0268, Washington, DC 20250-0268.
    Instructions: All submissions received must include the docket 
number AMS-NOP-13-0011; NOP-13-01PR, and/or Regulatory Information 
Number (RIN) 0581-AD32 for this rulemaking. You should clearly indicate 
the topic and section number of this proposed rule to which your 
comment refers. You should clearly indicate whether you support the 
action being proposed for the substances in this proposed rule. You 
should clearly indicate the reason(s) for your position. You should 
also supply information on alternative management practices, where 
applicable, that support alternatives to the proposed action. You 
should also offer any recommended language change(s) that would be 
appropriate to your position. Please include relevant information and 
data to support your position (e.g. scientific, environmental, 
manufacturing, industry, impact information, etc.). Only relevant 
material supporting your position should be submitted. All comments 
received will be posted without change to http://www.regulations.gov.
    AMS is particularly interested in comments regarding the 
applicability of the proposed compostability standards for 
biodegradable biobased mulch film, and whether guidance on management 
practices is necessary to prevent mulch film from accumulating in 
fields.
    Document: For access to the document to read background documents 
or comments received, go to http://www.regulations.gov. Comments 
submitted in response to this proposed rule will also be available for 
viewing in person at USDA-AMS, National Organic Program, Room 2646-
South Building, 1400 Independence Ave., SW., Washington, DC, from 9 
a.m. to 12 noon and from 1 p.m. to 4 p.m., Monday through Friday 
(except official Federal holidays). Persons wanting to visit the USDA 
South Building to view comments received in response to this proposed 
rule are requested to make an appointment in advance by calling (202) 
720-3252.

FOR FURTHER INFORMATION CONTACT: Melissa Bailey, Ph.D., Director, 
Standards Division, Telephone: (202) 720-3252; Fax: (202) 205-7808.

SUPPLEMENTARY INFORMATION:

I. Background

    On December 21, 2000, the Secretary established, within the 
National Organic Program (NOP) (7 CFR part 205), the National List 
regulations in sections 205.600 through 205.607. This National List 
identifies the synthetic substances that may be used and the 
nonsynthetic (natural) substances that may not be used in organic 
production. The National List also identifies nonagricultural and 
nonorganic agricultural substances that may be used in organic 
handling. The Organic Foods Production Act of 1990 (OFPA) (7 U.S.C. 
6501-6522), and USDA organic regulations, in section 205.105, 
specifically prohibit the use of any synthetic substance in organic 
production and handling unless the synthetic substance is on the 
National List. Section 205.105 also requires that any nonorganic 
agricultural and any nonsynthetic nonagricultural substance used in 
organic handling be on the National List. Under the authority of the 
OFPA, the National List can be amended by the Secretary based on 
proposed amendments developed by the NOSB.
    Since established, AMS has published multiple amendments to the 
National List beginning on October 31, 2003 (68 FR 61987). AMS 
published the most recent amendment to the National List on September 
27, 2012 (77 FR 59287).
    This proposed rule would amend the National List to reflect three 
recommendations submitted to the Secretary by the NOSB on May 25, 2012 
(Citrus hystrix leaves and fruit and curry leaves (Murraya koenigii)) 
and October 18, 2012 (biodegradable biobased mulch film). Based upon 
their evaluation of petitions submitted by industry participants, 
public comments, market surveillance, and review of technical reports, 
the NOSB recommended that the Secretary add one substance 
(biodegradable biobased mulch film) to section 205.601 of the National 
List for organic crop production and add two substances to section 
205.606 (Citrus hystrix leaves and fruit and curry leaves (Murraya 
koenigii)) for organic processing. This rule would also remove listings 
for two substances (hops and unmodified rice starch) as their use 
exemptions have expired. The exemptions for the use of each new 
substance in organic crop production and handling were evaluated by the 
NOSB using the criteria specified in OFPA (7 U.S.C. 6517-6518). In 
addition, the amendments for two new substances proposed for organic 
handling were also evaluated by the NOSB using NOP criteria on 
commercial availability (72 FR 2167).

II. Overview of Proposed Amendments

    The following provides an overview of the proposed amendments to 
designated sections of the USDA organic regulations:

Section 205.2 Terms defined.

Section 205.601 Synthetic substances allowed for use in organic crop 
production.

    This proposed action would amend sections 205.2 and 205.601 by 
adding the following new definition and new substance to the National 
List for organic crop production.
Biodegradable Biobased Mulch Film
    Biodegradable biobased mulch film was petitioned to the National 
List in January 2012 for use as synthetic mulch for organic crop 
production.\1\ This substance is also alternatively called ``bioplastic 
mulch.''
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    \1\ Petition is available on NOP Web site in Petitioned 
Substances Database under ``B '' at http://www.ams.usda.gov/NOPNationalList.
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    Biodegradable biobased mulch film is used as an alternative to 
petroleum-based plastic mulches that do not biodegrade. Traditional 
plastic mulches require removal at the end of the growing or harvest 
season under OFPA and the USDA organic regulations (7 U.S.C. 6508; 
Sec. Sec.  205.206(c)(6) and 205.601(b)(2)(ii)). Biodegradable biobased 
mulch film is applied to agricultural fields as a thin plastic layer 
and is left in the field to biodegrade. Like traditional plastic 
mulches,

[[Page 52102]]

biodegradable biobased mulch film is used to cover the soil, modify 
soil temperatures, retain soil moisture, and help control weeds and 
insect problems.\2\
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    \2\ Technical Evaluation Report, Biodegradable Mulch Film Made 
from Bioplastics, August 2, 2012. Available on the NOP Web site at 
http://www.ams.usda.gov/AMSv1.0/getfile?dDocName=STELPRDC5100029.
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    Mulch film may be made from a variety of degradable polymers, 
including polylactic acid (PLA), polyhydroxyalkanoates (PHA), and 
aliphatic-aromatic copolymers (AAC). Some biodegradable mulch films are 
made from biological sources (i.e., biobased), and some are derived 
from fossil fuel sources.\3\
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    \3\ Ibid.
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    At its October 15-18, 2012 meeting in Providence, RI, the NOSB 
recommended that biodegradable biobased mulch film be added to the 
National List, with restrictions, for use in organic crop production. 
The NOSB evaluated biodegradable biobased mulch film against the 
evaluation criteria of 7 U.S.C. 6517 and 6518 of the OFPA, received 
public comment, and concluded that the substance is consistent with the 
OFPA evaluation criteria.
    The NOSB indicated in its recommendation that the use of this 
substance is an opportunity to reduce landfilling of traditional 
plastic mulches without sacrificing organic farming principles.
    The regulatory text recommended by the NOSB is provided in Table 1. 
The NOSB indicated in its recommendation that mulch film must meet 
certain criteria for biodegradability, compostability, and biobased 
content (Criteria A and B in Table 1). In addition, the NOSB 
recommended restrictions on the types of materials allowed for the 
production of biobased mulch film (Criterion C). The NOSB also 
indicated that growers must take appropriate actions to ensure complete 
degradation (Criterion D). The NOSB indicated that criteria A through C 
are intended to apply to certifying agents and material evaluation 
programs that will determine allowed products. Criterion D was intended 
to refer to the grower's responsibility.
    As part of this recommendation, the NOSB also proposed the 
following definition for the new term biobased: ``Organic material in 
which carbon is derived from a renewable resource via biological 
processes. Biobased materials include all plant and animal mass derived 
from carbon dioxide recently fixed via photosynthesis, per definition 
of a renewable resource (ASTM).'' \4\ The NOSB recommended that the 
term ``biobased'' be included in order to specifically prohibit 
products derived from petroleum, such as those made from aliphatic-
aromatic copolymers.
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    \4\ ASTM refers to ASTM International, formerly known as the 
American Society for Testing and Materials (ASTM), http://www.astm.org.
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    The Secretary has reviewed and proposes to accept the NOSB's 
recommendation, with some modifications. Table 1 provides a comparison 
of the NOSB's recommended regulatory text and the action proposed under 
this rule.
    This proposed rule would amend section 205.2 (Terms defined) by 
adding a new definition for ``biodegradable biobased mulch film'' to 
section 205.2 of the USDA organic regulations.
    This action proposes to define biodegradable biobased mulch film as 
a synthetic mulch that meets the following criteria: (1) Meets the 
compostability standards of ASTM D6400 or D6868, or of other equivalent 
international standards, i.e., EN 13432, EN 14995, or ISO 17088; (2) 
Demonstrates at least 90% biodegradation absolute or relative to 
microcrystalline cellulose in less than two years, in soil, according 
to ISO 17556 or ASTM D5988 testing methods; and (3) Must be biobased 
with content determined using ASTM D6866 testing method.\5\
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    \5\ ASTM refers to ASTM International, formerly known as the 
American Society for Testing and Materials (ASTM), http://www.astm.org. EN refers to the European Committee for 
Standardization, http://www.cen.eu. ISO refers to the International 
Organization for Standardization, http://www.iso.org.
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    This proposed rule would also add the substance ``biodegradable 
biobased mulch film,'' with restrictions, to new subparagraph 
(b)(2)(iii) of section 205.601. The new listing would read as follows: 
``Biodegradable biobased mulch films as defined in section 205.2. Must 
be produced without organisms or feedstock derived from excluded 
methods.''
    The NOSB recommended that the standards for compostability, 
biodegradation, and biobased content be included at subparagraph 
(b)(2)(iii) of section 205.601. AMS proposes to include the references 
to these standards within a new definition at section 205.2 in order to 
streamline the listing of this substance and limit the number of 
subparagraph levels on the National List.

 Table 1--Comparison of NOSB Recommendation and AMS Proposed Action for
                    Biodegradable Biobased Mulch Film
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           Section             NOSB Recommendation   AMS Proposed action
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205.2.......................  Add the following     Add the following
                               new definition to     new definition to
                               Sec.   205.2:         Sec.   205.2:
                              Biobased. Organic     Biodegradable
                               material in which     Biobased Mulch
                               carbon is derived     Film. A synthetic
                               from a renewable      mulch film that
                               resource via          meets the following
                               biological            criteria:
                               processes. Biobased  (1) Meets the
                               materials include     compostability
                               all plant and         standards of ASTM
                               animal mass derived   D6400 or D6868, or
                               from carbon dioxide   of other equivalent
                               recently fixed via    international
                               photosynthesis, per   standards, i.e., EN
                               definition of a       13432, EN 14995, or
                               renewable resource    ISO 17088;
                               (ASTM).              (2) Demonstrates at
                                                     least 90%
                                                     biodegradation
                                                     absolute or
                                                     relative to
                                                     microcrystalline
                                                     cellulose in less
                                                     than two years, in
                                                     soil, according to
                                                     ISO 17556 or ASTM
                                                     D5988 testing
                                                     methods; and
                                                    (3) Must be biobased
                                                     with content
                                                     determined using
                                                     ASTM D6866 testing
                                                     method.
205.601.....................  Add the following     Add the following
                               substance to new      substance to new
                               subparagraph (iii)    subparagraph (iii)
                               of                    of
                              Sec.                  Sec.
                               205.601(b)(2):.       205.601(b)(2):
                              (b) As herbicides,    (b) As herbicides,
                               weed barriers, as     weed barriers, as
                               applicable.           applicable
                              (2) Mulches.........  (2) Mulches.
                              (iii) Biodegradable   (iii) Biodegradable
                               biobased mulch        biobased mulch film
                               films to be           as defined in Sec.
                               reviewed meet the      205.2. Must be
                               following criteria:   produced without
                                                     organisms or
                                                     feedstock derived
                                                     from excluded
                                                     methods.

[[Page 52103]]

 
                              (A) Completely
                               biodegradable as
                               shown by:
                              (1) Meeting the
                               requirements of
                               ASTM Standard D6400
                               or D6868
                               specifications, or
                               of other
                               international
                               standard
                               specifications with
                               essentially
                               identical criteria,
                               i.e. EN 13432, EN
                               14995, ISO 17088;
                               and
                              (2) Showing at least
                               90% biodegradation
                               in soil absolute or
                               relative to
                               microcrystalline
                               cellulose in less
                               than two years, in
                               soil, tested
                               according to ISO
                               17556 or ASTM 5988;
                              (B) Must be biobased
                               with content
                               determined using
                               the ASTM D6866
                               method;
                              (C) Must be produced
                               without organisms
                               or feedstock
                               derived from
                               excluded methods;
                               and
                              (D) Grower must take
                               appropriate actions
                               to ensure complete
                               degradation.
------------------------------------------------------------------------

    The proposed definition for ``biodegradable biobased mulch film'' 
includes the third-party standards for compostability, biodegradation, 
and biobased content which are included in the NOSB recommendation. 
These standards are summarized in Table 2. Each standard provides a 
reference for certifying agents and material evaluation programs to 
verify that biodegradable biobased much film meet certain requirements 
for compostability, biodegradability, and biobased content.
    AMS is specifically interested in comments regarding the 
compostability standards included in the definition. AMS has noted that 
when the substance is used as recommended by the NOSB (i.e., as mulch 
on the surface of the soil), it is not composted according to the 
standards for compost under section 205.203(c) of the USDA organic 
regulations. In addition, the NOSB did not consider or recommend the 
addition of biodegradable biobased mulch film to the list of allowed 
synthetic compost feedstocks at section 205.601(c). This proposed 
action includes the compostability standards recommended by the NOSB, 
but AMS is interested in comments on the applicability of these 
standards for the intended use of the petitioned material. AMS is also 
interested in comments on whether the two criteria for biodegradation 
and biobased content, without the criteria for compostability, would be 
sufficient for review of this substance.

         Table 2--Table of Applicable Standards for Compostability, Biodegradation, and Biobased Content
----------------------------------------------------------------------------------------------------------------
                Standard                                    Title                              Criteria
----------------------------------------------------------------------------------------------------------------
ASTM D6400..............................  Standard Specification for Labeling of     Compostability.
                                           Plastics Designed to be Aerobically
                                           Composted in Municipal or Industrial
                                           Facilities.
ASTM D6868..............................  Standard Specification for Labeling of     Compostability.
                                           End Items that Incorporate Plastics and
                                           Polymers as Coatings or Additives with
                                           Paper and Other Substrates Designed to
                                           be Aerobically Composted in Municipal or
                                           Industrial Facilities.
EN 13432................................  Proof of compostability of plastic         Compostability.
                                           products.
EN 14995................................  Plastics--Evaluation of compostability--   Compostability.
                                           Test scheme and specifications
ISO 17088...............................  Specifications for compostable plastics..  Compostability.
ISO 17556...............................  Plastics--Determination of the ultimate    Biodegradability.
                                           aerobic biodegradability of plastic
                                           materials in soil by measuring the
                                           oxygen demand in a respirometer or the
                                           amount of carbon dioxide evolved.
ASTM D5988..............................  Standard Test Method for Determining       Biodegradability.
                                           Aerobic Biodegradation of Plastic
                                           Materials in Soil.
ASTM D6866..............................  Standard Test Methods for Determining the  Biobased Content.
                                           Biobased Content of Solid, Liquid, and
                                           Gaseous Samples Using Radiocarbon
                                           Analysis.
----------------------------------------------------------------------------------------------------------------

    AMS noted that the NOSB did not recommend a minimum amount of 
biobased content for biodegradable biobased mulch films. AMS considered 
whether a minimum should be included in order to ensure that approved 
products will derive most of their content from biological sources, as 
was intended by the NOSB. AMS consulted with the USDA BioPreferred 
program to inquire whether they have a specific category established 
for biodegradable mulch film products, since product categories in the 
USDA BioPreferred program include standards (i.e., minimums) for 
products' biobased content.\6\ The USDA BioPreferred program indicated 
that they do not have a specific product category for biobased mulch 
film, and that mulch film does not fall within their categories of 
``Mulch and Compost Materials'' \7\ or ``Films--Non-Durable.'' \8\ 
(Manufacturers of biobased mulch film who wish to certify this product 
under the USDA BioPreferred program would classify it in an 
``undesignated'' product category; products in this category must 
contain a minimum of 25% biobased content as measured by the standard 
test

[[Page 52104]]

method.) AMS understands that biobased mulch films used by organic 
producers will need to be derived primarily from biobased sources in 
order to meet the requirements for biodegradation and compostability, 
so we have not proposed a minimum biobased content requirement for 
mulch film. Biodegradable mulch films that are not biobased, e.g., 
derived from fossil fuel sources, would not be permitted.
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    \6\ USDA BioPreferred[supreg] Program product categories are 
available at http://www.biopreferred.gov/ProductCategories.aspx
    \7\ Established at 7 CFR 2902.56; Final Rule published October 
18, 2010; 75 FR 63695.
    \8\ Established at 7 CFR 2902.27; Final Rule published May 14, 
2008; 73 FR 27958.
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    AMS considered the definition for ``biobased'' that was recommended 
by the NOSB, and we have not proposed the addition of this term to 
section 205.2. Instead, AMS proposed a new definition for 
``biodegradable biobased mulch film'' that incorporates the NOSB's 
intent of limiting the use of this substance to biobased products by 
including a testing standard for biobased content. The proposed new 
term ``biodegradable biobased mulch film'' indicates that this 
substance must be biobased with content determined using ASTM D6866 
testing method. Since this testing method has been previously 
established for biobased materials using an existing definition for 
``biobased,'' AMS determined it was not necessary to add a separate 
definition for ``biobased'' to the USDA organic regulations.
    AMS also considered whether the new definition for ``biodegradable 
biobased mulch film'' may raise questions as to whether certain types 
of paper mulch are intended to be included in the new definition. 
Specifically, the petition describes a type of paper mulch ``comprised 
of kraft paper coated with cured vegetable oil-based resins,'' and 
indicates that these materials are not intended to be included within 
its scope. In addition, these materials were also not considered a part 
of the petition during the NOSB review. As such, AMS does not consider 
these paper mulches to fall within the new definition of 
``biodegradable biobased mulch film,'' since they were not included 
within the scope of the petition and because these products are not 
``films.'' \9\ This action is also not intended to define newspaper or 
other recycled paper as ``biodegradable biobased mulch films.'' The use 
of newspaper or other recycled paper, without glossy or colored inks, 
will continue to be allowed as allowed synthetic mulch under the 
current listing at section 205.601(b)(2)(i) without the additional 
testing requirements for biodegradable biobased mulch film outlined 
under the new definition at section 205.2.
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    \9\ The biodegradable films intended by the petition are 
described by the petitioner as ``produced from bioplastics and meet 
standards for aerobic biodegradation in soil.''
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    The NOSB also recommended that biodegradable biobased mulch film 
must meet the following criteria: ``Must be produced without organisms 
or feedstocks derived from excluded methods.'' AMS has reviewed this 
language and has incorporated the text into the listing proposed at 
section 205.601.
    The NOSB also recommended the following additional text for the 
listing for biodegradable biobased mulch film: ``Grower must take 
appropriate actions to ensure complete degradation.'' AMS has reviewed 
this language and has not incorporated this text into the proposed 
listing as we believe the intent of this text is adequately covered 
under other sections of the USDA organic regulations. For example, 
section 205.200 requires that production practices maintain or improve 
the natural resources of the operation, including soil and water 
quality. In addition, section 205.203 requires that the producer select 
and implement practices that maintain or improve the physical, 
chemical, and biological condition of soil. Thus, the use of film in a 
manner that causes it to accumulate in the field and not biodegrade 
over time would not be compliant with the existing requirements at 
sections 205.200 and 205.203.
    The NOSB indicated that the proposed language was intended to 
clarify the grower's responsibility and what the certifying agent must 
evaluate. The NOSB indicated that NOP, in conjunction with the NOSB, 
should develop guidance that explains proper practices for use of 
biodegradable biobased mulch film. In addition, the NOSB indicated that 
it expects the inspection process and certification review to verify 
that biodegradation of the mulch film is occurring so that it does not 
accumulate in the fields where it is used.
    AMS understands that the complete degradation of mulch film may be 
impacted by a number of factors, including climate, soil type, 
irrigation, and other production practices. AMS has not determined if 
there is a demonstrated need for guidance on the use of mulch film at 
this time. We understand that guidance may be needed in the future 
depending on the prevalence of adoption of use of mulch film by organic 
growers and any problems observed by certifying agents with degradation 
on organic fields. AMS is interested in comments on whether guidance on 
management practices is necessary at this time to prevent mulch film 
from accumulating in fields.

Section 205.606 Nonorganically Produced Agricultural Products Allowed 
as Ingredients in or on Processed Products Labeled as ``Organic.''

    This proposed rule would amend section 205.606 by removing 
paragraph (l), removing subparagraph (w)(2), and redesignating 
subparagraph (w)(3) as (w)(2), to remove the following substances from 
the National List:
    Hops (Humulus lupulus). Hops (Humulus lupulus) was added to the 
National List on June 27, 2007 (72 FR 35137), to enable brewers to 
produce organic beer with conventionally grown hops in the absence of a 
commercially available supply of organically grown hops. In December 
2009, an organic hop grower association petitioned the NOSB to remove 
hops from section 205.606 for the purpose of advancing growth in the 
organic hops market.\10\
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    \10\ Petition to remove hops. Available in Petitioned Substances 
Database, under ``H,'' available at the NOP Web site at http://www.ams.usda.gov/NOPNationalList and http://www.ams.usda.gov/AMSv1.0/getfile?dDocName=STELPRDC5085449.
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    In response to the petition, the NOSB recommended at its October 
2010 public meeting that an expiration date of January 1, 2013 be added 
to the listing for hops. This recommendation was accepted by the 
Secretary and was implemented as a Final Rule published June 27, 2012 
(77 FR 33290). The listing was amended to read as follows: Hops 
(Humulus lupulus) until January 1, 2013. This action would remove the 
expired listing for hops (Humulus lupulus) from section 205.606 at 
paragraph (l), as the use exemption for this substance expired on 
January 1, 2013. Removal of this substance has no new regulatory 
effect.
Unmodified Rice Starch
    This proposed rule would amend section 205.606 of the National List 
by removing the expired exemption for ``rice starch, unmodified (CAS 
 977000-08-0),'' referred to below as ``unmodified rice 
starch.'' Unmodified rice starch was petitioned to the National List on 
February 14, 2007 as a gelation agent used in combination with other 
thickeners. The NOSB recommended adding unmodified rice starch to the 
National List and also indicated that the listing should expire two 
years after the date of publication of the final rule. The NOSB 
recommendation was accepted by the Secretary, and unmodified rice 
starch was added to the National List effective June 21, 2007 by 
publication of an interim final rule on June 27, 2007 (72 FR 35137). 
The listing reads as follows:

[[Page 52105]]

(2) Rice starch, unmodified (CAS  977000-08-0)--for use in 
organic handling until June 21, 2009. This proposed rule would remove 
the listing for unmodified rice starch that expired on June 21, 2009. 
Removal of this substance has no new regulatory effect.
    This proposed rule would further amend section 205.606 by 
redesignating paragraphs (e) through (aa) as (g) through (bb), 
respectively; and redesignating paragraph (d) as paragraph (e) for the 
purposes of adding the following new substances at paragraphs (d) and 
(f):
Citrus Hystrix, Leaves and Fruit
    Leaves and fruit of Citrus hystrix were petitioned in August 2011 
for use as a nonorganic agricultural ingredient in or on processed 
products labeled as ``organic.'' \11\ C. hystrix leaves and fruit are 
traditional ingredients in Lao, Thai, and other Southeast Asian 
cuisines. The tree of C. hystrix is easily identified by its 
distinctively shaped double leaves and the fruit is known for its bumpy 
skin. Both the leaves and fruit impart a unique intense flavor and 
aroma in foods due to their high concentration of essential oils. C. 
hystrix leaves and fruit are harvested, washed, and can be used fresh, 
dried, or frozen.
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    \11\ Petition is available in Petitioned Substances Database, 
under ``C,'' at http://www.ams.usda.gov/NOPNationalList.
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    At its May 22-25, 2012, meeting in Albuquerque, NM, the NOSB 
accepted public comment and recommended adding C. hystrix leaves and 
fruit to the National List for use in organic handling as a non-organic 
agricultural ingredient where the organic form is commercially 
unavailable.\12\ In this open meeting, the NOSB evaluated C. hystrix 
leaves and fruit against evaluation criteria established by 7 U.S.C. 
6517 and 6518 of the OFPA evaluation criteria and NOP commercial 
availability criteria (72 FR 2167). Therefore in response to the NOSB 
recommendation regarding the use of C. hystrix in organic handling, the 
Secretary proposes to amend section 205.606 of the National List 
regulations to allow C. hystrix as a nonorganically produced 
agricultural product allowed as an ingredient in or on processed 
products labeled as ``organic.''
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    \12\ NOSB Formal Recommendation for Citrus hystrix leaves and 
fruit, May 25, 2012. http://www.ams.usda.gov/AMSv1.0/getfile?dDocName=STELPRDC5098918.
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Curry Leaves (Murraya koenigii)
    Curry leaves were petitioned in August 2011 for use as a nonorganic 
agricultural ingredient in or on processed products labeled as 
``organic.'' \13\ Curry leaves, which are also known as sweet neem 
leaves, are extremely fragrant and are an important ingredient commonly 
used in Indian, Sri Lankan, Malay and other Southeast Asian cuisines. 
Curry leaves impart a unique flavor and fragrance which cannot be 
substituted with other ingredients. Curry leaves are harvested from 
curry trees, washed, and can be used fresh, dried, or frozen.
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    \13\ Petition is available in Petitioned Substances Database, 
under ``C,'' at http://www.ams.usda.gov/NOPNationalList.
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    At its May 22-25, 2012, public meeting in Albuquerque, NM, the NOSB 
accepted public comment and recommended adding curry leaves (Murraya 
koenigii) to the National List for use in organic handling as a 
nonorganic agricultural ingredient when organic curry leaves are 
commercially unavailable.\14\ The NOSB evaluated curry leaves (Murraya 
koenigii) against evaluation criteria established by 7 U.S.C. 6517 and 
6518 of the OFPA evaluation criteria and NOP commercial availability 
criteria (72 FR 2167). Therefore in response to the NOSB recommendation 
regarding the use of curry leaves (Murraya koenigii) in organic 
handling, the Secretary proposes to amend section 205.606 of the 
National List regulations to allow curry leaves (Murraya koenigii) as a 
nonorganically produced agricultural product allowed as an ingredient 
in or on processed products labeled as ``organic.'' The listing is 
proposed as the common name of the ingredient, with the scientific 
species name in parentheses, to be consistent with the listing of other 
agricultural products on National List.
---------------------------------------------------------------------------

    \14\ NOSB Formal Recommendation for Curry Leaves, May 25, 2012, 
http://www.ams.usda.gov/AMSv1.0/getfile?dDocName=STELPRDC5098915.
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III. Related Documents

    Two notices were published regarding meetings of the NOSB and its 
deliberations on recommendations and substances petitioned for amending 
the National List. Substances and recommendations included in this 
proposed rule were announced for NOSB deliberation in the following 
Federal Register notices: (1) 77 FR 21067, April 9, 2012 (curry leaves 
and C. hystrix); and (2) 77 FR 52679, August 30, 2012 (biodegradable 
biobased mulch film).
    The expiration date of January 1, 2013, for the listing for hops 
was added to the National List on June 27, 2012 by a final rule (77 FR 
33290) published in the Federal Register notice on June 6, 2012.
    The listing and expiration date of June 21, 2009 for unmodified 
rice starch was added to the National List on June 21, 2007, by an 
interim final rule (72 FR 35137) published in the Federal Register on 
June 27, 2007.
    Additional information on substances, including petitions, 
technical reports, and NOSB recommendations, are available on the NOP 
Web site at http://www.ams.usda.gov/NOPNationalList.

IV. Statutory and Regulatory Authority

    The OFPA, as amended, (7 U.S.C. 6501-6522), authorizes the 
Secretary to make amendments to the National List based on proposed 
amendments developed by the NOSB. Sections 6518(k) and 6518(n) of the 
OFPA authorize the NOSB to develop proposed amendments to the National 
List for submission to the Secretary and establish a petition process 
by which persons may petition the NOSB for the purpose of having 
substances evaluated for inclusion on or deletion from the National 
List. The National List petition process is implemented under section 
205.607 of the NOP regulations. The current petition guidelines (72 FR 
2167, January 18, 2007) can be accessed through the NOP Web site at 
http://www.ams.usda.gov/AMSv1.0/nop.

A. Executive Order 12866

    This action has been determined not significant for purposes of 
Executive Order 12866, and therefore, has not been reviewed by the 
Office of Management and Budget.

B. Executive Order 12988

    Executive Order 12988 instructs each executive agency to adhere to 
certain requirements in the development of new and revised regulations 
in order to avoid unduly burdening the court system. This proposed rule 
is not intended to have a retroactive effect.
    States and local jurisdictions are preempted under the OFPA from 
creating programs of accreditation for private persons or State 
officials who want to become certifying agents of organic farms or 
handling operations. A governing State official would have to apply to 
USDA to be accredited as a certifying agent, as described in the OFPA 
(7 U.S.C. 6514(b)). States are also preempted by the OFPA (7 U.S.C. 
6503 through 6507) from creating certification programs to certify 
organic farms or handling operations unless the State programs have 
been submitted to, and approved by, the Secretary as meeting the 
requirements of the OFPA.
    Pursuant to the OFPA (7 U.S.C. 6507(b)(2)), a State organic 
certification

[[Page 52106]]

program may contain additional requirements for the production and 
handling of organically produced agricultural products that are 
produced in the State and for the certification of organic farm and 
handling operations located within the State under certain 
circumstances. Such additional requirements must: (a) Further the 
purposes of the OFPA, (b) not be inconsistent with the OFPA, (c) not be 
discriminatory toward agricultural commodities organically produced in 
other States, and (d) not be effective until approved by the Secretary.
    Pursuant to the OFPA (7 U.S.C. 6519(f)), this proposed rule would 
not alter the authority of the Secretary under the Federal Meat 
Inspection Act (21 U.S.C. 601-624), the Poultry Products Inspection Act 
(21 U.S.C. 451-471), or the Egg Products Inspection Act (21 U.S.C. 
1031-1056), concerning meat, poultry, and egg products, nor any of the 
authorities of the Secretary of Health and Human Services under the 
Federal Food, Drug and Cosmetic Act (21 U.S.C. 301-399), nor the 
authority of the Administrator of EPA under the FIFRA (7 U.S.C. 136-
136(y)).
    The OFPA (7 U.S.C. 6520) provides for the Secretary to establish an 
expedited administrative appeals procedure under which persons may 
appeal an action of the Secretary, the applicable governing State 
official, or a certifying agent under this title that adversely affects 
such person or is inconsistent with the organic certification program 
established under this title. The OFPA also provides that the U.S. 
District Court for the district in which a person is located has 
jurisdiction to review the Secretary's decision.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612) requires 
agencies to consider the economic impact of each rule on small entities 
and evaluate alternatives that would accomplish the objectives of the 
rule without unduly burdening small entities or erecting barriers that 
would restrict their ability to compete in the market. The purpose is 
to fit regulatory actions to the scale of businesses subject to the 
action. Section 605 of the RFA allows an agency to certify a rule, in 
lieu of preparing an analysis, if the rulemaking is not expected to 
have a significant economic impact on a substantial number of small 
entities.
    Small agricultural service firms, which include producers, 
handlers, and accredited certifying agents, have been defined by the 
Small Business Administration (SBA) (13 CFR 121.201) as those having 
annual receipts of less than $7,000,000 and small agricultural 
producers are defined as those having annual receipts of less than 
$750,000. According to USDA, National Agricultural Statistics Service 
(NASS), certified organic acreage exceeded 3.5 million acres in 
2011.\15\ According to NOP's Accreditation and International Activities 
Division, the number of certified U.S. organic crop and livestock 
operations totaled over 17,281 in 2011. AMS believes that most of these 
entities would be considered small entities under the criteria 
established by the SBA. The procedures for producing and handling 
certified apiculture products will remain essentially the same under 
this proposed rule as they have been since ACAs began to certify 
apiculture products organic under the livestock regulations. The 
difference under the proposed rule is that the regulation will be more 
specific, and is tailored to apiculture production and handling 
requirements.
---------------------------------------------------------------------------

    \15\ U.S. Department of Agriculture, National Agricultural 
Statistics Service. October 2012. 2011 Certified Organic Productions 
Survey. http://usda01.library.cornell.edu/usda/current/OrganicProduction/OrganicProduction-10-04-2012.pdf.
---------------------------------------------------------------------------

    U.S. sales of organic food and non-food have grown from $1 billion 
in 1990 to $31.4 billion in 2011. Sales in 2011 represented 9.5 percent 
growth over 2010 sales.\16\ In addition, the USDA has 86 accredited 
certifying agents who provide certification services to producers and 
handlers. A complete list of names and addresses of accredited 
certifying agents may be found on the AMS NOP Web site, at http://www.ams.usda.gov/nop. AMS believes that most of these accredited 
certifying agents would be considered small entities under the criteria 
established by the SBA. Certifying agents reported approximately 29,000 
certified operations worldwide in 2011.
---------------------------------------------------------------------------

    \16\ Organic Trade Association. 2012. Organic Industry Survey. 
www.ota.com.
---------------------------------------------------------------------------

D. Paperwork Reduction Act

    No additional collection or recordkeeping requirements are imposed 
on the public by this proposed rule. Accordingly, OMB clearance is not 
required by the Paperwork Reduction Act of 1995, 44 U.S.C. 3501, and 
Chapter 35.

E. Executive Order 13175

    This proposed rule has been reviewed in accordance with the 
requirements of Executive Order 13175, Consultation and Coordination 
with Indian Tribal Governments. The review reveals that this regulation 
will not have substantial and direct effects on Tribal governments and 
will not have significant Tribal implications.

F. General Notice of Public Rulemaking

    This proposed rule reflects recommendations submitted by the NOSB 
to the Secretary to add three substances on the National List and to 
remove two expired listings from the National List. A 60-day period for 
interested persons to comment on this rule is provided and is deemed 
appropriate.

List of Subjects in 7 CFR Part 205

    Administrative practice and procedure, Agriculture, Animals, 
Archives and records, Imports, Labeling, Organically produced products, 
Plants, Reporting and recordkeeping requirements, Seals and insignia, 
Soil conservation.
    For the reasons set forth in the preamble, 7 CFR part 205, subpart 
G is proposed to be amended as follows:

PART 205--NATIONAL ORGANIC PROGRAM

0
1. The authority citation for 7 CFR part 205 continues to read as 
follows:

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

0
2. Section 205.2 is amended by adding one new term in alphabetical 
order to read as follows:


Sec.  205.2  Terms defined.

* * * * *
    Biodegradable biobased mulch film. A synthetic mulch film that 
meets the following criteria:
    (1) Meets the compostability standards of ASTM D6400 or D6868, or 
of other equivalent international standards, i.e., EN 13432, EN 14995, 
or ISO 17088;
    (2) Demonstrates at least 90% biodegradation absolute or relative 
to microcrystalline cellulose in less than two years, in soil, 
according to ISO 17556 or ASTM D5988 testing methods; and
    (3) Must be biobased with content determined using ATM D6866 
testing method.
* * * * *
0
3. Section 205.601 is amended by adding paragraph (b)(2)(iii) to read 
as follows:


Sec.  205.601  Synthetic substances allowed for use in organic crop 
production.

* * * * *
    (b) * * *
    (2) * * *
    (iii) Biodegradable biobased mulch film as defined in Sec.  205.2. 
Must be produced without organisms or

[[Page 52107]]

feedstock derived from excluded methods.
* * * * *
0
4. Section 205.606 is amended by:
0
A. Removing paragraph (l);
0
B. Removing paragraph (w)(2);
0
C. Redesignating paragraph (w)(3) as (w)(2);
0
D. Redesignating paragraphs (e) through (aa) as (g) through (bb) 
respectively;
0
E. Redesignating paragraph (d) as paragraph (e); and
0
F. Adding new paragraphs (d) and (f). The additions read as follows:


Sec.  205.606  Nonorganically produced agricultural products allowed as 
ingredients in or on processed products labeled as ``organic.''

* * * * *
    (d) Citrus hystrix, leaves and fruit.
* * * * *
    (f) Curry leaves (Murraya koenigii).
* * * * *

    Dated: August 16, 2013.
Rex A. Barnes,
Associate Administrator, Agricultural Marketing Service.
[FR Doc. 2013-20476 Filed 8-21-13; 8:45 am]
BILLING CODE 3410-02-P