National Organic Program (NOP)-Amendments to the National List of Allowed and Prohibited Substances (Processing), 35137-35141 [07-3142]
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35137
Rules and Regulations
Federal Register
Vol. 72, No. 123
Wednesday, June 27, 2007
This section of the FEDERAL REGISTER
contains regulatory documents having general
applicability and legal effect, most of which
are keyed to and codified in the Code of
Federal Regulations, which is published under
50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by
the Superintendent of Documents. Prices of
new books are listed in the first FEDERAL
REGISTER issue of each week.
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 205
[Docket No. AMS–TM–07–0062; TM–07–
06IF]
RIN 0581–AC71
National Organic Program (NOP)—
Amendments to the National List of
Allowed and Prohibited Substances
(Processing)
Agricultural Marketing Service,
USDA.
ACTION: Interim final rule with requests
for comments.
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AGENCY:
SUMMARY: This Interim final rule
amends the Department of Agriculture’s
(USDA) National List of Allowed and
Prohibited Substances (National List)
regulations to enact 38
recommendations submitted to the
Secretary of Agriculture (Secretary) by
the National Organic Standards Board
(NOSB) during public meetings held
May 6–8, 2002, in Austin, Texas, and
March 27–29, 2007, in Washington, DC.
This action is also being taken to
provide an additional 60 days for the
public to comment on these 38
amendments to the National List.
DATES: Effective Dates: This interim
final rule becomes effective June 21,
2007. All comments received by August
27, 2007 will be considered prior to the
issuance of the final rule.
ADDRESSES: Interested persons may
comment on this interim final rule using
any of the following procedures:
• Mail: Comments may be submitted
by mail to Robert Pooler, Agricultural
Marketing Specialist, National Organic
Program, USDA/AMS/TMP/NOP, 1400
Independence Ave., SW., Room 4008–
So., Ag Stop 0268, Washington, DC
20250.
• Internet: www.regulations.gov.
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• Written comments on this interim
final rule should be identified with the
docket number AMS–TM–07–0062.
Commenters should identify the topic
and section number of this interim final
rule to which the comment refers.
• Clearly indicate if you are for or
against the interim final rule or some
portion of it and your reason for it.
Include recommendation changes as
appropriate.
• Include a copy of articles or other
references that support your comments.
Only relevant material should be
submitted.
All comments to this interim final
rule, submitted by the above
procedures, will be available for
viewing at: www.regulations.gov.
Comments submitted in response to this
interim final rule will also be available
for viewing in person at USDA–AMS,
Transportation and Marketing, National
Organic Program, Room 4008—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 on official
Federal holidays). Persons wanting to
view comments received in response to
this interim final rule are requested to
make an appointment in advance by
calling (202) 720–3252.
FOR FURTHER INFORMATION CONTACT:
Robert Pooler, Agricultural Marketing
Specialist, National Organic Program,
USDA/AMS/TM/NOP, Room 4008–So.,
Ag Stop 0268, 1400 Independence Ave.,
SW., Washington, DC 20250. Phone:
(202) 720–3252.
SUPPLEMENTARY INFORMATION:
I. 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.
On December 21, 2000, the Secretary
established, within the NOP (7 CFR part
205), the National List regulations
§§ 205.600 through 205.607. This
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,
non-synthetic non-agricultural and nonorganic agricultural substances that may
be used in organic handling. The OFPA
and NOP regulations, in § 205.105,
specifically prohibit the use of any
synthetic substance for organic
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production and handling unless the
synthetic substance is on the National
List. Section 205.105 also requires that
any non-organic agricultural, nonsynthetic non-agricultural substance
used in organic handling must also be
on the National List.
Until recently, some producers,
handlers and certifying agents have
misinterpreted National List regulations
§ 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 Court of Appeal’s decision in
Harvey v. Johanns found that such an
interpretation is contrary to the plain
meaning of the OFPA and held that 7
CFR 205.606 shall not be interpreted to
create a blanket exemption to the
National List requirements specified in
§§ 6517 and 6518 of the OFPA (7 U.S.C.
6517–6518). Therefore, consistent with
the district court’s final judgment and
order, dated June 9, 2005, on July 1,
2005, the NOP published a notice
regarding § 205.606 (70 FR 38090), and
on June 7, 2006, published a final rule
(71 FR 32803) revising § 205.606 to
clarify that the section shall be
interpreted to permit the use of a nonorganically produced agricultural
product only when the product has been
listed in § 205.606, and when an
accredited certifying agent has
determined that the organic form of the
agricultural product is not commercially
available. In order to enable an orderly
transition, the district court’s final
judgment and order allowed for
products produced in conformance with
the misinterpretation of § 205.606 to be
produced and sold until June 9, 2007,
after which point no non-conforming
products may enter the stream of
commerce. As a result, since June 9,
2007, any certified products that have
been produced and entered into the
stream of commerce using non-organic
agricultural ingredients that are not
listed in § 205.606 are in noncompliance with the district court’s
final order and judgment on Harvey v.
Johanns.
Concerning organic products that
contain no more than 5% non-organic
agricultural ingredients that do not
appear on the National List, such
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products that have been produced and
labeled as organic prior to June 9, 2007,
are considered to be in the stream of
commerce. ‘‘Organic’’ products that
meet this description may remain in the
marketplace as organically produced
until the existing supply is exhausted.
On May 15, 2007, USDA published a
proposed rule (72 FR 27252) to amend
the National List regulations to enact
recommendations submitted to the
Secretary by the NOSB as a result of
public meetings held on May 6–8, 2002,
in Austin, TX, and March 27–29, 2007,
in Washington, DC. This proposed rule
suggested the addition of 38 non-organic
agricultural ingredients, along with any
restrictive annotations, to the National
List regulations. The 38 ingredients
proposed for addition to the National
List were based on petitions from the
industry, in response to the potential
impact of the district court’s final order
and judgment concerning changes to
§ 205.606 of the NOP regulations.
NOP and NOSB received
approximately 99 petitions to add more
than 600 non-organic agricultural
ingredients and substances to § 205.606
of the National List regulations. After
Program review for adequate petition
information, 79 petitions to add 52
substances to the National List were
forwarded through the petition review
process to the NOSB Materials and
Handling Committees for review and
evaluation against the OFPA criteria and
NOP regulations. Prior to the respective
public NOSB meetings, 52 draft
recommendations from the NOSB
committees were posted on the NOP
Web site for review and public
comment. Of the 52 petitioned
ingredients, the NOSB, for their March
2007 meeting, requested, received, and
reviewed public comments on the
petitioned ingredients and voted to add
38 ingredients to § 205.606 of the
National List.
Under the authority of OFPA and the
NOP regulations, the National List can
be amended by the Secretary based
upon recommendations by the NOSB.
II. Overview of Amendments
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The following provides an overview
of the amendments to designated
sections of the National List regulations.
Color Ingredients From Agricultural
Products
Annatto extract color (pigment CAS
# 1393–63–1)—water and oil soluble.
Beet juice extract color (pigment CAS
# 7659–95–2).
Beta-Carotene extract color from
carrots (CAS # 1393–63–1).
Black currant juice color (pigment
CAS #’s: 528–58–5, 528–53–0, 643–84–
5, 134–01–0, 1429–30–7, and 134–04–
3).
Black/Purple carrot juice color
(pigment CAS #’s: 528–58–5, 528–53–0,
643–84–5, 134–01–0, 1429–30–7, and
134–04–3).
Blueberry juice color (pigment CAS
#’s: 528–58–5, 528–53–0, 643–84–5,
134–01–0, 1429–30–7, and 134–04–3).
Carrot juice color (pigment CAS
# 1393–63–1).
Cherry juice color (pigment CAS #’s:
528–58–5, 528–53–0, 643–84–5, 134–
01–0, 1429–30–7, and 134–04–3).
Chokeberry—Aronia juice color
(pigment CAS #’s: 528–58–5, 528–53–0,
643–84–5, 134–01–0, 1429–30–7, and
134–04–3).
Elderberry juice color (pigment CAS
#’s: 528–58–5, 528–53–0, 643–84–5,
134–01–0, 1429–30–7, and 134–04–3).
Grape juice color (pigment CAS #’s:
528–58–5, 528–53–0, 643–84–5, 134–
01–0, 1429–30–7, and 134–04–3).
Grape skin extract color (pigment CAS
#’s: 528–58–5, 528–53–0, 643–84–5,
134–01–0, 1429–30–7, and 134–04–3).
Paprika color—dried powder and
vegetable oil extract (CAS # 68917–78–
2).
Pumpkin juice color (pigment CAS #
127–40–2).
Purple potato juice color (pigment
CAS #’s: 528–58–5, 528–53–0, 643–84–
5, 134–01–0, 1429–30–7, and 134–04–
3).
Red cabbage extract color (pigment
CAS #’s: 528–58–5, 528–53–0, 643–84–
5, 134–01–0, 1429–30–7, and 134–04–
3).
Red radish extract color (pigment CAS
#’s: 528–58–5, 528–53–0, 643–84–5,
134–01–0, 1429–30–7, and 134–04–3).
Saffron extract color (pigment CAS
# 1393–63–1).
Turmeric extract color (CAS # 458–
37–7).
Ingredients or Processing Aids From
Agricultural Products
Casings, from processed intestines (no
Section 205.606 Nonorganically
Produced Agricultural Products Allowed CAS #).
Celery powder (No CAS #).
as Ingredients in or on Processed
Chia (Salvia hispanica L.) (no CAS #).
Products Labeled as ‘‘Organic’’
Dillweed oil (CAS # 8006–75–5).
This interim final rule amends
Fish oil (Fatty acid CAS #’s: 10417–
§ 205.606 of the National List
94–4, and 25167–62–8).
regulations by adding the following
Fructooligosaccharides (CAS
substances:
# 308066–66–2).
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Galangal, frozen (no CAS #).
Gelatin (CAS # 9000–70–8).
Hops (Humulus lupulus) (no CAS #).
Inulin, oligofructose enriched (CAS #
9005–80–5).
Konjac flour (CAS # 37220–17–0).
Lemongrass, frozen (no CAS #).
Orange shellac, unbleached (CAS #
9000–59–3).
Pepper, chipotle chile (no CAS #).
Rice starch, unmodified (CAS #
977000–08–0)—for use in organic
handling until [two years from date of
publication].
Sweet potato starch, for bean thread
production only (no CAS #).
Turkish bay leaves (no CAS #).
Wakame seaweed (Undaria
pinnatifida) (no CAS #).
Whey protein concentrate (no CAS #).
III. Related Documents—Federal
Register Notices
Two notices and one proposed rule
(72 FR 27252) were published regarding
the meetings of the NOSB and its
deliberations on recommendations and
substances petitioned for amending the
National List. Substances and
recommendations included in this
interim final rule were announced for
NOSB deliberation in the following
Federal Register Notices: (1) 67 FR
19375, April 19, 2002, (Gelatin, Konjac
flour, Orange shellac); (2) 72 FR 10971,
March 12, 2007, (Casings, Celery
powder, Chia (Salvia hispanica L.),
Colors—from agricultural products:
Annatto extract; Beet juice; Betacarotene extract; Purple carrot juice;
Black currant juice; Blueberry juice;
Carrot juice; Cherry juice; Chokeberry/
Aronia juice; Elderberry juice; Grape
juice; Grape skin extract; Paprika;
Pumpkin juice; Purple potato juice; Red
cabbage extract; Red radish extract;
Saffron; Turmeric; Dillweed oil, Fish
oil, Fructooligosaccharides, Galangal—
frozen, Hops, Inulin—oligofructose
enriched, Lemongrass—frozen,
Pepper—chipotle chile, Rice starch,
Sweet potato starch, Turkish bay leaves,
Wakame seaweed (Undaria pinnatifida),
and Whey protein concentrate).
IV. Statutory and Regulatory Authority
The OFPA, as amended (7 U.S.C. 6501
et seq.), authorizes the Secretary to
make amendments to the National List
based on recommendations by the
NOSB. Sections 6518(k)(2) and 6518(n)
of OFPA authorize the NOSB to
recommend changes 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
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process is implemented under § 205.607
of the NOP regulations. The current
petition process (72 FR 2167 January 18,
2007) can be accessed through the NOP
Web site at https://www.ams.usda.gov/
nop.
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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 interim final 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
§ 6514(b) of the OFPA (7 U.S.C.
6514(b)). States are also preempted
under §§ 6503 through 6507 of 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 § 6507(b)(2) of the OFPA
(7 U.S.C. 6507(b)(2)), a State organic
certification 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 § 6519(f) of the OFPA (7
U.S.C. 6519(f)), this interim final rule
would not alter the authority of the
Secretary under the Federal Meat
Inspection Act (21 U.S.C. 601 et seq.),
the Poultry Products Inspections Act (21
U.S.C. 451 et seq.), or the Egg Products
Inspection Act (21 U.S.C. 1031 et seq.),
concerning meat, poultry, and egg
products, nor any of the authorities of
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the Secretary of Health and Human
Services under the Federal Food, Drug
and Cosmetic Act (21 U.S.C. 301 et
seq.), nor the authority of the
Administrator of the Environmental
Protection Agency (EPA) under the
Federal Insecticide, Fungicide and
Rodenticide Act (7 U.S.C. 136 et seq.).
Section 6520 of 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 et seq.) 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.
Pursuant to the requirements set forth
in the RFA, the Agricultural Marketing
Service (AMS) performed an economic
impact analysis on small entities in the
final rule published in the Federal
Register on December 21, 2000 (65 FR
80548). The AMS has also considered
the economic impact of this action on
small entities. The impact on entities
affected by this interim final rule would
not be significant. The effect of this
interim final rule would be to allow the
use of additional substances in
agricultural production and handling.
This action would modify the
regulations to provide both large and
small entities with more tools to use in
day-to-day operations. The AMS
concludes that the economic impact of
this addition of allowed substances, if
any, would be minimal and entirely
beneficial to both large and small
agricultural service firms. Accordingly,
AMS certifies that this interim final rule
will not have a significant economic
impact on a substantial number of small
entities. AMS invites comments on the
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35139
economic impact on small entities of
this interim final rule.
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 $6,500,000 and small agricultural
producers are defined as those having
annual receipts of less than $750,000.
This interim final rule would have an
impact on a substantial number of small
entities.
Based upon USDA’s Economic
Research Service and AMS data
compiled from 2001 to 2005, the U.S.
organic industry at the end of 2005
included nearly 8,500 certified organic
crop and livestock operations, plus
more than 2,900 handling operations.
Organic crop and livestock operations
reported certified acreage totaling more
than 4.05 million acres of organic farm
production. Total number of organic
crop and livestock operations increased
by more than 18 percent from 2001 to
2005, while total certified acreage more
than doubled during this time period.
AMS estimates that these trends
continued through 2006 and will be
higher in 2007.
U.S. sales of organic food and
beverages have grown from $1 billion in
1990 to nearly $17 billion in 2006.
Organic food sales are projected to reach
$23.8 billion for 2010. The organic
industry is viewed as the fastest growing
sector of agriculture, currently
representing nearly 3 percent of overall
food and beverage sales. Since 1990,
organic retail sales have historically
demonstrated a growth rate between 20
to 24 percent each year including a 22
percent increase in 2006.
In addition, USDA has accredited 99
certifying agents who have applied to
USDA to be accredited in order to
provide certification services to
producers and handlers. A complete list
of names and addresses of accredited
certifying agents may be found on the
NOP Web site, at https://
www.ams.usda.gov/nop. AMS believes
that most of these entities would be
considered small entities under the
criteria established by the SBA.
D. Paperwork Reduction Act
Under the OFPA, no additional
collection or recordkeeping
requirements are imposed on the public
by this interim final rule. Accordingly,
OMB clearance is not required by
section 350(h) of the Paperwork
Reduction Act of 1995, 44 U.S.C. 3501,
et seq., or OMB’s implementing
regulation at 5 CFR part 1320.
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AMS is committed to compliance
with the Government Paperwork
Elimination Act (GPEA), which requires
Government agencies in general to
provide the public the option of
submitting information or transacting
business electronically to the maximum
extent possible.
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E. Received Comments on Proposed
Rule AMS–TM–07–0062
AMS received approximately 1,250
comments on proposed rule AMS-TM–
07–0062. Comments were received from
organic producers and handlers,
accredited certifying agents, consumers,
retailers, food service establishments
and public interest groups. In general,
comments were opposed to the
abbreviated comment period for
proposed rule AMS–TM–07–0062 and
requested an extended comment period.
There were comments that supported
the addition of all 38 non-organic
agricultural ingredients to the National
List; while other comments opposed the
addition of all non-organic agricultural
ingredients to § 205.606 of the National
List.
Many comments either supported or
opposed the specific National List
amendments of the following nonorganic agricultural ingredients: Casings
from processed intestines; gelatin;
colors from agricultural products;
konjac flour; hops; lemongrass; Turkish
bay leaves; turmeric; and whey protein
concentrate. Some comments addressed
the inclusion of CAS numbers or the use
of scientific names to identify the nonorganic ingredients.
Though a significant number of
comments were received, very few
comments submitted were from
processors or handlers. Comments from
this segment of the industry would be
helpful in developing a final rule. A
number of comments expressed concern
regarding the information and criteria
used for determining the fragility of the
organic ingredient supply or organic
availability of the proposed 38 nonorganic agricultural ingredients.
As a result of the district court’s final
order and judgment in Harvey v.
Johanns and requests for an extension of
the public comment period on AMS–
TM–07–0062, AMS is issuing this
interim final rule to (1) Permit the use
of the 38 ingredients during the
extended comment and final rulemaking
periods to minimize the impact to the
organic industry and (2) extend the
comment period (60 days) to receive
additional comments regarding the
addition of the 38 non-organic
agricultural ingredients to § 205.606.
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F. Effective Date
Effective June 9, 2007, these 38
substances were prohibited for use in
processed products labeled as
‘‘organic.’’ Continued loss of the use of
these products would disrupt the trade
of food products currently being labeled
as ‘‘organic’’. Therefore, the continued
use of these products as ingredients in
foods labeled as ‘‘organic’’ is necessary
to prevent possible significant business
disruption for organic producers and
handlers. Accordingly, pursuant to 5
U.S.C. 553, it is found, and determined,
upon good cause, that it is
impracticable, unnecessary, and
contrary to the public interest to give
further notice prior to putting this rule
into effect, and that good cause exists
for not postponing the effective date of
this interim final rule until 30 days after
publication in the Federal Register.
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.
I For the reasons set forth in the
preamble, 7 CFR part 205, subpart G is
amended as follows:
PART 205—NATIONAL ORGANIC
PROGRAM
1. The authority citation for 7 CFR
part 205 continues to read as follows:
I
Authority: 7 U.S.C. 6501–6522.
2. Section 205.606 is revised to read
as follows:
I
§ 205.606 Nonorganically produced
agricultural products allowed as ingredients
in or on processed products labeled as
‘‘organic.’’
Only the following nonorganically
produced agricultural products may be
used as ingredients in or on processed
products labeled as ‘‘organic,’’ only in
accordance with any restrictions
specified in this section, and only when
the product is not commercially
available in organic form.
(a) Casings, from processed intestines.
(b) Celery powder.
(c) Chia (Salvia hispanica L.).
(d) Colors derived from agricultural
products.
(1) Annatto extract color (pigment
CAS # 1393–63–1)—water and oil
soluble.
(2) Beet juice extract color (pigment
CAS # 7659–95–2).
(3) Beta-carotene extract color,
derived from carrots (CAS # 1393–63–
1).
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(4) Black currant juice color (pigment
CAS #’s: 528–58–5, 528–53–0, 643–84–
5, 134–01–0, 1429–30–7, and 134–04–
3).
(5) Black/Purple carrot juice color
(pigment CAS #’s: 528–58–5, 528–53–0,
643–84–5, 134–01–0, 1429–30–7, and
134–04–3).
(6) Blueberry juice color (pigment
CAS #’s: 528–58–5, 528–53–0, 643–84–
5, 134–01–0, 1429–30–7, and 134–04–
3).
(7) Carrot juice color (pigment CAS #
1393–63–1).
(8) Cherry juice color (pigment CAS
#’s: 528–58–5, 528–53–0, 643–84–5,
134–01–0, 1429–30–7, and 134–04–3).
(9) Chokeberry—Aronia juice color
(pigment CAS #’s: 528–58–5, 528–53–0,
643–84–5, 134–01–0, 1429–30–7, and
134–04–3).
(10) Elderberry juice color (pigment
CAS #’s: 528–58–5, 528–53–0, 643–84–
5, 134–01–0, 1429–30–7, and 134–04–
3).
(11) Grape juice color (pigment CAS
#’s: 528–58–5, 528–53–0, 643–84–5,
134–01–0, 1429–30–7, and 134–04–3).
(12) Grape skin extract color (pigment
CAS #’s: 528–58–5, 528–53–0, 643–84–
5, 134–01–0, 1429–30–7, and 134–04–
3).
(13) Paprika color (CAS # 68917–78–
2)—dried, and oil extracted.
(14) Pumpkin juice color (pigment
CAS # 127–40–2).
(15) Purple potato juice (pigment CAS
#’s: 528–58–5, 528–53–0, 643–84–5,
134–01–0, 1429–30–7, and 134–04–3).
(16) Red cabbage extract color
(pigment CAS #’s: 528–58–5, 528–53–0,
643–84–5, 134–01–0, 1429–30–7, and
134–04–3).
(17) Red radish extract color (pigment
CAS #’s: 528–58–5, 528–53–0, 643–84–
5, 134–01–0, 1429–30–7, and 134–04–
3).
(18) Saffron extract color (pigment
CAS # 1393–63–1).
(19) Turmeric extract color (CAS #
458–37–7).
(e) Dillweed oil (CAS # 8006–75–5).
(f) Fish oil (Fatty acid CAS #’s:
10417–94–4, and 25167–62–8)—
stabilized with organic ingredients or
only with ingredients on the National
List, §§ 205.605 and 205.606.
(g) Fructooligosaccharides (CAS #
308066–66–2).
(h) Galangal, frozen.
(i) Gelatin (CAS # 9000–70–8).
(j) Gums—water extracted only
(Arabic; Guar; Locust bean; and Carob
bean).
(k) Hops (Humulus luplus).
(l) Inulin-oligofructose enriched (CAS
# 9005–80–5).
(m) Kelp—for use only as a thickener
and dietary supplement.
E:\FR\FM\27JNR1.SGM
27JNR1
Federal Register / Vol. 72, No. 123 / Wednesday, June 27, 2007 / Rules and Regulations
(n) Konjac flour (CAS # 37220–17–0).
(o) Lecithin—unbleached.
(p) Lemongrass—frozen.
(q) Orange shellac-unbleached (CAS #
9000–59–3).
(r) Pectin (high-methoxy).
(s) Peppers (Chipotle chile).
(t) Starches.
(1) Cornstarch (native).
(2) Rice starch, unmodified (CAS #
977000–08–0)—for use in organic
handling until June 21, 2009.
(3) Sweet potato starch—for bean
thread production only.
(u) Turkish bay leaves.
(v) Wakame seaweed (Undaria
pinnatifida).
(w) Whey protein concentrate.
Dated: June 22, 2007.
Lloyd C. Day,
Administrator, Agricultural Marketing
Service.
[FR Doc. 07–3142 Filed 6–22–07; 3:00 pm]
BILLING CODE 3410–02–P
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 948
[Docket No. AMS–FV–06–0180; FV06–948–
610 Review]
Irish Potatoes Grown in Colorado;
Section 610 Review
Agricultural Marketing Service,
USDA.
ACTION: Confirmation of regulations.
pwalker on PROD1PC71 with RULES
AGENCY:
SUMMARY: This action summarizes the
results under the criteria contained in
section 610 of the Regulatory Flexibility
Act (RFA), of an Agricultural Marketing
Service (AMS) review of Marketing
Order No. 948, regulating the handling
of Irish potatoes grown in Colorado
(order). AMS has determined that the
order should be continued.
ADDRESSES: Interested persons may
obtain a copy of the review. Requests for
copies should be sent to the Docket
Clerk, Marketing Order Administration
Branch, Fruit and Vegetable Programs,
AMS, USDA, 1400 Independence
Avenue, SW., STOP 0237, Washington,
DC 20250–0237; Fax: (202) 720–8938;
e-mail: moab.docketclerk@usda.gov or
Internet: https://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT:
Teresa Hutchinson or Gary D. Olson,
Northwest Marketing Field Office,
Marketing Order Administration
Branch, Fruit and Vegetable Programs,
AMS, USDA, Portland, Oregon 97204;
Telephone: (503) 326–2724; Fax: (503)
326–7440; or e-mail:
VerDate Aug<31>2005
18:11 Jun 26, 2007
Jkt 211001
Teresa.Hutchinson@usda.gov or
GaryD.Olson@usda.gov.
Marketing
Order No. 948, as amended (7 CFR part
948), regulates the handling of Irish
potatoes grown in Colorado, hereinafter
referred to as the ‘‘order.’’ The order is
effective under the Agricultural
Marketing Agreement Act of 1937, as
amended (7 U.S.C. 601–674), hereinafter
referred to as the ‘‘Act.’’
The State of Colorado is divided into
three areas for marketing order
purposes. Currently, only Area No. 2
and Area No. 3 are active.
Area No. 1, commonly known as the
Western Slope, includes and consists of
the counties of Routt, Eagle, Pitkin,
Gunnison, Hinsdale, La Plata, in the
State of Colorado, and all counties in
said State west of the aforesaid counties.
Area No. 2, commonly known as the
San Luis Valley, includes and consists
of the counties of Chaffee, Saguache,
Huerfano, Las Animas, Mineral,
Archuleta, Rio Grande, Conejos,
Costilla, and Alamosa in the State of
Colorado.
Area No. 3, commonly known as
Northern Colorado, includes and
consists of all the remaining counties in
the State of Colorado which are not
included in Area No. 1 or Area No. 2.
The order establishes administrative
committees for each of these areas (area
committees).
The Area No. 2 administrative
committee is comprised of 14 members
and their respective alternates. Nine
members represent producers and five
members represent handlers. Two
producers are from Rio Grande County,
two producers are from either Saguache
County or Chaffee County, one producer
is from Conejos County, two producers
are from Alamosa County, one producer
represents all other counties in Area No.
2, and one producer represents certified
seed producers in Area No. 2. Two
handlers represent bulk handlers in
Area No. 2 and three handlers represent
handlers in Area No. 2 other than bulk
handlers.
The Area No. 3 administrative
committee is comprised of five members
and their respective alternates. Three
producers and two handlers represent
producers and handlers from any
county in Area No. 3.
With regulations in Area No. 1
suspended, there is currently no need
for an Area No. 1 administrative
committee.
The order also establishes the
Colorado Potato Committee (CPC) which
is comprised of six members and
alternates selected by the Department of
Agriculture (USDA). Three members
SUPPLEMENTARY INFORMATION:
PO 00000
Frm 00005
Fmt 4700
Sfmt 4700
35141
and three alternates are selected from
nominations of Area No. 2 committee
members or alternates, and three
members and three alternates are
selected from nominations of Area No.
3 committee members or alternates.
Currently, there are approximately
175 producers and 95 handlers of
Colorado potatoes in both of the active
areas. The majority of producers and
handlers may be classified as small
entities. The regulations implemented
under the order are applied uniformly
and designed to benefit all entities,
regardless of size.
AMS published in the Federal
Register on February 18, 1999 (64 FR
8014), a plan to review certain
regulations, including Marketing Order
No. 948, under criteria contained in
section 610 of the RFA (5 U.S.C. 601–
612). Updated plans were published in
the Federal Register on January 4, 2002
(67 FR 525), August 14, 2003 (68 FR
48574), and again on March 24, 2006 (71
FR 14827). Accordingly, AMS published
a notice of review and request for
written comments on the Colorado
potato marketing order in the February
21, 2006, issue of the Federal Register
(71 FR 8810). The deadline for
comments ended April 24, 2006. Two
comments were received in support of
the order, and are discussed later in this
document.
The review was undertaken to
determine whether the Colorado potato
marketing order should be continued
without being changed, amended, or
rescinded to minimize the impacts on
small entities. In conducting this
review, AMS considered the following
factors: (1) The continued need for the
order; (2) the nature of complaints or
comments received from the public
concerning the order; (3) the complexity
of the order; (4) the extent to which the
order overlaps, duplicates, or conflicts
with other Federal rules, and, to the
extent feasible, with State and local
governmental rules; and (5) the length of
time since the order has been evaluated
or the degree to which technology,
economic conditions, or other factors
have changed in the area affected by the
order.
The order authorizes grade, size,
quality, maturity, pack, and container
regulations as well as inspection
requirements. The grade, size, quality,
maturity, and inspection regulations are
also applied to imported potatoes under
section 608e of the Act. The order also
authorizes the area committees to
establish projects including marketing
research and development projects,
designed to assist, improve, or promote
the marketing, distribution, and
consumption of potatoes.
E:\FR\FM\27JNR1.SGM
27JNR1
]]>Agencies
[Federal Register Volume 72, Number 123 (Wednesday, June 27, 2007)]
[Rules and Regulations]
[Pages 35137-35141]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 07-3142]
========================================================================
Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
Prices of new books are listed in the first FEDERAL REGISTER issue of each
week.
========================================================================
Federal Register / Vol. 72, No. 123 / Wednesday, June 27, 2007 /
Rules and Regulations
[[Page 35137]]
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 205
[Docket No. AMS-TM-07-0062; TM-07-06IF]
RIN 0581-AC71
National Organic Program (NOP)--Amendments to the National List
of Allowed and Prohibited Substances (Processing)
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Interim final rule with requests for comments.
-----------------------------------------------------------------------
SUMMARY: This Interim final rule amends the Department of Agriculture's
(USDA) National List of Allowed and Prohibited Substances (National
List) regulations to enact 38 recommendations submitted to the
Secretary of Agriculture (Secretary) by the National Organic Standards
Board (NOSB) during public meetings held May 6-8, 2002, in Austin,
Texas, and March 27-29, 2007, in Washington, DC. This action is also
being taken to provide an additional 60 days for the public to comment
on these 38 amendments to the National List.
DATES: Effective Dates: This interim final rule becomes effective June
21, 2007. All comments received by August 27, 2007 will be considered
prior to the issuance of the final rule.
ADDRESSES: Interested persons may comment on this interim final rule
using any of the following procedures:
Mail: Comments may be submitted by mail to Robert Pooler,
Agricultural Marketing Specialist, National Organic Program, USDA/AMS/
TMP/NOP, 1400 Independence Ave., SW., Room 4008-So., Ag Stop 0268,
Washington, DC 20250.
Internet: www.regulations.gov.
Written comments on this interim final rule should be
identified with the docket number AMS-TM-07-0062. Commenters should
identify the topic and section number of this interim final rule to
which the comment refers.
Clearly indicate if you are for or against the interim
final rule or some portion of it and your reason for it. Include
recommendation changes as appropriate.
Include a copy of articles or other references that
support your comments. Only relevant material should be submitted.
All comments to this interim final rule, submitted by the above
procedures, will be available for viewing at: www.regulations.gov.
Comments submitted in response to this interim final rule will also be
available for viewing in person at USDA-AMS, Transportation and
Marketing, National Organic Program, Room 4008--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 on official Federal
holidays). Persons wanting to view comments received in response to
this interim final rule are requested to make an appointment in advance
by calling (202) 720-3252.
FOR FURTHER INFORMATION CONTACT: Robert Pooler, Agricultural Marketing
Specialist, National Organic Program, USDA/AMS/TM/NOP, Room 4008-So.,
Ag Stop 0268, 1400 Independence Ave., SW., Washington, DC 20250. Phone:
(202) 720-3252.
SUPPLEMENTARY INFORMATION:
I. 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. On December 21, 2000, the Secretary established, within
the NOP (7 CFR part 205), the National List regulations Sec. Sec.
205.600 through 205.607. This 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, non-synthetic non-agricultural and non-organic agricultural
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 agricultural, non-synthetic non-
agricultural substance used in organic handling must also be on the
National List.
Until recently, some producers, handlers and certifying agents have
misinterpreted National List regulations 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
Court of Appeal's decision in Harvey v. Johanns found that such an
interpretation is contrary to the plain meaning of the OFPA and held
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). Therefore, 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 (71 FR 32803)
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, and when an
accredited certifying agent has determined that the organic form of the
agricultural product is not commercially available. In order to enable
an orderly transition, the district court's final judgment and order
allowed for products produced in conformance with the misinterpretation
of Sec. 205.606 to be produced and sold until June 9, 2007, after
which point no non-conforming products may enter the stream of
commerce. As a result, since June 9, 2007, any certified products that
have been produced and entered into the stream of commerce using non-
organic agricultural ingredients that are not listed in Sec. 205.606
are in non-compliance with the district court's final order and
judgment on Harvey v. Johanns.
Concerning organic products that contain no more than 5% non-
organic agricultural ingredients that do not appear on the National
List, such
[[Page 35138]]
products that have been produced and labeled as organic prior to June
9, 2007, are considered to be in the stream of commerce. ``Organic''
products that meet this description may remain in the marketplace as
organically produced until the existing supply is exhausted.
On May 15, 2007, USDA published a proposed rule (72 FR 27252) to
amend the National List regulations to enact recommendations submitted
to the Secretary by the NOSB as a result of public meetings held on May
6-8, 2002, in Austin, TX, and March 27-29, 2007, in Washington, DC.
This proposed rule suggested the addition of 38 non-organic
agricultural ingredients, along with any restrictive annotations, to
the National List regulations. The 38 ingredients proposed for addition
to the National List were based on petitions from the industry, in
response to the potential impact of the district court's final order
and judgment concerning changes to Sec. 205.606 of the NOP
regulations.
NOP and NOSB received approximately 99 petitions to add more than
600 non-organic agricultural ingredients and substances to Sec.
205.606 of the National List regulations. After Program review for
adequate petition information, 79 petitions to add 52 substances to the
National List were forwarded through the petition review process to the
NOSB Materials and Handling Committees for review and evaluation
against the OFPA criteria and NOP regulations. Prior to the respective
public NOSB meetings, 52 draft recommendations from the NOSB committees
were posted on the NOP Web site for review and public comment. Of the
52 petitioned ingredients, the NOSB, for their March 2007 meeting,
requested, received, and reviewed public comments on the petitioned
ingredients and voted to add 38 ingredients to Sec. 205.606 of the
National List.
Under the authority of OFPA and the NOP regulations, the National
List can be amended by the Secretary based upon recommendations by the
NOSB.
II. Overview of Amendments
The following provides an overview of the amendments to designated
sections of the National List regulations.
Section 205.606 Nonorganically Produced Agricultural Products Allowed
as Ingredients in or on Processed Products Labeled as ``Organic''
This interim final rule amends Sec. 205.606 of the National List
regulations by adding the following substances:
Color Ingredients From Agricultural Products
Annatto extract color (pigment CAS 1393-63-1)--water and
oil soluble.
Beet juice extract color (pigment CAS 7659-95-2).
Beta-Carotene extract color from carrots (CAS 1393-63-1).
Black currant juice color (pigment CAS 's: 528-58-5, 528-
53-0, 643-84-5, 134-01-0, 1429-30-7, and 134-04-3).
Black/Purple carrot juice color (pigment CAS 's: 528-58-5,
528-53-0, 643-84-5, 134-01-0, 1429-30-7, and 134-04-3).
Blueberry juice color (pigment CAS 's: 528-58-5, 528-53-0,
643-84-5, 134-01-0, 1429-30-7, and 134-04-3).
Carrot juice color (pigment CAS 1393-63-1).
Cherry juice color (pigment CAS 's: 528-58-5, 528-53-0,
643-84-5, 134-01-0, 1429-30-7, and 134-04-3).
Chokeberry--Aronia juice color (pigment CAS 's: 528-58-5,
528-53-0, 643-84-5, 134-01-0, 1429-30-7, and 134-04-3).
Elderberry juice color (pigment CAS 's: 528-58-5, 528-53-
0, 643-84-5, 134-01-0, 1429-30-7, and 134-04-3).
Grape juice color (pigment CAS 's: 528-58-5, 528-53-0,
643-84-5, 134-01-0, 1429-30-7, and 134-04-3).
Grape skin extract color (pigment CAS 's: 528-58-5, 528-
53-0, 643-84-5, 134-01-0, 1429-30-7, and 134-04-3).
Paprika color--dried powder and vegetable oil extract (CAS
68917-78-2).
Pumpkin juice color (pigment CAS 127-40-2).
Purple potato juice color (pigment CAS 's: 528-58-5, 528-
53-0, 643-84-5, 134-01-0, 1429-30-7, and 134-04-3).
Red cabbage extract color (pigment CAS 's: 528-58-5, 528-
53-0, 643-84-5, 134-01-0, 1429-30-7, and 134-04-3).
Red radish extract color (pigment CAS 's: 528-58-5, 528-
53-0, 643-84-5, 134-01-0, 1429-30-7, and 134-04-3).
Saffron extract color (pigment CAS 1393-63-1).
Turmeric extract color (CAS 458-37-7).
Ingredients or Processing Aids From Agricultural Products
Casings, from processed intestines (no CAS ).
Celery powder (No CAS ).
Chia (Salvia hispanica L.) (no CAS ).
Dillweed oil (CAS 8006-75-5).
Fish oil (Fatty acid CAS 's: 10417-94-4, and 25167-62-8).
Fructooligosaccharides (CAS 308066-66-2).
Galangal, frozen (no CAS ).
Gelatin (CAS 9000-70-8).
Hops (Humulus lupulus) (no CAS ).
Inulin, oligofructose enriched (CAS 9005-80-5).
Konjac flour (CAS 37220-17-0).
Lemongrass, frozen (no CAS ).
Orange shellac, unbleached (CAS 9000-59-3).
Pepper, chipotle chile (no CAS ).
Rice starch, unmodified (CAS 977000-08-0)--for use in
organic handling until [two years from date of publication].
Sweet potato starch, for bean thread production only (no CAS
).
Turkish bay leaves (no CAS ).
Wakame seaweed (Undaria pinnatifida) (no CAS ).
Whey protein concentrate (no CAS ).
III. Related Documents--Federal Register Notices
Two notices and one proposed rule (72 FR 27252) were published
regarding the meetings of the NOSB and its deliberations on
recommendations and substances petitioned for amending the National
List. Substances and recommendations included in this interim final
rule were announced for NOSB deliberation in the following Federal
Register Notices: (1) 67 FR 19375, April 19, 2002, (Gelatin, Konjac
flour, Orange shellac); (2) 72 FR 10971, March 12, 2007, (Casings,
Celery powder, Chia (Salvia hispanica L.), Colors--from agricultural
products: Annatto extract; Beet juice; Beta-carotene extract; Purple
carrot juice; Black currant juice; Blueberry juice; Carrot juice;
Cherry juice; Chokeberry/Aronia juice; Elderberry juice; Grape juice;
Grape skin extract; Paprika; Pumpkin juice; Purple potato juice; Red
cabbage extract; Red radish extract; Saffron; Turmeric; Dillweed oil,
Fish oil, Fructooligosaccharides, Galangal--frozen, Hops, Inulin--
oligofructose enriched, Lemongrass--frozen, Pepper--chipotle chile,
Rice starch, Sweet potato starch, Turkish bay leaves, Wakame seaweed
(Undaria pinnatifida), and Whey protein concentrate).
IV. Statutory and Regulatory Authority
The OFPA, as amended (7 U.S.C. 6501 et seq.), authorizes the
Secretary to make amendments to the National List based on
recommendations by the NOSB. Sections 6518(k)(2) and 6518(n) of OFPA
authorize the NOSB to recommend changes 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
[[Page 35139]]
process is implemented under Sec. 205.607 of the NOP regulations. The
current petition process (72 FR 2167 January 18, 2007) can be accessed
through the NOP Web site at https://www.ams.usda.gov/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 interim final
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 Sec.
6514(b) of the OFPA (7 U.S.C. 6514(b)). States are also preempted under
Sec. Sec. 6503 through 6507 of 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 Sec. 6507(b)(2) of the OFPA (7 U.S.C. 6507(b)(2)), a
State organic certification 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 Sec. 6519(f) of the OFPA (7 U.S.C. 6519(f)), this
interim final rule would not alter the authority of the Secretary under
the Federal Meat Inspection Act (21 U.S.C. 601 et seq.), the Poultry
Products Inspections Act (21 U.S.C. 451 et seq.), or the Egg Products
Inspection Act (21 U.S.C. 1031 et seq.), 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 et seq.), nor the authority of the Administrator of the
Environmental Protection Agency (EPA) under the Federal Insecticide,
Fungicide and Rodenticide Act (7 U.S.C. 136 et seq.).
Section 6520 of 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 et seq.)
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.
Pursuant to the requirements set forth in the RFA, the Agricultural
Marketing Service (AMS) performed an economic impact analysis on small
entities in the final rule published in the Federal Register on
December 21, 2000 (65 FR 80548). The AMS has also considered the
economic impact of this action on small entities. The impact on
entities affected by this interim final rule would not be significant.
The effect of this interim final rule would be to allow the use of
additional substances in agricultural production and handling. This
action would modify the regulations to provide both large and small
entities with more tools to use in day-to-day operations. The AMS
concludes that the economic impact of this addition of allowed
substances, if any, would be minimal and entirely beneficial to both
large and small agricultural service firms. Accordingly, AMS certifies
that this interim final rule will not have a significant economic
impact on a substantial number of small entities. AMS invites comments
on the economic impact on small entities of this interim final rule.
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 $6,500,000 and small agricultural
producers are defined as those having annual receipts of less than
$750,000. This interim final rule would have an impact on a substantial
number of small entities.
Based upon USDA's Economic Research Service and AMS data compiled
from 2001 to 2005, the U.S. organic industry at the end of 2005
included nearly 8,500 certified organic crop and livestock operations,
plus more than 2,900 handling operations. Organic crop and livestock
operations reported certified acreage totaling more than 4.05 million
acres of organic farm production. Total number of organic crop and
livestock operations increased by more than 18 percent from 2001 to
2005, while total certified acreage more than doubled during this time
period. AMS estimates that these trends continued through 2006 and will
be higher in 2007.
U.S. sales of organic food and beverages have grown from $1 billion
in 1990 to nearly $17 billion in 2006. Organic food sales are projected
to reach $23.8 billion for 2010. The organic industry is viewed as the
fastest growing sector of agriculture, currently representing nearly 3
percent of overall food and beverage sales. Since 1990, organic retail
sales have historically demonstrated a growth rate between 20 to 24
percent each year including a 22 percent increase in 2006.
In addition, USDA has accredited 99 certifying agents who have
applied to USDA to be accredited in order to provide certification
services to producers and handlers. A complete list of names and
addresses of accredited certifying agents may be found on the NOP Web
site, at https://www.ams.usda.gov/nop. AMS believes that most of these
entities would be considered small entities under the criteria
established by the SBA.
D. Paperwork Reduction Act
Under the OFPA, no additional collection or recordkeeping
requirements are imposed on the public by this interim final rule.
Accordingly, OMB clearance is not required by section 350(h) of the
Paperwork Reduction Act of 1995, 44 U.S.C. 3501, et seq., or OMB's
implementing regulation at 5 CFR part 1320.
[[Page 35140]]
AMS is committed to compliance with the Government Paperwork
Elimination Act (GPEA), which requires Government agencies in general
to provide the public the option of submitting information or
transacting business electronically to the maximum extent possible.
E. Received Comments on Proposed Rule AMS-TM-07-0062
AMS received approximately 1,250 comments on proposed rule AMS-TM-
07-0062. Comments were received from organic producers and handlers,
accredited certifying agents, consumers, retailers, food service
establishments and public interest groups. In general, comments were
opposed to the abbreviated comment period for proposed rule AMS-TM-07-
0062 and requested an extended comment period. There were comments that
supported the addition of all 38 non-organic agricultural ingredients
to the National List; while other comments opposed the addition of all
non-organic agricultural ingredients to Sec. 205.606 of the National
List.
Many comments either supported or opposed the specific National
List amendments of the following non-organic agricultural ingredients:
Casings from processed intestines; gelatin; colors from agricultural
products; konjac flour; hops; lemongrass; Turkish bay leaves; turmeric;
and whey protein concentrate. Some comments addressed the inclusion of
CAS numbers or the use of scientific names to identify the non-organic
ingredients.
Though a significant number of comments were received, very few
comments submitted were from processors or handlers. Comments from this
segment of the industry would be helpful in developing a final rule. A
number of comments expressed concern regarding the information and
criteria used for determining the fragility of the organic ingredient
supply or organic availability of the proposed 38 non-organic
agricultural ingredients.
As a result of the district court's final order and judgment in
Harvey v. Johanns and requests for an extension of the public comment
period on AMS-TM-07-0062, AMS is issuing this interim final rule to (1)
Permit the use of the 38 ingredients during the extended comment and
final rulemaking periods to minimize the impact to the organic industry
and (2) extend the comment period (60 days) to receive additional
comments regarding the addition of the 38 non-organic agricultural
ingredients to Sec. 205.606.
F. Effective Date
Effective June 9, 2007, these 38 substances were prohibited for use
in processed products labeled as ``organic.'' Continued loss of the use
of these products would disrupt the trade of food products currently
being labeled as ``organic''. Therefore, the continued use of these
products as ingredients in foods labeled as ``organic'' is necessary to
prevent possible significant business disruption for organic producers
and handlers. Accordingly, pursuant to 5 U.S.C. 553, it is found, and
determined, upon good cause, that it is impracticable, unnecessary, and
contrary to the public interest to give further notice prior to putting
this rule into effect, and that good cause exists for not postponing
the effective date of this interim final rule until 30 days after
publication in the Federal Register.
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.
0
For the reasons set forth in the preamble, 7 CFR part 205, subpart G is
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 205.606 is revised to read as follows:
Sec. 205.606 Nonorganically produced agricultural products allowed as
ingredients in or on processed products labeled as ``organic.''
Only the following nonorganically produced agricultural products
may be used as ingredients in or on processed products labeled as
``organic,'' only in accordance with any restrictions specified in this
section, and only when the product is not commercially available in
organic form.
(a) Casings, from processed intestines.
(b) Celery powder.
(c) Chia (Salvia hispanica L.).
(d) Colors derived from agricultural products.
(1) Annatto extract color (pigment CAS 1393-63-1)--water
and oil soluble.
(2) Beet juice extract color (pigment CAS 7659-95-2).
(3) Beta-carotene extract color, derived from carrots (CAS
1393-63-1).
(4) Black currant juice color (pigment CAS 's: 528-58-5,
528-53-0, 643-84-5, 134-01-0, 1429-30-7, and 134-04-3).
(5) Black/Purple carrot juice color (pigment CAS 's: 528-
58-5, 528-53-0, 643-84-5, 134-01-0, 1429-30-7, and 134-04-3).
(6) Blueberry juice color (pigment CAS 's: 528-58-5, 528-
53-0, 643-84-5, 134-01-0, 1429-30-7, and 134-04-3).
(7) Carrot juice color (pigment CAS 1393-63-1).
(8) Cherry juice color (pigment CAS 's: 528-58-5, 528-53-
0, 643-84-5, 134-01-0, 1429-30-7, and 134-04-3).
(9) Chokeberry--Aronia juice color (pigment CAS 's: 528-
58-5, 528-53-0, 643-84-5, 134-01-0, 1429-30-7, and 134-04-3).
(10) Elderberry juice color (pigment CAS 's: 528-58-5,
528-53-0, 643-84-5, 134-01-0, 1429-30-7, and 134-04-3).
(11) Grape juice color (pigment CAS 's: 528-58-5, 528-53-
0, 643-84-5, 134-01-0, 1429-30-7, and 134-04-3).
(12) Grape skin extract color (pigment CAS 's: 528-58-5,
528-53-0, 643-84-5, 134-01-0, 1429-30-7, and 134-04-3).
(13) Paprika color (CAS 68917-78-2)--dried, and oil
extracted.
(14) Pumpkin juice color (pigment CAS 127-40-2).
(15) Purple potato juice (pigment CAS 's: 528-58-5, 528-
53-0, 643-84-5, 134-01-0, 1429-30-7, and 134-04-3).
(16) Red cabbage extract color (pigment CAS 's: 528-58-5,
528-53-0, 643-84-5, 134-01-0, 1429-30-7, and 134-04-3).
(17) Red radish extract color (pigment CAS 's: 528-58-5,
528-53-0, 643-84-5, 134-01-0, 1429-30-7, and 134-04-3).
(18) Saffron extract color (pigment CAS 1393-63-1).
(19) Turmeric extract color (CAS 458-37-7).
(e) Dillweed oil (CAS 8006-75-5).
(f) Fish oil (Fatty acid CAS 's: 10417-94-4, and 25167-62-
8)--stabilized with organic ingredients or only with ingredients on the
National List, Sec. Sec. 205.605 and 205.606.
(g) Fructooligosaccharides (CAS 308066-66-2).
(h) Galangal, frozen.
(i) Gelatin (CAS 9000-70-8).
(j) Gums--water extracted only (Arabic; Guar; Locust bean; and
Carob bean).
(k) Hops (Humulus luplus).
(l) Inulin-oligofructose enriched (CAS 9005-80-5).
(m) Kelp--for use only as a thickener and dietary supplement.
[[Page 35141]]
(n) Konjac flour (CAS 37220-17-0).
(o) Lecithin--unbleached.
(p) Lemongrass--frozen.
(q) Orange shellac-unbleached (CAS 9000-59-3).
(r) Pectin (high-methoxy).
(s) Peppers (Chipotle chile).
(t) Starches.
(1) Cornstarch (native).
(2) Rice starch, unmodified (CAS 977000-08-0)--for use in
organic handling until June 21, 2009.
(3) Sweet potato starch--for bean thread production only.
(u) Turkish bay leaves.
(v) Wakame seaweed (Undaria pinnatifida).
(w) Whey protein concentrate.
Dated: June 22, 2007.
Lloyd C. Day,
Administrator, Agricultural Marketing Service.
[FR Doc. 07-3142 Filed 6-22-07; 3:00 pm]
BILLING CODE 3410-02-P
