National Organic Program; Proposed Amendments to the National List of Allowed and Prohibited Substances for 2017 NOSB Recommendations (Livestock and Handling), 18744-18747 [2018-08991]

Download as PDF 18744 Proposed Rules Federal Register Vol. 83, No. 83 Monday, April 30, 2018 This section of the FEDERAL REGISTER contains notices to the public of the proposed issuance of rules and regulations. The purpose of these notices is to give interested persons an opportunity to participate in the rule making prior to the adoption of the final rules. DEPARTMENT OF AGRICULTURE Agricultural Marketing Service 7 CFR Part 205 [Document Number AMS–NOP–17–0080; NOP–17–09] RIN 0581 AD78 National Organic Program; Proposed Amendments to the National List of Allowed and Prohibited Substances for 2017 NOSB Recommendations (Livestock and Handling) Agricultural Marketing Service, USDA. ACTION: Proposed rule. AGENCY: This proposed rule would amend the National List of Allowed and Prohibited Substances (National List) section of the United States Department of Agriculture’s (USDA’s) organic regulations to implement recommendations submitted to the Secretary of Agriculture (Secretary) by the National Organic Standards Board (NOSB). This rule proposes to: Add elemental sulfur to the National List for use in organic livestock production; and, reclassify potassium acid tartrate from a non-agricultural substance to an agricultural substance and require the organic form of the ingredient when commercially available. DATES: Comments must be received by June 29, 2018. ADDRESSES: Interested persons may comment on the proposed rule using the following procedures: • Federal eRulemaking Portal: https:// www.regulations.gov. Follow the instructions for submitting comments. nshattuck on DSK9F9SC42PROD with PROPOSALS SUMMARY: • Mail: Robert Pooler, Standards Division, National Organic Program, USDA–AMS–NOP, 1400 Independence Ave. SW, Room 2642–S., Ag Stop 0268, Washington, DC 20250–0268. Telephone: (202) 720–3252. Instructions: All submissions received must include the docket number AMS– NOP–17–0080; NOP–17–09, and/or Regulatory Information Number (RIN) 0581–AD78 for this rulemaking. When submitting a comment, clearly indicate the proposed rule topic and section number to which the comment refers. In addition, comments should clearly indicate whether the commenter supports the action being proposed and also clearly indicate the reason(s) for the position. Comments can also include information on alternative management practices, where applicable, that support alternatives to the proposed amendments. Comments should also offer any recommended language change(s) that would be appropriate to the position. Please include relevant information and data to support the position such as scientific, environmental, manufacturing, industry, or impact information, or similar sources. Only relevant material supporting the position should be submitted. All comments received will be posted without change to https:// www.regulations.gov. Document: To access the document and read background documents, or comments received, go to https:// 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 2642-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: Robert Pooler, Standards Division, National Organic Program. Telephone: (202) 720–3252. SUPPLEMENTARY INFORMATION: I. Background On December 21, 2000, the Secretary established the National List within part 205 of the USDA organic regulations (7 CFR 205.600 through 205.607). The 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 synthetic, nonsynthetic nonagricultural, and nonorganic agricultural substances that may be used in organic handling. The Organic Foods Production Act of 1990, as amended, (7 U.S.C. 6501–6522) (OFPA), and § 205.105 of the USDA organic regulations 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 OFPA, the National List can be amended by the Secretary based on recommendations presented by the NOSB. Since the final rule establishing the National Organic Program (NOP) became effective on October 21, 2002, USDA’s Agricultural Marketing Service (AMS) has published multiple rules amending the National List. This proposed rule would amend the National List to implement two NOSB recommendations on two amendments to the National List. These recommendations were submitted to the Secretary on November 7, 2017. Table 1 summarizes the proposed changes to the National List based on these NOSB recommendations. TABLE 1—SUBSTANCES BEING ADDED TO THE NATIONAL LIST OR CURRENT LISTINGS BEING AMENDED Substance National List section Elemental sulfur .............................................................................. Potassium acid tartrate ................................................................... VerDate Sep<11>2014 15:05 Apr 27, 2018 Jkt 244001 PO 00000 Frm 00001 § 205.603(b) § 205.605 & § 205.606 Fmt 4702 Sfmt 4702 Proposed rule action Add to National List. Reclassify listing and move within National List. E:\FR\FM\30APP1.SGM 30APP1 Federal Register / Vol. 83, No. 83 / Monday, April 30, 2018 / Proposed Rules II. Overview of Proposed Amendments The following provides an overview of the proposed amendments to designated sections of the National List regulations: § 205.603 Synthetic substances allowed for use in organic livestock production. This proposed rule would add one substance to § 205.603, synthetic substances allowed for use in organic livestock production. Elemental Sulfur The proposed rule would amend the National List to add elemental sulfur for use as a parasiticide to treat livestock and livestock housing. Table 2 illustrates the proposed listing. TABLE 2—PROPOSED RULE ACTION FOR ELEMENTAL SULFUR nshattuck on DSK9F9SC42PROD with PROPOSALS Current rule: Proposed rule action: N/A. Add elemental sulfur to § 205.603(b). On March 1, 2016, AMS received a petition 1 to add elemental sulfur to the National List in § 205.603 for use as a topical pesticide treatment in organic livestock production to repel mites, fleas, and ticks from livestock and livestock living quarters. Mites, fleas, and ticks are vectors of livestock diseases and under favorable conditions may heavily infest livestock and livestock living quarters. Elemental sulfur is dusted on and rubbed into the feathers and hair of livestock and applied to interior surfaces of livestock housing. The USDA organic regulations allow elemental sulfur for use in organic crop production as an insecticide (including mite control), § 205.601(e); as a plant disease control, § 205.601(i); and as a plant or soil amendment, § 205.601(j). At its November 2, 2017 public meeting, the NOSB considered the petition to add elemental sulfur to the National List for use in organic livestock production and received public comment. In its review, the NOSB also considered a March 2017 technical evaluation report (technical report) on elemental sulfur 2 that described its manufacture, industry uses, regulation, and chemical properties. In consideration of the petition, technical report, and public comments, the NOSB determined that the use of 1 Elemental sulfur petition: https:// www.ams.usda.gov/rules-regulations/organic/ national-list/petitioned. Under ‘‘S.’’ 2 The technical report for elemental sulfur is available on the AMS website, organized in alphabetical order: https://www.ams.usda.gov/ rules-regulations/organic/national-list/petitioned. VerDate Sep<11>2014 15:05 Apr 27, 2018 Jkt 244001 elemental sulfur as a topical pesticide for organic livestock satisfies OFPA evaluation criteria for National List substances and recommended adding elemental sulfur to § 205.603 as an external parasiticide in organic livestock production.3 AMS has reviewed and proposes to address this NOSB recommendation through this proposed rule. Consistent with the NOSB recommendation, this proposed rule would amend the National List by adding elemental sulfur to § 205.603(b) as an external parasiticide. This would permit the use of elemental sulfur on livestock and livestock housing when preventive measures have failed (§ 205.238).4 § 205.605 Nonagricultural (nonorganic) substances allowed as ingredients in or on processed products labeled as ‘‘organic’’ or ‘‘made with organic (specified ingredients or food group(s)).’’ This proposed rule would move one substance, currently listed in § 205.605, to § 205.606. Potassium Acid Tartrate The proposed rule would amend the National List to reclassify potassium acid tartrate from a non-agricultural substance listed in § 205.605(b) to an agricultural substance listed in § 205.606. TABLE 3—PROPOSED RULE ACTION FOR POTASSIUM ACID TARTRATE Current rule: Proposed rule action: § 205.605(b), potassium acid tartrate. Remove potassium acid tartrate from § 205.605(b) and insert potassium acid tartrate under § 205.606. Potassium acid tartrate is currently allowed as a synthetic substance for use in organic handling. The U.S. Food and Drug Administration (FDA) allows potassium acid tartrate to be used as a leavening agent, pH control agent, or antimicrobial agent. Other uses that are permitted by the FDA include as an anticaking agent, a formulation aid, a humectant, a stabilizer and thickener, and a surface-active agent (21 CFR 184.1077). Potassium acid tartrate has been on the National List since October 2002. During its November 2017 public meeting, the NOSB considered the proposal to reclassify potassium acid 3 NOSB elemental sulfur recommendation: https://www.ams.usda.gov/sites/default/files/ media/LSSulfurFinalRec.pdf. 4 Section 205.238(b) permits organic producers to use synthetic medications which are allowed for use in § 205.603 when preventive practices are inadequate. PO 00000 Frm 00002 Fmt 4702 Sfmt 4702 18745 tartrate as an agricultural substance. Specifically, the NOSB considered new information in an updated January 2017 technical report on potassium acid tartrate.5 This report described how potassium acid tartrate is a byproduct of the wine making process and is extracted with water. Prior to and during this meeting, the NOSB also received and considered public comment on the proposal. The NOSB determined that potassium acid tartrate meets the definition of an ‘‘agricultural product’’ in § 205.2 of the USDA organic regulations because it is derived from an agricultural product (grapes) and does not undergo a chemical change during extraction.6 This is consistent with the USDA organic regulations and the NOP guidance on classification of agricultural and nonagricultural materials.7 Therefore, the NOSB recommended reclassifying potassium acid tartrate as an agricultural substance and moving it to section 205.606 of the National List. This action would require organic handlers who use potassium tartrate to source an organic form of the ingredient. If the ingredient is not commercially available,8 the nonorganic form may be used. Consistent with the NOSB recommendation, this proposed rule would amend § 205.605 by removing potassium acid tartrate from § 205.605(b) and inserting it in § 205.606. III. Related Documents On May 30, 2017, a Notice was published in the Federal Register (82 FR 24659) announcing the fall 2017 NOSB meeting. The purpose of the meeting was to deliberate on recommendations on substances petitioned as amendments to the National List. IV. Statutory and Regulatory Authority The OFPA authorizes the Secretary to make amendments to the National List based on recommendations developed by the NOSB. Sections 6518(k) and 6518(n) of the OFPA authorize the NOSB to develop recommendations for submission to the Secretary to amend 5 2017 potassium acid tartrate technical report: https://www.ams.usda.gov/rules-regulations/ organic/national-list/petitioned. Under ‘‘P.’’ 6 The USDA organic regulations define ‘‘agricultural product’’ as: ‘‘Any agricultural commodity or product, whether raw or processed, including any commodity or product derived from livestock, that is marketing in the United States for human or livestock consumption.’’ 7 NOP 5033, Classification of Materials: https:// www.ams.usda.gov/sites/default/files/media/ Program%20Handbk_TOC.pdf. 8 See 7 CFR 205.606 and 7 CFR 205.2 for definition of ‘‘Commercially available.’’ E:\FR\FM\30APP1.SGM 30APP1 18746 Federal Register / Vol. 83, No. 83 / Monday, April 30, 2018 / Proposed Rules nshattuck on DSK9F9SC42PROD with PROPOSALS the National List and establish a process by which persons may petition the NOSB for the purpose of having substances evaluated for inclusion on or deletion from the National List. Section 205.607 of the USDA organic regulations sets forth the National List petition process. The current petition process (81 FR 12680, March 10, 2016) can be accessed through the NOP Program Handbook on the NOP website at https://www.ams.usda.gov/rulesregulations/organic/handbook. A. Executive Orders 12866 and 13771, and Regulatory Flexibility Act This action falls within a category of regulatory actions that the Office of Management and Budget (OMB) has exempted from Executive Order 12866. Additionally, because this proposal does not meet the definition of a significant regulatory action, it does not trigger the requirements contained in Executive Order 13771. See OMB’s Memorandum titled ‘‘Interim Guidance Implementing Section 2 of the Executive Order of January 30, 2017 titled ‘Reducing Regulation and Controlling Regulatory Costs’ ’’ (February 2, 2017). 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 of the RFA 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. The Small Business Administration (SBA) sets size criteria for each industry described in the North American Industry Classification System (NAICS), to delineate which operations qualify as small businesses. The SBA has classified small agricultural producers that engage in crop and animal production as those with average annual receipts of less than $750,000. Handlers are involved in a broad spectrum of food production activities and fall into various categories in the NAICS Food Manufacturing sector. The small business thresholds for food manufacturing operations are based on the number of employees and range from 500 to 1,250 employees, depending on the specific type of manufacturing. Certifying agents fall under the NAICS subsector, ‘‘All other professional, scientific and technical services.’’ For VerDate Sep<11>2014 15:05 Apr 27, 2018 Jkt 244001 this category, the small business threshold is average annual receipts of less than $15 million. AMS has considered the economic impact of this proposed rulemaking on small agricultural entities. Data collected by the USDA National Agricultural Statistics Service (NASS) and the NOP indicate most of the certified organic production operations in the U.S. would be considered small entities. According to the 2016 Certified Organic NASS Survey, 13,954 certified organic farms in the U.S. reported sales of organic products and total farmgate sales in excess of $7.5 billion.9 Based on that data, organic sales average $541,000 per farm. Assuming a normal distribution of producers, we expect that most of these producers would fall under the $700,000 sales threshold to qualify as a small business. According to the NOP’s Organic Integrity Database there are 9,633 certified handlers in the U.S.10 The Organic Trade Association’s 2017 Organic Industry Survey has information about employment trends among organic manufacturers. The reported data are stratified into three groups by the number of employees per company: Less than 5; 5 to 49; and 50 plus. These data are representative of the organic manufacturing sector and the lower bound (50) of the range for the larger manufacturers is significantly smaller than the SBA’s small business thresholds (500 to 1,250). Therefore, AMS expects that most organic handlers would qualify as small businesses. The USDA has 82 accredited certifying agents who provide organic certification services to producers and handlers. The certifying agent that reports the most certified operations, nearly 3,500, would need to charge approximately $4,200 in certification fees in order to exceed the SBA’s small business threshold of $15 million. The costs for certification generally range from $500 to $3,500, depending on the complexity of the operation. Therefore, AMS expects that most of the accredited certifying agents would qualify as small entities under the SBA criteria. The economic impact on entities affected by this rule would not be significant. The effect of this rule, if implemented as final, would be to allow the use of additional substances in 9 U.S. Department of Agriculture, National Agricultural Statistics Service. September 2017. Certified Organic Survey, 2016 Summary. https:// usda.mannlib.cornell.edu/usda/current/ OrganicProduction/OrganicProduction-09-20-2017_ correction.pdf. 10 Organic Integrity Database: https:// organic.ams.usda.gov/Integrity/. Accessed on March 23, 2018. PO 00000 Frm 00003 Fmt 4702 Sfmt 4702 organic crop or livestock production and organic handling. This action would increase regulatory flexibility and would give small entities more tools to use in day-to-day operations. AMS concludes that the economic impact of this addition, if any, would be minimal and beneficial to small agricultural service firms. Accordingly, USDA certifies that this rule would not have a significant economic impact on a substantial number of small entities. 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. Accordingly, to prevent duplicative regulation, 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 section 6514(b) of the OFPA. States are also preempted under sections 6503 through 6507 of the OFPA 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 section 6507(b)(2) of the OFPA, a state organic certification program that has been approved by the Secretary may, under certain circumstances, contain additional requirements for the production and handling of agricultural products organically produced in the state and for the certification of organic farm and handling operations located within the state. 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. In addition, pursuant to section 6519(c)(6) of the OFPA, this proposed rule would not supersede or 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, respectively, nor any of the authorities of the Secretary of Health and Human Services E:\FR\FM\30APP1.SGM 30APP1 Federal Register / Vol. 83, No. 83 / Monday, April 30, 2018 / Proposed Rules 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 under the Federal Insecticide, Fungicide and Rodenticide Act (7 U.S.C. 136 et seq.). C. 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, Chapter 35. D. 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. E. General Notice of Public Rulemaking This proposed rule reflects recommendations submitted by the NOSB to the Secretary to add one substance to the National List and to reclassify one substance on the National List. A 60-day period for interested persons to comment on this rule is provided. 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 1. The authority citation for 7 CFR part 205 continues to read as follows: ■ Authority: 7 U.S.C. 6501–6522. 2. Amend § 205.603 by redesignating paragraphs (b)(2) through (b)(8) as (b)(3) through (b)(9) and adding new paragraph (b)(2) to read as follows: nshattuck on DSK9F9SC42PROD with PROPOSALS ■ § 205.603 Synthetic substances allowed for use in organic livestock production. * * * * * (b) * * * (2) Elemental sulfur—for treatment of livestock and livestock housing. * * * * * VerDate Sep<11>2014 15:05 Apr 27, 2018 Jkt 244001 § 205.605 [Amended] 3. Amend § 205.605 paragraph (b) by removing ‘‘Potassium acid tartrate.’’ ■ 4. Amend § 205.606, by redesignating paragraphs (o) through (t) as (p) through (u) and adding new paragraph (o) to read as follows: ■ § 205.606 Nonorganically produced agricultural products allowed as ingredients in or on processed products labeled as ‘‘organic.’’ * * * * * (o) Potassium acid tartrate. * * * * * Dated: April 24, 2018. Bruce Summers, Acting Administrator, Agricultural Marketing Service. [FR Doc. 2018–08991 Filed 4–27–18; 8:45 am] BILLING CODE 3410–02–P DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA–2018–0224; Product Identifier 2018–NE–01–AD] Airworthiness Directives; General Electric Company Turbofan Engines Federal Aviation Administration (FAA), DOT. ACTION: Notice of proposed rulemaking (NPRM). AGENCY: We propose to adopt a new airworthiness directive (AD) for all General Electric Company (GE) GEnx– 1B engines. This proposed AD was prompted by a report of a center vent tube (CVT) failure leading to a loss of oil pressure and subsequent in-flight engine shutdown. This proposed AD would require removal of the Air/Oil Extension Ducts, part numbers (P/N) 2332M85P01 or 2331M25G03. We are proposing this AD to address the unsafe condition on these products. DATES: We must receive comments on this proposed AD by June 14, 2018. ADDRESSES: You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods: • Federal eRulemaking Portal: Go to https://www.regulations.gov. Follow the instructions for submitting comments. • Fax: 202–493–2251. • Mail: U.S. Department of Transportation, Docket Operations, M–30, West Building Ground Floor, Room W12–140, 1200 New Jersey Avenue SE, Washington, DC 20590. • Hand Delivery: Deliver to Mail address above between 9 a.m. and 5 SUMMARY: PO 00000 Frm 00004 Fmt 4702 Sfmt 4702 18747 p.m., Monday through Friday, except Federal holidays. For service information identified in this NPRM, contact General Electric Company, GE Aviation, Room 285, 1 Neumann Way, Cincinnati, OH 45215; phone: 513–552–3272; email: aviation.fleetsupport@ge.com. You may view this service information at the FAA, Engine and Propeller Standards Branch, 1200 District Avenue, Burlington, MA. For information on the availability of this material at the FAA, call 781–238–7759. Examining the AD Docket You may examine the AD docket on the internet at https:// www.regulations.gov by searching for and locating Docket No. FAA–2018– 0224; or in person at Docket Operations between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this NPRM, the regulatory evaluation, any comments received, and other information. The street address for Docket Operations (phone: 800–647–5527) is listed above. Comments will be available in the AD docket shortly after receipt. FOR FURTHER INFORMATION CONTACT: Christopher McGuire, Aerospace Engineer, ECO Branch, FAA, 1200 District Avenue, Burlington MA; phone: 781–238–7120; fax: 781–238–7199; email: chris.mcguire@faa.gov. SUPPLEMENTARY INFORMATION: Comments Invited We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the ADDRESSES section. Include ‘‘Docket No. FAA– 2018–0224; Product Identifier 2018– NE–01–AD’’ at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this NPRM. We will consider all comments received by the closing date and may amend this NPRM because of those comments. We will post all comments we receive, without change, to https:// www.regulations.gov, including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this NPRM. Discussion We were prompted to issue this NPRM based upon a report of a CVT failure leading to a loss of oil pressure and subsequent in-flight engine shutdown. During the event, the CVT failed due to oil leaking into the fan mid shaft, resulting in coking on the seal E:\FR\FM\30APP1.SGM 30APP1

Agencies

[Federal Register Volume 83, Number 83 (Monday, April 30, 2018)]
[Proposed Rules]
[Pages 18744-18747]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-08991]

========================================================================
Proposed Rules
Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.

========================================================================

Federal Register / Vol. 83, No. 83 / Monday, April 30, 2018 /
Proposed Rules

[[Page 18744]]

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 205

[Document Number AMS-NOP-17-0080; NOP-17-09]
RIN 0581 AD78

National Organic Program; Proposed Amendments to the National
List of Allowed and Prohibited Substances for 2017 NOSB Recommendations
(Livestock and Handling)

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Proposed rule.

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SUMMARY: This proposed rule would amend the National List of Allowed
and Prohibited Substances (National List) section of the United States
Department of Agriculture's (USDA's) organic regulations to implement
recommendations submitted to the Secretary of Agriculture (Secretary)
by the National Organic Standards Board (NOSB). This rule proposes to:
Add elemental sulfur to the National List for use in organic livestock
production; and, reclassify potassium acid tartrate from a non-
agricultural substance to an agricultural substance and require the
organic form of the ingredient when commercially available.

DATES: Comments must be received by June 29, 2018.

ADDRESSES: Interested persons may comment on the proposed rule using
the following procedures:
Federal eRulemaking Portal: https://www.regulations.gov.
Follow the instructions for submitting comments.
Mail: Robert Pooler, Standards Division, National Organic
Program, USDA-AMS-NOP, 1400 Independence Ave. SW, Room 2642-S., Ag Stop
0268, Washington, DC 20250-0268. Telephone: (202) 720-3252.
Instructions: All submissions received must include the docket
number AMS-NOP-17-0080; NOP-17-09, and/or Regulatory Information Number
(RIN) 0581-AD78 for this rulemaking. When submitting a comment, clearly
indicate the proposed rule topic and section number to which the
comment refers. In addition, comments should clearly indicate whether
the commenter supports the action being proposed and also clearly
indicate the reason(s) for the position. Comments can also include
information on alternative management practices, where applicable, that
support alternatives to the proposed amendments. Comments should also
offer any recommended language change(s) that would be appropriate to
the position. Please include relevant information and data to support
the position such as scientific, environmental, manufacturing,
industry, or impact information, or similar sources. Only relevant
material supporting the position should be submitted. All comments
received will be posted without change to https://www.regulations.gov.
Document: To access the document and read background documents, or
comments received, go to https://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 2642-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: Robert Pooler, Standards Division,
National Organic Program. Telephone: (202) 720-3252.

SUPPLEMENTARY INFORMATION:

I. Background

On December 21, 2000, the Secretary established the National List
within part 205 of the USDA organic regulations (7 CFR 205.600 through
205.607). The 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
synthetic, nonsynthetic nonagricultural, and nonorganic agricultural
substances that may be used in organic handling.
The Organic Foods Production Act of 1990, as amended, (7 U.S.C.
6501-6522) (OFPA), and Sec. 205.105 of the USDA organic regulations
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 OFPA,
the National List can be amended by the Secretary based on
recommendations presented by the NOSB. Since the final rule
establishing the National Organic Program (NOP) became effective on
October 21, 2002, USDA's Agricultural Marketing Service (AMS) has
published multiple rules amending the National List.
This proposed rule would amend the National List to implement two
NOSB recommendations on two amendments to the National List. These
recommendations were submitted to the Secretary on November 7, 2017.
Table 1 summarizes the proposed changes to the National List based on
these NOSB recommendations.

Table 1--Substances Being Added to the National List or Current Listings Being Amended
--------------------------------------------------------------------------------------------------------------------------------------------------------
Substance National List section Proposed rule action
--------------------------------------------------------------------------------------------------------------------------------------------------------
Elemental sulfur............................... Sec. 205.603(b) Add to National List.
Potassium acid tartrate........................ Sec. 205.605 & Sec. Reclassify listing and move within National List.
205.606
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[[Page 18745]]

II. Overview of Proposed Amendments

The following provides an overview of the proposed amendments to
designated sections of the National List regulations:
Sec. 205.603 Synthetic substances allowed for use in organic
livestock production.
This proposed rule would add one substance to Sec. 205.603,
synthetic substances allowed for use in organic livestock production.

Elemental Sulfur

The proposed rule would amend the National List to add elemental
sulfur for use as a parasiticide to treat livestock and livestock
housing. Table 2 illustrates the proposed listing.

Table 2--Proposed Rule Action for Elemental Sulfur
------------------------------------------------------------------------

------------------------------------------------------------------------
Current rule: N/A.
Proposed rule action: Add elemental sulfur to Sec.
205.603(b).
------------------------------------------------------------------------

On March 1, 2016, AMS received a petition \1\ to add elemental
sulfur to the National List in Sec. 205.603 for use as a topical
pesticide treatment in organic livestock production to repel mites,
fleas, and ticks from livestock and livestock living quarters. Mites,
fleas, and ticks are vectors of livestock diseases and under favorable
conditions may heavily infest livestock and livestock living quarters.
Elemental sulfur is dusted on and rubbed into the feathers and hair of
livestock and applied to interior surfaces of livestock housing. The
USDA organic regulations allow elemental sulfur for use in organic crop
production as an insecticide (including mite control), Sec.
205.601(e); as a plant disease control, Sec. 205.601(i); and as a
plant or soil amendment, Sec. 205.601(j).
---------------------------------------------------------------------------

\1\ Elemental sulfur petition: https://www.ams.usda.gov/rules-regulations/organic/national-list/petitioned. Under ``S.''
---------------------------------------------------------------------------

At its November 2, 2017 public meeting, the NOSB considered the
petition to add elemental sulfur to the National List for use in
organic livestock production and received public comment. In its
review, the NOSB also considered a March 2017 technical evaluation
report (technical report) on elemental sulfur \2\ that described its
manufacture, industry uses, regulation, and chemical properties.
---------------------------------------------------------------------------

\2\ The technical report for elemental sulfur is available on
the AMS website, organized in alphabetical order: https://www.ams.usda.gov/rules-regulations/organic/national-list/petitioned.
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In consideration of the petition, technical report, and public
comments, the NOSB determined that the use of elemental sulfur as a
topical pesticide for organic livestock satisfies OFPA evaluation
criteria for National List substances and recommended adding elemental
sulfur to Sec. 205.603 as an external parasiticide in organic
livestock production.\3\ AMS has reviewed and proposes to address this
NOSB recommendation through this proposed rule. Consistent with the
NOSB recommendation, this proposed rule would amend the National List
by adding elemental sulfur to Sec. 205.603(b) as an external
parasiticide. This would permit the use of elemental sulfur on
livestock and livestock housing when preventive measures have failed
(Sec. 205.238).\4\
---------------------------------------------------------------------------

\3\ NOSB elemental sulfur recommendation: https://www.ams.usda.gov/sites/default/files/media/LSSulfurFinalRec.pdf.
\4\ Section 205.238(b) permits organic producers to use
synthetic medications which are allowed for use in Sec. 205.603
when preventive practices are inadequate.
---------------------------------------------------------------------------

Sec. 205.605 Nonagricultural (nonorganic) substances allowed as
ingredients in or on processed products labeled as ``organic'' or
``made with organic (specified ingredients or food group(s)).''
This proposed rule would move one substance, currently listed in
Sec. 205.605, to Sec. 205.606.

Potassium Acid Tartrate

The proposed rule would amend the National List to reclassify
potassium acid tartrate from a non-agricultural substance listed in
Sec. 205.605(b) to an agricultural substance listed in Sec. 205.606.

Table 3--Proposed Rule Action for Potassium Acid Tartrate
------------------------------------------------------------------------

------------------------------------------------------------------------
Current rule: Sec. 205.605(b), potassium acid
tartrate.
Proposed rule action: Remove potassium acid tartrate from
Sec. 205.605(b) and insert
potassium acid tartrate under Sec.
205.606.
------------------------------------------------------------------------

Potassium acid tartrate is currently allowed as a synthetic
substance for use in organic handling. The U.S. Food and Drug
Administration (FDA) allows potassium acid tartrate to be used as a
leavening agent, pH control agent, or antimicrobial agent. Other uses
that are permitted by the FDA include as an anticaking agent, a
formulation aid, a humectant, a stabilizer and thickener, and a
surface-active agent (21 CFR 184.1077). Potassium acid tartrate has
been on the National List since October 2002. During its November 2017
public meeting, the NOSB considered the proposal to reclassify
potassium acid tartrate as an agricultural substance. Specifically, the
NOSB considered new information in an updated January 2017 technical
report on potassium acid tartrate.\5\ This report described how
potassium acid tartrate is a byproduct of the wine making process and
is extracted with water. Prior to and during this meeting, the NOSB
also received and considered public comment on the proposal. The NOSB
determined that potassium acid tartrate meets the definition of an
``agricultural product'' in Sec. 205.2 of the USDA organic regulations
because it is derived from an agricultural product (grapes) and does
not undergo a chemical change during extraction.\6\ This is consistent
with the USDA organic regulations and the NOP guidance on
classification of agricultural and nonagricultural materials.\7\
Therefore, the NOSB recommended reclassifying potassium acid tartrate
as an agricultural substance and moving it to section 205.606 of the
National List. This action would require organic handlers who use
potassium tartrate to source an organic form of the ingredient. If the
ingredient is not commercially available,\8\ the nonorganic form may be
used.
---------------------------------------------------------------------------

\5\ 2017 potassium acid tartrate technical report: https://www.ams.usda.gov/rules-regulations/organic/national-list/petitioned.
Under ``P.''
\6\ The USDA organic regulations define ``agricultural product''
as: ``Any agricultural commodity or product, whether raw or
processed, including any commodity or product derived from
livestock, that is marketing in the United States for human or
livestock consumption.''
\7\ NOP 5033, Classification of Materials: https://www.ams.usda.gov/sites/default/files/media/Program%20Handbk_TOC.pdf.
\8\ See 7 CFR 205.606 and 7 CFR 205.2 for definition of
``Commercially available.''
---------------------------------------------------------------------------

Consistent with the NOSB recommendation, this proposed rule would
amend Sec. 205.605 by removing potassium acid tartrate from Sec.
205.605(b) and inserting it in Sec. 205.606.

III. Related Documents

On May 30, 2017, a Notice was published in the Federal Register (82
FR 24659) announcing the fall 2017 NOSB meeting. The purpose of the
meeting was to deliberate on recommendations on substances petitioned
as amendments to the National List.

IV. Statutory and Regulatory Authority

The OFPA authorizes the Secretary to make amendments to the
National List based on recommendations developed by the NOSB. Sections
6518(k) and 6518(n) of the OFPA authorize the NOSB to develop
recommendations for submission to the Secretary to amend

[[Page 18746]]

the National List and establish a process by which persons may petition
the NOSB for the purpose of having substances evaluated for inclusion
on or deletion from the National List. Section 205.607 of the USDA
organic regulations sets forth the National List petition process. The
current petition process (81 FR 12680, March 10, 2016) can be accessed
through the NOP Program Handbook on the NOP website at https://www.ams.usda.gov/rules-regulations/organic/handbook.

A. Executive Orders 12866 and 13771, and Regulatory Flexibility Act

This action falls within a category of regulatory actions that the
Office of Management and Budget (OMB) has exempted from Executive Order
12866. Additionally, because this proposal does not meet the definition
of a significant regulatory action, it does not trigger the
requirements contained in Executive Order 13771. See OMB's Memorandum
titled ``Interim Guidance Implementing Section 2 of the Executive Order
of January 30, 2017 titled `Reducing Regulation and Controlling
Regulatory Costs'[thinsp]'' (February 2, 2017).
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 of
the RFA 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.
The Small Business Administration (SBA) sets size criteria for each
industry described in the North American Industry Classification System
(NAICS), to delineate which operations qualify as small businesses. The
SBA has classified small agricultural producers that engage in crop and
animal production as those with average annual receipts of less than
$750,000. Handlers are involved in a broad spectrum of food production
activities and fall into various categories in the NAICS Food
Manufacturing sector. The small business thresholds for food
manufacturing operations are based on the number of employees and range
from 500 to 1,250 employees, depending on the specific type of
manufacturing. Certifying agents fall under the NAICS subsector, ``All
other professional, scientific and technical services.'' For this
category, the small business threshold is average annual receipts of
less than $15 million.
AMS has considered the economic impact of this proposed rulemaking
on small agricultural entities. Data collected by the USDA National
Agricultural Statistics Service (NASS) and the NOP indicate most of the
certified organic production operations in the U.S. would be considered
small entities. According to the 2016 Certified Organic NASS Survey,
13,954 certified organic farms in the U.S. reported sales of organic
products and total farmgate sales in excess of $7.5 billion.\9\ Based
on that data, organic sales average $541,000 per farm. Assuming a
normal distribution of producers, we expect that most of these
producers would fall under the $700,000 sales threshold to qualify as a
small business.
---------------------------------------------------------------------------

\9\ U.S. Department of Agriculture, National Agricultural
Statistics Service. September 2017. Certified Organic Survey, 2016
Summary. https://usda.mannlib.cornell.edu/usda/current/OrganicProduction/OrganicProduction-09-20-2017_correction.pdf.
---------------------------------------------------------------------------

According to the NOP's Organic Integrity Database there are 9,633
certified handlers in the U.S.\10\ The Organic Trade Association's 2017
Organic Industry Survey has information about employment trends among
organic manufacturers. The reported data are stratified into three
groups by the number of employees per company: Less than 5; 5 to 49;
and 50 plus. These data are representative of the organic manufacturing
sector and the lower bound (50) of the range for the larger
manufacturers is significantly smaller than the SBA's small business
thresholds (500 to 1,250). Therefore, AMS expects that most organic
handlers would qualify as small businesses.
---------------------------------------------------------------------------

\10\ Organic Integrity Database: https://organic.ams.usda.gov/Integrity/. Accessed on March 23, 2018.
---------------------------------------------------------------------------

The USDA has 82 accredited certifying agents who provide organic
certification services to producers and handlers. The certifying agent
that reports the most certified operations, nearly 3,500, would need to
charge approximately $4,200 in certification fees in order to exceed
the SBA's small business threshold of $15 million. The costs for
certification generally range from $500 to $3,500, depending on the
complexity of the operation. Therefore, AMS expects that most of the
accredited certifying agents would qualify as small entities under the
SBA criteria.
The economic impact on entities affected by this rule would not be
significant. The effect of this rule, if implemented as final, would be
to allow the use of additional substances in organic crop or livestock
production and organic handling. This action would increase regulatory
flexibility and would give small entities more tools to use in day-to-
day operations. AMS concludes that the economic impact of this
addition, if any, would be minimal and beneficial to small agricultural
service firms. Accordingly, USDA certifies that this rule would not
have a significant economic impact on a substantial number of small
entities.

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. Accordingly, to prevent
duplicative regulation, 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 section 6514(b) of the OFPA. States are also preempted
under sections 6503 through 6507 of the OFPA 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 section 6507(b)(2) of the OFPA, a state organic
certification program that has been approved by the Secretary may,
under certain circumstances, contain additional requirements for the
production and handling of agricultural products organically produced
in the state and for the certification of organic farm and handling
operations located within the state. 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.
In addition, pursuant to section 6519(c)(6) of the OFPA, this
proposed rule would not supersede or 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, respectively, nor any of the authorities of
the Secretary of Health and Human Services

[[Page 18747]]

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 under the Federal Insecticide, Fungicide and Rodenticide Act (7
U.S.C. 136 et seq.).

C. 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,
Chapter 35.

D. 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.

E. General Notice of Public Rulemaking

This proposed rule reflects recommendations submitted by the NOSB
to the Secretary to add one substance to the National List and to
reclassify one substance on the National List. A 60-day period for
interested persons to comment on this rule is provided.

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. Amend Sec. 205.603 by redesignating paragraphs (b)(2) through
(b)(8) as (b)(3) through (b)(9) and adding new paragraph (b)(2) to read
as follows:

Sec. 205.603 Synthetic substances allowed for use in organic
livestock production.

* * * * *
(b) * * *
(2) Elemental sulfur--for treatment of livestock and livestock
housing.
* * * * *

Sec. 205.605 [Amended]

0
3. Amend Sec. 205.605 paragraph (b) by removing ``Potassium acid
tartrate.''
0
4. Amend Sec. 205.606, by redesignating paragraphs (o) through (t) as
(p) through (u) and adding new paragraph (o) to read as follows:

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

* * * * *
(o) Potassium acid tartrate.
* * * * *

Dated: April 24, 2018.
Bruce Summers,
Acting Administrator, Agricultural Marketing Service.
[FR Doc. 2018-08991 Filed 4-27-18; 8:45 am]
BILLING CODE 3410-02-P

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