Overwhelmed by Public Comment, USDA Publishes Interim Final Rule Amending the NOP National ListJuly 15, 2007
We previously reported on a proposed rule issued by the U.S. Department of Agriculture (“USDA”) to amend the agency’s National Organic Program (“NOP”) regulations at 7 C.F.R. Part 205 to add 38 non-organic minor ingredients to the National List of Allowed and Prohibited Substances (“National List”) (§ 205.606) that may be included in foods labeled “organic.” Pursuant to the Organic Foods Production Act of 1990, “organic” food products may contain 5% of non-organic minor ingredients.
To prevent a disruption of organic business, and to meet the deadline of June 9, 2007 imposed by the U.S. District Court of Maine in Harvey v. Johanns, NOP provided only 7 days for the public to comment on the proposed rule. Despite the unusually short comment period, USDA received approximately 1,250 comments on the proposed rule. Many of the comments opposed the 7-day comment period and suggest that the proposed rule constitutes a lowering of the standard for the label “organic.”
On June 27, 2007, USDA published an interim final rule. The interim rule, which is effective as of June 21, 2007, provides a 60-day comment period on the amendments. An NOP press release discussing the interim final rule states that the amendment is consistent with the law and does not lower the standard for “organic.” As of June 9, 2007, a non-organic agricultural ingredient must be included on the National List before its use is permitted in organic foods. Moreover, an organic handling operation may use any of the non-organic National List agricultural ingredients only after a certifying agent determines that the operation has sourced the organic form and confirmed that an organic version is not commercially available. Before June 9, 2007, the only requirement for non-organic agricultural ingredients was the lack of commercial availability. Thus, the 38 substances added to the National List have been used in foods marketed as “organic.” The interim final rule merely permits organic businesses to continue the use of these 38 non-organic agricultural ingredients.
The interim final rule prevents disruption of organic business and provides the NOP with time to evaluate the comments. A final rule will not be published before the NOP has considered all comments.