[Federal Register Volume 78, Number 163 (Thursday, August 22, 2013)]
[Proposed Rules]
[Pages 52100-52107]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-20476]
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DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 205
[Document Number AMS-NOP-13-0011; NOP-13-01PR]
RIN 0581-AD33
National Organic Program; Proposed Amendments to the National
List of Allowed and Prohibited Substances (Crops and Processing)
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Proposed rule.
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SUMMARY: This proposed rule would amend the U.S. Department of
Agriculture's (USDA's) National List of Allowed and Prohibited
Substances (National List) to reflect recommendations submitted to the
Secretary of Agriculture (Secretary) by the National Organic Standards
Board (NOSB) on May 25, 2012 and October
[[Page 52101]]
18, 2012. The recommendations addressed in this proposed rule pertain
to establishing exemptions (uses) for one substance in organic crop
production and two substances in organic processing. Consistent with
the recommendations from the NOSB, this proposed rule would add the
following substances, along with any restrictive annotations, to the
National List: biodegradable biobased mulch film; Citrus hystrix,
leaves and fruit; and curry leaves (Murraya koenigii). This action also
proposes a new definition for biodegradable biobased mulch film. This
proposed rule would also remove two listings for nonorganic
agricultural products on the National List, hops (Humulus lupulus) and
unmodified rice starch, as their use exemptions expired on January 1,
2013, and June 21, 2009, respectively.
DATES: Comments must be received by October 21, 2013.
ADDRESSES: Interested persons may comment on the proposed rule using
the following procedures:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Mail: Toni Strother, Agricultural Marketing Specialist,
National Organic Program, USDA-AMS-NOP, 1400 Independence Ave. SW.,
Room 2646-So., Ag Stop 0268, Washington, DC 20250-0268.
Instructions: All submissions received must include the docket
number AMS-NOP-13-0011; NOP-13-01PR, and/or Regulatory Information
Number (RIN) 0581-AD32 for this rulemaking. You should clearly indicate
the topic and section number of this proposed rule to which your
comment refers. You should clearly indicate whether you support the
action being proposed for the substances in this proposed rule. You
should clearly indicate the reason(s) for your position. You should
also supply information on alternative management practices, where
applicable, that support alternatives to the proposed action. You
should also offer any recommended language change(s) that would be
appropriate to your position. Please include relevant information and
data to support your position (e.g. scientific, environmental,
manufacturing, industry, impact information, etc.). Only relevant
material supporting your position should be submitted. All comments
received will be posted without change to http://www.regulations.gov.
AMS is particularly interested in comments regarding the
applicability of the proposed compostability standards for
biodegradable biobased mulch film, and whether guidance on management
practices is necessary to prevent mulch film from accumulating in
fields.
Document: For access to the document to read background documents
or comments received, go to http://www.regulations.gov. Comments
submitted in response to this proposed rule will also be available for
viewing in person at USDA-AMS, National Organic Program, Room 2646-
South Building, 1400 Independence Ave., SW., Washington, DC, from 9
a.m. to 12 noon and from 1 p.m. to 4 p.m., Monday through Friday
(except official Federal holidays). Persons wanting to visit the USDA
South Building to view comments received in response to this proposed
rule are requested to make an appointment in advance by calling (202)
720-3252.
FOR FURTHER INFORMATION CONTACT: Melissa Bailey, Ph.D., Director,
Standards Division, Telephone: (202) 720-3252; Fax: (202) 205-7808.
SUPPLEMENTARY INFORMATION:
I. Background
On December 21, 2000, the Secretary established, within the
National Organic Program (NOP) (7 CFR part 205), the National List
regulations in sections 205.600 through 205.607. This National List
identifies the synthetic substances that may be used and the
nonsynthetic (natural) substances that may not be used in organic
production. The National List also identifies nonagricultural and
nonorganic agricultural substances that may be used in organic
handling. The Organic Foods Production Act of 1990 (OFPA) (7 U.S.C.
6501-6522), and USDA organic regulations, in section 205.105,
specifically prohibit the use of any synthetic substance in organic
production and handling unless the synthetic substance is on the
National List. Section 205.105 also requires that any nonorganic
agricultural and any nonsynthetic nonagricultural substance used in
organic handling be on the National List. Under the authority of the
OFPA, the National List can be amended by the Secretary based on
proposed amendments developed by the NOSB.
Since established, AMS has published multiple amendments to the
National List beginning on October 31, 2003 (68 FR 61987). AMS
published the most recent amendment to the National List on September
27, 2012 (77 FR 59287).
This proposed rule would amend the National List to reflect three
recommendations submitted to the Secretary by the NOSB on May 25, 2012
(Citrus hystrix leaves and fruit and curry leaves (Murraya koenigii))
and October 18, 2012 (biodegradable biobased mulch film). Based upon
their evaluation of petitions submitted by industry participants,
public comments, market surveillance, and review of technical reports,
the NOSB recommended that the Secretary add one substance
(biodegradable biobased mulch film) to section 205.601 of the National
List for organic crop production and add two substances to section
205.606 (Citrus hystrix leaves and fruit and curry leaves (Murraya
koenigii)) for organic processing. This rule would also remove listings
for two substances (hops and unmodified rice starch) as their use
exemptions have expired. The exemptions for the use of each new
substance in organic crop production and handling were evaluated by the
NOSB using the criteria specified in OFPA (7 U.S.C. 6517-6518). In
addition, the amendments for two new substances proposed for organic
handling were also evaluated by the NOSB using NOP criteria on
commercial availability (72 FR 2167).
II. Overview of Proposed Amendments
The following provides an overview of the proposed amendments to
designated sections of the USDA organic regulations:
Section 205.2 Terms defined.
Section 205.601 Synthetic substances allowed for use in organic crop
production.
This proposed action would amend sections 205.2 and 205.601 by
adding the following new definition and new substance to the National
List for organic crop production.
Biodegradable Biobased Mulch Film
Biodegradable biobased mulch film was petitioned to the National
List in January 2012 for use as synthetic mulch for organic crop
production.\1\ This substance is also alternatively called ``bioplastic
mulch.''
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\1\ Petition is available on NOP Web site in Petitioned
Substances Database under ``B '' at http://www.ams.usda.gov/NOPNationalList.
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Biodegradable biobased mulch film is used as an alternative to
petroleum-based plastic mulches that do not biodegrade. Traditional
plastic mulches require removal at the end of the growing or harvest
season under OFPA and the USDA organic regulations (7 U.S.C. 6508;
Sec. Sec. 205.206(c)(6) and 205.601(b)(2)(ii)). Biodegradable biobased
mulch film is applied to agricultural fields as a thin plastic layer
and is left in the field to biodegrade. Like traditional plastic
mulches,
[[Page 52102]]
biodegradable biobased mulch film is used to cover the soil, modify
soil temperatures, retain soil moisture, and help control weeds and
insect problems.\2\
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\2\ Technical Evaluation Report, Biodegradable Mulch Film Made
from Bioplastics, August 2, 2012. Available on the NOP Web site at
http://www.ams.usda.gov/AMSv1.0/getfile?dDocName=STELPRDC5100029.
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Mulch film may be made from a variety of degradable polymers,
including polylactic acid (PLA), polyhydroxyalkanoates (PHA), and
aliphatic-aromatic copolymers (AAC). Some biodegradable mulch films are
made from biological sources (i.e., biobased), and some are derived
from fossil fuel sources.\3\
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\3\ Ibid.
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At its October 15-18, 2012 meeting in Providence, RI, the NOSB
recommended that biodegradable biobased mulch film be added to the
National List, with restrictions, for use in organic crop production.
The NOSB evaluated biodegradable biobased mulch film against the
evaluation criteria of 7 U.S.C. 6517 and 6518 of the OFPA, received
public comment, and concluded that the substance is consistent with the
OFPA evaluation criteria.
The NOSB indicated in its recommendation that the use of this
substance is an opportunity to reduce landfilling of traditional
plastic mulches without sacrificing organic farming principles.
The regulatory text recommended by the NOSB is provided in Table 1.
The NOSB indicated in its recommendation that mulch film must meet
certain criteria for biodegradability, compostability, and biobased
content (Criteria A and B in Table 1). In addition, the NOSB
recommended restrictions on the types of materials allowed for the
production of biobased mulch film (Criterion C). The NOSB also
indicated that growers must take appropriate actions to ensure complete
degradation (Criterion D). The NOSB indicated that criteria A through C
are intended to apply to certifying agents and material evaluation
programs that will determine allowed products. Criterion D was intended
to refer to the grower's responsibility.
As part of this recommendation, the NOSB also proposed the
following definition for the new term biobased: ``Organic material in
which carbon is derived from a renewable resource via biological
processes. Biobased materials include all plant and animal mass derived
from carbon dioxide recently fixed via photosynthesis, per definition
of a renewable resource (ASTM).'' \4\ The NOSB recommended that the
term ``biobased'' be included in order to specifically prohibit
products derived from petroleum, such as those made from aliphatic-
aromatic copolymers.
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\4\ ASTM refers to ASTM International, formerly known as the
American Society for Testing and Materials (ASTM), http://www.astm.org.
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The Secretary has reviewed and proposes to accept the NOSB's
recommendation, with some modifications. Table 1 provides a comparison
of the NOSB's recommended regulatory text and the action proposed under
this rule.
This proposed rule would amend section 205.2 (Terms defined) by
adding a new definition for ``biodegradable biobased mulch film'' to
section 205.2 of the USDA organic regulations.
This action proposes to define biodegradable biobased mulch film as
a synthetic mulch that meets the following criteria: (1) Meets the
compostability standards of ASTM D6400 or D6868, or of other equivalent
international standards, i.e., EN 13432, EN 14995, or ISO 17088; (2)
Demonstrates at least 90% biodegradation absolute or relative to
microcrystalline cellulose in less than two years, in soil, according
to ISO 17556 or ASTM D5988 testing methods; and (3) Must be biobased
with content determined using ASTM D6866 testing method.\5\
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\5\ ASTM refers to ASTM International, formerly known as the
American Society for Testing and Materials (ASTM), http://www.astm.org. EN refers to the European Committee for
Standardization, http://www.cen.eu. ISO refers to the International
Organization for Standardization, http://www.iso.org.
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This proposed rule would also add the substance ``biodegradable
biobased mulch film,'' with restrictions, to new subparagraph
(b)(2)(iii) of section 205.601. The new listing would read as follows:
``Biodegradable biobased mulch films as defined in section 205.2. Must
be produced without organisms or feedstock derived from excluded
methods.''
The NOSB recommended that the standards for compostability,
biodegradation, and biobased content be included at subparagraph
(b)(2)(iii) of section 205.601. AMS proposes to include the references
to these standards within a new definition at section 205.2 in order to
streamline the listing of this substance and limit the number of
subparagraph levels on the National List.
Table 1--Comparison of NOSB Recommendation and AMS Proposed Action for
Biodegradable Biobased Mulch Film
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Section NOSB Recommendation AMS Proposed action
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205.2....................... Add the following Add the following
new definition to new definition to
Sec. 205.2: Sec. 205.2:
Biobased. Organic Biodegradable
material in which Biobased Mulch
carbon is derived Film. A synthetic
from a renewable mulch film that
resource via meets the following
biological criteria:
processes. Biobased (1) Meets the
materials include compostability
all plant and standards of ASTM
animal mass derived D6400 or D6868, or
from carbon dioxide of other equivalent
recently fixed via international
photosynthesis, per standards, i.e., EN
definition of a 13432, EN 14995, or
renewable resource ISO 17088;
(ASTM). (2) Demonstrates at
least 90%
biodegradation
absolute or
relative to
microcrystalline
cellulose in less
than two years, in
soil, according to
ISO 17556 or ASTM
D5988 testing
methods; and
(3) Must be biobased
with content
determined using
ASTM D6866 testing
method.
205.601..................... Add the following Add the following
substance to new substance to new
subparagraph (iii) subparagraph (iii)
of of
Sec. Sec.
205.601(b)(2):. 205.601(b)(2):
(b) As herbicides, (b) As herbicides,
weed barriers, as weed barriers, as
applicable. applicable
(2) Mulches......... (2) Mulches.
(iii) Biodegradable (iii) Biodegradable
biobased mulch biobased mulch film
films to be as defined in Sec.
reviewed meet the 205.2. Must be
following criteria: produced without
organisms or
feedstock derived
from excluded
methods.
[[Page 52103]]
(A) Completely
biodegradable as
shown by:
(1) Meeting the
requirements of
ASTM Standard D6400
or D6868
specifications, or
of other
international
standard
specifications with
essentially
identical criteria,
i.e. EN 13432, EN
14995, ISO 17088;
and
(2) Showing at least
90% biodegradation
in soil absolute or
relative to
microcrystalline
cellulose in less
than two years, in
soil, tested
according to ISO
17556 or ASTM 5988;
(B) Must be biobased
with content
determined using
the ASTM D6866
method;
(C) Must be produced
without organisms
or feedstock
derived from
excluded methods;
and
(D) Grower must take
appropriate actions
to ensure complete
degradation.
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The proposed definition for ``biodegradable biobased mulch film''
includes the third-party standards for compostability, biodegradation,
and biobased content which are included in the NOSB recommendation.
These standards are summarized in Table 2. Each standard provides a
reference for certifying agents and material evaluation programs to
verify that biodegradable biobased much film meet certain requirements
for compostability, biodegradability, and biobased content.
AMS is specifically interested in comments regarding the
compostability standards included in the definition. AMS has noted that
when the substance is used as recommended by the NOSB (i.e., as mulch
on the surface of the soil), it is not composted according to the
standards for compost under section 205.203(c) of the USDA organic
regulations. In addition, the NOSB did not consider or recommend the
addition of biodegradable biobased mulch film to the list of allowed
synthetic compost feedstocks at section 205.601(c). This proposed
action includes the compostability standards recommended by the NOSB,
but AMS is interested in comments on the applicability of these
standards for the intended use of the petitioned material. AMS is also
interested in comments on whether the two criteria for biodegradation
and biobased content, without the criteria for compostability, would be
sufficient for review of this substance.
Table 2--Table of Applicable Standards for Compostability, Biodegradation, and Biobased Content
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Standard Title Criteria
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ASTM D6400.............................. Standard Specification for Labeling of Compostability.
Plastics Designed to be Aerobically
Composted in Municipal or Industrial
Facilities.
ASTM D6868.............................. Standard Specification for Labeling of Compostability.
End Items that Incorporate Plastics and
Polymers as Coatings or Additives with
Paper and Other Substrates Designed to
be Aerobically Composted in Municipal or
Industrial Facilities.
EN 13432................................ Proof of compostability of plastic Compostability.
products.
EN 14995................................ Plastics--Evaluation of compostability-- Compostability.
Test scheme and specifications
ISO 17088............................... Specifications for compostable plastics.. Compostability.
ISO 17556............................... Plastics--Determination of the ultimate Biodegradability.
aerobic biodegradability of plastic
materials in soil by measuring the
oxygen demand in a respirometer or the
amount of carbon dioxide evolved.
ASTM D5988.............................. Standard Test Method for Determining Biodegradability.
Aerobic Biodegradation of Plastic
Materials in Soil.
ASTM D6866.............................. Standard Test Methods for Determining the Biobased Content.
Biobased Content of Solid, Liquid, and
Gaseous Samples Using Radiocarbon
Analysis.
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AMS noted that the NOSB did not recommend a minimum amount of
biobased content for biodegradable biobased mulch films. AMS considered
whether a minimum should be included in order to ensure that approved
products will derive most of their content from biological sources, as
was intended by the NOSB. AMS consulted with the USDA BioPreferred
program to inquire whether they have a specific category established
for biodegradable mulch film products, since product categories in the
USDA BioPreferred program include standards (i.e., minimums) for
products' biobased content.\6\ The USDA BioPreferred program indicated
that they do not have a specific product category for biobased mulch
film, and that mulch film does not fall within their categories of
``Mulch and Compost Materials'' \7\ or ``Films--Non-Durable.'' \8\
(Manufacturers of biobased mulch film who wish to certify this product
under the USDA BioPreferred program would classify it in an
``undesignated'' product category; products in this category must
contain a minimum of 25% biobased content as measured by the standard
test
[[Page 52104]]
method.) AMS understands that biobased mulch films used by organic
producers will need to be derived primarily from biobased sources in
order to meet the requirements for biodegradation and compostability,
so we have not proposed a minimum biobased content requirement for
mulch film. Biodegradable mulch films that are not biobased, e.g.,
derived from fossil fuel sources, would not be permitted.
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\6\ USDA BioPreferred[supreg] Program product categories are
available at http://www.biopreferred.gov/ProductCategories.aspx
\7\ Established at 7 CFR 2902.56; Final Rule published October
18, 2010; 75 FR 63695.
\8\ Established at 7 CFR 2902.27; Final Rule published May 14,
2008; 73 FR 27958.
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AMS considered the definition for ``biobased'' that was recommended
by the NOSB, and we have not proposed the addition of this term to
section 205.2. Instead, AMS proposed a new definition for
``biodegradable biobased mulch film'' that incorporates the NOSB's
intent of limiting the use of this substance to biobased products by
including a testing standard for biobased content. The proposed new
term ``biodegradable biobased mulch film'' indicates that this
substance must be biobased with content determined using ASTM D6866
testing method. Since this testing method has been previously
established for biobased materials using an existing definition for
``biobased,'' AMS determined it was not necessary to add a separate
definition for ``biobased'' to the USDA organic regulations.
AMS also considered whether the new definition for ``biodegradable
biobased mulch film'' may raise questions as to whether certain types
of paper mulch are intended to be included in the new definition.
Specifically, the petition describes a type of paper mulch ``comprised
of kraft paper coated with cured vegetable oil-based resins,'' and
indicates that these materials are not intended to be included within
its scope. In addition, these materials were also not considered a part
of the petition during the NOSB review. As such, AMS does not consider
these paper mulches to fall within the new definition of
``biodegradable biobased mulch film,'' since they were not included
within the scope of the petition and because these products are not
``films.'' \9\ This action is also not intended to define newspaper or
other recycled paper as ``biodegradable biobased mulch films.'' The use
of newspaper or other recycled paper, without glossy or colored inks,
will continue to be allowed as allowed synthetic mulch under the
current listing at section 205.601(b)(2)(i) without the additional
testing requirements for biodegradable biobased mulch film outlined
under the new definition at section 205.2.
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\9\ The biodegradable films intended by the petition are
described by the petitioner as ``produced from bioplastics and meet
standards for aerobic biodegradation in soil.''
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The NOSB also recommended that biodegradable biobased mulch film
must meet the following criteria: ``Must be produced without organisms
or feedstocks derived from excluded methods.'' AMS has reviewed this
language and has incorporated the text into the listing proposed at
section 205.601.
The NOSB also recommended the following additional text for the
listing for biodegradable biobased mulch film: ``Grower must take
appropriate actions to ensure complete degradation.'' AMS has reviewed
this language and has not incorporated this text into the proposed
listing as we believe the intent of this text is adequately covered
under other sections of the USDA organic regulations. For example,
section 205.200 requires that production practices maintain or improve
the natural resources of the operation, including soil and water
quality. In addition, section 205.203 requires that the producer select
and implement practices that maintain or improve the physical,
chemical, and biological condition of soil. Thus, the use of film in a
manner that causes it to accumulate in the field and not biodegrade
over time would not be compliant with the existing requirements at
sections 205.200 and 205.203.
The NOSB indicated that the proposed language was intended to
clarify the grower's responsibility and what the certifying agent must
evaluate. The NOSB indicated that NOP, in conjunction with the NOSB,
should develop guidance that explains proper practices for use of
biodegradable biobased mulch film. In addition, the NOSB indicated that
it expects the inspection process and certification review to verify
that biodegradation of the mulch film is occurring so that it does not
accumulate in the fields where it is used.
AMS understands that the complete degradation of mulch film may be
impacted by a number of factors, including climate, soil type,
irrigation, and other production practices. AMS has not determined if
there is a demonstrated need for guidance on the use of mulch film at
this time. We understand that guidance may be needed in the future
depending on the prevalence of adoption of use of mulch film by organic
growers and any problems observed by certifying agents with degradation
on organic fields. AMS is interested in comments on whether guidance on
management practices is necessary at this time to prevent mulch film
from accumulating in fields.
Section 205.606 Nonorganically Produced Agricultural Products Allowed
as Ingredients in or on Processed Products Labeled as ``Organic.''
This proposed rule would amend section 205.606 by removing
paragraph (l), removing subparagraph (w)(2), and redesignating
subparagraph (w)(3) as (w)(2), to remove the following substances from
the National List:
Hops (Humulus lupulus). Hops (Humulus lupulus) was added to the
National List on June 27, 2007 (72 FR 35137), to enable brewers to
produce organic beer with conventionally grown hops in the absence of a
commercially available supply of organically grown hops. In December
2009, an organic hop grower association petitioned the NOSB to remove
hops from section 205.606 for the purpose of advancing growth in the
organic hops market.\10\
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\10\ Petition to remove hops. Available in Petitioned Substances
Database, under ``H,'' available at the NOP Web site at http://www.ams.usda.gov/NOPNationalList and http://www.ams.usda.gov/AMSv1.0/getfile?dDocName=STELPRDC5085449.
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In response to the petition, the NOSB recommended at its October
2010 public meeting that an expiration date of January 1, 2013 be added
to the listing for hops. This recommendation was accepted by the
Secretary and was implemented as a Final Rule published June 27, 2012
(77 FR 33290). The listing was amended to read as follows: Hops
(Humulus lupulus) until January 1, 2013. This action would remove the
expired listing for hops (Humulus lupulus) from section 205.606 at
paragraph (l), as the use exemption for this substance expired on
January 1, 2013. Removal of this substance has no new regulatory
effect.
Unmodified Rice Starch
This proposed rule would amend section 205.606 of the National List
by removing the expired exemption for ``rice starch, unmodified (CAS
977000-08-0),'' referred to below as ``unmodified rice
starch.'' Unmodified rice starch was petitioned to the National List on
February 14, 2007 as a gelation agent used in combination with other
thickeners. The NOSB recommended adding unmodified rice starch to the
National List and also indicated that the listing should expire two
years after the date of publication of the final rule. The NOSB
recommendation was accepted by the Secretary, and unmodified rice
starch was added to the National List effective June 21, 2007 by
publication of an interim final rule on June 27, 2007 (72 FR 35137).
The listing reads as follows:
[[Page 52105]]
(2) Rice starch, unmodified (CAS 977000-08-0)--for use in
organic handling until June 21, 2009. This proposed rule would remove
the listing for unmodified rice starch that expired on June 21, 2009.
Removal of this substance has no new regulatory effect.
This proposed rule would further amend section 205.606 by
redesignating paragraphs (e) through (aa) as (g) through (bb),
respectively; and redesignating paragraph (d) as paragraph (e) for the
purposes of adding the following new substances at paragraphs (d) and
(f):
Citrus Hystrix, Leaves and Fruit
Leaves and fruit of Citrus hystrix were petitioned in August 2011
for use as a nonorganic agricultural ingredient in or on processed
products labeled as ``organic.'' \11\ C. hystrix leaves and fruit are
traditional ingredients in Lao, Thai, and other Southeast Asian
cuisines. The tree of C. hystrix is easily identified by its
distinctively shaped double leaves and the fruit is known for its bumpy
skin. Both the leaves and fruit impart a unique intense flavor and
aroma in foods due to their high concentration of essential oils. C.
hystrix leaves and fruit are harvested, washed, and can be used fresh,
dried, or frozen.
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\11\ Petition is available in Petitioned Substances Database,
under ``C,'' at http://www.ams.usda.gov/NOPNationalList.
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At its May 22-25, 2012, meeting in Albuquerque, NM, the NOSB
accepted public comment and recommended adding C. hystrix leaves and
fruit to the National List for use in organic handling as a non-organic
agricultural ingredient where the organic form is commercially
unavailable.\12\ In this open meeting, the NOSB evaluated C. hystrix
leaves and fruit against evaluation criteria established by 7 U.S.C.
6517 and 6518 of the OFPA evaluation criteria and NOP commercial
availability criteria (72 FR 2167). Therefore in response to the NOSB
recommendation regarding the use of C. hystrix in organic handling, the
Secretary proposes to amend section 205.606 of the National List
regulations to allow C. hystrix as a nonorganically produced
agricultural product allowed as an ingredient in or on processed
products labeled as ``organic.''
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\12\ NOSB Formal Recommendation for Citrus hystrix leaves and
fruit, May 25, 2012. http://www.ams.usda.gov/AMSv1.0/getfile?dDocName=STELPRDC5098918.
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Curry Leaves (Murraya koenigii)
Curry leaves were petitioned in August 2011 for use as a nonorganic
agricultural ingredient in or on processed products labeled as
``organic.'' \13\ Curry leaves, which are also known as sweet neem
leaves, are extremely fragrant and are an important ingredient commonly
used in Indian, Sri Lankan, Malay and other Southeast Asian cuisines.
Curry leaves impart a unique flavor and fragrance which cannot be
substituted with other ingredients. Curry leaves are harvested from
curry trees, washed, and can be used fresh, dried, or frozen.
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\13\ Petition is available in Petitioned Substances Database,
under ``C,'' at http://www.ams.usda.gov/NOPNationalList.
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At its May 22-25, 2012, public meeting in Albuquerque, NM, the NOSB
accepted public comment and recommended adding curry leaves (Murraya
koenigii) to the National List for use in organic handling as a
nonorganic agricultural ingredient when organic curry leaves are
commercially unavailable.\14\ The NOSB evaluated curry leaves (Murraya
koenigii) against evaluation criteria established by 7 U.S.C. 6517 and
6518 of the OFPA evaluation criteria and NOP commercial availability
criteria (72 FR 2167). Therefore in response to the NOSB recommendation
regarding the use of curry leaves (Murraya koenigii) in organic
handling, the Secretary proposes to amend section 205.606 of the
National List regulations to allow curry leaves (Murraya koenigii) as a
nonorganically produced agricultural product allowed as an ingredient
in or on processed products labeled as ``organic.'' The listing is
proposed as the common name of the ingredient, with the scientific
species name in parentheses, to be consistent with the listing of other
agricultural products on National List.
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\14\ NOSB Formal Recommendation for Curry Leaves, May 25, 2012,
http://www.ams.usda.gov/AMSv1.0/getfile?dDocName=STELPRDC5098915.
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III. Related Documents
Two notices were published regarding meetings of the NOSB and its
deliberations on recommendations and substances petitioned for amending
the National List. Substances and recommendations included in this
proposed rule were announced for NOSB deliberation in the following
Federal Register notices: (1) 77 FR 21067, April 9, 2012 (curry leaves
and C. hystrix); and (2) 77 FR 52679, August 30, 2012 (biodegradable
biobased mulch film).
The expiration date of January 1, 2013, for the listing for hops
was added to the National List on June 27, 2012 by a final rule (77 FR
33290) published in the Federal Register notice on June 6, 2012.
The listing and expiration date of June 21, 2009 for unmodified
rice starch was added to the National List on June 21, 2007, by an
interim final rule (72 FR 35137) published in the Federal Register on
June 27, 2007.
Additional information on substances, including petitions,
technical reports, and NOSB recommendations, are available on the NOP
Web site at http://www.ams.usda.gov/NOPNationalList.
IV. Statutory and Regulatory Authority
The OFPA, as amended, (7 U.S.C. 6501-6522), authorizes the
Secretary to make amendments to the National List based on proposed
amendments developed by the NOSB. Sections 6518(k) and 6518(n) of the
OFPA authorize the NOSB to develop proposed amendments to the National
List for submission to the Secretary and establish a petition process
by which persons may petition the NOSB for the purpose of having
substances evaluated for inclusion on or deletion from the National
List. The National List petition process is implemented under section
205.607 of the NOP regulations. The current petition guidelines (72 FR
2167, January 18, 2007) can be accessed through the NOP Web site at
http://www.ams.usda.gov/AMSv1.0/nop.
A. Executive Order 12866
This action has been determined not significant for purposes of
Executive Order 12866, and therefore, has not been reviewed by the
Office of Management and Budget.
B. Executive Order 12988
Executive Order 12988 instructs each executive agency to adhere to
certain requirements in the development of new and revised regulations
in order to avoid unduly burdening the court system. This proposed rule
is not intended to have a retroactive effect.
States and local jurisdictions are preempted under the OFPA from
creating programs of accreditation for private persons or State
officials who want to become certifying agents of organic farms or
handling operations. A governing State official would have to apply to
USDA to be accredited as a certifying agent, as described in the OFPA
(7 U.S.C. 6514(b)). States are also preempted by the OFPA (7 U.S.C.
6503 through 6507) from creating certification programs to certify
organic farms or handling operations unless the State programs have
been submitted to, and approved by, the Secretary as meeting the
requirements of the OFPA.
Pursuant to the OFPA (7 U.S.C. 6507(b)(2)), a State organic
certification
[[Page 52106]]
program may contain additional requirements for the production and
handling of organically produced agricultural products that are
produced in the State and for the certification of organic farm and
handling operations located within the State under certain
circumstances. Such additional requirements must: (a) Further the
purposes of the OFPA, (b) not be inconsistent with the OFPA, (c) not be
discriminatory toward agricultural commodities organically produced in
other States, and (d) not be effective until approved by the Secretary.
Pursuant to the OFPA (7 U.S.C. 6519(f)), this proposed rule would
not alter the authority of the Secretary under the Federal Meat
Inspection Act (21 U.S.C. 601-624), the Poultry Products Inspection Act
(21 U.S.C. 451-471), or the Egg Products Inspection Act (21 U.S.C.
1031-1056), concerning meat, poultry, and egg products, nor any of the
authorities of the Secretary of Health and Human Services under the
Federal Food, Drug and Cosmetic Act (21 U.S.C. 301-399), nor the
authority of the Administrator of EPA under the FIFRA (7 U.S.C. 136-
136(y)).
The OFPA (7 U.S.C. 6520) provides for the Secretary to establish an
expedited administrative appeals procedure under which persons may
appeal an action of the Secretary, the applicable governing State
official, or a certifying agent under this title that adversely affects
such person or is inconsistent with the organic certification program
established under this title. The OFPA also provides that the U.S.
District Court for the district in which a person is located has
jurisdiction to review the Secretary's decision.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612) requires
agencies to consider the economic impact of each rule on small entities
and evaluate alternatives that would accomplish the objectives of the
rule without unduly burdening small entities or erecting barriers that
would restrict their ability to compete in the market. The purpose is
to fit regulatory actions to the scale of businesses subject to the
action. Section 605 of the RFA allows an agency to certify a rule, in
lieu of preparing an analysis, if the rulemaking is not expected to
have a significant economic impact on a substantial number of small
entities.
Small agricultural service firms, which include producers,
handlers, and accredited certifying agents, have been defined by the
Small Business Administration (SBA) (13 CFR 121.201) as those having
annual receipts of less than $7,000,000 and small agricultural
producers are defined as those having annual receipts of less than
$750,000. According to USDA, National Agricultural Statistics Service
(NASS), certified organic acreage exceeded 3.5 million acres in
2011.\15\ According to NOP's Accreditation and International Activities
Division, the number of certified U.S. organic crop and livestock
operations totaled over 17,281 in 2011. AMS believes that most of these
entities would be considered small entities under the criteria
established by the SBA. The procedures for producing and handling
certified apiculture products will remain essentially the same under
this proposed rule as they have been since ACAs began to certify
apiculture products organic under the livestock regulations. The
difference under the proposed rule is that the regulation will be more
specific, and is tailored to apiculture production and handling
requirements.
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\15\ U.S. Department of Agriculture, National Agricultural
Statistics Service. October 2012. 2011 Certified Organic Productions
Survey. http://usda01.library.cornell.edu/usda/current/OrganicProduction/OrganicProduction-10-04-2012.pdf.
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U.S. sales of organic food and non-food have grown from $1 billion
in 1990 to $31.4 billion in 2011. Sales in 2011 represented 9.5 percent
growth over 2010 sales.\16\ In addition, the USDA has 86 accredited
certifying agents who provide certification services to producers and
handlers. A complete list of names and addresses of accredited
certifying agents may be found on the AMS NOP Web site, at http://www.ams.usda.gov/nop. AMS believes that most of these accredited
certifying agents would be considered small entities under the criteria
established by the SBA. Certifying agents reported approximately 29,000
certified operations worldwide in 2011.
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\16\ Organic Trade Association. 2012. Organic Industry Survey.
www.ota.com.
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D. Paperwork Reduction Act
No additional collection or recordkeeping requirements are imposed
on the public by this proposed rule. Accordingly, OMB clearance is not
required by the Paperwork Reduction Act of 1995, 44 U.S.C. 3501, and
Chapter 35.
E. Executive Order 13175
This proposed rule has been reviewed in accordance with the
requirements of Executive Order 13175, Consultation and Coordination
with Indian Tribal Governments. The review reveals that this regulation
will not have substantial and direct effects on Tribal governments and
will not have significant Tribal implications.
F. General Notice of Public Rulemaking
This proposed rule reflects recommendations submitted by the NOSB
to the Secretary to add three substances on the National List and to
remove two expired listings from the National List. A 60-day period for
interested persons to comment on this rule is provided and is deemed
appropriate.
List of Subjects in 7 CFR Part 205
Administrative practice and procedure, Agriculture, Animals,
Archives and records, Imports, Labeling, Organically produced products,
Plants, Reporting and recordkeeping requirements, Seals and insignia,
Soil conservation.
For the reasons set forth in the preamble, 7 CFR part 205, subpart
G is proposed to be amended as follows:
PART 205--NATIONAL ORGANIC PROGRAM
0
1. The authority citation for 7 CFR part 205 continues to read as
follows:
Authority: 7 U.S.C. 6501--6522.
0
2. Section 205.2 is amended by adding one new term in alphabetical
order to read as follows:
Sec. 205.2 Terms defined.
* * * * *
Biodegradable biobased mulch film. A synthetic mulch film that
meets the following criteria:
(1) Meets the compostability standards of ASTM D6400 or D6868, or
of other equivalent international standards, i.e., EN 13432, EN 14995,
or ISO 17088;
(2) Demonstrates at least 90% biodegradation absolute or relative
to microcrystalline cellulose in less than two years, in soil,
according to ISO 17556 or ASTM D5988 testing methods; and
(3) Must be biobased with content determined using ATM D6866
testing method.
* * * * *
0
3. Section 205.601 is amended by adding paragraph (b)(2)(iii) to read
as follows:
Sec. 205.601 Synthetic substances allowed for use in organic crop
production.
* * * * *
(b) * * *
(2) * * *
(iii) Biodegradable biobased mulch film as defined in Sec. 205.2.
Must be produced without organisms or
[[Page 52107]]
feedstock derived from excluded methods.
* * * * *
0
4. Section 205.606 is amended by:
0
A. Removing paragraph (l);
0
B. Removing paragraph (w)(2);
0
C. Redesignating paragraph (w)(3) as (w)(2);
0
D. Redesignating paragraphs (e) through (aa) as (g) through (bb)
respectively;
0
E. Redesignating paragraph (d) as paragraph (e); and
0
F. Adding new paragraphs (d) and (f). The additions read as follows:
Sec. 205.606 Nonorganically produced agricultural products allowed as
ingredients in or on processed products labeled as ``organic.''
* * * * *
(d) Citrus hystrix, leaves and fruit.
* * * * *
(f) Curry leaves (Murraya koenigii).
* * * * *
Dated: August 16, 2013.
Rex A. Barnes,
Associate Administrator, Agricultural Marketing Service.
[FR Doc. 2013-20476 Filed 8-21-13; 8:45 am]
BILLING CODE 3410-02-P