AMS Final Rule Amends National Organic Program Regulations Based on Court Order, New Law, Etc.

In addition, the final rule implements a November 2005 amendment made to the Organic Foods Production Act of 1990 (OFPA), which pertains to transitioning dairy animals to organic food.

(The OFPA was also amended in November 2005 to permit the use of synthetic substances in or on certain organic products. This amendment actually 'undid' an aspect of Harvey, and no amendment to AMS' regulations is required.)

The following are highlights of the amendments made by the final rule:

Use of certain non-organic ingredients in/on organic products. AMS' final rule amends 7 CFR 205.606 to permit nonorganically produced agricultural products to be used as ingredients in or on processed products labeled as organic, only if they are i) listed in 205.606 (pursuant to National List procedures) and ii) not commercially available in organic form (as determined by an accredited certifying agent).

Transitioning dairy animals to organic food. 80-20 feed exemption elimination. In accordance with the decision in Harvey, AMS' final rule eliminates the 80-20 feed exemption from 7 CFR 205.236(a) for dairy animal conversion to organic. Under this exemption, such herds were allowed to be fed up to 20% non-organically produced feed during the first 9 months of the conversion of a whole dairy herd from conventional to organic production.

However, AMS specifies that any farmer who is using this 80-20 feed exemption up to the date before this regulation is published in the Federal Register (i.e, June 6, 2006) may continue to complete the remainder of the 12 months of conversion under the old rule, provided that no such milk may be labeled as organic after June 9, 2007.

Addition of alternative means of converting to organic dairy production. Pursuant to a November 2005 OFPA amendment, AMS' final rule also provides an alternative means of converting to organic dairy production by allowing dairy animals to be fed crops and forage from land included in the organic system plan of a dairy farm that is in the third year of organic management, during the 12-month period immediately prior to the sale of organic milk and milk products.

Court decision regarding use of synthetic substances will not be implemented due to OFPA amendment. AMS states that the court found in favor of Mr. Harvey concerning the use of synthetic substances in or on processed products which contain a minimum of 95% organic content and are eligible to bear the USDA seal. Specifically, the court found 7 CFR 205.605(b), which lists synthetics that are allowed in organic products, was contrary to the OFPA and in excess of the Secretary's rulemaking authority.

However, a November 2005 amendment to the OFPA 'undid' this aspect of Harvey by permitting the addition of synthetic substances appearing on the National List for use in products labeled "organic". As a result, AMS is not revising the NOP regulations to prohibit the use of synthetic ingredients in processed products labeled as organic nor restrict these products' eligibility to carry the USDA seal.

Effective Dates

This final rule is effective June 8, 2006, except for 7 CFR 205.606, which is effective on June 9, 2007.

(See ITT's Online Archives or 05/04/06 news, 06050499 4, for BP summary of AMS' proposed rule.)

AMS Contact - Mark Bradley (202) 720- 3252

AMS Final Rule (D/N TM-06-06-FR, FR Pub 06/07/06) available at http://a257.g.akamaitech.net/7/257/2422/01jan20061800/edocket.access.gpo.gov/2006/pdf/06-5203.pdf

AMS Notice concerning 7 CFR 205.606 (FR Pub 07/01/05) available at http://a257.g.akamaitech.net/7/257/2422/01jan20051800/edocket.access.gpo.gov/2005/pdf/05-12969.pdf