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NOP: Draft Guidance on Seeds, Annual Seedlings, and Planting Stock 08-12-11 - Organic Trade Association
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NOP: Draft Guidance on Seeds, Annual Seedlings, and Planting Stock 08-12-11

 

August 12, 2011

Toni Strother, Agricultural Marketing Specialist
National Organic Program, USDA–AMS–NOP
Room 2646–So., Ag Stop 0268
1400 Independence Ave., SW.
Washington, DC 20250–0268

RE: National Organic Program; Notice of Draft Guidance NOP 5029: Seeds, Annual Seedlings, and Planting Stock in Organic Crop Production. AMS-NOP-11-0002: NOP-11-02

Dear Ms. Strother:

Thank you for the opportunity to comment on NOP Draft Guidance on Seeds, Annual Seedlings and Planting Stock in Organic Crop Production. OTA supports the NOP draft guidance with several suggested additions and revisions as detailed in our comments below.

The Organic Trade Association (OTA) is the membership-based business association for organic agriculture and products in North America. Its members include growers, shippers, processors, certifiers, farmers’ associations, distributors, importers, exporters, consultants, retailers and others. OTA’s Board of Directors is democratically elected by its members, and its mission is to promote and protect the growth of organic trade to benefit the environment, farmers, the public and the economy (
http://www.ota.com/).

Tremendous strides have been made in the past decade to increase the availability of organic seed and planting stock, yet according to a 2010 Organic Seed Alliance survey that included responses from certified organic farmers in 45 states, only 20 percent reported that they used 100 percent organic seed. The remaining 80 percent of respondents pointed to a lack of availability or equivalency.

The intent of the allowance in 7 CFR § 205.204(a) to use non-organic seed and planting stock under certain conditions was to provide a transition time for the industry while the production of organic seed and planting stock caught up to its demand. However, almost 12 years later, the increased use of organic seed and planting stock has been less than robust. Commercial availability has been applied inconsistently since the implementation of the rule, and the level at which certifiers monitor and enforce the use of organic seeds and planting stock varies significantly. Clear, useful and enforceable guidance is therefore crucial to help remedy the situation.

While OTA supports the overall efforts of the guidance, we have concerns about a number of specific areas that still need to be addressed. The following is a summary of our suggestions for improvement:

  • The draft guidance does not stress continuous improvement and does not include important considerations from the 2008 NOSB Recommendation about the grower’s role in sourcing organic seed and planting stock, and the certifying agent’s role in evaluating commercial availability documentation.

  • The Draft Guidance needs to distinguish between seed being an “Equivalent Variety” and seed/planting stock being “Commercially Unavailable,” and provide a definition or description of “Equivalent Variety.”

  • The Draft Guidance does not address the requirements of the certified buyer (handler) purchasing seed or planting stock for contractual growing purposes.

  • The Draft Guidance includes a three-source minimum, which could, in effect, result in inadequate search efforts.

  • The Draft Guidance provides guidance and definitions distinguishing annual planting stock from perennial planting stock. Such guidance goes beyond the requirements of the written regulations and creates impractical scenarios.

  • The Draft Guidance does not address non-compliances and possible suspension or revocation as tools of enforcement.

  • The Draft Guidance inserts provisions on seed treatments and preparation in the wrong place, and includes guidance on chlorine that is not consistent with previous NOP Guidance (NOP 5026).

  • The Draft Guidance does not address labeling considerations for certified seed.

  • The Draft Guidance does not address the prohibition on excluded methods.

  • The Draft Guidance does not include the role of NOP in supporting the implementation of guidance nor does it contain a statement of policy that NOP supports and encourages development of a national database of available varieties of organic seed and planting stock.

OTA respectfully submits the following more specific comments on the NOP Draft Guidance:

I. The draft guidance does not stress continuous improvement, and does not include important considerations from the 2008 NOSB Recommendation about the grower’s role in sourcing organic seed /planting stock and the certifying agent’s role in evaluating commercial availability documentation.

In general, the guidance should stress the goal of continuous improvement in organic seed and planting stock usage, and clarify the requirements for ongoing documented efforts by certified operations to source organic seed and planting stock. Several helpful examples were included in the 2008 NOSB Guidance document, but were not carried over to the NOP Draft Guidance.

In order to improve ongoing efforts to use organic seed and planting stock and overall implementation of guidance, the following considerations and examples of documentation would be helpful additions. Our suggestions include considerations based on the 2008 NOSB Recommendation as well as other considerations that support our comments regarding “equivalent variety.”
Certified Operations:
  • Certified operators using non-organic seed and planting stock must maintain
    documentation demonstrating that there is not an “equivalent” organic variety or that the “equivalent” variety is not “commercially available.” If the producer or handler makes a claim that available varieties of organic seed or planting stock are not equivalent to non-organic seed that the producer or handler prefers to use, the documentation shall include a written description of the methods used to compare organic and non-organic seeds or planting stock. Such documentation should be maintained as part of the Organic System Plan and reviewed during the annual renewal cycle.
  • Additional types of records demonstrating the use of organic seeds and planting stock, or the commercial unavailability of organic seeds/planting stock include searches of recognized seed databases; documentation of variety trialing results; documentation of a third party’s efforts on behalf of the certified grower (i.e., contract buyers and seed/planting stock brokers).
  • Receipts and other similar documentation demonstrating the purchase of organic seed and planting stock should correspond with planting and trial information if the certified operator is demonstrating the organic “equivalent variety” did not meet quality specifications.
  • Certified operators must maintain records showing whether, from year to year, the operation has, through continuous improvement, increased the overall use of organic seed and planting stock. For row crops and for specialty crops grown on substantial amounts of acres, the percentage of total crop acreage planted with organic seed and/or planting stock year after year would be an appropriate measure of improvement. For specialty crops grown in diverse varieties on smaller acreages, an appropriate measure of improvement would be the number of organic varieties of seed and/or planting stock used year after year, rather than the acreage. Such documentation should be maintained as part of the Organic System Plan and reviewed during the annual renewal cycle.
Accredited Certifying Agents (ACAs)

• Certifying agents should emphasize to certified operations that the price of an organic“equivalent variety” is never a factor in determining whether the organic “equivalent variety” is “commercially available.”

• Certifying agents should issue non-compliances to certified operators that demonstrate a pattern of inadequate documentation to obtain organic seed and planting stock. Noncompliances may result in certifying agents requiring prior approval regarding commercial availability issues in future planting cycles.

• In granting an allowance to a producer or handler to use non-organic seed or planting stock to produce a crop that can be sold or labeled as “organic,” ACA shall:
  • Evaluate the operator’s claim that no organic seed or planting stock was
    available in an “equivalent variety,” or that the “equivalent variety” was not
    “commercially available.”
  • Validate that the operator has properly and completely documented that there
    was no organic seed or planting stock available in an “equivalent variety,” or
    was not “commercially available.”
Consistent with the 2008 NOSB Guidance and in an effort to combine the certified operator and ACA’s role in upholding the requirements to search for and use organic seed and planting stock, Section 4.3, Accredited Certifying Agents, should directly follow Section 4.1, Certified Operations; General Considerations and Documentation.

See Appendix 1 for OTAs suggested additions and revisions reflecting the above comments.

II. The guidance needs to distinguish between seed being an “Equivalent Variety” and
seed/planting stock being “Commercially Unavailable.”


The Draft Guidance needs to distinguish between the question of whether an organic seed or planting stock is an “equivalent variety” to a conventional seed or planting stock, and the subsequent question of whether an organic seed/planting stock, once found to be an “equivalent variety,” is “commercially available.” The guidance fails to recognize that, in looking for an organic seed/planting stock instead of a conventional seed/planting stock, there are two tests that the organic seed/planting stock must meet before the grower is required to use it. The first test is whether the organic seed/planting stock is an “equivalent variety.”

If, based on the factors determining whether an organic seed/planting stock exists that is an “equivalent variety,” there is no organic seed/planting stock found that could be an “equivalent variety,” then there is no requirement for the grower to use an organic seed/planting stock for that crop.

If, based on the factors for an “equivalent variety,” the organic seed/planting stock qualifies as an “equivalent variety,” then in order to require the use of that organic seed/planting stock, it must still meet the second test, i.e. whether it is “commercially available” under the definition in 7 CFR § 205.2. If the “equivalent variety” organic seed/planting stock is available in the form, quality or quantity required by the grower, then it must be used instead of a non-organic seed. The NOP guidance would be more useful if it clearly explained the two-part test.

The Draft Guidance overlooks the term “equivalent variety” and, in fact, does not mention the term at all except in the text of 7 CFR § 205.204(a)(1). In the 2005 and 2008 NOSB Recommendations, there was a general definition provided. Additionally, in the Questions and Answers dealing with the use of organic seed on its website, NOP included a definition of “equivalent variety” (included in Addendum B of the 2005 NOSB Recommendation).

OTA suggests the following definition be included in the Draft Guidance:

Equivalent Variety1: An equivalent variety means a variety exhibiting the same “type2” (such as head lettuce types, leaf lettuce types) and similar agronomic characteristics (i.e., vigor, yield, regional adaptation, pest and disease resistance) and marketing characteristics (i.e., taste, color, texture) as the original varietal choice.

In the NOP guidance, the factors above are mentioned, but under one of the “commercial availability” criteria, “Form”. These factors are not related to the form of the seed/planting stock. They go to the essential qualities of the seed/planting stock. Therefore, they belong in an assessment of whether an organic seed/planting stock is an “equivalent variety”. “Form,” on the other hand, would relate to the form of seed/planting, such as whether the seed is a pelleted or non-pelleted form, or treated or non-treated form.

See Appendix 1 for our suggested incorporation of “Equivalent Variety” into the Draft Guidance and for our revision to “Form Considerations.” Changes are found under: Purpose, Background, Certified Operations: General Considerations and Documentation, & Accredited Certifying Agents.

III. The draft guidance does not address the requirements of the certified buyer (handler) purchasing seed/planting stock for contractual growing purposes.

In addition to growers, the guidance should also apply to certified operations that contract with growers and mandate specific types of seed or planting stock. Buyers are often certified handlers who contract with producers to grow certain varieties that are often not available as certified organic. If a certified handler (buyer) mandates a particular variety to be planted and is responsible for sourcing the seed, the certified handler should be held responsible for determining if the variety is commercially available as organic. It should also apply to certified seed handling operations such as brokers, and to growers who contract with operations that raise annual seedlings for transplants. Questions about seed/planting stock should be raised during handlers’ inspections and be addressed in their Organic Systems Plan, since these contracts, not farmers, dictate whether organic or non-organic seed/planting stock is purchased and planted. This consideration was included in the 2008 NOSB Recommendation.

See Appendix 1 for suggested revisions that incorporate the requirements for organic handlers sourcing seed for contractual growing purposes.

IV. The Draft Guidance includes a three-source minimum, which could, in effect, result in inadequate search efforts.

The recommended three-source minimum is an arbitrary number that could, in effect, result in inadequate search efforts. The regulations do not specify a three-source minimum. Instead, this number has been considered an industry standard for many years despite the increase in organic crops, and the increased availability of more varieties of organic seeds and planting stock from multiple sources of supply. While we agree that no less than three sources should be contacted, it would be more helpful to describe the appropriate number of sources as they relate to the potential number of suppliers offering the desired organic equivalent variety.

See Appendix 1, 4.1 (a) (1-3) for our suggested revised language.

V. The draft guidance provides guidance and definitions distinguishing annual planting stock from perennial planting stock. Such guidance goes beyond the requirements of the regulations and creates impractical scenarios.

The NOP regulations do not define annual and perennial planting stock. Although
“Planting Stock” is defined, the drafters of the regulation specifically did not define annual and perennial planting stock because of the difficulties of drawing a line that would be appropriate for existing and future varieties of planting stock. Therefore, the annual and perennial planting stock definitions in the guidance document should be deleted as well as all references to annual or perennial except in relation to § 205.204(a)(4).

Section 205.204(a)(4) refers to the sale of planting stock to produce a perennial crop and its status as nonorganic or organic. To be sold, labeled or represented as organic perennial planting stock, the planting stock must be maintained under a system of organic management for a period of no less than 1 year. The Preamble to the Final Rule, Subpart C – Organic Crop, Wild Crop, Livestock and Handling Requirements – Production and Handling (General), paragraph 6 clearly states:

“Planting stock used to produce a perennial crop may be sold as organically produced planting stock after it has been maintained under a system of organic management for at least 1 year.”
The NOP draft guidance document, we believe, incorrectly expands the requirement in Section 4.2 d 3 to say that crops harvested from perennial planting stock must be under organic management for 12 months.

The draft guidance goes on to clarify that certain perennial plants may be grown as annuals, in which case new planting stock is used each year to produce one harvest of an organic crop. Such planting stock may be considered annual planting stock and sourced per the requirements for seed § 205.204(a)(1-2). This sets up a scenario where a grower could plant non-organic strawberries and harvest the crop for one harvest season. However, if they were to leave the strawberries in the ground for longer than one season, the plant would now be considered a “perennial” and they would have to manage the plants organically one year prior to harvest. This does not make logical sense.

OTA believes the real concern is about purchasing non-organic planting stock, placing the plant in the ground, and then immediately harvesting any existing growth and selling it as organic. A common example we’ve heard includes rosemary or tarragon, where existing growth on the planting stock that was not grown under organic management would be harvested and sold as organic. In practice, it’s unlikely if not unheard of for herb producers to harvest existing growth from planting stock. They would instead wait and harvest established new growth that was grown under a system of organic management. Regardless, the potential concern can be remedied by clarifying the intent of the regulation.

In the guidance document, the Harvest section should be changed to read:

“Crops from organic planting stock may be sold, labeled or represented as organic at any time. Crops from nonorganic planting stock, sourced in accordance with § 205.204(a)(12), may be sold, labeled or represented as organic if the harvestable yield is new growth, produced under a system of organic management.”
The allowance in the regulation is to use non-organic seed or planting stock when organic alternatives are not available. However, the rule does not allow for non-organic crops to be labeled or represented as organic unless they have been produced under a system of organic management or, in the case of planting stock, maintained under a system of organic management for a period of no less than 1 year. The suggested language, therefore, clarifies the existing regulations by specifying that existing growth on non-organic planting stock cannot be sold as an organic crop. Additionally, the proposed clarification is certifiable since harvest practices can be verified through inspection of receipts, planting dates, harvest dates and sales records.

See Appendix 1 for our complete revisions. Annual and perennial has been deleted throughout the document. Other changes are found in Section 4.3 (Certified Operations: Specific Considerations Regarding the Sourcing of Seeds, Annual Seedlings, and Planting Stock)

VI. The draft guidance does not address non-compliances and possible suspension or revocation as tools of enforcement.

Certifiers need more clarity and support on the issue of non-compliances. When does the failure to source organic seed or planting stock become a major non-compliance, and what evidence is needed to pursue suspension or revocation based on the use of non-organic seed? The draft guidance is silent on this point. This is an area that was also addressed in the 2008 NOSB Recommendation.

It’s important that certifiers are provided with examples or situations where non-compliances would be appropriate. ACA trainings and guidance should inform ACAs that the issuance of both minor and major non-compliances to certified operators on this issue is a tool to be considered in all audits. The development of an on-line training module for the assessment of commercial availability would be an excellent approach to assisting certifiers.

See Appendix 1, 4.2 for our suggested revised language.

VII. The draft guidance does not address labeling considerations for certified seed

The role of seed handlers (i.e., seed processing, cleaning, blending, packaging) and the requirements for labeling need to be clarified. There is confusion and disagreement among certifiers about how to apply the composition and labeling requirements to packaged seed. The following scenarios need to be considered:
Blended Seed Mix: A certified handler makes an orchard grass blend orchard consisting of Organic Rye and Organic Alfalfa (97% by weight combined) and Non-organic White Clover (5% by weight). The orchard grass is labeled and sold as “Organic Orchard Grass”. Can the orchard grass blend be labeled “organic?” Do the regulations at § 205.300 apply?

Organically Grown Seed Treated with a Non-synthetic or National List Substance: Can the seed be labeled as “Organic”? Does the handler (person/company treating the seed) need to be certified? What if the treatment material comprises more than 5% of the overall weight of the treated seed? Do the regulations at § 205.300 apply?
VIII. Draft guidance inserts provisions on seed treatments and preparation in the wrong place. Additionally, the guidance on the use of chlorine as a seed treatment is not consistent with the recent NOP Guidance on the Use of Chlorine (NOP 5026).

Seed treatments and preparations are not involved in the issues of “equivalent variety” or “commercial availability.” They are listed on the National List because they are not organic materials. However, the section devoted to seed treatments and preparations is on Page 4, where it is juxtaposed with material dealing with seeds, seedlings and planting stock. This section should be moved to a separate location in the guidance.

In reference to the recent NOP guidance on chlorine, this paragraph applies the pre-harvest chlorine guidance to seed, limiting chlorine at contact to 4 ppm or below. However, seed treatment with chlorine occurs post-harvest (of the seed), so seed treatment with chlorine should be allowed according to the post-harvest guidance for chlorine, allowing direct contact at higher levels approved by the FDA and/or EPA with a final rinse.

See Appendix 1: We have created a separate section for seed treatments and preparations (4.4) and included suggested revisions for improvement.

IX. The Draft Guidance does not address the prohibition on excluded methods.

Draft Guidance should reiterate that certified operators may only use non-organic seed or planting stock produced without the use of excluded methods. OTA recognizes that seed purity and contamination issues are threatening organic agriculture. Food production starts and ends with seed, therefore assuring an ample supply of verified non-GMO seed should be a priority of the National Organic Program. While the development of a Seed Purity Standard is the ultimate goal, in the interim we request that NOP reiterate the already existing prohibition on excluded methods, and specifically state in the guidance that non-organic seed must be produced without the use of excluded methods.

X. The Draft Guidance does not include the role of NOP in supporting the implementation of the guidance, nor does it contain a statement of policy that the NOP supports and encourages development of a national database of available varieties of organic seed and planting stock.

The policy section of the Draft Guidance describes the role of the producer and the role of the certifying agent. It would be helpful if the guidance also included the role of NOP and the efforts that will be made to ensure the guidance is effectively implemented. OTA suggests that the following language be added:

The National Organic Program (NOP) will continue to address the use of organic seeds and planting stock during training programs for Accredited Certifying Agents (ACAs). Training efforts will include the development of an on-line training module. It will emphasize to ACAs that they should monitor their clients’ use of organic seed and planting stock for evidence of increased usage, including handling operations that make seed purchase decisions. Monitoring by ACAs of organic seed and planting stock usage will be part of the NOP’s accreditation reviews of ACAs. NOP will encourage ACAs to regard non-compliances as a tool to be used when growers and handlers do not follow procedures intended to lead to greater usage of organic seed and planting stock. NOP will encourage development of a national database of available varieties of organic seed and planting stock. This would facilitate the greater use of organic varieties if certified operations and certifying agents were required to consult such a database.

Conclusion

OTA strongly supports the further development of the organic seed and planting stock industry. The goal of our efforts should be to promote the continued growth and improvement in organic seed and planting stock production and subsequent usage by organic growers without hurting or putting undue burdens on growers. The intent is not to have non-compliances handed down to farmers trying to comply with the seed and planting stock commercial availability section of the Rule. Instead, the intent is to provide guidelines that will help ensure the consistent application and enforcement of organic seed requirements, which, in turn, will promote the production and use of organic seed.

One major-- if not THE central—obstacle that has been stressed over and over from our members is the lack of central and public information about the availability of organic seed and planting stock. Perhaps the most important tool that would help certified operators and certifying agents in their efforts to source and evaluate the availability of organic seed and planting stock is a national database of available organic varieties. Without a national database, producers and certifiers simply do not have the resources to adequately source and evaluate commercial availability. NOP should encourage development of a national database (1) by requiring in the interim that certified operators and certifying agents consult all available databases, and (2) by actively seeking the establishment of a single national database in the future.

To quote the NOSB, “A vibrant organic seed industry would be expected to be the best guardian of proven traditional seed varieties and methods, as well as the likely source of new innovations in organic growing methods that will result in excellent quality seed in sufficient quantities to supply the market need at reasonable costs.”

Again, on behalf of our members across the supply chain and the country, OTA thanks NOP for the opportunity to comment and for carefully considering our comments.

Respectfully submitted,

Gwendolyn Wyard
Associate Director of Organic Standards and Industry Outreach
Organic Trade Association

cc: Laura Batcha Executive
Vice President
Organic Trade Association

Appendix 1 – Suggested Revisions to the Draft Guidance

1. Purpose


This guidance describes practices for certified operations to demonstrate their proactive efforts to procure all organic seeds, annual seedlings, and annual and perennial planting stock in support of their Organic System Plan (OSP). This guidance describes what constitutes an organic seed or planting stock of an “equivalent variety” to a non-organic seed or planting stock. This guidance describes the form, quality, or quantity criteria that need to be addressed when seeds or planting stock are commercially unavailable as organic to the producer. This guidance also clarifies considerations regarding the inputs and substances routinely used to optimize the performance of seeds and plant materials during propagation.

2. Scope

This guidance applies to all National Organic Program (NOP) certifying agents, certified and exempt organic crop producers, certified and exempt handlers purchasing seed for contractual growing purposes, and suppliers of seeds, annual seedlings, and annual or perennial planting stock.

3. Background

The NOP regulations at 7 CFR § 205.204 require that organic producers use organic seeds, annual seedlings, and planting stock. The regulations allow producers to utilize non-organic seeds and annual or perennial planting stock when organic varieties are not commercially available.

In November 2008, the National Organic Standards Board (NOSB) provided a recommendation to NOP that outlined specific concepts and procedures for determining whether an “equivalent variety” of organic seed was “commercially available.” This recommendation incorporated a previous NOSB recommendation on organic seed adopted in August 2005. NOSB emphasized that utilizing organic seed is a fundamental part of supporting a healthy, viable organic seed industry. There has been considerable public comment at the business meetings of NOSB in support of these goals. In addition, a 2002 NOSB recommendation also addressed the use of planting stock for the production of perennial crops grown as annuals, such as raspberries or strawberries, when equivalent organic varieties are not commercially available. This guidance takes into consideration and acts upon these NOSB recommendations.

4. Policy

Producers and handlers making seed purchase decisions must clearly describe and document their strategies to procure organic seeds, annual seedlings, and annual or perennial planting stock in their OSP. Producers must also provide clear documentation regarding the inputs and materials used to support the performance of their seeds and plant materials during propagation. Certifying agents must assess the criteria, procedures, documentation, and progress of certified production and handling operations as they source seeds, annual seedlings, and annual or perennial planting stock on an annual basis. Certifying agents must review all substances and inputs used to support propagation of seeds and planting materials for compliance with the NOP regulations and to protect organic integrity and prevent contamination with prohibited substances. Each of these concepts is described in more detail below.

The National Organic Program (NOP) will continue to address the use of organic seeds and planting stock during training programs for Accredited Certifying Agents (ACAs). It will emphasize to ACAs that they should monitor their clients’ use of organic seed and planting stock for evidence of increased usage, including handling operations that make seed/planting stock purchase decisions. Monitoring by ACAs of organic seed or planting stock usage will be part of NOP’s accreditation reviews of ACAs. NOP will encourage ACAs to regard non-compliances as a tool to be used when growers and handlers do not follow procedures intended to lead to greater usage of organic seed and planting stock. NOP will encourage development of a national database of available varieties of organic seed and planting stock. This would facilitate the greater use of organic varieties if certified operations and certifying agents were required to consult such a database.

4.1 Certified Operations: General Considerations and Documentation Regarding the Sourcing of Seeds, Annual Seedlings, and Planting Stock

a. Certified operations must use organic seed, annual seedlings, and planting stock per § 205.204. “Certified operations” include handling operations if they contract with producers and specify the seed that the producer is to use, so that the producer is not involved in the seed purchase process.

b. Certified operations producing edible sprouts must use organic seed without exception per § 205.204(a)(2).

c. Certified operations may use non-organic seed and planting stock if an equivalent variety of organic seed and planting stock is not commercially available as defined in § 205.2 in an appropriate form, quality, or quantity to fulfill an essential function in organic production. Price cannot be a consideration.

Equivalent Variety3: An equivalent variety means a variety exhibiting the same “type4” (such as head lettuce types, leaf lettuce types) and similar agronomic characteristics (i.e., vigor, yield, regional adaptation, pest and disease resistance) and marketing characteristics (i.e., taste, color, texture) as the original varietal choice.

Certified operators using non-organic seed and planting stock must maintain documentation demonstrating that there is not an “equivalent” organic variety or that the “equivalent” variety is not “commercially available.” Such documentation should be maintained as part of the Organic System Plan and reviewed during the annual renewal cycle.

i. A description of the site-specific agronomic or marketing characteristics required, and a demonstration that the producer or handler could not source an organic “equivalent variety” meeting these characteristics; or

ii. If the producer or handler could source an organic “equivalent variety” meeting those characteristics, a demonstration that the organic “equivalent variety” was not available in an appropriate form, quality or quantity, and thus was not “commercially available” to meet the producer or handler’s requirements.


  • Form considerations: Examples may include, but are not limited to, treated or non-treated, pelleted or non-pelleted.

  • Quality Considerations: Examples may include, but are not limited to, germination rate of the seed; presence of weed seeds in the seed mix; shelf life and stability of the seeds; and disease and pest resistance.

  • Quantity Considerations: i.e., Are the quantities available provided in the amount needed given the scale and/or needs of the operation?
iii. Written description of trials or other data comparing organic and non-organic seeds or planting stock. If the producer or handler makes a claim that available varieties of organic seed are not equivalent to non-organic seed that the producer or handler prefers to use, supporting documentation must be provided to the certifying agent. (Certifiers may grant an allowance to use non-organic seed/planting stock if an operator conducts “on farm” trials comparing organic and non-organic seed varieties. If so, documentation of “on farm” trials should be recorded in the operation’s organic system plan.)

d. Certified operations should contact seed or planting stock sources to ascertain the availability of organic seed or planting stock for all crops grown.

  1. These sources must be companies that offer organic seeds and planting stock;

  2. The number of seed or planting stock sources contacted should be relative to the number of companies potentially supplying the organic equivalent variety being procured. A minimum number of three should be contacted;

  3. Documentation regarding this search should be maintained as part of record keeping.
e. Certified operations must establish a documented procedure as part of their Organic System Plan (OSP) that includes:

1. The identity of the seeds and planting stock sought;

2. The search and procurement methods used to source organic varieties for all crops grown;

3. Records showing whether, from year to year, the operation has, through continuous improvement, increased the overall use of organic seed and planting stock. For row crops and for specialty crops grown on substantial amounts of acres, the percentage of total crop acreage planted with organic seed and/or planting stock year after year would be an appropriate measure of improvement. For specialty crops grown in diverse varieties on smaller acreages, an appropriate measure of improvement would be the number of organic varieties of seed and/or planting stock used year after year, rather than the acreage.

4. The records that demonstrate the use of organic seeds, and planting stock, or the commercial unavailability of organic seeds, or planting stock.

i. Records may include, but are not limited to: letters, faxes, email correspondence, and phone logs from seed suppliers and companies; seed catalogs; searches of recognized seed databases; documentation of variety trialing results; documentation of a third-party’s efforts on behalf of the certified grower (i.e., contract buyers and seed brokers); receipts; and receiving documents, invoices, and inventory control documents.

ii. Receipts and other similar documentation demonstrating the purchase of organic seed and planting stock should correspond with planting and trial information if the certified operator is demonstrating the organic “equivalent variety” does not meet quality specifications.
f. Per § 205.204(a)(3), certified operations may use non-organic annual seedlings to produce an organic crop only when a temporary variance has been granted by the AMS Administrator in accordance with § 205.290(a)(2) due to an extreme weather event or business disruption beyond the control of the producer.

g. Certified operations may only use non-organic seed or planting stock that has been produced without the use of excluded methods, ionizing radiation and sewage sludge.

4.32 Accredited Certifying Agents’ Role in Overseeing Use of Organic and Non-Organic Varieties

As part of the annual review of the Organic System Plan:

  • Certifying agents must verify the procedures that certified operations, including producers and handlers, utilize to obtain and plant organic varieties suitable for their operations.

  • Certifying agents must verify that certified operations, including producers and handlers, using non-organic seed and planting stock were not able to source organic “equivalent varieties” or, if they were able to source organic “equivalent varieties,” were not able to find those varieties as “commercially available” based on form, quality or quantity.

  • Certifying agents shall verify the commercial availability requirements on an annual basis.

  • Certifying agents should verify an operation’s progress in obtaining organic seeds, planting stock and transplants by comparing current source information to previous years.
  • Certifying agents must verify the organic compliance of all inputs, seeds, annual seedlings, and planting stock used in certified operations. This includes verification that non-organic seed and planting stock were produced without the use of excluded methods, ionizing radiation and sewage sludge.
  • Certifying agents must issue non-compliances to certified operators that demonstrate a pattern of inadequate documentation to obtain organic seed and planting stock. Non-compliances may result in certifying agents requiring prior approval regarding commercial availability issues in future planting cycles.

  • Certifying agents must emphasize to certified operations that the price of an organic “equivalent variety” is never a factor in determining whether the organic “equivalent variety” is “commercially available.”
In granting an allowance to a producer or handler to use non-organic seed or planting stock to produce a crop that can be sold or labeled as “organic,” the ACA shall:

  • Evaluate the operator’s claim that no organic seed or planting stock was available in an “equivalent variety” or that the “equivalent variety” was not “commercially available.”

  • Validate that the operator has properly and completely documented that there was no organic seed or planting stock available in an “equivalent variety” or was not “commercially available.”

4.3 Certified Operations: Specific Considerations Regarding the Sourcing of Seeds, Annual Seedlings, and Planting Stock

a. Certified operations should consider which category (seed, annual seedling, or planting stock) best describes their inputs according to the definitions below.
Operations should also describe the following source, treatment, and harvest requirements, as applicable, for these inputs in their OSP.

b. Seed

  1. Definition: The part of a flowering plant that contains the embryo with its protective coat and stored food that develops into a new plant.

  2. Source: Certified and exempt operations must use organic seed per § 205.204, unless they are not commercially available as organic per as defined in § 205.2.
    i. Organic operations producing edible sprouts must use organic seed without
    exception per § 205.204(a)(2).

  3. Seed Treatments or Preparations See New Section 4.4

c. Annual Seedling or Transplant

1. Definitions:

  • Annual Seedling - A plant grown from seed that will complete its life cycle or produce a harvestable yield within the same crop year or season in which it was planted.

  • Transplant - A seedling which has been removed from its original place of
    production, transported, and replanted.

2. Source: Annual seedlings or transplants must always be organic per § 205.204, unless producer has been granted a temporary variance by the Agricultural Marketing Services (AMS) Administrator in accordance with § 205.290(a)(2) due to an extreme weather event or business disruption beyond the control of the producer.

d. Planting Stock

1. Definition: Any plant or plant tissue other than annual seedlings but including
rhizomes, shoots, leaf or stem cuttings, roots, or tubers, used in plant production or
propagation.

2. Source: Certified and exempt operations must use organic planting stock per §
205.204, unless they are not commercially available as organic as defined in § 205.2.

3. Harvest:
  • Crops from organic planting stock may be sold, labeled or
    represented as organic at any time.

  • Crops from non-organic planting stock, sourced in accordance with § 205.204(a)(1-2) may be sold, labeled or represented as organic after 12 months of organic management. if the harvestable yield is new growth produced under a system of organic management.

  • Planting stock, to be used for the production of perennial crops, sourced from
    non-organic planting stock may be sold, labeled or represented as organic
    planting stock only after the planting stock has been maintained under a system of organic management for a period of no less than one year.

4.4 Seed Treatments or Preparations: The application of materials or processes to seeds to optimize their performance through: 1) improving germination rates; 2) optimizing ease of handling and accuracy of planting; 3) eradicating seedborne or protecting from soilborne pathogens; or 4) providing nutrients or
microbial stimulants.

a. All materials and processes used in the preparation or treatments of seed need to be described in the OSP. Allowed treatments include:

  1. Peracetic acid is specifically allowed for use in disinfecting seed per § 205.601(a)(6).

  2. Hydrogen chloride, is specifically approved as a seed treatment for use on organic seeds on § 205.601(n), and only for the delinting of cotton seed for planting.

  3. Nonsynthetic substances that are not prohibited are allowed as seed treatments.

  4. Post-harvest use of chlorine materials may be used as per 205.601(a)(2) provided chlorine levels are approved by the Food and Drug Administration or the Environmental Protection Agency for such purpose. Rinsing with potable water that does not exceed the maximum residual disinfectant limit for the chlorine material under the SDWA must immediately follow this permitted use.

  5. Other synthetic substances listed for appropriate uses in § 205.601 (e.g., for pest or disease control, or as a soil or plant amendment).
b. Types of Treatments or Preparations

Priming: The use of water to activate the early stages of germination. Any priming agents added to water must be compliant for organic production.

Pelleting: A clay coating applied to seed to increase its size and modify its shape into a more uniform ball. Pelleting allows for more even and efficient direct seeding of fields or containers either by hand or mechanically with the use of seeding equipment calibrated to the specific sizes and shapes of the pelleted seed. Ingredients used in pelleting must be nonsynthetic or included on the National List at § 205.601 for an appropriate use. Any pelleting agents added to clay must be compliant for organic production.

Inoculant Preparations: Bacteria that fix nitrogen from the air and soil that are
commercially prepared for use with legumes during seeding. The materials used in
Rhizobium or other microbial preparations cannot be genetically modified per the
prohibition of excluded methods as defined by § 205.105 (e) and § 205.2.

Pesticides, including Fungicides, Herbicides and Insecticides: All pesticides used as seed treatments must be compliant for organic production, including inert and active ingredients. Botanical or biological preparations cannot be genetically modified per prohibition for excluded methods as defined by § 205.105 (e) and § 205.2. Some seed varieties may benefit from hot water treatments for pathogen control.

5. References

5.1 Definitions

Organic Integrity. The quality of an organic product or system which is achieved through verified adherence to organic standards from farm production through all points of handling and processing to the point of final sale to the consumer.

5.2 NOP Regulations

§ 205.2 Terms defined.

Annual seedling. A plant grown from seed that will complete its life cycle or produce a harvestable yield within the same crop year or season in which it was planted.

Commercial availability. The ability to obtain a production input in an appropriate form, quality, or quantity to fulfill an essential function in a system of organic production or handling, as determined by the certifying agent in the course of reviewing the organic plan.

Excluded methods. A variety of methods used to genetically modify organisms or influence their growth and development by means that are not possible under natural conditions or processes and are not considered compatible with organic production. Such methods include cell fusion, microencapsulation and macroencapsulation, and recombinant DNA technology (including gene deletion, gene doubling, introducing a foreign gene, and changing the positions of genes when achieved by recombinant DNA technology). Such methods do not include the use of traditional breeding, conjugation, fermentation, hybridization, in vitro fertilization, or tissue culture.

Planting stock. Any plant or plant tissue other than annual seedlings but including rhizomes, shoots, leaf or stem cuttings, roots, or tubers, used in plant production or propagation.

Transplant. A seedling which has been removed from its original place of production, transported, and replanted.

§ 205.204 Seeds and planting stock practice standard.

(a) The producer must use organically grown seeds, annual seedlings, and planting stock: Except, That,

(1) Non-organically produced, untreated seeds and planting stock may be used to produce an organic crop when an equivalent organically produced variety is not commercially available: Except, That, organically produced seed must be used for the production of edible sprouts;


(2) Non-organically produced seeds and planting stock that have been treated with a substance included on the National List of synthetic substances allowed for use in organic crop production may be used to produce an organic crop when an equivalent organically produced or untreated variety is not commercially available;


(3) Non-organically produced annual seedlings may be used to produce an organic crop when a temporary variance has been granted in accordance with §205.290(a)(2);


(4) Non-organically produced planting stock to be used to produce a perennial crop may be sold, labeled, or represented as organically produced only after the planting stock has been maintained under a system of organic management for a period of no less than 1 year; and


(5) Seeds, annual seedlings, and planting stock treated with prohibited substances may be used to produce an organic crop when the application of the materials is a requirement of Federal or State phytosanitary regulations.



5.3 NOP Program Handbook: Guidance and Instructions for Accredited Certifying Agents & Certified Operations


NOP 2606 – Processing Requests for Temporary Variances

1 Variety is defined by the Federal Seed Act as a subdivision of a kind which is characterized by growth, plant, fruit, seed, or other characters by which it can be differentiated from other sorts of the same kind, for example, Marquis wheat, Flat Dutch cabbage, Manchu soybeans, Oxheart carrot, and so forth. Kind means one or more related species or subspecies, which singly or collectively is known by one common name, for example, soybean, flax, carrot, radish, cabbage, cauliflower, and so forth.

2 “Type” is defined by the Federal Seed Act of 1939 (7 U.S.C. 1551-1661.) as either (A) a group of varieties so nearly similar that the individual varieties cannot be clearly differentiated except under special conditions, or (B) when used with a variety name means seed of the variety named which may be mixed with seed of other varieties of the same kind and similar character, the manner of and the circumstances connected with the use of the designation to be governed by the rules and regulations prescribed under section 1592 of the Federal Seed Act.

 
3 Variety is defined by the Federal Seed Act as a subdivision of a kind which is characterized by growth, plant, fruit, seed, or other characters by which it can be differentiated from other sorts of the same kind, for example, Marquis wheat, Flat Dutch cabbage, Manchu soybeans, Oxheart carrot, and so forth. Kind means one or more related species or subspecies, which singly or collectively is known by one common name, for example, soybean, flax, carrot, radish, cabbage, cauliflower, and so forth.

4 “Type” is defined by the Federal Seed Act of 1939 (7 U.S.C. 1551-1661.) as either (A) a group of varieties so nearly similar that the individual varieties cannot be clearly differentiated except under special conditions, or (B) when used with a variety name means seed of the variety named which may be mixed with seed of other varieties of the same kind and similar character, the manner of and the circumstances connected with the use of the designation to be governed by the rules and regulations prescribed under section 1592 of the Federal Seed Act.

 
 
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