Specific Comments 26-50 - Organic Trade Association
Organic Trade Association
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Specific Comments 26-50


26. 205.2 Terms defined.


System of organic production and handling. Re-state the last phrase: “and handle the agricultural products using only those synthetic additives or processes which are in accordance with the Act and regulations in this part.”.


Rationale: The definition of “system of organic production and handling” in the proposed rule includes the vague and subjective  phrase “ without the use of extraneous synthetic additives or processing.”  The concept of “extraneous synthetic additives or processing” is not defined, explained in the proposed regulation, found in OFPA, or referenced in an NOSB recommendation. The term “extraneous” should be deleted, and the passage should make clear that only those synthetic additives or processes which are in accordance with the Act and regulations in this part are allowed.

27. 205.2 Terms defined.


Insert after the definition of “Organic” the following:


Organic agriculture. A holistic production management system which promotes and enhances agro-ecosystem health, including biodiversity, biological cycles, and soil biological activity; emphasizes the use of management practices over the use of off-farm inputs; and utilizes cultural, biological and mechanical methods as opposed to synthetic materials.”


Rationale: The proposed rule does not provide a definition of “organic agriculture,” or contain a statement of “Principles of Organic Production and Handling.” The definition above is taken from AOS, and it is consistent with a more lengthy recommendation of the NOSB. (Orlando, April, 1995, Sligh, p. 199) It is also consistent with Codex Guidelines, as supported by the United States. It provides an understandable definition of organic agriculture which can be presented to the public, to other government agencies, and to foreign governments in equivalency discussions.


28. 205.2 Terms defined.


Insert as a new definition:

Split operation. An operation that produces or handles non-organic agricultural products in addition to agricultural products produced organically.” 


Rationale: Though the proposed rule does not currently use the term “split operation,” the concept is clearly addressed in OFPA, 6506(b). The term was used by the NOSB. (Santa Fe, June, 1994, Sligh, p. 135) Split operations will need to be addressed in program manuals, and further clarification should be added to the rule concerning the management and certification of split operations. It is important that the rule contain a definition of “split operation,” as proposed above. (from AOS)


29. 205.2 Terms defined.


Insert as a new definition:


Substantially transform. Actions by a handler of organic products that change the nature of the product or packaging. Includes any processing actions and post harvest treatments that contact products not in closed impermeable containers. Does not include inspection of products and storage procedures such as refrigeration, freezing, or controlled atmosphere.” 


Rationale: The term “substantially transform” is not used in the proposed rule, but it was used by the NOSB (Austin, 1995, Sligh, p. 71) to distinguish handlers who must be certified from handlers exempt from certification. The definition proposed above is taken from AOS, and is consistent with NOSB language.


30. 205.2 Terms defined.


Insert as a new definition:


Transition (conversion). The act of establishing organic management practices in accordance with organic standards.” 


Rationale: The proposed rule does not contain a definition of “transition.” The definition above is taken from AOS, and is widely supported and understood by the organic community.


31. 205.2 Terms defined.


Insert as a new definition:


Transition period (conversion period). The time between the start of organic management and certification of the crop or livestock production system or site as organic.” 


Rationale: The proposed rule does not contain a definition of “transition period.” The definition above is taken from AOS. It is consistent with Codex, and is widely supported and understood by the organic community.


32. 205.2 Terms defined.


Insert as a new definition:

Transitional product. A product from an operation or portion thereof, which has completed one or more years of the transition period towards becoming a certified organic operation and is under the supervision of a certifying agent.” 


Rationale: The proposed rule does not define “transitional product,” or allow for the labeling of transitional products. Currently, markets exist for certain transitional products. Some States have regulations defining transitional products, and some certifying agents certify transitional products. Some differences exist between the current regulations. It is important that the rule set a consistent national definition of transitional products, so that consumers aren’t mislead. Having a recognized transitional label will also facilitate the growth of organic agriculture by providing a premium price to farmers who convert to organic methods. The definitions proposed above are consistent with Codex Guidelines, and with NOSB discussion of the subject. (Rohnert Park, October, 1994, Sligh, p. 208)


Subpart B - Applicability


33. 205.100


Insert after 205.100(b), the following:

“(c) Products of farms in transition to organic certification may only be labeled as “certified transitional” or “transitional” after 12 months of production using methods according to the Act and regulations in this part. At least one inspection must occur prior to harvest of the transitional crop. Transitional status may only be granted where the applicant can provide evidence of:

    (i) At least 12 months of organic management prior to harvest; or


    (ii) Twelve (12) months with no application of prohibited materials prior to planting and organic management of the crop requested for transitional certification.”


Rationale:  No transitional labels are defined or recognized in the proposed rule. At least 5 States, including Louisiana, Oregon, Rhode Island, Texas, and Washington, and several private certifying agents, have regulations defining transitional certification and labeling. Those regulations vary from State to State and agent to agent. The establishment of a National Organic Program is an excellent opportunity to set a consistent national standard for the certification and labeling of transitional products. By setting a transitional standard, producers will have more incentive to convert to organic production, due to the potential for a premium price. In doing so, market forces, rather than government support payments or statutory requirements, will drive the conversion process. Under the AOS text presented above, producers will be required to be inspected and certified by an accredited certifying agent in order to market their products as “transitional” or “certified transitional.”


The regulatory text proposed above is consistent with Codex Guidelines, and with NOSB discussion of transitional labels. (Rohnert Park, October, 1994, Sligh, p. 208)


34. 205.101(a)(1)


Delete from 205.101(a)(1), the words, “or handling.”

Rationale: The $5000 small farm exemption, which under OFPA, 6505(d), applies to the “value of agricultural products” sold, is extended in the proposed rule to include “organic sales” and handling sales. This adds up to a potential total annual exemption of $10,000 in organic product sales. OFPA, 6505(d), clearly refers to a “Small Farmer Exemption,” not a “small farmer and handler exemption.”  There is no language in OFPA, in the House-Senate Conference Committee report, or in the recommendations of the NOSB, which authorizes, or even suggests, that the small farmer exemption should be extended to include handlers.

This section provides an exemption from certification for operations with less than $5000 in income, as required in OFPA. OTA supports this figure for the exemption of small farms. However, OFPA does not mention any exemption to be granted to small handlers. Many private and State programs currently require handlers to be certified in order to represent products as organic (including Oregon Tilth, California Certified Organic Farmers, and the State of Texas). In addition, EU standards do not grant exemptions to either farmers or handlers. OTA recommends that all handlers be certified without an income level exemption. Small on-farm processing or handling operations can be certified as co-packers under the farm operation, without additional fees, as processors. It would be preferred that exemptions be granted on fees paid to USDA by low-income handlers and farmers, rather than exemptions granted from mandatory certification.


35a. 205.101(a)(2)


Rewrite section 205.101(a)(2) as follows:




(2) A handling operation that is a retail establishment or portion of a retail establishment that handles organically produced agricultural products but does not process, substantially transform, repack or re-label these products  them is exempt from the requirements in this part. Exempt processes include normal produce handling and display, re-packaging for weight, including cutting of meat and bulk or bin sales as long as certification information is displayed. Retail operations that require certification include multi-ingredient food preparation, salad and juice bars, bakeries, and store labeling of organic products. Retailers that commission private label products in a final retail package and do not identify the manufacturer must be certified.


Rationale: See comment below.


35b. 205.101(b)(2)


205.101(b)(2) should be amended to only exclude retail operations that do not process organic products, by amending to read:


“205.101(b)(2) A handling operation that is a retail food establishment or portion of a retail food establishment that does not process or prepare, on the premises of the retail food establishment, raw and ready-to-eat food…”


Rationale for comments 35a and 35b above: Retail operations, including those with delicatessens, salad bars, bakeries, and juice bars, are excluded from certification under the proposed rule. This is a clear violation of OFPA. OFPA, section 6502(9), only excludes “final retailers that do not process agricultural products.”  The Proposed rule goes beyond the NOSB recommendation, which requires certification of retail operations that process, consistent with OFPA. Furthermore, the proposed rule does not provide for consumer right to know, or protect against potential fraud at the retail level. It provides retail operations which process organic food an unfair competitive advantage over processing operations which produce the same food products, since the processing operations must be certified, while the retail operations which process are excluded from the certification requirement.


The preamble states that a retail food establishment that processes or prepares, on the premises, raw and ready-to-eat food from certified agricultural products is excluded from the regulations, except for prevention of contact of organic with prohibited substances and the labeling regulations. The prevention of commingling and labeling requirements protect the organic integrity of the products.


The preamble also states that retail establishments are excluded because comments to the first proposal were divergent. It does not preclude certification in the future nor does it preclude States from establishing their own programs.


OTA recommends that the regulations reflect the American Organic Standards (AOS), and the intent in OFPA, to certify retailers if they are defined as handlers of organic products. Retailers that process organic products should not be excluded from certification.


36. 205.101(c)


After “exempt” add “and excluded”.


Rationale: Excluded operations should be included in requirements for recordkeeping for the same reasons exempt operations are required to keep records.


37. 205.101(c)(1)


After “exempt” add “or excluded”.


Rationale: As above, the Rule should make clear that both exempt and excluded operations are included in requirements for recordkeeping.




38. 205. 101


Section 205.101 places certain requirements, such as adherence to labeling, recordkeeping, and prevention of contamination and commingling requirements on operations which are exempt or excluded from certification, yet the proposed rule contains no language concerning how the requirements will be enforced or regulated. NOP should establish a simple, cost effective registration system for exempt and excluded operations, through which such operations attest to their exempt/excluded status and affirm compliance with all applicable requirements of NOP. Language establishing such a registration system should be inserted in section 205.101 and/or 205.660.

Subpart C - Organic Production and Handling Requirements


39. New subsection 205.201(a)(2)(i)


Add the following to the organic handling system plan:


“205.201(a)(2)(i) For products labeled “organic,” a list of non-organic ingredients used in processed products and documentation of commercial non-availability of organic sources.”


Rationale: Handlers are currently required to submit a list of both organic and non-organic ingredients to be used in products requested for certification, when they submit their organic handling plans to certifying agents. Inclusion of the suggested text would help clarify the requirements in 205.201(a)(2).


40. 205.201 and 205.202


Sections 205.201 and 205.202 should be amended to include the requirements for split operations contained in OFPA.

Rationale: Sections 205.201 and 205.202, as currently drafted in the proposed rule, allow split operations, including those with parallel production of indistinguishable varieties, to be certified with no restrictions or additional considerations. OFPA 6506(b)(1)(A) requires “in the case of a farm or field, the area to be certified has distinct, defined boundaries and buffer zones separating the land being operated through the use of organic methods from land that is not being operated through use of such methods.” OFPA 6506(b)(1)(B) requires such operations to “maintain records of all organic operations separate from records relating to other operations …”  OFPA 6506(b)(1)(C) requires that “appropriate physical facilities, machinery, and management practices are established to prevent the possibility of a mixing of organic and nonorganic products or a penetration of prohibited chemicals or other substances on the certified area.”  In their Organic Plan section addressing maintenance of organic integrity, (Santa Fe, June, 1994, Sligh, p. 146), the NOSB included similar language. Language pertaining to the management and certification of split operations also needs to be inserted in order to be consistent with Codex Guidelines, and to facilitate negotiation of an equivalency agreement with the European Union. AOS contains extensive language on split operations in sections,,, and


41. 205.203(b)


Delete the words “must budget and” from section 205.203(b).

Rationale: Section 205.203(b) currently requires producers to “budget” nutrients. The concept of nutrient budgeting is typically applied in conventional agriculture, where nutrients are supplied by the addition of synthetic fertilizers proportionate to projected yields. This concept is not directly applicable to organic production systems, where nutrients are cycled over much a much longer time period, and producers continuously strive to improve the tilth and organic matter content of their soils. The inclusion of this requirement would place an undue, and inappropriate, burden on producers, inspectors, and certifying agents.


42. 205.203(c)

Retain the wording of 205.203(c) as drafted. OTA supports this text.

43. 205.203(c)(3)


Delete the current text in section 205.203(c)(3) and replace with “Composted plant or animal wastes; and”.

Rationale: Section 205.203(c)(3) currently requires compost to be produced in compliance with NRCS compost practice standard code 317. As discussed in Definitions comment, the practice standard requires use of a “facility”, mandates high temperature composting, would inadvertently prohibit vermicomposting, and is written for large scale operations in order to assess whether they qualify for NRCS payments. Application of the NRCS practice standard is inappropriate and unreasonable. This section must allow both on-farm composting and the practice of vermicomposting. The suggested new language accomplishes this objective.


44. 205.203(d)(2)


Amend 205.203(d)(2) to read:

“(2) A mined substance of high solubility and salt index provided that;
(i) The producer's farm plan contains specific provisions for both the use of this product, the development of alternatives, and a timeline to end use;
(ii) The producer can document a reduction of the amount of the substance used over time;
(iii) In the case of sodium nitrate, the amount used on a given crop shall not exceed 20% of the nitrogen supplied to that crop from all sources.”


Rationale: As drafted, section 205.203(d)(2) allows for the use of Chilean nitrate and other “mined substances of high solubility, when justified by soil or crop tissue analysis.”  It does not require such substances to be listed on the National List, and does not include the annotations or restrictions recommended by the NOSB. Such substances must either appear on the National List, with annotations, or the substances addressed by the NOSB must be specifically listed in this section, accompanied by all restrictions on their use.


The suggested text above is consistent with the NOSB “Chilean Nitrate Special Use Guidelines” (Austin, November, 1995, Sligh, p. 176).


Furthermore, OTA supports prohibition of potassium chloride. Mined potassium chloride should be added as a prohibited non-synthetic under 205.602. 

45. 205.203(e)(3)


Section 205.203(e)(3) should be amended to read:

“(3) Burning as a means of disposal for crop residues produced on the operation: Except, burning as described in the organic system plan and approved by the certifying agent.”


Rationale: Section 205.203(e)(3) prohibits burning of crop residues, except for prunings from perennial crops, which “may be burned to suppress the spread of disease.”  The language proposed is overly restrictive. Burning diseased crops residues is an effective disease control strategy for annual, as well as perennial, crops. The language proposed would also inadvertently prohibit the organic production of certain native, medicinal, and wild harvested plants. Burning is an important management tool for the stimulation of seed germination for certain species, including native prairie, wild harvested crops, and medicinal herbs. Burning is also used to make nutrients readily available. The burning of rice straw and wheat stubble, on the other hand, is not agronomically justified, and has been historically prohibited by organic standards.

46. 205.204(a)


Insert a new section 205.204(a)(6) to read:

Seeds used for organic sprouts must be organically produced and handled.”

Rationale: Section 205.204(a) sets no requirements for organic seeds to be used in the production of organic sprouts. The NOSB (Santa Fe, June, 1994, Sligh, p.141) recommended that “seed used for the production of edible sprouts shall be organically produced.” This is also consistent with AOS and organic consumer expectations.

Markets already exist for organic sprouts, and certifying agents maintain standards for organic sprout production. Comprehensive, consistent standards should be inserted for organic sprout production. In addition to the issue of organic seeds discussed above, the following items, taken from AOS 5.10.4, should be incorporated in the rule:

“Water used for organic sprout production or seed treatment must meet criteria of Safe Drinking Water Act. The certifying agent shall require periodic testing. Chlorine use should not exceed Maximum Residual Disinfectant Limit. Seeds or growing sprouts shall not be rinsed or immersed in water with chemicals capable of releasing chlorine in solution in excess of federal water quality guidelines.

Seeds may be treated with the following materials/methods to prevent food-borne pathogens:


Hydrogen peroxide, periacetic acid;

Ozone products and processes; and

Any other substance that is on the National List and approved for such use.

For soil-grown sprouts, the soil media shall not contain prohibited materials. Fertilizers, soil amendments, sanitizers, and disinfectants not found on the National List, and prohibited non-synthetic substances, shall not be applied to the water or growing media.
Irradiation of seeds and sprouts is prohibited.”


47. New subsection 205.206(g)


Insert, after 205.206(f), the following new section:

“(g) Lumber treated with arsenate compounds or other prohibited materials is:

(1) Prohibited for new installations and replacement purposes in contact with soil used to produce organic crops; and

(2) Prohibited in other installations unless documentation is provided to the certifying agent that treated lumber was not installed within 36 months immediately preceding the initial harvest date of any organic agricultural product.”

Rationale: Section 205.206 does not address the use of treated lumber in organic crop production. The NOSB (Austin, November, 1995, Sligh, p. 177) recommended that “the use of arsenate (and other prohibited materials) treated lumber is prohibited for new construction and replacement purposes…In no case shall arsenate (and other prohibited material) treated lumber be allowed in installations in contact with the soil and used to grow vegetables (soil beds).” 

48. 205.207


Add the following new language:

“(c) The wild crop harvesting system must be managed to prevent:
            (1) soil erosion and other environmental disturbances; and

(2) adverse effects on biological diversity.

(d) The wild crop harvesting area must be documented on a map which is submitted to the certifying agent as part of the operator's organic system plan.

(e) Wild crop harvesting areas must have clearly defined and identifiable boundaries. Buffer zone requirements as delineated in 205.202(c) must be followed.”


Rationale: This section, “205.207 Wild-crop harvesting practice standard,” is incomplete. OFPA requires a plan; this rule needs to require a system plan to be consistent with OFPA. The rule also needs to set more detailed requirements, as suggested above.


49. 205.208-205.235


Insert the following basic specialty crop standards:

“205.208 Greenhouse production.

(a) Greenhouses operated as in-ground or permanent soil systems shall comply with all provisions of the Act and regulations in this part, including the requirement of three years prior to harvest without the application of prohibited substances.

(b) Greenhouses which operate as bench systems shall be allowed to plant organic crops after demonstrating to the satisfaction of the certification agent, that:

(1) No prohibited substances will compromise the integrity of the organic greenhouse production system;

(2) Non-synthetic potting media is permitted, including peat, vermiculite, perlite, compost, and other natural materials provided they do not contain prohibited non-synthetic materials found on the National List;

(3) Plants and soil shall not be in direct contact with wood treated with prohibited substances, including arsenic salts (e.g. copper-chromium-arsenate treated wood); and

(4) Organic greenhouses shall be operated and labeled as distinct units from conventional greenhouses on the same site.

(c) Light sources for greenhouses may be natural or artificial.

205.209 Mushrooms.

(a) Organic mushrooms may be grown indoors or outdoors.
(b) Mushrooms cultivated indoors shall comply with all provisions of the Act and regulations in this part: Except, such operations shall be allowed to plant organic mushrooms after demonstrating to the satisfaction of the certifying agent, that:

(1) The operation shall be managed organically throughout the entire growing period of the fungus to be sold as organic;

(2) No prohibited substances will compromise the integrity of the organic mushroom production system;

(3) Organic mushroom houses shall be operated and labeled as distinct units from conventional mushroom houses on the same site;

(4) All sources of substrate and spawn shall be documented in the operation’s organic system plan;

(5) Uncomposted substrate from agricultural sources, including grain, straw, and other agricultural materials, shall be organically produced; and
(6) Sawdust or wood products used for substrate must be obtained from sources which have not been treated with materials prohibited for use in organic production.

(c) Mushrooms cultivated outdoors shall comply with all provisions of the Act and regulations in this part: Except, such operations shall be allowed to plant organic mushrooms after demonstrating to the satisfaction of the certifying agent, that:

(1) The operation shall be managed organically throughout the entire growing period of the fungus to be sold as organic;

(2) All sources of trees and spawn shall be documented; and,

(3) To be used as substrate for organic mushrooms, logs shall be organically produced or be sourced from sites documented to have not been treated with prohibited materials for a minimum of three years (36 months) prior to harvest of the logs for mushroom production.

(d) Organically produced spawn must be used when commercially available. If documented as unavailable, non-organic spawn may be used, and may be cultured on non-organic grain, provided that prohibited materials are not applied during spawn production.

(e) The mushroom strains and substrate must not be from excluded methods.

(f) Sanitizers and disinfectants not found on the National List shall not be applied to mushroom crops or growing substrates. Chlorine (bleach) may be used for sanitizing equipment and facilities, but may not be applied to crops or substrate in concentrations above maximum recommended disinfection limit of the Safe Water Drinking Act.
(g) The certifying agent may require testing of substrate for residues of prohibited materials.

Maple Syrup Production.

(a) All cultural practices are to be chosen with the objective of maintaining tree health and ensuring long-term preservation of the sugarbush as an ecosystem.

(b) All practices and materials used must meet the general crop and handling requirements of the Act and regulations in this part.

(c) When tapping trees, producers shall take necessary precautions to avoid endangering the general health of the trees, including, but not limited to:

(1) Taps shall be hammered in gently to avoid splitting the sapwood when it is frozen;

(2) Taps shall be distributed evenly on the trunk; and

(3) Number of taps per tree: Trees greater than 10” in diameter at breast height shall have no more than one tap, with one additional tap for each 4” increase in diameter of tree. A maximum of 5 taps per tree is permitted. Tapping rates may be reduced if environmental factors cause accelerated die-back of the maple bush.

(d) Collecting equipment shall meet the following requirements:

(1) Vacuum pumps are permitted. Vacuum shall not exceed 20 inches of mercury at the pump and 15 inches of mercury at the taps;

(2) Taps, buckets, tubing and other equipment shall be in good condition and properly used. Freshening of taps with same size drill is permitted. Buckets must be covered at all times. Bark should be protected from girdling.

(e) Permitted techniques for processing of syrup include:

(1) All materials approved for processing as listed on the National List may be used;
(2) Acceptable defoaming materials include non-synthetic agents including organic vegetable oils, milk, and milk products;

(3) Use of settling tanks, traditional cone or flat filter types (paper, wool, orlon, or nylon), filters using diatomaceous earth, silica powder, or clay; and

(4) Boiling equipment must be made of stainless steel.

(f) The following practices and/or materials are prohibited:

(1) Products added to the syrup during processing to enhance the taste, texture, or appearance;

(2) Products added to maple sap to reduce the microbial population, including  paraformaldehyde and other tap hole pellets containing prohibited materials;

(3) Rusty containers or equipment; and

(4) Use of synthetic defoaming agents.”

Rationale: Basic standards for organic specialty products, including greenhouses, mushrooms, and maple syrup, need to be incorporated in the reserved sections 205.208-205.235. These specialty products already have a significant organic market presence, and are being certified by State and private certifying agents. Not including standards for specialty products will force certifying agents to either refuse to certify such operations or to certify to additional requirements not included in this regulation.


50. 205.236(a)


Replace “birth” with “the last third of gestation”.


Rationale: Organic management of slaughter stock should be consistent with the requirement that slaughter stock be offspring of “breeder stock brought onto the facility prior to the last third of pregnancy.” (205.236(a)(4)). This is consistent with OFPA 6509(b) and AOS. Changing “birth” to “the last third of gestation” makes the two sections consistent.


Please note that the NOSB Final Recommendation for Organic Livestock Production Standards, (Santa Fe, June, 1994, Sligh, p. 91), reads, under “Breeder Stock,” “(1) Only slaughter stock that are progeny of female breeder stock under organic production methods from the last third of gestation or longer shall be considered organic.”
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Research and Promotion 2012