[Federal Register: July 1, 2005 (Volume 70, Number 126)]
[Notices]
[Page 38090-38091]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr01jy05-45]
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DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
[TM-05-08]
National Organic Program (NOP), Final Judgment and Order in the
Case Harvey v. Johanns
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Notice.
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SUMMARY: The U.S. Department of Agriculture's (USDA) Agricultural
Marketing Service is publishing this notice pursuant to a June 9, 2005,
consent final judgment and order issued by the United States District
Court, District of Maine, in the case Harvey v. Johanns. The court
issued a declaratory judgment that 7 CFR 205.606 shall be interpreted
to permit the use of a nonorganically produced agricultural product
only when the product has been listed in section 205.606 pursuant to
National List procedures, and when an accredited certifying agent has
determined that the organic form of the agricultural product is not
commercially available. The court's order limits an accredited
certifying agent's commercially available determinations for nonorganic
agricultural products used in or on processed organic products to the 5
substances contained in 7 CFR 205.606. The products are native
cornstarch, water extracted gums, kelp when used as a thickener and
dietary supplement, unbleached lecithin, and high methoxy pectin.
FOR FURTHER INFORMATION CONTACT: Keith Jones, Director, Program
Development, National Organic Program, 1400 Independence Ave., SW.,
Room 4008-S, Ag Stop 0268, Washington, DC 20250-0268; Telephone: (202)
720-3252; Fax: (202) 205-7808; e-mail: keith.jones@usda.gov.
SUPPLEMENTARY INFORMATION: This notice is issued under the authority of
the Organic Foods Production Act of 1990 (OFPA) as amended (7 U.S.C.
6501 et seq.). In October 2003, Arthur Harvey, a certified organic
blueberry grower, filed a complaint under the Administrative Procedures
Act in the United States District Court, District of Maine. Harvey
alleged that several subsections of the NOP regulations violated OFPA,
were arbitrary and were not in accordance with law.
The USDA prevailed on all counts of Harvey's suit in a decision
issued by the district court on January 7, 2004. On March 8, 2004,
Harvey appealed the district court's decision to the United States
Court of Appeals for the First Circuit. On January 26, 2005, the First
Circuit issued a decision in the case. The First Circuit court upheld
the NOP rule in general, but remanded the case to the U.S. District
Court, District of Maine, for, among other things, the entry of a
declaratory judgment that 7
[[Page 38091]]
CFR 205.606 does not establish a blanket exemption to the National List
requirements for nonorganic agricultural products that are not
commercially available. On June 9, 2005, the district court issued its
final judgment and order in the case. A copy of the final judgment and
order may be found at https://www.ams.usda.gov/nop.
The First Circuit's decision recognized that some producers,
handlers and certifiers may have misinterpreted 7 CFR 205.606 to mean
that any nonorganic agricultural product which was determined by an
accredited certifying agent to be not commercially available in organic
form could be used in organic products, without being individually
listed pursuant to the National List procedures. The court held that
such an interpretation is contrary to the plain meaning of OFPA.
However, because of the potential for confusion, and to enable an
orderly transition to compliance with the regulation, the district
court's order regarding the meaning of 7 CFR 205.606 shall become
effective and enforceable two years (June 9, 2007) from the date of its
judgment and order.
Dated: June 27, 2005.
Kenneth C. Clayton,
Acting Administrator, Agricultural Marketing Service.
[FR Doc. 05-12969 Filed 6-30-05; 8:45 am]
BILLING CODE 3410-02-P