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National Organic Program (NOP), Final Judgment and Order in the Case Harvey v. Johanns

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Agricultural Marketing Service, USDA.




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.

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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:

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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 Start Printed Page 38091CFR 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​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.

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Dated: June 27, 2005.

Kenneth C. Clayton,

Acting Administrator, Agricultural Marketing Service.

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[FR Doc. 05-12969 Filed 6-30-05; 8:45 am]