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RICHARD D. SIEGEL

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rsiegel@ofwlaw.com

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COMMENTS SUBMITTED

MARCH 16, 2007,

TO THE NATIONAL ORGANIC STANDARDS BOARD

BY MARROQUIN INTERNATIONAL ORGANIC COMMODITIES SERVICES, INC.

SANTA CRUZ, CALIFORNIA

\(1\) TO REQUEST THAT THE BOARD DEFER ACTION

ON THE PENDING PETITION

TO LIST YEAST ON THE NATIONAL LIST

AS AN "AGRICULTURAL PRODUCT" IN 7 CFR § 205.606, AND

\(2\) TO RESPOND TO QUESTIONS BY THE BOARD

AND THE HANDLING COMMITTEE

ON THE LISTING OF YEAST AS AN "AGRICULTURAL PRODUCT"

OUTLINE OF COMMENTS

[Pages]{.underline}

Request for the Board to Defer Consideration of Petition for Yeast 3-4

Summary of Responses to Four Questions

Posed by the Board and by the Handling Committee 4-5

Background: Recognition of Organically Produced Yeast in the U.S. and
E.U. 5-7

Detailed Answers to the Four Questions

Organic Livestock Operations Would Not Be Affected Adversely;

Yeast Industry Could Meet Demand for Organic Yeast for Livestock Feed
7-8

Standards Tailored to Nonplant Life Are Not Required

In Order to Allow Yeast Operations to Be Certified Organic 8-10

If Yeast Is Listed as an "Agricultural Product,"

Bacteria Does Not Have to Be Similarly Listed 10-12

NOP Has the Authority to Reclassify Yeast as an "Agricultural Product"

With a "Technical Correction"; a Petition Is Not Required 12-15

Conclusion 15

Marroquin International Organic Commodities Services, Inc. (Marroquin
International), of Santa Cruz, California, is pleased to submit these
comments in advance of the meeting of the National Organic Standards
Board ("the Board" or "NOSB") in Washington, D.C. on March 27-29, 2007.

[Request for the Board to Defer Consideration of Petition for
Yeast]{.underline}

Marroquin International has submitted a petition to add yeast to §
205.606 of the National List as an "agricultural product." The Handling
Committee has referred the petition on yeast to the full Board after a
divided vote in the Committee, one "yes" and four "noes," Marroquin
International requests that the Board [defer action]{.underline} on this
petition until the next meeting of the Board.

Prior to the time the Board received the petition and the Handling
Committee reviewed it, the full Board was already engaged in a
significant project concerning the question of whether yeast should be
added to § 205.606. We believe it would be premature for the Board to
take up this petition until it has completed its other work.

At its last meeting on October 17-19, 2006, the Board received a
comprehensive joint proposal of the Handling and Materials Committees,
entitled "Recommendations Relative to 'Agricultural' and
'Nonagricultural' Substances for National List Consideration." One of
the recommendations in this proposal, Recommendation #3, recognized that
yeast was an "agricultural product" under the definition contained in
the Organic Foods Production Act (OFPA) and called for yeast to be added
to § 205.606.

At the conclusion of the meeting, the Board voted on October 19, 2006,
to defer action on the joint proposal until it could examine the
following questions that pertained specifically to yeast:

-   The impact on livestock operations that use yeast as a feed or feed
    additive

-   Whether it would be necessary for the NOP to adopt organic standards
    tailored to nonplant life before reclassifying yeast as an
    "agricultural product"

-   Whether the NOP could reclassify yeast as an "agricultural product"
    as a "technical correction" rather than requiring a petition
    approved by the NOSB before making this change.[^1]

All three of these questions bear directly on whether yeast should be
listed at this time in § 205.606 and these questions remain open. On the
Board's agenda for Tuesday, March 27, is a discussion item entitled
"National List: Clarification of Definition of Materials," with the
Chairs of the Handling and Materials Committees. Since this is a
discussion item rather than an action item, and since the time allotted
is only 15 minutes, this indicates that at this upcoming meeting the
Board is not planning to move forward with a definitive response to the
three questions posed on October 19, 2006.

Turning to the petition itself, when the Handling Committee acted on the
petition, it cited one of the concerns raised specifically in the above
set of questions. The Handling Committee noted that there were no
specific "standards of yeast production" set forth in OFPA or in the NOP
regulations. This question \-- whether specific standards would be
required for yeast---is still very much an open question before the
Board. This question related to the petition needs to be resolved along
with the other questions that have been placed before the Board
concerning yeast. This is why Marroquin International requests that the
Board put aside the petition temporarily until the Board can complete
this task.

Summary of Responses to Questions

[Posed by the Board and by the Handling Committee]{.underline}

In the months since the October 2006 meeting, Marroquin International
has studied the Board's three questions of October 19, 2006, at
considerable length. It has also reviewed an additional question raised
by the Handling Committee when it acted on the petition in February
2007. Thus there are a total of four questions that need to be
addressed.

In the following comments, we will provide answers that we hope will be
of assistance to the Handling Committee, the Materials Committee and the
full Board. We will demonstrate that none of the objections that have
been raised present any valid reason to delay the reclassification of
yeast as an "agricultural product" and the listing of yeast in §
205.606.

Briefly, these four questions, and the answers, are:

-   Will listing yeast as an "agricultural product" have an impact on
    livestock operations that use yeast in livestock feed? **No**.
    **Designating yeast as an "agricultural product" will create demand
    for organic yeast for livestock feed, and an adequate supply will
    follow. At least one U.S. firm already has experience in marketing
    organic yeast for use in feed.**

-   Before the National Organic Program (NOP) reclassifies yeast as an
    "agricultural product," will it be necessary to have organic
    production standards tailored to nonplant life? **No**. **The
    organic standards proposed in the EU for yeast focus primarily on
    the requirement that yeast be grown on a substrate of organically
    produced feed. The existing NOP livestock standard for feed can be
    applied to yeast so that yeast can be certified while the NOP
    develops specific standards, as is the NOP policy for mushrooms,
    apiculture and greenhouse products.**

-   If yeast is listed as an "agricultural product," will it then be
    necessary for the NOP to list bacteria as an "agricultural product"
    as well since bacteria, like yeast, is "nonplant life"? **No. Yeast
    is the only form of nonplant life that is being produced
    organically. There are no requests to list other forms of nonplant
    life, such as bacteria, as "agricultural."**

-   Does the NOP have legal authority to reclassify yeast as an
    "agricultural product" as a "technical correction," without the need
    for a petition approved by the NOSB? **Yes**. **Because yeast is
    already on the National List and is merely being reclassified from
    "nonagricultural" to "agricultural," without a change in the
    annotations, the NOP may do this by a "technical correction." A new
    petition and TAP review are not required under OFPA, NOP
    regulations, NOP guidelines or the NOSB Policy and Procedures
    Manual.**

Before turning to the four questions themselves, we will present some
necessary background information. We will explain, first, how listing
yeast in § 205.606 will contribute to higher organic standards, and
second, how the European Union (EU) is moving toward requiring organic
yeast in organic products. This will cause trade problems for U.S.
organic processors exporting to the EU unless they also use organic
yeast.

[Background: Recognition of Organically Produced Yeast in the U.S. and
E.U.]{.underline}

Two years and eight months ago, on July 30, 2004, Marroquin
International made a formal request to the Board to recommend to the
National Organic Program (NOP) that yeast be recognized as an
"agricultural product," so that the NOP would remove yeast from its
current listing as a "nonagricultural substance" in 7 CFR § 205.605(a)
on the National List and place yeast in § 205.606 as an "agricultural
product."

The purpose of recognizing yeast as an "agricultural product" on the NOP
National List, § 205.606, is to **raise the organic standards** for
processed organic products by making organically produced yeast a
preferred organic ingredient in "organic" processed foods, if it is
"commercially available." This calls for a change in the section where
yeast is listed.

Currently yeast is listed on the National List as a "nonagricultural
substance" in § 205.605(a), instead of as an "agricultural product" in §
205.606. Yeast was listed originally as a "nonagricultural substance"
solely because organic yeast was unknown at that time.

Now, however, yeast is being produced organically, but organic yeast
cannot be considered a required organic ingredient. This leads to
**compromised organic standards** in processed products. As long as
conventional yeast is listed in § 205.605(a) instead of § 205.606, this
gives organic processors [an absolute exemption to use conventional
yeast]{.underline} in their organic products rather than organic yeast.
This means that conventional yeast, produced with synthetic chemicals,
is still the yeast of choice for a wide range of products labeled as
"organic."

Yeast that is grown on an organic grain substrate and handled according
to organic requirements has been available to meet the organic
ingredient needs of many if not all organic manufacturers. Organic yeast
avoids the synthetic chemicals used in the production of conventional
yeast: ammonia (NH³), sulfuric acid, caustic soda lye, synthetic
vitamins and a synthetic anti-foaming agent. While the wastewater from
conventional yeast production must be treated before disposal to avoid
pollution, wastewater from organic yeast production is a raw material
available for further production.

Since conventional yeast production relies so heavily on these
chemicals, and since organic yeast is on the market, the NOP should make
it possible for organic yeast to become a preferred organic ingredient.
The NOP requires other organically produced ingredients to be used in
processed organic products, under § 205.301(b), unless they are not
commercially available. However, as long as yeast remains on §
205.605(a) of the National List instead of § 205.606, the NOP cannot
require any "organic" processed products to use organic yeast. The NOP
is waiting for action from the Board to clear a recommendation to this
effect for yeast.

While the NOP regulations still prevent yeast from being a preferred
organic ingredient, there is progress underway in the EU to raise
organic standards so that organic yeast will be recognized. Once the EU
fully recognizes organic yeast, this will make the EU organic standards
for processed food substantially different from NOP standards, and make
U.S. exports unacceptable to the EU unless they also use organic yeast.

With regard to yeast, the existing EU organic regulations are similar to
the existing NOP regulations. The EU regulation allows nonorganic yeast
in organic products. Yeast is currently covered as a "microorganism" in
Annex VI-A, which allows conventional yeast in organic products and puts
yeast outside the realm of organic certification. This has posed an
obstacle toward the adoption of organic yeast in Europe, just as the NOP
regulation has been a similar obstacle in the United States.

However, the pending draft proposal of December 14, 2006, to update
Regulation (EC) 2092/91, expressly recognizes yeast as a substance that
can be produced organically both for food and for feed (see Article 1,
Section 2). The EU draft proposal includes general rules for production
of organic yeast (see Article 14a). The European Parliament was
scheduled to take up this proposal in March, and the EU Agriculture
Ministers will meet in June to give it further consideration. Assuming
that the European Commission adopts the draft as a final EU regulation
this year with this language included, organic yeast will finally become
a preferred organic ingredient in the EU.

Therefore, Marroquin International renews its longstanding request that
this Board recommend to the NOP that organic yeast should become a
preferred organic ingredient, by removing the listing of yeast on the
National List from § 205.605(a) and transferring it to § 205.606.

[Detailed Answers to the Four Outstanding Questions]{.underline}

Organic Livestock Operations Would Not Be Affected Adversely;

[Yeast Industry Could Meet Demand for Organic Yeast for Livestock
Feed]{.underline}

At the October 2006 meeting the Board heard considerable public comment,
including comments by Emily Brown Rosen of Pennsylvania Certified
Organic and Brian Baker of OMRI, that if yeast and other microorganisms
would be reclassified as "agricultural" instead of "nonagricultural,"
this would disrupt organic livestock operations that have been using
yeast and other microorganisms as feed ingredients.

This raised a legitimate question. Currently, small amounts of yeast are
used in organic livestock feed as a "feed supplement" without the
requirement that the yeast used be organic.

In the NOP livestock production standard for feed, §205.237(a), the
general rule is that organic livestock feed be composed of "agricultural
products, including pasture and forage, that are organically produced
and, if applicable, organically handled." However, the standard makes an
exception for certain substances that are not agricultural products.
This exception applies to "nonsynthetic substances" that are not
agricultural as well as "synthetic substances allowed under § 205.603."
Either of these may be used as "feed additives and supplements"

To date, yeast has not been considered an "agricultural product," so
yeast that is not organic is currently allowed in organic feed as a
nonagricultural, nonsynthetic feed supplement. In short, yeast used in
organic livestock feed does not have to be organic.

Once yeast would be recognized as an "agricultural product" under §
205.606 , which would apply to yeast as an ingredient used in food, this
new status for yeast in food would also change the status of yeast used
in feed. The exception in §205.237(a) allowing the use of
[nonagricultural nonorganic supplements]{.underline} in livestock feed
would no longer cover yeast. Yeast in organic livestock feed would be
treated as an "agricultural product." Therefore, any yeast used in
organic livestock feed would have to be organic yeast.

Even though the reclassification of yeast as "agricultural" would
require that all yeast used in organic livestock feed be organic yeast,
this should not deter the Board from recommending to the NOP that it
recognize yeast as an "agricultural product" under OFPA. This is simply
one more step in the continuous improvement of organic products,
including organically raised livestock and organic commercial livestock
feed.

A new requirement that all yeast in livestock feed be organically
produced will stimulate immediate demand for organic yeast suitable for
livestock feed. The yeast industry should be able to provide organically
produced yeast for the needs of organic livestock producers and the
organic livestock feed trade. The yeast industry is large enough and
flexible enough to respond to this demand.

A company well established in the organic farm supply sector, Midwestern
Bio Ag Products and Services, Inc., in Blue Mounds, Wisconsin, already
has experience in producing and marketing organic yeast for livestock
feed use. In 2002-3 Midwestern Bio-Ag introduced certified organic yeast
for use in livestock feed, marketed as "Y Gain."

Y Gain consisted of live saccharomyces cerevisiae yeast grown on a
medium of cane molasses and ground organic shell corn. The company
listed Y Gain on the OMRI list but stopped producing and marketing it in
2004. The company found that as long as yeast was not yet recognized as
an "agricultural product," there was no requirement for organic
livestock feed to use organic yeast. Once yeast is recognized as an
"agricultural product," this will stimulate demand in the organic
livestock feed industry for certified organic yeast, and Midwestern
Bio-Ag would be well equipped to serve this demand because of its prior
experience with YGain.

For further information on Y Gain, one may contact Gary Zimmer,
President of Midwestern Bio-Ag, or Lawrence Mayhew, in charge of
research and development, at 800-327-6012.

Standards Tailored to Nonplant Life Are Not Required

[In Order to Allow Yeast Operations to Be Certified Organic]{.underline}

The Board heard lengthy public comment claiming that existing NOP
standards for livestock would not be adequate for certifying organic
microorganisms. The commenter stressed that because there were a number
of livestock standards that clearly did not apply on their face to
yeast, such as access to the outdoors, the existing NOP livestock
production standards should not be used at all for yeast, and it would
therefore necessary to have specific standards developed before yeast
would be added to § 205.606.

After hearing this public comment, the Board decided to examine the
question of whether tailored organic standards would be needed for
nonplant life. As noted above, when the Handling Committee voted on the
yeast petition in February 2007, it expressed its concern that there
were no existing specific standards applicable to yeast.

Marroquin International acknowledges that when the NOP developed organic
livestock standards, it did not contemplate that yeast would some day
qualify as livestock under OFPA, so that these standards would be
applicable to organic production of yeast. Many are still unfamiliar
with organic yeast production.

However, the public comment grossly magnified the potential difficulty
of using the existing NOP livestock standards for certification of
organic yeast operations. There is no essential conflict between yeast
and the existing livestock standards. This is illustrated when one looks
at the specific standard for organic yeast proposed for the EU. Its
basic requirement is that yeast be raised with organic substrates. This
requirement fully overlaps with the existing NOP livestock feed
requirement. This shows that the existing NOP livestock standards are
adequate to certify organic yeast for the time being. It is not
necessary to have a specific standard for yeast in the U.S. right away.

In the EU draft revision of Regulation (EC) 2092/91, Article 14a lists
the following "General rules on the production of organic yeast,"
consisting of just three items:

> 1\. For the production of organic yeast only organically produced
> substrates shall be used. Other products and substances may only be
> used in so far as they have been authorized for use in organic
> production in accordance with Article 15.
>
> 2\. Organic yeast shall not be present in organic food or feed
> together with non-organic yeast.
>
> 3\. Detailed production rules may be laid down in accordance with the
> procedure referred to in Article 31 (2).

The basic rule is No. 1, which requires "organically produced
substrates." This would correspond directly to the NOP organic livestock
feed standard, § 205.237(a), requiring that livestock feed must consist
of "agricultural products" that are "organically produced." Thus there
is full concurrence between the NOP livestock standard and this
specialized E.U. yeast standard that the feed consumed by the yeast must
be organically produced.

Since the organic feed requirement in § 205.237(a) of the NOP standards
is suitable to be applied to require organic substrates used to produce
organic yeast, this should make it possible for yeast to be certified
before the NOP adopts organic standards specifically designed for yeast.
There are three prior instances in which the NOP has allowed
certification of a non-traditional organic production category under the
existing NOP standards until such time as the NOP adopts standards that
are directly tailored to that category. These are mushrooms, apiculture
and greenhouse products.

For these three production systems, the NOP website currently posts the
following notice:

Apiculture, Greenhouse, and Mushroom Products

> These products may be certified to the existing NOP regulations which
> will be amended in future rulemaking to cover any unique production
> and handling requirements.

Under this policy, certifiers, with the approval of the NOP, have found
ways to certify operations producing organic honey, organic mushrooms
and organic products of greenhouses. For example, Tina Ellor, of
Phillips Mushroom Farms, who has since become a member of the Board,
told the Board at the October 2006 meeting that since the NOP has not
yet adopted specific mushroom standards, certifiers use the existing
crop production standards.[^2]

Since yeast can be adequately certified under the existing NOP livestock
standard for the time being, yeast is a candidate for an arrangement
similar to the one for apiculture, greenhouse and mushroom products. In
light of the NOP's policy for these three other non-traditional
production systems, there is no merit to the argument that before
[yeast]{.underline} can be certified, it must have its own tailored set
of NOP standards. Because the existing livestock feed standard is
identical to the specific yeast standard proposed in the EU, the current
NOP livestock standards are adequate to certify yeast while more
specific standards are being developed. Marroquin International would be
happy to take part in the development of these standards.

If Yeast Is Listed as an "Agricultural Product,"

[Bacteria Does Not Have to Be Similarly Listed.]{.underline}

In February 2007 the Handling Committee took up the petition to remove
yeast from § 205.605(a), where it is currently listed as a
"nonagricultural substance," and list it in § 205.606 as an
"agricultural substance." In a divided vote of one "yes" and four
"noes," the Handling Committee voted to reject the petition.

The Committee recommendation included the following statement:

There is no USDA provision for standard of yeast production within the
statute or the regulation. Although the petitioner makes a

> case that the OFPA definition of Livestock includes "non-plant life,"
> we further acknowledge that OFPA does not provide provisions or
> production practices for this purpose. Evidence of this is found in
> the regulation where the definition of 'non agricultural' includes
> bacteria, which contradicts non-plant life being livestock
> (agricultural).

This statement of the Handling Committee thus expresses two reservations
about recognizing yeast as an "agricultural product" eligible for
organic certification. One is that while nonplant life is included in
OFPA's definition of livestock, which makes yeast an agricultural
product, there are no specific standards for yeast production aside from
the livestock standards. We have just discussed that issue above. We
have demonstrated that specific standards tailored for yeast are not
required at this time, since the NOP livestock standards can be adapted
and used, just as existing NOP standards are being adapted for mushroom,
apiculture and greenhouse products.

We will now discuss the second reservation that this statement
expresses. The Handling Committee appears reluctant to consider nonplant
life as livestock, even though it fits within the OFPA definition of
livestock. To support its position that nonplant life should not be
treated as livestock, the Handling Committee points to the definition of
"nonagricultural substance" found in the NOP Final Rule, at § 205.2,
which identifies a "bacterial culture" as an example of a
"nonagricultural substance."

As long as OFPA defines livestock as including yeast, since yeast is
"nonplant life," this is a definition that is binding on the Handling
Committee, the Board and the Department. If the Department, in writing
the NOP rule, decided to identify a "bacterial culture" as a
"nonagricultural substance," this cannot change the clear language of
the definition of "livestock" that Congress enacted in OFPA. The OFPA
definition covers all non-plant life under "livestock," and this would
make all non-plant life potentially an "agricultural product."

We agree with the Handling Committee that there is an inconsistency
between the OFPA definition, which includes bacteria as "agricultural,"
and the NOP Final Rule, which considers bacteria as "nonagricultural."
However, this is an irrelevant side issue that has nothing to do with
yeast.

Yeast is a microorganism but it is a fungus, not a bacterium. Unlike
bacteria, yeast is being produced organically and is eligible for
organic certification, as are mushrooms, another fungus. Unlike
bacteria, yeast has a draft EU regulation singling yeast out from other
microorganisms and giving yeast organic status. Unlike bacteria, yeast
has been the subject of requests since 2004 to move it to § 205.606. The
Board has a responsibility to address yeast in its own right, and not to
postpone action any further because of other microorganisms that are not
related to organic yeast.

The Board was not responsible for writing the NOP Final Rule definition
of "nonagricultural," and it should not become entangled with this
question. The only question before the Board should be whether it is
time to recognize yeast as an "agricultural product," and the Board has
an ample basis for approving that.

NOP Has the Authority to Reclassify Yeast as an "Agricultural Product"

[With a "Technical Correction"; a Petition Is Not Required]{.underline}

.

The Handling and Materials Committees concluded in their draft
recommendation of September 15, 2006, that the NOP could move yeast from
§ 205.605(a) to § 205.606 as a "technical correction." In the public
comment the Board heard on October 17, 2006, Jim Riddle, former Chair of
the Board, and Ms. Rosen both maintained that this should not be
accomplished by a "technical correction," but by only a petition and TAP
review.

Mr. Riddle asserted that it would be improper to move yeast to § 205.606
as a "technical correction." He said there must be a petition and a TAP
review, followed by public comment. He said this would "follow the
processes that work well and are transparent," and would protect the
Board "from any charges of arbitrary and capricious changes to the
list."[^3] Ms. Rosen likewise called for a petition process and TAP
review. In her written statement, she cited provisions of OFPA and of
NOSB procedures. In her oral remarks, she said, "I believe the OFPA says
there needs to be a TAP review." [^4]

Marroquin International strongly disagrees. The petition route is not
the sole route to make this change. The Department would have full legal
authority to make this change as a "technical correction."

While Mr. Riddle and Ms. Rosen argued that a petition and a TAP review
was an existing procedure for a matter of this kind, this was not
correct. There are no legal requirements that the Department use a
petition and a TAP review to transfer yeast [within]{.underline} the
National List. The Handling and Materials Committees were correct in
proposing a "technical correction," since the Department has the
authority to do that.

While one can understand the concern of Mr. Riddle and Ms. Rosen that
such a change receive appropriate scrutiny and the opportunity for
public comment, the Handling and Materials Committees have been doing
just that with their proposal for a "technical correction." The call by
Mr. Riddle and Ms. Rosen for a new petition and TAP review was for a
novel procedure that would go beyond the procedural requirements in OFPA
that apply to the National List, beyond the NOP regulations, beyond the
NOP's guidelines for petitions for the National List, and beyond the
NOSB Policy and Procedures Manual.

In the NOP's latest guidelines on the petition process, published in the
Federal Register on January 18, 2007 (72 Fed.Reg. 2167-70), it explains
that petitions are to be used in three specific situations: to
[clear]{.underline} a new material for the National List, to
[remove]{.underline} a material from the National List or to
[amend]{.underline} a substance presently on the National List.[^5] (72
Fed.Reg. 2168.) When the proposal is merely to transfer a material,
complete with its existing annotations, from one section of the National
List to another in order to list the material properly according to
OFPA, this is a different situation. A "technical correction" would
therefore be in order. A petition would only be optional.

Moreover, the history of the NOP offers compelling precedent for
transferring materials from the "nonagricultural" to the "agricultural"
category on the National List as a "technical correction," without new
petitions or TAP reviews being required. In the Second Proposed NOP
Rule, published in the Federal Register on March 13, 2000, the materials
listed in proposed § 205.605(a) as "nonagricultural" included agar-agar,
carrageenan, cornstarch (native), gums (with an annotation), kelp (with
an annotation), lecithin (unbleached) and pectin (high methoxy). (65
Fed.Reg. 13627). On June 12, 2000, the NOSB submitted comments on the
Second Proposed Rule, in which the NOSB noted that these seven materials
were not correctly classified and should be moved from § 205.605(a) to §
205.606 as "agricultural." (NOSB Comments, page 14.) There were no new
petitions or TAP reviews submitted to the NOSB before the NOSB took this
initiative.

In response to the NOSB's request, the Department, in the NOP Final Rule
published December 21, 2000, transferred five of the seven
materials---the cornstarch, gums, kelp, lecithin and pectin\-- to §
205.606. (65 Fed.Reg. 80613.)

This precedent shows that when the NOSB and the Department saw the need
in 2000 to transfer materials from "nonagricultural" to "agricultural,"
they were free to act without new petitions or TAP reviews, because OFPA
simply did not require them.

For the sake of expediency, Marroquin International chose in August 2006
to submit a petition for yeast to be moved to § 205.606. This petition
has now been voted on by the Handling Committee and is before the Board.
However, the need for this petition was doubtful since yeast was already
on the National List, it was not being removed from the National List
and its annotation was not changing. The NOSB did not require a full TAP
review process, but if one had been ordered, as recommended by Mr.
Riddle and Ms. Rosen, it would have been superfluous because (1) yeast
already has TAP reviews and (2) the sole question at hand is not even a
technical question that a TAP review would address. Instead the question
is a legal one, whether yeast is an "agricultural product" under OFPA's
definition. A TAP review would not address this question at all.

In OFPA, the only provisions in OFPA that mention the petition process
and TAP reviews are in 7 USC § 6518. The Board "shall convene technical
advisory panels to provide scientific evaluation of the materials
considered for inclusion in the National List." § 6518(k) (3). OFPA also
directs the Board to "establish procedures under which persons may
petition the Board for the purpose of evaluating substances for
inclusion on the National List." § 6518(n).

These provisions apply only to the process for materials considered
["for inclusion"]{.underline} on the National List. It was logical for
OFPA to regulate which materials would be included on the National List
by specifying the process and the criteria for admitting these
materials. However, beyond these provisions for [including]{.underline}
materials on the list, OFPA has nothing to say about how the list should
be organized internally. Once a material has been added to the National
List following the procedures in OFPA, this completely satisfies OFPA's
requirements. It leaves to the discretion of the Secretary how to
organize the list internally and how to make internal adjustments to the
list, such as transferring a material from one section of the list to
another.

Since 2000 the Department has issued proposed and final NOP regulations
in § 205.607 for submitting petitions relating to the National List. In
addition, it has published detailed guidelines on the petition process.
The initial guidelines were published in July 2000. In January 2007 a
new set of guidelines was published to replace the earlier ones. The
NOSB has adopted a Policy and Procedures Manual, revised on August 18,
2005. None of these regulations and guidelines contains any language
that would require a petition to be submitted merely to move a material
from one section of the National List to another.

In [Harvey v. Johanns]{.underline}, 396 F.3^rd^ 28 (1^st^ Cir. 2005),
Count 1, at 396 F.3^rd^ 35-36, changed the NOP's National List procedure
for all nonorganic agricultural products that had never been scrutinized
in a public review by the NOSB for listing on the National List. Until
the [Harvey]{.underline} decision, in § 205.606 in the Final Rule, the
NOP treated these materials as included in the National List
automatically as a category. In other words, these materials had a
"blanket exemption" under § 205.606 from the need to be petitioned
individually. The [Harvey]{.underline} decision ruled that these
nonorganic agricultural ingredients needed to be petitioned one by one
so that they would be subjected to the scrutiny of the NOSB and NOP.

The [Harvey]{.underline} decision caused the Department in June 2006 to
revise § 205.606 to require that nonorganic agricultural materials [not
currently on the list]{.underline} must be petitioned for inclusion in §
205.606. (See revised text of § 205.606 at 71 Fed.Reg. 32807, June 7,
2006.) The [Harvey]{.underline} decision also led to new guidelines in
2007 for submitting petitions for § 205.606 materials (See 72
Fed.Reg.2167-2170, January 18, 2007).

These post-[Harvey]{.underline} regulations and guidelines pertain only
to new materials being added by petition to § 205.606. Since yeast has
already been listed according to National List procedures, the act of
moving yeast from § 205.605(a) to § 205.606 is not affected by the
[Harvey]{.underline} decision or any of the post-[Harvey]{.underline}
procedures.

Since yeast does not need a new petition, the Department may move yeast
from § 205.605(a) to § 205.606 as a "technical correction" without
applying these new petition procedures to yeast.

[Conclusion]{.underline}

The Board has before it the joint proposal of the Handling and Materials
Committees, in which Recommendation #3 calls for listing yeast in §
205.606. This proposal is sound. These comments have provided answers to
the various objections raised against Recommendation #3 in public
comment, so the Board may now proceed to recommend that yeast be
recognized as an "agricultural product" and be listed on the National
List in § 205.606.

As a matter of procedure, the NOP has legal authority to transfer yeast
to § 205.606 by a "technical correction," so the Board should be free to
make such a recommendation. However, since a petition to do the same
thing is also before the Board, the Board may, as an alternative,
approve the petition and make its recommendation to the NOP accordingly.

Respectfully submitted,

Richard D. Siegel

Counsel for Marroquin International

Organic Commodities Services, Inc.

[^1]: Remarks of Board Vice Chair Andrea Caroe, Transcript of NOSB
    Meeting, October 19, 2006, pp. 75-77.

[^2]: Transcript of NOSB Meeting, October 17, 2006, p. 244.

[^3]: Transcript of NOSB Meeting, October 17, 2006, p. 120.)

[^4]: [Id.,]{.underline} p. 262.)

[^5]: Action to "amend a substance presently on the National List"
    refers to making a change in the annotation of a material that will
    remain on the National List. A petition is required for this. (See
    Preamble to Final Rule, "*(10) Modifying Annotations of Organic
    Processing Substances,"* 65 Fed. Reg. 80615 (December 21, 2000)).