Federal Register / Vol. 75, No. 163 / Tuesday, August 24, 2010 / Rules and Regulations 51919 

for about 35% of program revenue 

before their fees were phased out by the 

1995 Amendments to the Act. Today, 

retailers account for 28.6% of all PACA 

licensees. However, since only new 

applicants pay a processing fee, retailers 

contribute little to PACA’s annual 

operating revenue. The fee increase will 

have no impact on operating costs of 

retailers and grocery wholesalers. 

Therefore, retailers and grocery 

wholesalers will not be unduly 

burdened by the final rule. 

Wholesalers, processors, food service 

companies, commission merchants, 

dealers, brokers, and truckers are 

considered to be dealers and subject to 

license when they buy or sell more than 

2,000 pounds of fresh and/or frozen 

fruits and vegetables in any given day. 

This group represents the remaining 

10,361 active, ‘‘paying’’ PACA licensees 

and is the only group impacted by the 

fee increase. 

While the annual revenues of this 

group of agricultural service firms is 

unknown, we estimated a significant 

percentage of these firms have annual 

receipts less than $7,000,000. Therefore, 

the businesses are ‘‘small businesses’’ 

within the meaning of that term in the 

RFA. A large number of these small 

agricultural service firms will be 

impacted by the PACA license fee 

increase. While the maximum amount 

of the PACA license fee is to be $8,000, 

this increase will impact a small 

number of larger firms with multiple 

branches. Currently, only 56 licensees 

(or 0.0039%) of all PACA licensees 

would pay the $8,000 maximum. The 

fee structure in the final rule was 

designed so most firms would only see 

the annual fee increase from $550 per 

year to $995. This $445 fee increase is 

believed to be a minor increase in 

operating costs to these firms and is 

more than offset by the protection 

provided to these firms under the 

PACA. Larger firms operating at 

multiple branch locations would face 

larger fee increases. As the renewal of 

PACA licenses has become highly 

automated and renewal notices are sent 

to all licensees well before the renewal 

date, elimination of the option biennial 

or triennial licenses should not impose 

a substantial burden upon small 

businesses holding such licenses. 

All fruit and vegetable traders that 

handle less than 2,000 pounds of fresh 

and/or frozen fruits and vegetables are 

exempt from the PACA license 

requirement and would not be subject to 

this fee increase. These firms would be 

considered very small and handle a 

relatively minor volume of total fresh 

and/or frozen fruits and/or vegetables 

marketed. 

On February 24, 2009 the USDA Fruit 

and Vegetable Industry Advisory 

Committee unanimously recommended 

to the Secretary of Agriculture their 

approval of the proposed license fee 

increase. 

Paperwork Reduction Act 

In accordance with Office of 

Management and Budget (OMB) 

regulations (5 CFR part 1320) that 

implement the Paperwork Reduction 

Act of 1995 (44 U.S.C. Chapter 35), the 

information collection and 

recordkeeping requirements are 

currently approved under OMB number 

0581–0031. The forms covered under 

this information collection require the 

minimum information necessary to 

effectively carry out the requirements of 

the order, and their use is necessary to 

fulfill the intent of the PACA as 

expressed in the order, and the rules 

and regulations issued under the order. 

E-Government Act Compliance 

AMS is committed to complying with 

the E-Government Act, which requires 

Government agencies in general to 

provide the public the option of 

submitting information or transacting 

business electronically to the maximum 

extent possible. License application 

forms are available on our PACA Web 

site at http://www.ams.usda.gov/PACA 

and can be printed, completed, and 

faxed. Currently, forms are transmitted 

by fax machine and postal delivery. The 

PACA Branch is working towards 

furthering the availability of online 

forms. 

List of Subjects in 7 CFR Part 46 

Agricultural commodities, Brokers, 

Penalties, Reporting and recordkeeping 

requirements. 

■ For reasons set forth in the preamble, 

7 CFR part 46 is amended as follows: 

PART 46—[AMENDED] 

■ 1. The authority citation for part 46 is 

revised to read as follows: 

Authority: 7 U.S.C. 499a–499t. 

■ 2. In § 46.6, paragraphs (a) and (b) are 

revised to read as follows: 

§ 46.6 License fees. 

(a) Retailers and grocery wholesalers 

making an initial application for license 

shall pay a $100 administrative 

processing fee. 

(b) For commission merchants, 

brokers, and dealers (other than grocery 

wholesalers and retailers) the annual 

license fee is $995 plus $600 for each 

branch or additional business facility. In 

no case shall the aggregate annual fees 

paid by any such applicant exceed 

$8,000. 

* * * * * 

■ 3. In § 46.9, paragraph (k) is revised 

and paragraph (l) is removed to read as 

follows: 

§ 46.9 Termination, suspension, 

revocation, cancellation of licenses; 

notices; renewal. 

* * * * * 

(k) Only a commission merchant, 

broker, or dealer holding a multi-year 

license, prior to phase out of this option, 

will receive a refund if business 

operations cease or a change in legal 

status occurs that requires issuance of a 

new license prior to the next license 

renewal date. If a refund is due, it will 

be issued for any remaining full-year 

portion of advance fee paid, minus a 

$100 processing fee. 

Dated: August 17, 2010. 

Rayne Pegg, 

Administrator, Agricultural Marketing 

Service. 

[FR Doc. 2010–20978 Filed 8–23–10; 8:45 am] 

BILLING CODE 3410–02–P 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Part 205 

[Document Number AMS–NOP–10–0051; 

NOP–10–04IR] 

RIN 0581–AD04 

National Organic Program; 

Amendment to the National List of 

Allowed and Prohibited Substances 

(Livestock) 

AGENCY: Agricultural Marketing Service, 

USDA. 

ACTION: Interim rule with request for 

comments. 

SUMMARY: This interim rule amends the 

U.S. Department of Agriculture’s 

(USDA) National List of Allowed and 

Prohibited Substances (National List) to 

incorporate a recommendation 

submitted to the Secretary of 

Agriculture (Secretary) by the National 

Organic Standards Board (NOSB) on 

April 29, 2010. Consistent with the 

recommendation from the NOSB, this 

interim rule revises the annotation of 

one substance on the National List, 

methionine, to extend its use in organic 

poultry production until October 1, 

2012, at the following maximum levels 

of synthetic methionine per ton of feed: 

Laying chickens—4 pounds; broiler 

chickens—5 pounds; turkeys and all 


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other poultry—6 pounds. Comments are 

requested on this interim rule. 

On April 29, 2010, the NOSB also 

recommended to extend the allowance 

for synthetic methionine beyond 

October 1, 2012, to October 1, 2015, and 

decrease the maximum level of 

synthetic methionine permitted per ton 

of feed ration to the following levels: 2 

pounds for laying and broiler chickens, 

and 3 pounds for turkeys and all other 

poultry. The NOSB further 

recommended that consideration of 

synthetic methionine after its 

anticipated October 1, 2015 expiration 

should take place through the Board’s 

sunset review process rather than 

through the petition process. The 

Secretary intends to incorporate the 

NOSB’s recommended reductions in 

allowable levels in a subsequent 

rulemaking to address the allowance for 

synthetic methionine for the period 

between October 1, 2012, and October 

15, 2015. 

DATES: Effective Date: This interim rule 

becomes effective October 1, 2010. All 

comments received by October 25, 2010 

will be considered prior to the issuance 

of a final rule. The agency will publish 

the final rule no later than March 2011. 

ADDRESSES: Interested persons may 

submit written comments on this 

interim rule using the following 

addresses: 

• Internet: http:// 

www.regulations.gov. 

• Mail: Toni Strother, Agricultural 

Marketing Specialist, National Organic 

Program, USDA–AMS–NOP, 1400 

Independence Ave., SW., Room 2646– 

So., Ag Stop 0268, Washington, DC 

20250. 

Written comments responding to this 

interim rule should be identified with 

the docket number AMS–NOP–10–0051; 

NOP–10–04. You should clearly state 

whether you support the amendment of 

the annotation for the continued 

allowance of synthetic methionine in 

poultry production until October 1, 

2012, at the maximum levels per ton of 

synthetic methionine in the feed ration, 

with clearly indicated reason(s) for your 

position. You should also offer any 

recommended language changes that 

would be appropriate for your position. 

Please include relevant information and 

data to support your position (e.g., 

scientific, environmental, 

manufacturing, industry, impact 

information, etc.). Only relevant 

material supporting your position 

should be submitted. 

It is our intention to have all 

comments concerning this interim rule, 

including names and addresses when 

provided, whether submitted by mail or 

Internet, available for viewing on the 

Regulations.gov (http:// 

www.regulations.gov) Internet site. 

Comments submitted in response to this 

interim rule will also be available for 

viewing in person at USDA, AMS, 

National Organic Program, Room 2646– 

South Building, Stop 0268, 1400 

Independence Ave., SW., Washington, 

DC 20250, from 9 a.m. to 12 noon and 

from 1 p.m. to 4 p.m., Monday through 

Friday (except official Federal holidays). 

Persons wanting to visit the USDA 

South Building to view comments 

received in response to this interim rule 

are requested to make an appointment 

in advance by calling (202) 720–3252. 

FOR FURTHER INFORMATION CONTACT: 

Melissa Bailey, Director, Standards 

Division, National Organic Program, 

USDA–AMS–NOP, 1400 Independence 

Ave., SW., Room 2646–So., Ag Stop 

0268, Washington, DC 20250–0268. 

Telephone: (202) 720–3252. 

SUPPLEMENTARY INFORMATION:

I. Background 

On December 21, 2000, the Secretary 

established within the NOP [7 CFR part 

205] the National List regulations 

§§ 205.600 through 205.607. The 

National List identifies synthetic 

substances that may be used in organic 

production and nonsynthetic (natural) 

substances that may not be used. The 

National List also identifies 

nonagricultural nonsynthetic, 

nonagricultural synthetic, and 

nonorganic agricultural substances that 

may be used in organic production and 

handling. 

The Organic Foods Production Act of 

1990 (OFPA), as amended (7 U.S.C. 

6501–6522), and NOP regulations 

§ 205.105 specifically prohibit the use of 

any synthetic substance for organic 

production and handling unless 

provided on the National List. Section 

205.105 also requires that any 

nonorganic agricultural or nonsynthetic 

nonagricultural substance used in 

organic handling be on the National 

List. Under the OFPA, the NOSB 

reviews exemptions for allowed 

synthetic substances every 5 years. If the 

NOSB recommends renewal, then the 

Secretary has authority under the OFPA 

to renew such exemptions. If they are 

not reviewed by the NOSB and renewed 

by the Secretary within 5 years of their 

inclusion on the National List, their 

authorized use expires. 

Under the authority of the OFPA, the 

National List can be amended by the 

Secretary based on proposed 

amendments developed by the NOSB. 

Since established, the National List has 

been amended twelve times: October 31, 

2003 (68 FR 61987); November 3, 2003 

(68 FR 62215); October 21, 2005 (70 FR 

61217); June 7, 2006 (71 FR 32803); 

September 11, 2006 (71 FR 53299); June 

27, 2007 (72 FR 35137); October 16, 

2007 (72 FR 58469); December 10, 2007 

(72 FR 69569); December 12, 2007 (72 

FR 70479); September 18, 2008 (73 FR 

54057); October 9, 2008 (73 FR 59479); 

and July 6, 2010 (75 FR 38693). 

Additionally, a proposed amendment to 

the National List was published on June 

3, 2009 (74 FR 26591). 

II. Overview of Amendment 

This interim rule amends the National 

List to reflect a recommendation 

adopted by the NOSB on April 29, 2010, 

and subsequently forwarded to the 

Secretary. The NOSB reviewed the use 

of synthetic methionine in organic 

poultry production using the evaluation 

criteria specified in OFPA (7 U.S.C. 

6517–6518) and the Secretary has 

reviewed the NOSB’s recommendation. 

The current listing of synthetic 

methionine will expire on October 1, 

2010. This rule is issued to ensure the 

continued use of synthetic methionine 

after this date and avoid any disruption 

to the organic poultry market. A final 

rule will be issued no later than March 

2011. The record indicates that the 

provision of methionine, the use of 

which is currently allowed, remains an 

essential dietary component for poultry 

in organic production and issuance of 

this interim rule maintains its use. 

Section 205.603 Synthetic Substances 

Allowed for Use in Organic Livestock 

Production 

This interim rule amends 

§ 205.603(d)(1) by changing ‘‘October 1, 

2010’’ to ‘‘October 1, 2012’’ and imposing 

maximum levels based on each ton of 

feed ration. Section 205.603(d)(1) now 

reads as follows: 

DL—Methionine, DL—Methionine 

hydroxyl analog, and DL—Methionine 

hydroxyl analog calcium (CAS # 59–51–8; 

63–68–3; 348–67–4)—for use only in organic 

poultry production until October 1, 2012, at 

the following maximum levels of synthetic 

methionine per ton of feed: Laying 

chickens—4 pounds; broiler chickens—5 

pounds; turkeys and all other poultry—6 

pounds. 

Methionine was originally included 

on the National List on October 31, 

2003, with an early expiration date of 

October 21, 2005 (the normal allowance 

for a substance added to the National 

List is five years from the listing date). 

It is a colorless or white crystalline 

powder that is soluble in water. 

Methionine is classified as an essential 

amino acid because it cannot be 

biologically produced by poultry and is 


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necessary to maintain viability. Natural 

feed sources with high percentages of 

methionine include bloodmeal, fish 

meal, crab meal, corn gluten meal, and 

sunflower seed meal. It is regulated as 

an animal feed nutritional supplement 

by the Food and Drug Administration 

(21 CFR 582.5475). Organic livestock 

producers had petitioned the substance 

as a part of the NOSB’s initial review of 

synthetic amino acids. The petitioners 

asserted that methionine was a 

necessary dietary supplement for 

organic poultry and that there was an 

inadequate supply of allowable organic 

feeds containing sufficient 

concentrations of naturally occurring 

methionine. Petitioners suggested that 

synthetic methionine would be fed as a 

dietary supplement to organic poultry at 

levels ranging from 0.3 to 0.5 percent of 

the animal’s total diet. The petitioners 

also asserted that a prohibition on the 

use of synthetic methionine would 

contribute to nutritional deficiencies in 

organic poultry thereby jeopardizing the 

animals’ health. After reviewing a 

Technical Advisory Panel analysis of 

the evaluation criteria provided in the 

OFPA (7 U.S.C. 6517–6518), the NOSB 

determined that the use of synthetic 

methionine was consistent with a 

system of organic production. On 

October 16, 2001, the NOSB 

recommended that the Secretary include 

methionine on the National List of 

Allowed Synthetics for use in organic 

poultry production with an early 

expiration date (October 21, 2005). The 

NOSB recommended the early 

expiration date to encourage organic 

producers to phase out synthetic 

methionine as a feed additive by 

identifying and incorporating natural 

and allowable sources into poultry 

diets. 

On January 10, 2005, two organic 

poultry producers petitioned the NOSB 

to extend the use of synthetic 

methionine in organic poultry 

production beyond October 21, 2005. 

The producers stated that they had been 

unable to develop suitable natural 

alternatives for synthetic methionine in 

organic poultry diets. The petitioners 

requested the extension to provide 

additional time for the development of 

these alternatives. The petition included 

preliminary research results on natural 

sources of methionine that highlighted 

the challenge of meeting the 

maintenance requirements for poultry 

with allowed organic and natural feed 

ingredients. Although inconclusive, the 

preliminary results demonstrated that 

research trials were underway to 

identify natural alternatives that could 

lead to phasing out synthetic 

methionine from organic poultry 

production. At its February 28–March 3, 

2005, meeting in Washington, DC, the 

NOSB received public comment on the 

petition to extend the use of synthetic 

methionine in organic poultry 

production beyond October 21, 2005. 

While concluding that synthetic 

methionine was consistent with the 

evaluation criteria of 7 U.S.C. 6517 and 

6518 of the OFPA, the NOSB did not 

recommend a full five-year allowance 

for the material. The Board continued to 

express its strong preference for the 

development of natural methionine 

sources for organic poultry production. 

Therefore, the NOSB recommended that 

synthetic methionine remain on the 

National List but only until October 1, 

2008. In response to this 

recommendation, the Secretary 

amended § 205.603(d)(1) of the National 

List on October 21, 2005 (70 FR 61217), 

to allow the use of synthetic methionine 

in organic poultry production until 

October 1, 2008. 

In December 2007, a coalition of 

producers identified as the Methionine 

Task Force (MTF) filed a petition 

requesting that § 205.603(d)(1) be 

amended by removing the expiration 

date of ‘‘October 1, 2008.’’ They also 

requested that in the future methionine 

receive the standard sunset review 

process for materials on the National 

List. Their petition addressed the status 

of the most viable alternatives to 

synthetic methionine and stated that 

none of the alternatives were yet 

commercially viable. Additionally, AMS 

received six comments supporting the 

re-listing of synthetic methionine in 

response to the December 28, 2007 (72 

FR 73667), Advanced Notice of 

Proposed Rulemaking announcing the 

2008 Sunset Review of 12 substances on 

the National List. Because methionine 

was due to expire on October 1, 2008, 

as established by rulemaking, it was not 

included among the 12 substances in 

the 2008 Sunset Review. 

The NOSB evaluated public comment 

on the petition to extend the use of 

synthetic methionine in organic poultry 

production beyond October 1, 2008, and 

also considered comments on the 

subject from its November 2007 

meeting. The NOSB determined that 

while certain allowable organic and 

natural sources of methionine existed, 

they were not available in sufficient 

supplies to meet poultry producers’ 

needs. Thus, the NOSB concluded that 

synthetic methionine was a necessary 

component of a nutritionally adequate 

diet for organic poultry, and, therefore, 

essential to organic production. The 

Board also concluded that terminating 

the allowance for its use would disrupt 

the well-established organic poultry 

market and cause substantial economic 

harm to organic poultry producers but 

did not recommend a full five-year 

allowance for the material. The NOSB 

and stakeholders including the MTF 

agreed that the organic feed sector 

would continue to research and develop 

sufficient supplies of allowable organic 

and natural sources in the interim and 

thus the NOSB recommended to extend 

the use of methionine for two more 

years. The Secretary concurred with the 

NOSB recommendation to extend the 

use of synthetic methionine in poultry 

production until October 1, 2010, and 

amended the regulation accordingly on 

September 18, 2008 (73 FR 54057). 

The MTF submitted a new petition on 

July 31, 2009, requesting a five-year 

extension on the allowance for synthetic 

methionine. The request proposed to 

limit the total amount of synthetic 

methionine to be fed over the life of the 

bird calculated as the average pounds of 

the material per ton of feed. The MTF 

petition proposed these limits at 4 

pounds for laying chickens, 5 pounds 

for broiler chickens and 6 pounds for 

turkeys and all other poultry per ton of 

feed. The petitioners stated that these 

levels of synthetic methionine are the 

amount necessary to support the 

animals’ basic maintenance 

requirements and would not provide 

growth enhancement. In requesting the 

five-year allowance, the MTF cited 

research efforts in recent years that have 

attempted but failed to identify wholly 

natural and allowable sources of 

methionine capable of providing 

poultry’s basic maintenance 

requirement. 

The NOSB Livestock Committee 

reviewed the MTF petition and rejected 

it. The Livestock Committee stated that 

averaging the pounds of synthetic 

methionine fed over the life of the bird 

would result in the unacceptable 

outcome of even higher levels being fed 

at certain stages. The Livestock 

Committee instead pointed towards 

future modifications to the livestock 

feed and living conditions practice 

standards that would lead to higher 

levels of natural methionine in poultry 

feed rations. However, the Livestock 

Committee agreed with the MTF that 

wholly natural sources of methionine 

are not now and would not likely be 

widely available in the immediate 

future and that extending the allowance 

for the synthetic form was warranted. 

The Livestock Committee proposed an 

annotation to the synthetic methionine 

listing that reflected their reservations 

about the petitioner’s request, but 

acknowledged that an allowance for the 

synthetic form would be necessary 


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throughout the next five years. They 

proposed to extend the allowance for 

synthetic methionine in organic poultry 

production for five years until October 

1, 2015, with a step down in the amount 

allowed after two years. They proposed 

limits per ton of feed of 4 pounds for 

laying chickens, 5 pounds for broiler 

chickens and 6 pounds for turkeys and 

all other poultry until October 1, 2012, 

followed by 2 pounds for laying and 

broiler chickens and 3 pounds for 

turkeys and all other poultry over the 

final three years. The Livestock 

Committee stated that it had consulted 

with a number of poultry nutritionists 

and feed mill operators and determined 

that the rates it proposed were 

consistent with the industry’s best 

management practices. The Livestock 

Committee also recommended that the 

NOSB apply its sunset material review 

process when considering the allowance 

for synthetic methionine in anticipation 

of its proposed October 1, 2015, 

expiration. The NOSB approved the 

Livestock Committee’s recommendation 

in its entirety on April 29, 2010. 

In the final rule published on 

December 21, 2000 (65 FR 80570), the 

NOP recognized the National Research 

Council’s (NRC) Nutrient Requirements 

of Domestic Animals series as the basis 

for the livestock feed practice standard. 

The applicable reference for nutritional 

sufficiency in poultry production is the 

NRC’s Nutrient Requirements of 

Poultry, Ninth Revised Edition, 

published in 1994. The MTF cited this 

publication in its petition and stated 

that its proposed allowances for 

synthetic methionine were 

approximately half of the NRC 

recommended levels for maximum 

growth and production. The MTF also 

provided data indicating that 

organically produced grains provide a 

majority of the methionine requirement 

in poultry starter feeds but that 

supplementation with the synthetic 

form is still necessary to achieve a 

complete ration. The NOSB 

fundamentally agreed with this 

assessment when it accepted with a 

modest adjustment the limits that the 

MTF proposed for extending the 

allowance for synthetic methionine. 

The Secretary has reviewed the 

NOSB’s recommendation and concurs 

that a two-year extension of the 

allowance for synthetic methionine in 

organic poultry production until 

October 1, 2012, is warranted. The 

Secretary accepts that the maximum 

limits recommended by the NOSB and 

as justified by the NOSB for the period 

October 1, 2010–October 1, 2012, are 

consistent with the industry’s best 

management practices and would not 

result in significant adjustments to 

comply with this action. Moreover, the 

signatories to the MTF petition have 

indicated that the current non-annotated 

allowance for synthetic methionine has 

stabilized use at consistent rates. 

The Secretary acknowledges the 

NOSB’s intention to lower the allowed 

levels of synthetic methionine over the 

five-year period for which the board 

recommends that the material remain on 

the National List. The Secretary intends 

to incorporate the NOSB’s 

recommended reductions in these levels 

through subsequent rulemaking to 

address the allowance for synthetic 

methionine for the period between 

October 1, 2012, and October 15, 2015. 

As conveyed at the NOSB meeting and 

documented in the transcripts, dividing 

the NOSB’s recommendation into 

separate rulemakings will allow for the 

continued use of methionine beyond its 

current expiration while also providing 

the board with the opportunity to adjust 

the maximum levels for the 2012–2015 

period, if needed. 

III. Related Documents 

Since September 2001, four notices 

have been published announcing 

meetings of the NOSB and its planned 

deliberations on recommendations 

involving the use of methionine in 

organic poultry production. The four 

notices were published in the Federal 

Register as follows: September 21, 2001 

(66 FR 48654), February 11, 2005 (70 FR 

7224), April 4, 2008 (73 FR 18491), and 

March 17, 2010 (75 FR 12723). 

Methionine was first proposed for 

addition to the National List in the 

Federal Register on April 16, 2003 (68 

FR 18556). Methionine was added to the 

National List by final rule in the Federal 

Register on October 31, 2003 (68 FR 

61987). A proposal to amend the 

annotation for methionine was 

published in the Federal Register on 

July 29, 2005 (70 FR 43786), and the 

annotation was amended by final rule in 

the Federal Register on October 21, 

2005 (70 FR 61217). A proposal to 

amend the annotation once again was 

published in the Federal Register on 

July 14, 2008 (73 FR 40197), and the 

annotation was amended by final rule 

on September 18, 2008 (73 FR 54057). 

IV. Statutory and Regulatory Authority 

The OFPA authorizes the Secretary to 

make amendments to the National List 

based on proposed amendments 

developed by the NOSB. Sections 

6518(k)(2) and 6518(n) of OFPA 

authorize the NOSB to develop 

proposed amendments to the National 

List for submission to the Secretary and 

establish a petition process by which 

persons may petition the NOSB for the 

purpose of having substances evaluated 

for inclusion on or deletion from the 

National List. The National List petition 

process is implemented under § 205.607 

of the NOP regulations. The current 

petition process (January 18, 2007, 72 

FR 2167) can be accessed through the 

NOP Web site at http:// 

www.ams.usda.gov/nop/Newsroom/ 

FedReg01_18_07NationalList.pdf. 

A. Executive Order 12866 

This action has been determined not 

significant for purposes of Executive 

Order 12866 and therefore has not been 

reviewed by the Office of Management 

and Budget. 

B. Executive Order 12988 

Executive Order 12988 instructs each 

executive agency to adhere to certain 

requirements in the development of new 

and revised regulations in order to avoid 

unduly burdening the court system. The 

final rule (68 FR 61987), dated October 

31, 2003, adding methionine to the 

National List was reviewed under this 

Executive Order and no additional 

information related to Executive Order 

12988 has been obtained since then. 

This interim rule is not intended to have 

a retroactive effect. 

States and local jurisdictions are 

preempted under the OFPA from 

creating programs of accreditation for 

private persons or State officials who 

want to become certifying agents of 

organic farms or handling operations. A 

governing State official would have to 

apply to USDA to be accredited as a 

certifying agent, as described in 

§ 2115(b) of the OFPA (7 U.S.C. 

6514(b)). States are also preempted 

under §§ 2104 through 2108 of the 

OFPA (7 U.S.C. 6503 through 6507) 

from creating certification programs to 

certify organic farms or handling 

operations unless the State programs 

have been submitted to, and approved 

by, the Secretary as meeting the 

requirements of the OFPA. 

Pursuant to § 2108(b)(2) of the OFPA 

(7 U.S.C. 6507(b)(2)), a State organic 

certification program may contain 

additional requirements for the 

production and handling of organically 

produced agricultural products that are 

produced in the State and for the 

certification of organic farm and 

handling operations located within the 

State under certain circumstances. Such 

additional requirements must: (a) 

Further the purposes of the OFPA, (b) be 

consistent with the OFPA, (c) not be 

discriminatory toward agricultural 

commodities organically produced in 

other States, and (d) not be effective 

until approved by the Secretary. 


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1U.S. Department of Agriculture, Economic 

Research Service. 2009. Data Sets: U.S. Certified 

Organic Farmland Acreage, Livestock Numbers and 

Farm Operations, 1992–2008. http:// 

www.ers.usda.gov/Data/Organic/. 

2Nutrition Business Journal. 2009. U.S. Organic 

Food Sales by Product ($Mil) 1997–2008, 2009(e)– 

2014(e)—Chart 22. Penton Media, Inc. 

Pursuant to § 2120(f) of the OFPA (7 

U.S.C. 6519(f)), this interim rule would 

not alter the authority of the Secretary 

under the Federal Meat Inspection Act 

(21 U.S.C. 601–695), the Poultry 

Products Inspections Act (21 U.S.C. 

451–472), or the Egg Products 

Inspection Act (21 U.S.C. 1031–1056), 

concerning meat, poultry, and egg 

products, nor any of the authorities of 

the Secretary of Health and Human 

Services under the Federal Food, Drug 

and Cosmetic Act (21 U.S.C. 301–397), 

nor the authority of the Administrator of 

the Environmental Protection Agency 

under the Federal Insecticide, Fungicide 

and Rodenticide Act (7 U.S.C. 136– 

1364). 

Section 2121 of the OFPA (7 U.S.C. 

6520) provides for the Secretary to 

establish an expedited administrative 

appeals procedure under which persons 

may appeal an action of the Secretary, 

the applicable governing State official, 

or a certifying agent under this title that 

adversely affects such persons or is 

inconsistent with the organic 

certification program established under 

this title. The OFPA also provides that 

the U.S. District Court for the district in 

which a person is located has 

jurisdiction to review the Secretary’s 

decision. 

C. Regulatory Flexibility Act 

The Regulatory Flexibility Act (RFA) 

(5 U.S.C. 601–612) requires agencies to 

consider the economic impact of each 

rule on small entities and evaluate 

alternatives that would accomplish the 

objectives of the rule without unduly 

burdening small entities or erecting 

barriers that would restrict their ability 

to compete in the market. The purpose 

is to fit regulatory actions to the scale of 

businesses subject to the action. Section 

605 of the RFA allows an agency to 

certify a rule, in lieu of preparing an 

analysis, if the rulemaking is not 

expected to have a significant economic 

impact on a substantial number of small 

entities. 

Pursuant to the requirements set forth 

in the RFA, AMS performed an 

economic impact analysis on small 

entities in the final rule published in the 

Federal Register on December 21, 2000 

(65 FR 80548). AMS has also considered 

the economic impact of this action on 

small entities. The impact on entities 

affected by this interim rule would not 

be significant. The current approval for 

the use of synthetic methionine in 

organic poultry production will expire 

October 1, 2010. The effect of this 

interim rule is to allow the continued 

use of synthetic methionine through 

October 1, 2012, at levels that are 

consistent with current industry 

practices. AMS concludes that this 

action would have minimal economic 

impact on small agricultural service 

firms. Accordingly, USDA certifies that 

this rule will not have a significant 

economic impact on a substantial 

number of small entities. 

Small agricultural service firms, 

handlers, and accredited certifying 

agents, have been defined by the Small 

Business Administration (SBA) (13 CFR 

121.201) as those having annual receipts 

of less than $7,000,000, and small 

agricultural producers are defined as 

those having annual receipts of less than 

$750,000. 

Based on USDA data from the 

Economic Research Service (ERS), the 

U.S. organic sector included nearly 

13,000 certified organic crop and 

livestock operations at the end of 2008. 

These operations contained more than 

4.8 million certified acres consisting of 

2,665,382 acres of cropland and 

2,160,577 acres of pasture and 

rangeland. The total acreage under 

organic management represents a twelve 

percent increase from 2007. Organic 

poultry production has steadily 

contributed to the overall growth in the 

organic food market. ERS estimated that 

there were 5,538,011 laying chickens 

and 9,015,984 broiler chickens raised 

under organic management in 2008. ERS 

estimated the number of certified 

organic turkeys raised in the United 

States in 2008 at 398,531.1 The 

Nutrition Business Journal calculated 

the market value for organic laying 

chickens at $252,000,000 in 2008.2 In 

addition to being sold as whole 

products, organic eggs and poultry byproducts are used in the production of 

organic processed products including 

soups, broths, prepared meals, ice cream 

and egg nog. The USDA accredits 

certifying agents who provide 

certification services to producers and 

handlers. A complete list of names and 

addresses of accredited certifying agents 

may be found on the AMS NOP Web 

site, at http://www.ams.usda.gov/nop. 

AMS believes that most of these entities 

would be considered small entities 

under the criteria established by the 

SBA. 

D. Paperwork Reduction Act 

No additional collection or 

recordkeeping requirements are 

imposed on the public by this interim 

rule. Accordingly, OMB clearance is not 

required by § 350(h) of the Paperwork 

Reduction Act of 1995 (44 U.S.C. 3501– 

3520) or OMB’s implementing 

regulations at 5 CFR part 1320. 

The AMS is committed to compliance 

with the Government Paperwork 

Elimination Act (GPEA), which requires 

government agencies in general to 

provide the public the option of 

submitting information or transacting 

business electronically to the maximum 

extent possible. The AMS is committed 

to complying with the E-Government 

Act, to promote the use of the Internet 

and other information technologies to 

provide increased opportunities for 

citizen access to government 

information and services, and for other 

purposes. 

E. General Notice of Public Rulemaking 

This interim rule reflects a 

recommendation submitted to the 

Secretary by the NOSB for extending the 

use of synthetic methionine in organic 

poultry production until October 1, 

2012. The NOSB evaluated this 

substance using criteria in the OFPA in 

response to a petition from the MTF. 

The NOSB has determined that while 

wholly natural substitute products exist, 

they are not presently available in 

sufficient supplies to meet poultry 

producer needs. Therefore, synthetic 

methionine is presently a necessary 

component of a nutritionally adequate 

diet for organic poultry. However, to 

encourage a transition of industry 

practices towards decreasing 

dependence on synthetic sources of the 

amino acid, the NOSB has 

recommended extending the allowed 

use of synthetic methionine in poultry 

production until October 1, 2012, with 

maximum allowable limits. The 

Secretary has reviewed the 

recommendation from the board. 

Pursuant to 5 U.S.C. 553, it is found and 

determined upon good cause that it is 

impracticable and contrary to the public 

interest to give preliminary notice prior 

to putting this rule into effect in order 

to ensure the continued use of synthetic 

methionine after October 1, 2010, and 

avoid any disruption to the organic 

poultry market. 

List of Subjects in 7 CFR Part 205 

Administrative practice and 

procedure, Agriculture, Animals, 

Archives and records, Imports, Labeling, 

Organically produced products, Plants, 

Reporting and recordkeeping 

requirements, Seals and insignia, Soil 

conservation. 

■ For the reasons set forth in the 

preamble, 7 CFR part 205, subpart G is 

amended as follows: 


wwoods2 on DSK1DXX6B1PROD with RULES_PART 1
51924 Federal Register / Vol. 75, No. 163 / Tuesday, August 24, 2010 / Rules and Regulations 

PART 205—NATIONAL ORGANIC 

PROGRAM 

■ 1. The authority citation for 7 CFR 

part 205 continues to read as follows: 

Authority: 7 U.S.C. 6501–6522. 

■ 2. Section 205.603(d)(1) is revised to 

read as follows: 

§ 205.603 Synthetic substances allowed 

for use in organic livestock production. 

* * * * * 

(d) * * * 

(1) DL–Methionine, DL–Methionine— 

hydroxy analog, and DL–Methionine— 

hydroxy analog calcium (CAS #–59–51– 

8; 63–68–3; 348–67–4)—for use only in 

organic poultry production until 

October 1, 2012, at the following 

maximum levels of synthetic 

methionine per ton of feed: laying 

chickens—4 pounds; broiler chickens— 

5 pounds; turkeys and all other 

poultry—6 pounds. 

* * * * * 

Dated: August 17, 2010. 

Rayne Pegg, 

Administrator, Agricultural Marketing 

Service. 

[FR Doc. 2010–20977 Filed 8–23–10; 8:45 am] 

BILLING CODE 3410–02–P 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Part 922 

[Doc. No. AMS–FV–10–0050; FV10–922–1 

FR] 

Apricots Grown in Designated 

Counties in Washington; Increased 

Assessment Rate 

AGENCY: Agricultural Marketing Service, 

USDA. 

ACTION: Final rule. 

SUMMARY: This rule increases the 

assessment rate established for the 

Washington Apricot Marketing 

Committee (Committee) for the 2010–11 

and subsequent fiscal periods from 

$1.00 to $1.50 per ton for Washington 

apricots. The Committee is responsible 

for local administration of the marketing 

order regulating the handling of apricots 

grown in designated counties in 

Washington. Assessments upon 

handlers of apricots are used by the 

Committee to fund reasonable and 

necessary expenses of the program. The 

fiscal period for the marketing order 

begins April 1 and ends March 31. The 

assessment rate would remain in effect 

indefinitely unless modified, suspended 

or terminated. 

DATES: Effective Date: August 25, 2010. 

FOR FURTHER INFORMATION CONTACT: 

Robert Curry or Gary Olson, Northwest 

Marketing Field Office, Marketing Order 

Administration Branch, Fruit and 

Vegetable Programs, AMS, USDA, 1220 

SW. Third Avenue, Suite 385, Portland, 

OR 97204; Telephone: (503) 326–2724; 

Fax: (503) 326–7440; or E-mail: 

Robert.Curry@ams.usda.gov or 

GaryD.Olson@ams.usda.gov. 

Small businesses may request 

information on complying with this 

regulation by contacting Antoinette 

Carter, Marketing Order Administration 

Branch, Fruit and Vegetable Programs, 

AMS, USDA, 1400 Independence, SW., 

STOP 0237, Washington, DC 20250– 

0237; Telephone: (202) 690–3919; Fax: 

(202) 720–8938; or E-mail: 

Antoinette.Carter@ams.usda.gov. 

SUPPLEMENTARY INFORMATION: This rule 

is issued under Marketing Order No. 

922 (7 CFR part 922), as amended, 

regulating the handling of apricots 

grown in designated counties in 

Washington, hereinafter referred to as 

the ‘‘order.’’ The order is effective under 

the Agricultural Marketing Agreement 

Act of 1937, as amended (7 U.S.C. 601– 

674), hereinafter referred to as the ‘‘Act.’’ 

The Department of Agriculture 

(USDA) is issuing this rule in 

conformance with Executive Order 

12866. 

This rule has been reviewed under 

Executive Order 12988, Civil Justice 

Reform. Under the marketing order now 

in effect, apricot handlers in designated 

counties in Washington are subject to 

assessments. Funds to administer the 

order are derived from such 

assessments. It is intended that the 

assessment rate as issued herein will be 

applicable to all assessable Washington 

apricots beginning April 1, 2010, and 

continue until amended, suspended, or 

terminated. 

The Act provides that administrative 

proceedings must be exhausted before 

parties may file suit in court. Under 

section 608c(15)(A) of the Act, any 

handler subject to an order may file 

with USDA a petition stating that the 

order, any provision of the order, or any 

obligation imposed in connection with 

the order is not in accordance with law 

and request a modification of the order 

or to be exempted therefrom. Such 

handler is afforded the opportunity for 

a hearing on the petition. After the 

hearing USDA would rule on the 

petition. The Act provides that the 

district court of the United States in any 

district in which the handler is an 

inhabitant, or has his or her principal 

place of business, has jurisdiction to 

review USDA’s ruling on the petition, 

provided an action is filed not later than 

20 days after the date of the entry of the 

ruling. 

This rule increases the assessment 

rate established for the Committee for 

the 2010–11 and subsequent fiscal 

periods from $1.00 to $1.50 per ton for 

Washington apricots handled under the 

order. 

The order provides authority for the 

Committee, with the approval of USDA, 

to formulate an annual budget of 

expenses and collect assessments from 

handlers to administer the program. The 

members of the Committee are 

producers and handlers of apricots in 

designated counties in Washington. 

They are familiar with the Committee’s 

needs and with the costs for goods and 

services in their local area and are thus 

in a position to formulate an appropriate 

budget and assessment rate. The 

assessment rate is formulated and 

discussed at a public meeting. Thus, all 

directly affected persons have an 

opportunity to participate and provide 

input. 

For the 2009–10 and subsequent fiscal 

periods, the Committee recommended, 

and the USDA approved, an assessment 

rate of $1.00 per ton of apricots handled. 

This rate continues in effect from fiscal 

period to fiscal period unless modified, 

suspended, or terminated by USDA 

upon recommendation and information 

submitted by the Committee or other 

information available to USDA. 

The Committee met on May 19, 2010, 

and unanimously recommended 2010– 

11 expenditures of $8,145. In 

comparison, last year’s budgeted 

expenditures were $7,843. In addition, 

the Committee recommended that the 

$1.00 per ton assessment rate be 

increased by $0.50 to $1.50 per ton of 

apricots handled. Committee members 

reported that apricot production this 

season may be lower than that of last 

season since portions of the Washington 

apricot production area experienced 

freezing weather in October 2009, and 

high winds in April of this year. As a 

result, the Committee has estimated that 

shipments of fresh apricots will 

approximate 5,550 tons this season— 

somewhat less than the 6,860 tons of 

fresh apricots reported last season. The 

Committee thus recommended that the 

assessment rate be increased by $0.50 to 

help ensure that budgeted expenses are 

adequately covered. 

The major expenditures 

recommended by the Committee for the 

2010–11 fiscal period include $4,800 for 

the management fee, $1,300 for 

Committee travel, $100 for compliance, 

$750 for the annual audit review, and 

$1,195 for equipment maintenance, 

insurance, bonds, and miscellaneous 

expenses. In comparison, major 


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