This section of the FEDERAL REGISTER

contains regulatory documents having general

applicability and legal effect, most of which

are keyed to and codified in the Code of

Federal Regulations, which is published under

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REGISTER issue of each week.

Rules and Regulations Federal Register

32803 

Vol. 71, No. 109 

Wednesday, June 7, 2006 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Part 205 

[Docket Number: TM–06–06–FR] 

RIN 0581–AC60 

National Organic Program—Revisions 

to Livestock Standards Based on 

Court Order (Harvey v. Johanns) and 

2005 Amendment to the Organic Foods 

Production Act of 1990 (OFPA) 

AGENCY: Agricultural Marketing Service, 

USDA. 

ACTION: Final rule. 

SUMMARY: This final rule revises the 

National Organic Program (NOP) 

regulations to comply with the final 

judgment in the case of Harvey v. 

Johanns (Harvey) issued on June 9, 

2005, by the U.S. District Court, District 

of Maine, and to address the November 

10, 2005, amendment made to the 

Organic Foods Production Act of 1990 

(7 U.S.C. 6501 et seq., the OFPA), 

concerning the transition of dairy 

livestock into organic production. 

Further, this final rule revises the 

NOP regulations to clarify that only 

nonorganically produced agricultural 

products listed in the NOP regulations 

may be used as ingredients in or on 

processed products labeled as 

‘‘organic.’’ In accordance with the final 

judgment in Harvey, the revision 

emphasizes that only the nonorganically 

produced agricultural ingredients listed 

in the NOP regulations can be used in 

accordance with any specified 

restrictions and when the product is not 

commercially available in organic form. 

To comply with the court order in 

Harvey, USDA is required to publish 

final revisions to the NOP regulations 

within 360 days of the court order, or 

by June 4, 2006. 

Accordingly, this final rule amends 

the NOP regulations to eliminate the use 

of up to 20 percent nonorganically 

produced feed during the first 9 months 

of the conversion of a whole dairy herd 

from conventional to organic 

production. This final rule also 

addresses the amendment made to the 

OFPA concerning the transition of dairy 

livestock into organic production by 

allowing crops and forage from land, 

included in the organic system plan of 

a dairy farm, that is in the third year of 

organic management to be consumed by 

the dairy animals of the farm during the 

12-month period immediately prior to 

the sale of organic milk and milk 

products. 

DATES: Effective June 8, 2006, except for 

§ 205.606, which is effective on June 9, 

2007. 

FOR FURTHER INFORMATION CONTACT: 

Mark Bradley, Associate Deputy 

Administrator, Transportation & 

Marketing Programs, National Organic 

Program, 1400 Independence Ave., SW., 

Room 4008—So., Ag Stop 0268, 

Washington, DC 20250. Telephone: 

(202) 720–3252; Fax: (202) 205–7808. 

SUPPLEMENTARY INFORMATION: 

I. Background 

In 1990, Congress passed the OFPA, 

which required the USDA to develop 

national standards for organically 

produced agricultural products to assure 

consumers that agricultural products 

marketed as organic meet consistent, 

uniform standards. Based on the 

requirements of the OFPA, USDA 

established the NOP to develop national 

organic standards, including a National 

List of substances approved for and 

prohibited from use in organic 

production and handling, that would 

require agricultural products labeled as 

organic to originate from farms or 

handling operations certified by a State 

or private entity that has been 

accredited by USDA. On December 21, 

2000, USDA published the final rule for 

the NOP in the Federal Register (7 CFR 

part 205). On October 21, 2002, the NOP 

regulations became fully implemented 

by USDA as the uniform standard of 

production and handling for organic 

agricultural products in the United 

States. 

In October 2003, Arthur Harvey filed 

a complaint under the Administrative 

Procedure Act in the U.S. District Court, 

District of Maine. Mr. Harvey alleged 

that several subsections of the NOP 

regulations violated OFPA, were 

arbitrary, and not in accordance with 

law. 

On January 26, 2005, the U.S. Court 

of Appeals for the First Circuit issued a 

decision in the case. The court upheld 

the NOP regulations 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 stated 7 CFR 205.606 

does not establish a blanket exemption 

to the National List requirements 

specified in 7 U.S.C. 6517, permitting 

the use of nonorganic agricultural 

products in or on processed organic 

products when their organic form is not 

commercially available. The district 

court ordered the Secretary to make 

publicly known within 30 days— 

through notice in the Federal Register 

to all certifying agents and interested 

parties—that 7 CFR 205.606 shall be 

interpreted to permit only the use of a 

nonorganically produced agricultural 

product that has been listed in 7 CFR 

205.606 pursuant to National List 

procedures, and when a certifying agent 

has determined that the organic form of 

the agricultural product is not 

commercially available. USDA 

complied with this order on July 1, 2005 

(70 FR 38090). 

The court also ruled in favor of Mr. 

Harvey with respect to 7 CFR 205.605(b) 

of the NOP regulations, concerning the 

use of synthetic substances in or on 

processed products which contain a 

minimum of 95 percent organic content 

and are eligible to bear the USDA seal 

(7 CFR 205.605(b)). The court found 

§ 205.605(b) contrary to the OFPA and 

in excess of the Secretary’s rulemaking 

authority. 

In addition, the court found in favor 

of Harvey with respect to 7 CFR 

205.236(a)(2)(i) of the NOP regulations. 

This section creates an exception to the 

general requirements for the conversion 

of whole dairy herds to organic 

production. The court found the 

provisions at 7 CFR 205.236(a)(2)(i) 

contrary to the OFPA and in excess of 

the Secretary’s rulemaking authority. 

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. 

Congressional Amendment to the OFPA 

After the court issued its final 

judgment and order, Congress amended 

the OFPA. On November 10, 2005, 


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Congress amended the OFPA by 

permitting the addition of synthetic 

substances appearing on the National 

List for use in products labeled 

‘‘organic.’’ The amendment restores the 

NOP regulation for organic processed 

products containing at least 95 percent 

organic ingredients on the National List 

and their ability to carry the USDA seal. 

Therefore, USDA is not revising the 

NOP regulations to prohibit the use of 

synthetic ingredients in processed 

products labeled as organic nor restrict 

these products’ eligibility to carry the 

USDA seal. 

Congress also amended the OFPA to 

allow a special provision for 

transitioning dairy livestock to organic 

production. The NOP regulations 

currently provided that when an entire, 

distinct herd is converted to organic 

production, the producer may, for the 

first 9 months of the year, provide a 

minimum of 80-percent feed that is 

either organic or raised from land 

included in the organic system plan and 

managed in compliance with organic 

crop requirements. The circuit court 

found these provisions to be contrary to 

the OFPA and in excess of the 

Secretary’s rulemaking authority. 

In the amendments to OFPA, 

Congress provided a new provision to 

allow crops and forage from land 

included in the organic system plan of 

a farm that is in the third year of organic 

management to be consumed by the 

dairy animals of the farm during the 12- 

month period immediately prior to the 

sale of organic milk and milk products. 

USDA is revising § 205.236(a)(2) to 

reflect this amendment to the OFPA in 

this rulemaking. 

II. Comments Received 

We received 13,115 comments, most 

as form letters (13,020). Comments were 

received from consumers, producers, 

processors, trade associations, food 

industry organizations, certifying 

agents, the National Organic Standards 

Board (NOSB), and state governments. 

The majority of the comments received 

dealt with the proposed changes to the 

dairy animal language in the regulation. 

Several comments requested a more 

lengthy comment period than the 15- 

day comment period provided. 

However, the Department determined 

that the changes that were mandated by 

the U.S. District Court to be completed 

by June 4, 2006, had been well 

publicized for over a year, as the circuit 

court’s decision was published on 

January 26, 2005. To meet the mandated 

court deadline therefore, a shortened 

comment period was considered 

appropriate. 

Comments were received dealing with 

paragraph § 205.606 and how 

commercial availability and the 

National List procedures applies to 

products labeled as ‘‘made with organic 

(ingredients).’’ This was an error in the 

proposed rule; paragraph § 205.606 

should only pertain to products labeled 

as ‘‘organic.’’ Because products labeled 

as ‘‘made with organic (ingredients)’’

may, by definition, contain up to 30 

percent nonorganic agricultural 

ingredients, regardless of commercial 

availability, we have corrected the 

language in this final rule. 

Commenters requested that changes 

be made to § 205.600(b), dealing with 

the criteria by which materials are 

evaluated by the National Organic 

Standards Board (NOSB) for inclusion 

on the National List. Specifically, 

commenters asked to eliminate the 

words ‘‘processing aids and adjuvants’’

in the criteria of synthetics to be 

reviewed of handling materials under 

§ 205.600(b). The Department has no 

position on this comment at this time, 

as the comments go beyond the scope of 

the proposed rule. These comments will 

be provided to the NOSB and the NOSB 

may consider whether to make a 

recommendation to the Department for 

amending the NOP regulations. 

Other commenters discussed the 

definitions of the terms ‘‘ingredient,’’

‘‘processing aid,’’ and ‘‘substance.’’

These commenters suggested that 

changes in the NOP regulations section 

of definitions, or elimination of some 

words altogether elsewhere in the NOP 

regulations, could improve the clarity of 

the NOP regulations with respect to how 

materials are evaluated for inclusion on 

the National List. 

In response to the commenters’

suggestions to improve the clarity of the 

NOP regulations by revising 

aforementioned terms, the Department 

welcomes these suggestions. However, 

these comments will be provided to the 

NOSB for consideration of a 

recommendation to the Department for 

amending the NOP regulations through 

future notice and comment rulemaking. 

As noted above, this rulemaking seeks 

merely to satisfy the court final order 

and judgment and implement the 

Congressional amendments at this time. 

We also received several comments 

related to the amendment to the OFPA 

by Congress that authorized the 

Secretary to establish procedures for 

adding nonorganic agricultural 

materials to the National List in the 

event of an emergency if they are 

commercially unavailable in organic 

form. These commenters asked for a 60- 

day notice and comment rulemaking 

period; commenters also asked when 

and how the Department planned to 

proceed with such rulemaking. Since 

this amendment to the OFPA is not part 

of this rulemaking, the Department will 

proceed through normal notice and 

comment rulemaking procedures and 

consult with the NOSB prior to 

publishing a proposed rule on 

emergency petition procedures. 

The vast majority of the comments 

received dealt with subparagraph 

§ 205.236(a)(i). Most comments were 

positive for keeping the last third of 

gestation for conversion of an entire 

dairy herd in the regulation. However, 

these commenters wanted the last third 

of gestation clause to apply to all dairy 

operations once the operation is 

certified as organic, regardless of the 

number of animals converted, or 

whether an entire, distinct herd is 

converted. 

When Congress amended the OFPA, 

only the feed provision was addressed, 

to provide a different method of 

transition for dairy animals entering 

organic production. This final rule 

implements the Congressional 

amendments and the court’s final 

judgment. USDA recognizes that this 

change still leaves two methods of 

replacement of dairy animals for organic 

dairy operations and that this is a matter 

of concern in the organic community. 

To address the issue of dairy 

replacement animals for all certified 

organic dairy operations, USDA will 

draft an advanced notice of proposed 

rulemaking (ANPR) to invite public 

comment on further changes necessary 

to the NOP regulations dealing with the 

origin of dairy livestock under 

subparagraph § 205.236(a)(2), Dairy 

Animals. 

We received comments that expressed 

concern that producers would be able to 

feed dairy animals feed and forage that 

had been harvested earlier than the 

third year, from land in transition to 

organic and that a certifying agent must 

be able to inspect the records to verify 

that this does not occur. This is a valid 

concern, and commas have been 

inserted in the final regulation to make 

clear that crops and forage must come 

from land that is in the third year of 

transition to organic. 

III. Related Documents 

Documents related to this final rule 

include the OFPA, as amended, (7 

U.S.C. 6501 et seq.), its implementing 

regulations (7 CFR part 205), and a 

Federal Register notice publishing the 

final judgment and order in the case of 

Harvey v. Johanns (70 FR 38090). 


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Federal Register / Vol. 71, No. 109 / Wednesday, June 7, 2006 / Rules and Regulations 32805 

1 Greene, Catherine. Certified organic livestock, 

2003, numbers were obtained from the author on 

permission; forthcoming from the Economic 

Research Service (ERS), U.S. Department of 

Agriculture. 

2 Dalton, Timothy J., Lisa A. Bragg, Rick 

Kersbergen, Robert Parson, Glenn Rogers, Dennis 

Kauppila, Qingbin Wang. ‘‘Cost and Returns to 

Organic Dairy Farming in Maine and Vermont for 

2004,’’ University of Maine Department of Resource 

Economics and Policy Staff Paper #555, November 

23, 2005. 

A. Executive Order 12866 

This action has been determined not 

significant for purposes of Executive 

Order 12866, and therefore, does not 

have to be 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. 

This final rule is not intended to have 

a retroactive effect. 

States and local jurisdictions are 

preempted under section 2115 of the 

OFPA (7 U.S.C. 6514) 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 Sec. 

2115(b) of the OFPA (7 U.S.C. 6514(b)). 

States are also preempted under Sec. 

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 section 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) 

not be inconsistent 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. 

Pursuant to section 2120(f) of the 

OFPA (7 U.S.C. 6519(f)), this final rule 

would not alter the authority of the 

Secretary under the Federal Meat 

Inspection Act (21 U.S.C. 601 et seq.), 

the Poultry Products Inspections Act (21 

U.S.C. 451 et seq.), or the Egg Products 

Inspection Act (21 U.S.C. 1031 et seq.), 

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 et 

seq.), nor the authority of the 

Administrator of the Environmental 

Protection Agency (EPA) under the 

Federal Insecticide, Fungicide and 

Rodenticide Act (7 U.S.C. 136 et seq.). 

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 person 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 and 

Paperwork Reduction Act 

The Regulatory Flexibility Act (RFA) 

(5 U.S.C. 601 et seq.) 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, the Agricultural Marketing 

Service (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 and has determined that this 

final rule would have an impact on a 

substantial number of small entities. 

Small agricultural service firms, 

which include producers, 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 $6,500,000 and small agricultural 

producers are defined as those having 

annual receipts of less than $750,000. 

The U.S. organic industry at the end 

of 2001 included nearly 6,949 certified 

organic crop and livestock operations. 

These operations reported certified 

acreage totaling just over 2 million acres 

of organic farm production. Data on the 

numbers of certified organic handling 

operations (any operation that 

transforms raw product into processed 

products using organic ingredients) 

were not available at the time of survey 

in 2001; but they were estimated to be 

in the thousands. Based on 2003 data, 

certified organic acreage had increased 

to 2.2 million acres. By the end of 2004, 

the number of certified organic crop, 

livestock, and handling operations 

totaled nearly 11,400 operations, based 

on reports by certifying agents to NOP 

as part of their annual reporting 

requirements. AMS believes that most of 

these entities would be considered 

small entities under the criteria 

established by the SBA. 

U.S. sales of organic food and 

beverages have grown from $1 billion in 

1990 to an estimated $12.2 billion in 

2004. Organic food sales are projected to 

reach nearly $15 billion for 2005. The 

organic industry is viewed as the fastest 

growing sector of agriculture, 

representing 2 percent of overall food 

and beverage sales. Since 1990, organic 

retail sales have historically 

demonstrated a growth rate between 20 

to 24 percent each year. This growth 

rate is projected to decline and fall to a 

rate of 5 to 10 percent in the future. 

In addition, USDA has accredited 96 

certifying agents who have applied to 

USDA to be accredited in order to 

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. 

Impact of Lawsuit and Congressional 

Amendment on Dairy 

The loss of the 80–20 feed exception 

can be measured depending on various 

feed costs, for average farm sizes, and 

for the sector as a whole using 2003 

estimates of the number of certified 

dairy livestock in the United States—the 

latest year for which numbers are 

available.1 Generally, for organic dairy 

operations, feed and labor are the most 

significant cost components, comprising 

upwards of 50 percent of the total 

variable costs of the operation.2 Organic 

feed is significantly more expensive 

than conventional feed, and various 

quotes for organic feed run as high as 

double the cost of conventional or 

nonorganic feed rations. According to 


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3 Ibid. 

4 Information provided in conversations with 

Pacific Nutrition-Consulting (PNC) based on 

USDA–ACA budgets for estimating the cost of the 

transition year for dairy farmers using the 80–20 

feed provision. 

one study, higher feed cost was the 

largest and most important difference 

between organic and nonorganic dairy 

production, with the additional expense 

of feeding organic dairy costs being 54 

percent of the price differential received 

for organic milk.3 In this study, for a 48- 

cow organic herd, purchased feed cost 

$1,003 per cow, or $298 per cow more 

than for a conventional dairy operation. 

For the entire year, the average farm 

spent approximately $49,000 for 

purchased organic feed for the 48-cow 

herd in this study. 

A rough estimate of the loss of the 80–

20 feed exception can be determined 

using this study’s farm cost numbers. 

Using the estimated per-cow feed 

numbers, if a dairy farmer had to switch 

from using 80 percent organic feed to 

100 percent organic feed, and purchased 

all of the organic feed, the additional 

cost to the dairy farmer is $27 per 

month, or about 2.7 percent higher than 

using the 80–20 feed exception. 

For the sector, based on ERS’s latest 

estimate of approximately 74,435 

certified dairy cows in 2003, the loss of 

the 80–20 feed provision using the 

above cost estimates would amount to 

around $2 million. But this assumes: (1) 

All of the dairy cows in the sector are 

converted to organic in the same year; 

(2) all farm operators use the 80–20 feed 

provision in that same year; and (3) all 

organic feed was purchased. Because 

these assumptions are unlikely, the $2 

million estimated for the sector likely 

overstates the total cost of the loss of the 

80–20 feed provision. This cost estimate 

more likely represents an upper bound 

estimate based on this farm study’s feed 

cost estimate, as if all dairy cows were 

converted to organic at a single point in 

time under the above assumptions. 

TABLE 1.—COST OF LOSING 80–20 

FEED PROVISION BASED ON

VERMONT-MAINE DAIRY STUDY

COST ESTIMATES

Organic feed per cow: $1,003 per year or 

$84 per month 

Nonorganic feed per cow: 795 per year or 

$66 per month 

9 months: 20% nonorganic feed cost: 

(0.2)×($66)×(9) = $119 

80% organic feed costs: (0.8)×($84)×(9) = 

$605 

3 months: 100% organic feed: 

(1.0)×($84)×(3) = $252 

Total Feed Using 80–20: $976 

12 months using organic feed only: 12 

months×$84/cow = $1,003 

Difference (loss) of 80–20, 48-cow herd: 12 

mo×$27/cow loss = $1,296 

Instead, an alternative estimate could 

be derived for a growing industry that 

is adding new dairy cows to the 

industry. According to ERS, in 2000, 

there were just over 38,000 certified 

dairy livestock, increasing to nearly 

49,000 by 2001, and 67,000 in 2002. 

With reports of rising milk prices and 

shortages in the U.S. organic dairy 

market in 2005, continued growth in 

organic dairy livestock numbers could 

be expected. 

Therefore, an alternative estimate of 

the loss is to calculate the number of 

dairy cows added to the sector each year 

and assume they were all added to the 

sector by being converted using the 80–

20 feed transition provision. Using the 

ERS numbers above, between 2000 and 

2001, 11,000 certified dairy cows were 

added. Another 18,000 cows were 

added by 2002, and 7,435 in 2003. On 

average, 12,145 dairy cows were added 

each year since 2000. Based on these 

numbers from ERS and the additional 

cost of $27 per cow from the study 

above, using the 80–20 feed provision, 

the loss of the 80–20 provision would 

have cost dairy farmers approximately 

$327,915 per year, or nearly $1 million 

over the 3-year period. 

Different estimates were obtained 

from discussions with Western state 

industry experts in dairy feed and 

nutrition, and budgets developed by 

certifying agents who work with 

certified dairy operations.4 These 

estimates resulted in higher costs due to 

the loss of the 80–20 feed provision, of 

as much as $416 per cow annually, or 

assuming an addition of approximately 

12,000 cows per year to the sector, a loss 

of nearly $5 million per year to the 

sector. 

Depending on location, climate, size, 

and purchased feed, costs may vary 

considerably. The west, for example, 

tends to be a feed-deficit region where 

farmers purchase more feed and rely 

less on feed from on-farm or nearby 

sources. The farther the distance a 

farmer has to go to obtain feed, the more 

costly the feed will be, all other things 

being equal, making it likely that costs 

would vary by region or climate. 

With higher milk prices, more farmers 

might be attracted to enter organic dairy 

farming. In the short run, this would 

add to pressure (due to more 

competition) on feed supplies. With the 

loss of the 80–20 feed provision, this 

could drive up the cost of feed; in the 

short run, therefore, there could be 

additional upward pressure on these 

cost estimates. 

Regardless, these additional costs 

would have to be absorbed somewhere. 

They must either be passed forward to 

consumers in the form of higher fluid 

milk and dairy product prices—already 

at high premiums relative to 

conventional dairy product prices—or 

they would have to be absorbed by 

farmers. 

However, Congress did amend OFPA 

for transitioning dairy farmers, by 

permitting such dairy farmers to graze 

dairy livestock on land being converted 

to organic production during its 3rd 

year of transition. Thus, the loss of the 

80–20 feed exception is mitigated in 

part by the action that Congress took. In 

effect, a farm transitioning its dairy 

cows to organic could put its cows on 

that farm’s pasture being converted to 

organic and the milk from those cows 

would be organic at the same time as 

crops being harvested from that land—

at the end of the third year that the land 

completed organic management. 

Congress leveled the playing field for 

dairy farmers when they amended 

OFPA in this area by removing any 

penalties that dairy farmers faced with 

the so-called ‘‘4th year’’— i.e., the 

additional transition year that dairy 

cows underwent due to lactation cycles. 

And Congress did not change the basic 

requirement of OFPA. Dairy cows must 

be organically managed for at least 12 

months; after these 12 months of organic 

management, only her milk and milk 

products may be represented as organic. 

The status of the dairy cow is a 

different story. The dairy cow is only 

organic if she was raised organically 

from the last third of the mother’s 

gestation. When a dairy cow is 

slaughtered, she cannot be sold as 

organic slaughter stock unless she was 

raised organically from the last third of 

the mother’s gestation, the same as other 

slaughter livestock (except poultry, 

which must be raised organically 

beginning with the second day of life). 

That remains the same in the NOP 

regulation. 

In providing the transition language, 

entry in organic dairying may become 

easier, which could ease current milk 

shortages in the organic milk market at 

retail. Certainly it should help smaller 

dairy farmers entering the organic 

industry who may be faced with having 

to purchase higher priced organic feed, 

by allowing them to graze dairy 

livestock on their land that is being 

transitioned to organic certification. 

Other changes in this rule merely 

implement Congressional amendments 

and the court’s final judgment and 

order. With respect to alternatives to 


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this rule, as stated above, this rule 

merely implements language which 

Congress has enacted and complies with 

the court’s final judgment and order. 

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. 

USDA has not identified any relevant 

Federal rules that duplicate, overlap, or 

conflict with this rule. 

No additional collection or 

recordkeeping requirements are 

imposed on the public by this rule. 

Accordingly, OMB clearance is not 

required by § 305(h) of the Paperwork 

Reduction Act of 1995, 44 U.S.C. 3501, 

et seq., or OMB’s implementing 

regulation at 5 CFR part 1320. 

Further, given the Congressional 

amendments, and the court’s final 

judgment and order, good cause exists 

under 5 U.S.C. 533 for not postponing 

the effective date of this rule, except 

§ 205.606, until 30 days after 

publication in the Federal Register. 

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, is amended 

as follows: 

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 205.236 (a)(2) is revised to 

read as follows: 

§ 205.236 Origin of Livestock. 

(a) * * * 

(2) Dairy animals. Milk or milk 

products must be from animals that 

have been under continuous organic 

management beginning no later than 1 

year prior to the production of the milk 

or milk products that are to be sold, 

labeled, or represented as organic, 

Except, 

(i) That, crops and forage from land, 

included in the organic system plan of 

a dairy farm, that is in the third year of 

organic management may be consumed 

by the dairy animals of the farm during 

the 12-month period immediately prior 

to the sale of organic milk and milk 

products; and 

(ii) That, when an entire, distinct herd 

is converted to organic production, the 

producer may, provided no milk 

produced under this subparagraph 

enters the stream of commerce labeled 

as organic after June 9, 2007: (a) For the 

first 9 months of the year, provide a 

minimum of 80-percent feed that is 

either organic or raised from land 

included in the organic system plan and 

managed in compliance with organic 

crop requirements; and (b) Provide feed 

in compliance with § 205.237 for the 

final 3 months. 

(iii) Once an entire, distinct herd has 

been converted to organic production, 

all dairy animals shall be under organic 

management from the last third of 

gestation. 

* * * * * 

■ 3. Section 205.606 is revised to read 

as follows: 

§ 205.606 Nonorganically produced 

agricultural products allowed as ingredients 

in or on processed products labeled as 

organic. 

Only the following nonorganically 

produced agricultural products may be 

used as ingredients in or on processed 

products labeled as ‘‘organic,’’ only in 

accordance with any restrictions 

specified in this section, and only when 

the product is not commercially 

available in organic form. 

(a) Cornstarch (native) 

(b) Gums—water extracted only (arabic, 

guar, locust bean, carob bean) 

(c) Kelp—for use only as a thickener and 

dietary supplement 

(d) Lecithin—unbleached 

(e) Pectin (high-methoxy) 

Dated: June 2, 2006. 

Barry L. Carpenter, 

Acting Administrator, Agricultural Marketing 

Service. 

[FR Doc. 06–5203 Filed 6–5–06; 9:14 am] 

BILLING CODE 3410–02–P 

DEPARTMENT OF TRANSPORTATION 

Federal Aviation Administration 

14 CFR Part 39 

[Docket No. FAA–2006–24953; Directorate 

Identifier 2006–NM–084–AD; Amendment 

39–14628; AD 2006–04–11 R1] 

RIN 2120–AA64 

Airworthiness Directives; Airbus Model 

A321–100 Series Airplanes 

AGENCY: Federal Aviation 

Administration (FAA), Department of 

Transportation (DOT). 

ACTION: Final rule; request for 

comments. 

SUMMARY: The FAA is revising an 

existing airworthiness directive (AD) 

that applies to certain Airbus Model 

A321–111, –112, and –131 airplanes. 

That AD currently requires repetitive 

inspections to detect fatigue cracking in 

the area surrounding certain attachment 

holes of the forward pintle fittings of the 

main landing gear (MLG) and the 

actuating cylinder anchorage fittings on 

the inner rear spar; and repair, if 

necessary. That AD also provides for 

optional terminating action for the 

repetitive inspections, adds inspections 

of three additional mounting holes, and 

revises the thresholds for the currently 

required inspections. We issued that AD 

to detect and correct fatigue cracking on 

the inner rear spar of the wings, which 

could result in reduced structural 

integrity of the airplane. This new AD 

retains the requirements and revises the 

applicability of that AD. This AD results 

from the discovery of a typographical 

error in the applicability of that AD, 

which could cause the unsafe condition 

on an affected airplane to remain 

uncorrected. We are issuing this AD to 

detect and correct fatigue cracking on 

the inner rear spar of the wings, which 

could result in reduced structural 

integrity of the airplane. 

DATES: Effective June 22, 2006. 

The incorporation by reference of the 

publications specified in the following 

table, as listed in the regulations, was 

approved previously by the Director of 

the Federal Register as of March 8, 2006 

(71 FR 8792, February 21, 2006). 

MATERIAL INCORPORATED BY REFERENCE

Airbus service bulletin Revision 

level Date 

A320–57–1100, including Appendix 01 .............................................................................................................. (1) July 28, 1997. 

A320–57–1100, including Appendices 01 and 02 .............................................................................................. 03 January 16, 2003. 

A320–57–1101 .................................................................................................................................................... 03 July 30, 2003. 


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