FORMAL RECOMMENDATION BY THE

NATIONAL ORGANIC STANDARDS BOARD (NOSB) 

TO THE NATIONAL ORGANIC PROGRAM (NOP) 

Date: __May 22, 2006______________________

Subject: Commercial Availability Criteria _________________ 

Chair: Kevin R. O’Rell_________________________________ 

Recommendation

The NOSB hereby recommends to the NOP the following: 

Rulemaking Action: ________ 

Guidance Statement: XXXXX_

Other: ________ 

Statement of the Recommendation (including Recount of Vote):

See attached Recommendation A, B, and C for commercial availability criteria for 

petitioning an item on 205.606, for NOSB review of the substance and for ACA’s criteria. 

NOSB Vote: 

Moved by Julie Weisman and seconded by Nancy Ostiguy 

Yes – 11 

No – 0 

Abstain – 1 

Absent- 2 

Rationale Supporting Recommendation (including consistency with OFPA and NOP):

The objective of this guidance recommendation is to establish consistent criteria and 

procedures to be followed by all certification applicants, certified operations and ACA’s 

when petitioning materials on 205.606 and when making commercial availability decisions 

regarding the use of materials on 205.606. 

Response by the NOP:
National Organic Standards Board 

Policy Development and Handling Committee 

Final Recommendation for the Establishment Commercial Availability 

Criteria 

March 30, 2006

Introduction 

The NOSB has been asked to provide a draft which addresses the development 

of criteria for the determination of commercial availability. The objective of this 

draft is to establish acceptable criteria and procedures to be followed by all 

certification applicants, certified operators, and accredited certifying agents 

(ACAs) when petitioning materials onto 205.606 and when making commercial 

availability decisions regarding the use of materials on 606. 

Background 

The NOP Rule allows that a non-organic agricultural ingredient may be used in 

an organic processed product if: (a) it is commercially unavailable in organic 

form; and (b) the total non-organic content does not exceed 5% by weight (minus 

added water and salt) of the organic product. Specifically (205.301 (b)) in the 

Final Rule states: ...A raw or processed agricultural product sold, labeled, or 

represented as “organic” must contain (by weight or fluid volume, excluding water 

and salt) not less than 95 percent organically produced raw or processed 

agricultural products. Any remaining product ingredient must be organically 

produced, unless not commercially available in organic form or must be 

nonagricultural substances or non organically produce agricultural products 

produced consistent with the National List....” 

205.2 of the Final Rule defines “commercial availability” as, “the ability to 

obtain a production input in an appropriate form, quality, or quantity to fulfill an 

essential function in a system of organic production or handling as determined by 

the certifying agent in the course of reviewing the organic plan.” 

205.201(a)(2) states, “The producer or handler of a production or handling 

operation, except as exempt or excluded under 205.101, intending to sell, label, 

or represent agricultural products as “100 percent organic,” “organic,” or “made 

with organic (specified ingredients or food groups (s))” must develop an organic 

production or handling system plan that is agreed to by the producer or handler 

and an accredited certifying agent. An organic system plan must meet the 

requirements set forth in this section for organic production or handling. An 

organic production or handling system plan must include: 
(2) A list of each substance to be used as a production or handling input, 

indicating its composition, source, location(s) where it will be used, and 

documentation of commercial availability, as applicable:” 

Until recently, the NOP Final Rule was interpreted to grant a blanket exemption 

for certifying agents and their clients to determine the commercial unavailability 

of organic agricultural products which were ingredients. This system allowed for 

timely determinations to be made regarding commercial availability and, if 

appropriate, allowances for the use of non-organic agricultural products. 

Operators who produced processed organic products for retail trade require such 

determinations to be made within relatively tight timeframes. This may be 

required for several reasons. The time frame may be as little as one or two 

weeks in cases of sudden crop failure, or disruption of the processing of a 

needed ingredient. An organic ingredient may also become suddenly scarce due 

to the entry of a new product in the marketplace which temporarily consumes the 

supply of a previously available organic agricultural product. 

On July 1, 2005, in a notice to all USDA-accredited certification agents, the 

USDA stated, “The declaratory judgment issued by the court [Harvey v. Johanns 

(Civil No. 02-216-P-H)] states that 7 CFR § 205.606 shall not be interpreted to 

grant a blanket exemption for certifying agents and their clients to determine the 

commercial unavailability of nonorganic agricultural substances. The 

declaratory judgment further stated that 7 CFR 205.606 shall be interpreted to 

permit the use of a nonorganically produced agricultural product only when the 

product has been listed in section 205.606 pursuant to the National List 

procedures and when an accredited certifying agent has determined that the 

organic form of the agricultural product is not commercially available.” 

In a Federal Register notice also issued July 1, 2005, the USDA stated, “The 

court’s order limits an accredited certifying agent’s commercially available 

determinations for non-organic agricultural products used in or on processed 

organic products to the substances contained in 7 CFR 205.606.” The deadline 

for compliance is June 2007, about 16 months from now. 

The NOSB and NOP must continue to move forward with the process described 

in the “Introduction” above in order to avoid a major disruption in the availability 

of organic processed products in the marketplace. Significant disruptions in the 

supply of organic processed products into the marketplace after June 2007 could 

be partly alleviated if procedures could also be established for proactively

petitioning non-organic agricultural products onto 606 that have a documented 

recent history of periodic commercial unavailability as organic. 
7 USC 6518 states: 

Sec. 2119. NATIONAL ORGANIC STANDARD BOARD.

(k) Responsibilities of the Board. 

(2) National List. The Board shall develop the proposed 

National List or proposed amendments to the National List 

for submission to the Secretary in accordance with section 

2118. 

To place a substance on or remove a substance from § 205.606, any person 

may submit a petition to the NOP and NOSB. The NOP will review the petition for 

completeness before the petition is considered by the NOSB. Complete petitions 

will be posted on the Petitioned Substances database and submitted to the 

NOSB for consideration. The NOSB will review the petition and all supporting 

information and make a draft recommendation, which will be posted for public 

comment prior to the next scheduled NOSB meeting. The NOSB will consider the 

petition, all supporting documentation, and all public comments, and then make a 

recommendation to the USDA regarding the status of the substance. If a 

substance is to be added to or removed from § 205.606, the USDA will issue a 

Proposed Rule in the Federal Register, receive public comments, and issue a 

Final Rule in the Federal Register to establish the legal status of the substance.

Furthermore, 205.201(a)(2) requires certification applicants and certified 

operators, as part of their Organic System Plans, to submit a list that states 

“...documentation of commercial availability, as applicable.” There are no 

standardized criteria for all ACAs to follow which will determine what should be 

researched in the documentation, and currently there are no processes in place 

for verifying the documentation accuracy. Section C of the recommendation 

below proposes standardized criteria to be used by ACAs when making 

commercial availability determinations for substances on § 205.606.

Recommendation 

A.The NOSB recommends using the procedures currently in place for petitioning 

materials onto 205.606. The document entitled “Information to be Included in a 

Petition”, shown on the NOP website, should be amended to include a 

description of the information needed for the determination of commercial 

availability of non-organically produced agricultural products. The following 

additions to this document are recommended: 

 1.Add the following bullet to Item A: 

• Agricultural (nonorganic) substance allowed in or on processed 

product labeled as “organic.” 
2. Add the following bullets to Item B #12 

• When petitioning for the inclusion on the National List of 

nonorganically produced agricultural products the petition must state 

why the product should be permitted in the production or handling of 

an organic product. Specifically, the petition must include current 

industry information regarding availability of and history of nonavailability of an organic form of the product, and all factors that may 

present a challenge to a consistent organic supply. 

• When petitioning for the removal from the National List of 

nonorganically produced agricultural products the petition must state 

why the product should be prohibited from use in a nonorganic form. 

Any information acquired since the original petition to add the material 

to the National List should be provided. 

B., In recommending that an agricultural ingredient should be placed on 205.606, 

the National Organic Standards Board shall review the petitioner’s claim that no 

organic substitutes are commercially available in the appropriate form, quality or 

quantity needed to fulfill an essential function in a system of organic handling. 

 

C. The accredited certifying agent, in granting a determination that an agricultural 

ingredient on 205.606 is not commercially available in an organic form, shall: 

1. Evaluate the applicant or certified operator’s documented claim that no 

organic substitutes are commercially available in the form, quality, or 

quantity needed by the operation to fulfill the required function; 

including test data demonstrating that organic forms of the ingredient 

do not meet the functional requirements for the form or quality 

necessary to the operation. 

2. Validate that the applicant or operator has documentation proving that 

the ingredient is not commercially available in an organic form by 

reviewing credible available information listing known sources of 

organic ingredients; 

3. Notify the certification applicant or certified operator of sources of 

information which list available organic ingredients, if the certifying 

agents finds that such ingredients exist; 

4. Maintain and submit to the National Organic Program annually an upto-date list of ingredients that have been granted allowances in nonorganic form. (The list shall maintain the confidentiality of ingredient 

suppliers and parties granted allowances. The reporting requirement 

shall be implemented through the accreditation process by providing 

ACAs ample notification and time to adapt data management 

systems.); 
5. Require certified operators to update commercial availability 

information in each organic system plan update; 

6. Acknowledge all complaints concerning allowances granted and 

provide rationale for determinations. If the investigation of a complaint 

provides significant new information, then the certifying agent must 

revisit the allowance; and 

Conclusion 

It is the opinion of the NOSB members that the three recommendations listed 

provide the acceptable criteria and procedures to determine commercial 

availability. The recommendations provide for timely determinations regarding 

commercial availability. 

Moved: Julie Weisman Second: Nancy Ostiguy 

Board vote: Yes – 11 No – 0 Abstain – 1 Absent - 2