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NOP 5029-1 Response to Comments on Seed Rev02 09 05 18 Authorized Distribution: Public

Response to Comments

Seeds, Annual Seedlings, and Planting Stock in Organic Crop Production

Links Update: September 5, 2018

This document summarizes comments received on the draft guidance document, “Seeds, Annual 

Seedlings, and Planting Stock in Organic Crop Production (NOP 5029)”; which was posted on 

the NOP website for public comment. The public was notified in a Federal Register notice (76 

FR 34180) on January 13, 2012.

• CHANGES MADE IN RESPONSE TO COMMENTS

1) Define “Equivalent Variety” in Relation to “Not Commercially Available.” Commenters 

pointed out that the draft guidance conflated the NOSB definition of equivalent variety with 

the definition of commercial availability. The NOSB stated: “an organic variety is considered 

to be equivalent to a specific non-organic variety if it meets the operation’s required sitespecific agronomic and marketing characteristics”.1

 The NOP agrees and has included this 

description and provided examples (including type, color, flavor, days to harvest, yield, pest 

resistance, etc.). The NOP clarified that a producer must determine if an equivalent organic 

variety is available, then determine if that equivalent variety is commercially available, using 

the criteria of form, quality and quantity.

2) Annual/Perennial Distinction. Several commenters requested that NOP strike the 

distinction between annual and perennial planting stock for several reasons. They stated that 

this distinction would change the definition of “planting stock”, which would require a 

regulation change. NOP agrees that annual stock and perennial stock are both “planting 

stock”. Crops from either type of nonorganic planting stock can be used to produce an 

organic crop, provided that the producer demonstrates that an equivalent organic variety of 

planting stock is not commercially available (§ 205.204(a)(1-2)). The preamble to the NOP 

Final Rule (65 CFR 80559) states that planting stock used for perennial crops must be 

managed organically for one year before it can be sold as organic planting stock. Thus, the 

intent was that nonorganic perennial stock (such as lavender and other perennial herbs, fruit 

trees, nut bushes, etc.) must be managed organically for one year before being sold as organic 

perennial planting stock. NOP agrees that making a distinction between annual and perennial 

planting stock based on how a particular operation chooses to produce the crop will not 

provide consistent interpretation and implementation of the regulations. Therefore, the NOP 

removed this language from the guidance.

3) Implications of Current Chlorine Guidance NOP 5026 on this Guidance. Most 

commenters agreed the guidance language should clearly reflect that levels of residual 

chlorine on seed must meet Safe Drinking Water Act (SDWA) limits, not that all levels of 

chlorine in contact with seed must meet this limit. In reference to guidance document NOP 

 1 NOSB, 2005. Commercial Availability of Organic Seed. 
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NOP 5029-1 Response to Comments on Seed Rev02 09 05 18 Authorized Distribution: Public

5026, The Use of Chlorine Materials in Organic Production and Handling, this guidance 

classifies seed treatment for pathogen control as a production use, where chlorine is not in 

direct contact with the crop. Therefore, seed treatment with chlorine followed by a rinse with 

potable water that does not exceed the maximum residual disinfectant limit for chlorine 

under the SDWA is allowed. Certified operators should monitor the chlorine level at the 

point where the water last contacts the organic product in direct applications. Use of chlorine 

to treat seeds to prevent seed-borne plant diseases is also consistent with the handling 

allowance to permit chlorine in seed treatment for sprout production to prevent human 

pathogens.

4) On-farm Seed Trials. Several commenters stated the lack of on-farm trials to develop 

organic varieties poses a hindrance to the growth of the organic seed industry. Commenters 

emphasized that producer feedback informs seed producers regarding seed viability specific 

to regional and environmental conditions. The NOP has included a reference that 

acknowledges the use of on-farm seed trials as a method for demonstration of availability (or

lack) of equivalent varieties.

5) Definition of “Priming” and Types of Treatments that Need Review. One commenter 

noted that the definition of “priming” in the draft guidance was incorrect. The NOP removed 

the reference to priming in the final guidance. The NOP recognizes that it is beyond the 

purview of certifying agents to review all substances used in handling of non-organic seeds 

and planting stock, such as sanitizers or priming aids used prior to purchase by organic 

farmers, and that this information is often not available. We have amended the final guidance 

to provide examples of the type of treatment that should be reviewed including all pesticides, 

pelleting materials and inoculants applied after harvest or collection of the non-organic seed 

or planting stock. We have also clarified that substances used during the production of nonorganic seed or non-organic planting stock do not require review. This includes substances 

that may be used in post-harvest handling and cleaning of non-organic seed and planting 

stock, that do not remain on the seed when it is planted.

• CHANGES REQUESTED BUT NOT MADE

1) Seed and Planting Stock Database. Several commenters asked that NOP address the lack

of a national seed and planting stock database. The NOP recognizes that the NOSB 2008 

recommended the establishment of an interactive national database developed by an 

independent party. The NOP supports the industry’s efforts to develop a standard 

informational tool to help growers find organic seeds and planting stock, however, 

addressing this is beyond the scope of this final guidance.

2) Requiring a Minimum Search of Three Seed Sources is Too Low. Several commenters 

remarked that a search of three suppliers to demonstrate an equivalent organic variety is not 

available is not specified in the regulation. Furthermore, commenters felt that this number is 

inadequate due to the increasing availability of organic seed and planting stock varieties. The 

2005 and 2008 NOSB recommendations on commercial availability of organic seed 
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NOP 5029-1 Response to Comments on Seed Rev02 09 05 18 Authorized Distribution: Public

suggested that the NOP issue guidance requesting operators to provide written evidence of 

efforts to source organic by contacting at least three suppliers. This NOP guidance is 

consistent with those NOSB recommendations. While guidance documents cannot establish 

legally enforceable responsibilities, they can provide a uniform method for operations to 

comply with the regulations. Producers may provide other types of evidence to demonstrate 

lack of commercially available equivalent varieties, subject to certifier review and approval.

3) Handlers Purchasing Seed for Contracted Growers. Several commenters stated that 

7 CFR § 205.204 applies to handlers purchasing seed for contractual growing purposes, and

that language should be included in the guidance emphasize this. However, this guidance is 

applicable to crop producers subject to requirements of § 205.204, and handlers are not 

typically certified as crop producers subject to this requirement. All growers must meet the 

same standard and use organic seeds unless they can demonstrate that organic seeds are not 

commercially available. All producers must provide the necessary documentation regarding 

lack of commercial availability of organic seeds to justify use of non-organic seed or planting 

stock. Contracted growers should inform their buyers of the need to use organic seeds unless 

they are not commercially available.

4) Timely Seed Sourcing Activities. Commenters stated that growers need to inform their seed 

supplier(s) of their seed varietal needs, including requirement dates and quantity and 

treatment needs. Commenters also suggested certifiers should require this information to be 

included as part of an operator’s OSP in an effort to curb exception requests for quantity 

considerations. The NOP does not believe this is necessary and it would impose an additional 

recordkeeping burden that was not previously recommended by the NOSB or included in the 

draft guidance.

5) NOP Should Follow the EU Process for Seed Exemptions. One commenter suggested the 

NOP refer to the EU model by laying down procedural rules and criteria relating to 

derogations (exemptions) for seed and vegetative propagating material.

2 In the EU, the rules 

for issuing derogations rely upon interaction with national databases. The EU regulation 

mandates each EU member country create and maintain its own organic seed database. 

Neither the OFPA nor the USDA organic regulations mandate a national seed and planting 

stock database. NOP supports the development of organic seed/planting stock databases but 

does not have the resources to create and maintain a database.

7) Seed Handling and Labeling Guidelines. A number of commenters noted a lack of 

regulatory text regarding organic seed handling and labeling and requested that the NOP 

provide guidance regarding questions such as:

a. Whether a treated seed should be labeled as “made with organic” ingredients if a 

significant portion of the overall weight of the seed is comprised of the treatment (such as 

clay)?

 2 Articles 45 and 47 through 58 of the EU Council Regulation (EC) No. 889/2008
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NOP 5029-1 Response to Comments on Seed Rev02 09 05 18 Authorized Distribution: Public

b. Whether an operation that is treating organic seed must be certified organic for seed 

handling? For example, if organic seed is coated with clay at a non-certified facility, does 

it then become non-organic seed?

c. How should a seed blend containing both organic and nonorganic seed be labeled?

The NOP believes more information must be gathered on this issue from certifiers and other 

stakeholders before developing guidance on this topic.

8) Training for Certifying Agents. Several commenters stated that certifiers need guidance on

criteria for evaluating adequacy of seed and planting stock sourcing documentation, assessing 

continuous improvement in seed and planting stock sourcing activities, and guidelines for 

enforcement when a grower demonstrates noncompliance. Under § 205.504, certifying 

agents must demonstrate ability to fully implement the organic certification program, which 

includes § 205.204. A variety of methods for conducting these evaluations exist, such as: (a) 

providing operations with resources relating to organic seed and planting stock suppliers, or 

(b) asking operations to document all seed usage to determine the percentage of organic seed 

usage versus total seed usage on an acreage basis. However, the NOP does not wish to issue 

prescriptive criteria as they may not be suitable for all types of operations. The NOP notes 

that additional training for certifiers in evaluating seed and planting stock sourcing will be 

considered in the future.