FORMAL RECOMMENDATION BY THE

NATIONAL ORGANIC STANDARDS BOARD (NOSB) 

TO THE NATIONAL ORGANIC PROGRAM (NOP) 

Date: _________4/21/2007______

Subject: Pepper, Chipolte Chile for addition to National List under, §205.606 

Chair: Andrea Caroe 

 

Recommendation

The NOSB hereby recommends to the NOP the following: 

Rulemaking Action: _XXX___ 

Guidance Statement: ________ 

Other: ________ 

Statement of the Recommendation (including Recount of Vote):

The Board recommends adding Pepper, Chipolte Chile to the National List under §205.606-

nonorganically produced agricultural products 

NOSB Vote: Motion: Julie Weisman Second: Steve DeMuri

Board vote: Yes -9 No-2 Abstain- 0 Absent -4 Recuse- 0 

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

The National List of Allowed and Prohibited Substances §205.606 

Response by the NOP:
National Organic Standards Board 

Final Recommendation for 

Date: April 21, 2007 

I. List: (where in FR rule example 205.606) 

National Organic Program Subpart G: The National List of Allowed and Prohibited 

Substances. §205.606 Nonorganically produced agricultural products allowed as 

ingredients in or on processed products labeled as “organic” or “made with organic 

(specified ingredients or food groups(s)).” 

II. Committee Summary: 

 On June 9, 2005, a court final order and judgment arising from Harvey v. Johanns, stated that 

“the Secretary must issue a declaratory judgment that 7 CFR § 205.606 shall not be interpreted to 

create a blanket exemption to the National List requirements specified in 7. U.S.C. 6517.” These 

“requirements permit the use of nonorganic agricultural products in or on processed organic 

products when their organic form is not commercially available.” 

Further, “consistent with OFPA, 7 CFR §205.606 shall be interpreted to permit the use of a 

nonorganically produced agricultural product that has been listed in § 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.” 

Effort was made through many channels to elicit from manufacturers, petitions for any nonorganically produced agricultural materials that had been using on products labeled and sold as 

“organic.” 

In addition, pursuant to the judgment in Harvey v.Johanns, the NOSB was instructed to develop 

criteria for determining commercial availability, an essential tool in evaluating whether or not 

petitioned materials could be listed on § 205.606. These criteria were finalized in the NOSB 

“Recommendation for the Establishment of Commercial Availability Criteria National List § 

205.606” of October 19, 2006. That recommendation allows for pro-active listing on 205.606 of 

materials which may currently be available in an organic form, but the supply of which has a 

history of fragility due to factors such as limited growing regions, weather or trade-related issues. 

Furthermore, the recommendation reiterates the role of the Accredited Certifying Agent (ACA) in 

making the ultimate decision as to whether a 606-listed material may be used, on a case by case 

basis. 

Petitions received for spice materials contained widely varying amounts information with which to 

assess the current availability or fragility of current supply of organic forms of the petitioned spice 

material. 

The petitioner for Pepper, Chipolte Chile made the case that there is currently no supply of 

certified organic Chipolte Chile peppers because there are no certified organic handlers who can 

Process the agricultural raw material into the required form. 

 
The Handling Committee noted that agricultural substances are only required to be evaluated 

using the criteria specified in the Act (7 U.S.C. 6517 and 6518). 

6517(c)(1)(a) 

i) would not be harmful to human health or the environment; 

(ii) is necessary to the production or handling of the agricultural product because of 

unavailability of wholly natural substitute products; and 

(iii) is consistent with organic farming and handling; 

Agricultural substances do not need to be evaluated against section 205.600 (b). (i.e. 

essentialness). This additional criteria is only required for any synthetic substance used as a 

processing aid or adjuvant. 

The Handling Committee also considered what constitutes “essential” for organic handling of a 

finished retail product and how that may be different from that of a material used in crop or 

livestock production. It was agreed that certain spice materials might be essential for creating a 

product that meets consumer expectations of taste or texture that is authentic to a specific ethnic 

cuisine. The petitioner identified Peppers, Chipolte Chile as an essential ingredient in the organic 

consumer products they make for this reason. There were no public comments specifically 

opposing the listing of Pepper, Chipolte Chile on § 205.606. 

The Handling Committee carefully considered the difference between the availability of a raw 

agricultural product as organic, and the availability of certified organic handlers to process that 

raw material into one useable for handling purposes. The petitioner for Pepper, Chipolte Chile 

acknowledged the jalapeno peppers which are smoked to produce the uniquely flavored Chipotle 

Chile are widely grown throughout the America’s and are available in organic form. However, the 

majority of processors who are skilled in this specialized smoking process are located in Mexico 

and are not certified organic. In addition, most of their production is consumed within the Mexican 

market. Currently, no processor exists with the equipment or technology to process organicallygrown jalapeno peppers into Chipolte Chile peppers that has an organic certification and/or is 

unwilling to use their equipment for a batch of as small as size as would be needed to fulfill 

current organic requirements. 

III. Board Recommendation 

Pepper, Chipolte Chile for inclusion on §205.606 of the National List

Moved: Julie Weisman Second: Steve DeMuri 

Board vote: Yes-9 No- 2 Absent- 4 Abstain-0 Recuse-0