United States Agricultural 1400 Independence Avenue, S.W. 

Agricultural Department of Marketing Room 2646-S, Mail Stop 0268

Marketing Agriculture Service Washington, D.C. 20250-0268

Service

 

September 13, 2013

MEMORANDUM TO THE NATIONAL ORGANIC STANDARDS BOARD (NOSB)

FROM: Miles McEvoy

Deputy Administrator

National Organic Program (NOP)

SUBJECT: “Sunset” Review of the National List of Allowed and Prohibited Substances (National 

List)

On September 13, 2013, the Agricultural Marketing Service (AMS) placed a Federal Register notice on 

display for public inspection. This notice describes the process that NOSB and AMS will use to meet the 

“sunset” provision of the Organic Foods Production Act and is summarized below.

This memorandum to the National Organic Standards Board (NOSB) and the Federal Register notice 

replaces the March 4, 2010 memorandum from the National Organic Program (NOP) to NOSB regarding 

the Sunset Process. 

The National List 

The USDA organic standards allow most natural substances in organic farming while prohibiting most

synthetic substances. The National List—a component of the organic standards—lists the exceptions to 

this basic rule. The NOSB is designated to advise AMS on which substances should be allowed or 

prohibited. Allowances are called “exemptions” under OFPA. 

The NOSB reviews substances for the National List through one of two mechanisms – the National List 

Petition Process and the Sunset Process. Under the National List petition process, anyone can submit a 

petition to amend the National List using the petition guidelines published in the Federal Register (72 FR 

2167). The petition guidelines explain who may submit petitions, what substances may be petitioned, and 

what information needs to be included within a petition. Individuals may submit petitions to add, remove, 

or amend substances on the National List. AMS’ NOP reviews petitions for eligibility, NOSB reviews 

and makes recommendations on eligible petitions using its policies and procedures, and AMS may take 

action on any NOSB recommendations through rulemaking. 

Sunset Process

Under the Sunset Process, NOSB must review all National List substances every 5 years based on criteria

specified in the Organic Foods Production Act (OFPA). These requirements are described in the sunset 

provision of OFPA (7 U.S.C. Section 6517): 

(e) SUNSET PROVISION. No exemption or prohibition contained in the National List shall be valid 

unless the National Organic Standards Board has reviewed such exemption or prohibition as 

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United States Agricultural 1400 Independence Avenue, S.W. 

Agricultural Department of Marketing Room 2646-S, Mail Stop 0268

Marketing Agriculture Service Washington, D.C. 20250-0268

Service

 

provided in this section within 5 years of such exemption or prohibition being adopted or 

reviewed and the Secretary has renewed such exemption or prohibition.

Based on this review, AMS then may renew the exemption or prohibition. 

The Sunset Process published in September 2013 continues to meet the Organic Foods Production Act’s 

sunset provision while also achieving the following two goals: 

1. Transparent review and renewal process, with increased opportunities for public comments

Removing a substance from the National List could impact organic producers, who would need 

time to find an alternative, and organic processors who would need time to reformulate and/or 

relabel their products. The process published by AMS provides 2 public comment opportunities 

before the NOSB’s decision on each substance, encouraging more public engagement to inform 

NOSB decision-making. Additionally, the Sunset Process will only be used to renew or remove 

listings. Any recommendations to change existing listings must be handled via the National List 

Petition Process.

2. Consistent and streamlined administration of the National List

Under the process described in the Federal Register notice, the NOSB voting approach is clarified 

and requires that, regardless of whether the substance is reviewed under the Sunset Process or the 

National List Petition Process, NOSB will need a two-thirds majority vote to recommend removal 

of a substance from the National List.

Previously, AMS addressed all substance listings, both removals and renewals, through 

rulemaking. Through the process described in the Federal Register notice, AMS may initiate

rulemaking if the NOSB recommends removing a substance from the National List, and if AMS 

accepts this recommendation. For the other substances that are reviewed by the NOSB and for 

which NOSB does not recommend removal, AMS intends to announce that the substances are 

renewed through a Federal Register notice.

Next Steps

AMS requests that the NOSB take the following actions in response to the published Federal Register 

notice:

1. Review the Federal Register notice describing the Sunset Process.

2. In collaboration with NOP staff, update the NOSB Policy and Procedures Manual so that the 

manual reflects the Sunset Process published in the Federal Register. 

3. Continue the NOSB Materials Subcommittee’s work to streamline the National List petition

guidelines and process to facilitate petitions to remove or change substance listings. 

AMS thanks the NOSB for its critical work on the National List. 

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