State Organic Programs

The Act provides that each State may implement an organic program for agricultural products that 

have been produced and handled within the State, using organic methods that meet the 

requirements of the Act and these regulations. The Act further provides that a State organic 

program (SOP) may contain more restrictive requirements for organic products produced and 

handled within the State than are contained in the National Organic Program (NOP). All SOP's 

and subsequent amendments thereto must be approved by the Secretary. 

A State may have an SOP but not have a State certifying agent. A State may have a State 

certifying agent but no SOP. Finally, a State may have an SOP and a State certifying agent. In all 

cases, the SOP's must be approved by the Secretary. In all cases, the State certifying agent must 

apply for and receive accreditation to certify organic production or handling operations pursuant 

to subpart F. 

In States with an approved SOP, the SOP's governing State official is responsible for 

administering a compliance program for enforcement of the NOP and any more restrictive 

requirements contained in the SOP. The SOP governing State officials may review and 

investigate complaints of noncompliance involving organic production or handling operations 

operating within their State and, when appropriate, initiate suspension or revocation of 

certification. The SOP governing State officials may also review and investigate complaints of 

noncompliance involving accredited certifying agents operating within their State. They must 

report the findings of any review and investigation of a certifying agent to the NOP Program 

Manager along with any recommendations for appropriate action. States that do not have an SOP 

will not be responsible for compliance under the NOP, except that an accredited State certifying 

agent operating within such State will have compliance responsibilities under the NOP as a 

condition of its accreditation. 

The sections covering SOP's, beginning with section 205.620, establish: (1) the requirements for 

an SOP and amending such a program and (2) the process for approval of an SOP and 

amendments to the SOP's. Review and approval of an SOP will occur not less than once during 

each 5-year period. Review related to compliance matters may occur at any time. 

Description of Regulations

State Organic Program Requirements

A State may establish an SOP for production and handling operations within the State that 

produces and handles organic agricultural products. The SOP and supporting documentation 

must demonstrate that the SOP meets the requirements for organic programs specified in the 

Act. 

An SOP may contain more restrictive requirements governing the production and handling of 

organic products within the State. Such requirements must be based on environmental conditions 

or specific production or handling practices particular to the State or region of the United States, 

which necessitates the more restrictive requirement. More restrictive requirements must be 

justified and shown to be consistent with and to further the purposes of the Act and the 

regulations in this part. Requirements necessitated by an environmental condition that is limited 

to a specific geographic area of the State should only be required of organic production and 

handling operations operating within the applicable geographic area. If approved by the 

Secretary, the more restrictive requirements will become the NOP regulations for organic 

producers and handlers in the State or applicable geographical area of the State. All USDA-
accredited certifying agents planning to operate within a State with an SOP will be required to 

demonstrate their ability to comply with the SOP's more restrictive requirements. 

No provision of an SOP shall discriminate against organic agricultural products produced by 

production or handling operations certified by certifying agents accredited or accepted by USDA 

pursuant to section 205.500. Specifically, an SOP may not discriminate against agricultural 

commodities organically produced in other States in accordance with the Act and the regulations 

in this part. Further, an SOP may not discriminate against agricultural commodities organically 

produced by production or handling operations certified by foreign certifying agents operating 

under: (1) standards determined by USDA to meet the requirements of this part or (2) an 

equivalency agreement negotiated between the United States and a foreign government. 

To receive approval of its SOP, a State must assume enforcement obligations in the State for the 

requirements of this part and any more restrictive requirements included in the SOP and 

approved by the Secretary. Specifically, the State must ensure compliance with the Act, the 

regulations in this part, and the provisions of the SOP by certified production and handling 

operations operating within the State. The SOP must include compliance and appeals procedures 

equivalent to those provided for under the NOP. 

An SOP and any amendments thereto must be approved by the Secretary prior to implementation 

by the State. 

State Organic Program Approval Process

An SOP and subsequent amendments thereto must be submitted to the Secretary by the SOP's 

governing State official for approval prior to implementation. A request for approval of an SOP 

must contain supporting materials that include statutory authorities, program descriptions, 

documentation of environmental or ecological conditions or specific production and handling 

practices particular to the State which necessitate more restrictive requirements than the 

requirements of this part, and other information as may be required by the Secretary. A request 

for amendment of an approved SOP must contain supporting materials that include an 

explanation and documentation of the environmental or ecological conditions or specific 

production practices particular to the State or region, which necessitate the proposed 

amendment. Supporting material also must explain how the proposed amendment furthers and is 

consistent with the purposes of the Act and the regulations in this part. 

Each request for approval of an SOP or amendment to an SOP and its supporting materials and 

documentation will be reviewed for compliance with the Act and these regulations. Within 6 

months of receiving the request for approval, the Secretary will notify the SOP's governing State 

official of approval or disapproval. A disapproval will include the reasons for disapproval. A State 

receiving a notice of disapproval of its SOP or amendment to its SOP may submit a revised SOP 

or amendment to its SOP at any time. 

Review of State Organic Programs 

SOP's will be reviewed at least once every 5 years by the Secretary as required by section 

6507(c)(1) of the Act. The Secretary will notify the SOP's governing State official of approval or 

disapproval of the program within 6 months after initiation of the review. 

State Organic Programs - Changes Based on Comments

This portion of subpart G differs from the proposal in several respects as follows: 
(1) Publication of SOP's and Consideration of Public Comments. Some commenters assert that 

the USDA should not publish SOP provisions for public comment in the Federal Register. These 

commenters argued that it is not appropriate for the NOP to have nonresidents commenting on a 

particular State program as nearly all States have a mechanism to ensure full public participation 

in their regulation promulgation. They believe the comment process set forth in the proposed rule 

is a redundant and unacceptable intrusion on State sovereignty. 

We will not publish for public comment the provisions of SOP's under review by the Secretary in 

the Federal Register. We have removed the provision from this final rule, described in section 

205.621(b), requiring the Secretary to publish in the Federal Register for public comment a 

summary of the SOP and a summary of any amendment to such a program. Alternatively, we will 

announce which SOP's are being reviewed through the NOP website. The NOP will issue public 

information notices that will announce each approved SOP and any approved amendments to an 

existing State program. The notices will identify the characteristics of the approved State program 

that warranted the more restrictive organic production or handling requirements. We also will 

include a summary of the new program on the NOP website. 

(2) NOP Oversight of SOP's. Several commenters stated that, in the proposed rule, the 

provisions did not provide a comprehensive description of organic programs operated by States 

that would be under NOP authority. Some commenters implied that the proposed rule would only 

include States with organic certification programs, while other commenters inquired whether the 

sections 205.620 to 205.622 included other SOP activities beyond certification. 

To address the commenters' concerns, we have modified the section heading by adding the term, 

"organic," and removing the term, "certification," from the description and definition of SOP's. We 

have taken this action to clarify that, while certification is one component of the requirements, it 

does not define the extent of evaluation of State programs that will be conducted by the NOP. 

SOP's can choose not to conduct certification activities under their existing organic program. 

State programs whose provisions fall within the scope of the eleven general provisions described 

in the Act (7 U.S.C. 6506) will require Departmental review. 

States may conduct other kinds of organic programs that will not need review and approval by the 

NOP. Examples of these other programs may include: organic promotion and research projects, 

marketing; transition assistance or cost share programs, registration of State organic production 

and handling operations, registration of certifying agents operating within the State, or a 

consumer referral program. The NOP will not regulate such State activities. Such programs may 

not advertise, promote, or otherwise infer that the State's organic products are more organic or 

better than organic product produced in other States. Such programs and projects would be 

beyond the scope of this national program and will not be subject to the Secretary's review. 

State Organic Programs - Changes Requested But Not Made

(1) Limitations on SOP More Restrictive Requirements. Commenters expressed concern that 

limiting a State's ability to craft a regulation designated as a more restrictive requirement to 

environmental conditions or specific production and handling practices would hinder the ongoing 

development of SOP's. They were concerned that any State legislation modifying the SOP would 

need to be preapproved by the Secretary. 

We have retained the provision limiting the scope of more restrictive requirements States can 

include in their organic program as described in section 205.620(c). We believe the language 

contained in the provision is broad enough to facilitate the development of SOP's without 

hindering development or State program implementation and enforcement. Section 6507(b)(1) of 

the Act provides that States may establish more restrictive organic certification requirements; 

paragraph (b)(2) establishes parameters for those requirements. More restrictive SOP 
requirements must: further the purposes of the Act, be consistent with the Act, not discriminate 

against other State's agricultural commodities, and be approved by the Secretary before 

becoming effective. We expect that a State's more restrictive requirements are likely to cover 

specific organic production or handling practices to address a State's specific environmental 

conditions. The Secretary will approve State's requests for more restrictive State requirements 

that are consistent with the purposes of the Act. However, we believe requests from States for 

more restrictive requirements will be rare. Although SOP's can impose additional requirements, 

we believe States will be reluctant to put their program participants at a competitive disadvantage 

when compared to producers and handlers in other States absent compelling environmental 

conditions or a compelling need for special production and handling practices. While preapproval 

of State legislation modifying an existing SOP is not required, the NOP envisions a close 

consultation with States with existing programs to ensure consistency with the final rule. 

(2) SOP Enforcement Obligations. Some commenters expressed concern about States having 

adequate resources available to implement enforcement activities that they are obligated to 

conduct under the NOP. A few of these commenters argue that the enforcement obligation will 

result in their State programs being discontinued. A few commenters cited a lack of federal 

funding to support State enforcement obligations and suggested the NOP provide funding for 

enforcement activities. 

The proposed rule indicated that States with organic programs must assume enforcement 

obligations for this regulation within their State. We have retained this enforcement obligation in 

section 205.620(d). Many States currently have organic programs with the kind of comprehensive 

enforcement and compliance mechanisms necessary for implementing any State regulatory 

program. Assuming those enforcement activities are consistent with the NOP, this final rule adds 

no additional regulatory burden to the SOP's. The costs associated with the enforcement 

activities of an approved SOP should be similar to the enforcement costs associated with the 

existing State program. Additional clarification of SOP enforcement obligations is in the 

Accreditation, Appeals, and Compliance preamble discussions. 

(3) SOP Evaluation Notification Period. A few commenters indicated that the SOP review and 

decision notification period described in section 205.621(b) of the proposed rule could hinder a 

State's ability to develop or implement an SOP. These commenters cited potential cases in which 

particular States have requirements for regulatory promulgation that must occur within 6 months 

under a State legislative session that is held once every 2 years. These commenters suggested 

the NOP should reduce the notification time to 1 to 3 months. 

We disagree with the commenters. In the proposed rule in section 205.621(b), the Secretary is 

required to notify the SOP's governing State official within 6 months of receipt of submission of 

documents and information regarding the approval of the SOP. We have retained this time 

period. We will review SOP applications as quickly as possible and will endeavor to make 

decisions in less than 6 months whenever possible. However, some SOP's may be very complex 

and require more review time. The NOP envisions working closely with the States and State 

officials to ensure a smooth transition to the requirements of this final rule. 

State Organic Programs - Clarifications

(1) Discrimination Against Organic Products. Several commenters requested the addition of a 

provision prohibiting an SOP from discriminating against agricultural commodities organically 

produced in other States. Discrimination by a State against organically produced agricultural 

products produced in another State is prevented in two ways. First, any organic program 

administered by a State must meet the requirements for organic programs specified in the Act 

and be approved by the Secretary. Finally, a USDA-accredited certifying agent must accept the 

certification decisions made by another USDA-accredited certifying agent as its own. 
(2) Potential Duplication Between the Accreditation and SOP Review Process. Some 

commenters asked about possible duplication between the process for reviewing SOP's and the 

process of accreditation review. These commenters have asked the NOP to eliminate any 

duplication that may exist between the two review processes. The NOP will be conducting a 

review process for SOP's and a separate review process for accrediting State and private 

certifying agents. The two reviews are different. The SOP review is the evaluation of SOP 

compliance with the Act and the NOP regulations. If approved, the SOP becomes the NOP 

standards for the particular State with which all certifying agents operating in that State must 

comply. Approved SOP's must be in compliance with the Act and the NOP regulations. They 

cannot have weaker standards than the NOP. States can have more restrictive requirements than 

the NOP if approved by the Secretary. 

The accreditation review is an evaluation of the ability of certifying agents to carry out their 

responsibilities under the NOP. This review is a measure of the competency of certifying agents 

to evaluate compliance to national organic standards. Certifying agents will not be unilaterally 

establishing regulations or standards related to the certification of organic products. They will only 

provide an assessment of compliance. 

Thus, SOP reviews and accreditation reviews are separate evaluations of different procedures. 

We acknowledge some of the information for the two evaluations may be similar; e.g., compliance 

procedures. The reviews do not duplicate the same requirements. However, the NOP envisions 

working with States to ensure documentation is not duplicated. 

(3) Scope of Enforcement by States. A number of State commenters have requested clarification 

on the proposed rule provision specifying that approved SOP's must assume enforcement 

obligations in their State for the requirements of the NOP and any additional requirements 

approved by the Secretary. These commenters have indicated that they remain uncertain as to 

what is expected by the term, "enforcement obligation." 

Approved SOP's will have to administer and provide enforcement of the requirements of the Act 

and the regulations of the NOP. The administrative procedures used by the State in administering 

the approved SOP should have the same force and effect as the procedures use by AMS in 

administering this program. This final rule specifies that the requirements for environmental 

conditions or for special production and handling practices are necessary for establishing more 

restrictive requirements. These factors establish our position that a State must agree to incurring 

increased enforcement responsibilities and obligations to be approved as an SOP under the 

NOP. For instance, a State with an approved organic program will oversee compliance and 

appeals procedures for certified organic operations in the State. Those procedures must provide 

due process opportunities such as rebuttal, mediation, and correction procedures. Once 

approved by the Secretary, the State governing official of the SOP must administer the SOP in a 

manner that is consistent and equitable for the certified parties involved in compliance actions. 

(4) SOP's That Do not Certify and NOP Oversight. A few commenters requested that the NOP 

develop new provisions to include State programs that have organic regulations but do not 

conduct certification activities. These commenters argue that any SOP that has a regulatory 

impact on organic producers, regardless of whether or not the program includes certification, be 

approved by the Secretary. 

This regulation, in section 205.620(b), provides for NOP oversight of SOP's that do not conduct 

certification activities. 

(5) State's Use of Private Certifying Agents. Some commenters have requested that the NOP 

provide clarification of the proposed rule sections 205.620 through 205.622 on how these 
sections will affect States that delegate certification activities to private certifying agents. These 

commenters asked how the NOP intends to oversee this type of State activity. 

The NOP intends to give considerable latitude to States in choosing the most appropriate system 

or procedures to structure their programs. This may include a State establishing its own certifying 

agent or relying on private certifying agents. However, States will not be accrediting certifying 

agents operating in their State. Accreditation of all certifying agents operating in the United States 

is the responsibility of USDA. Establishment of a single national accreditation program is an 

essential part of the NOP. As stated elsewhere in this final rule, any accreditation responsibilities 

of a State's current organic program will cease with implementation of this program. Pursuant to 

the Compliance provisions of this subpart, the governing State official charged with compliance 

oversight under the SOP may investigate and notify the NOP of possible compliance violations on 

the part of certifying agents operating in the State. However, the State may not pursue 

compliance actions or remove accreditation of any certifying agent accredited by the Secretary. 

That authority is the sole responsibility of the Secretary. If more restrictive State requirements are 

approved by the Secretary, we will review certifying agent qualifications in the State, as provided 

by section 205.501(a)(20), and determine whether they are able to certify to the approved, more 

restrictive requirements. Our accreditation responsibilities include oversight of both State and 

private certifying agents, including any foreign certifying agents that may operate in a State.