FORMAL RECOMMENDATION BY THE

NATIONAL ORGANIC STANDARDS BOARD (NOSB) 

TO THE NATIONAL ORGANIC PROGRAM (NOP) 

Date: _August 17, 2005________

Subject: __Commercial Availability of Organic Seed________ 

Chair: ____Jim Riddle______________________________________ 

 (sign)

Recommendation

The NOSB hereby recommends to the NOP the following: 

Rulemaking Action: ________ 

Guidance Statement: ____X____ 

Other: ____X____ 

Statement of the Recommendation (including Recount of Vote):

In order to ensure consistent application of organic seed requirements, the NOSB recommends 

the following: 

1. The establishment of a national database by an independent party to provide public access to 

current information on the availability of organic seed varieties. Producers using non-organic 

varieties not appearing on the database will need to provide justification for such use. 

In the interim period before such a database is developed, accredited certifying agents should 

provide every applicant and certified crop producer with resources relating to organic seed 

suppliers. Listings of organic seed sources may be found at www.omri.org and www.attra.org. 

2. An organic variety is considered to be equivalent to a specific non-organic variety if it meets 

the operation’s required site-specific agronomic and marketing characteristics. 

3. For an organic producer to receive an allowance to use non-organic seed or planting stock to

produce a crop that can be sold or labeled “organic,” the producer must provide records to the 

certifying agent as a part of the organic system plan demonstrating lack of “commercial 

availability.” These records will provide: 

A. Justification for use of non-organic seed or planting stock, based on the 

attributes of appropriate form, quality, and quantity of the seed or planting stock; 

B. A description of the site-specific agronomic or marketing characteristics 

required by the operation;

C. Written evidence of efforts to locate and source organic seed by contacting at 

least three suppliers of organic seed – written evidence may include letters, faxes, 

e-mail correspondence, and phone logs; or 

1
D. Written description of trials comparing organic and non-organic seeds or 

planting stock. If the producer makes a claim that the varieties of organic seed 

are not equivalent to non-organic seed that the producer prefers to use, 

supporting documentation must be provided to the certifying agent. (Certifiers 

may grant an allowance from the organic seed requirement if an applicant or 

operator conducts “on farm” trials comparing organic and non-organic seed 

varieties. If so, documentation of “on farm” trials should be recorded in the 

operation’s organic system plan.) 

4. Buyers of organic agricultural products who contractually require organic growers to grow

selected varieties should require or provide organic seed or planting stock. When a producer is 

contractually obligated by a buyer of organic agricultural products to use a variety or varieties 

that are not currently available as organically grown seed or planting stock, the producer must 

receive written documentation from the buyer describing: 

 (a) the unique characteristics sought by the buyer; and 

 (b) the non-availability or non-equivalency of organic varieties. 

5. In granting an allowance that organically produced seed or planting stock is not commercially 

available, the accredited certifying agent shall: 

A. Evaluate the applicant’s claim that no organic seed or planting stock was 

commercially available in the equivalent variety, form, quality, or quantity

needed; 

B. Validate that the applicant has properly and completely documented that the 

organic seed or planting stock was not commercially available. This includes 

validation of the documentation producers receive from buyers who require the 

use of non-organic varieties. 

C. Require certified operators to update commercial availability information in 

each organic system plan update; and 

D. Maintain and annually submit to the National Organic Program an up-to-date 

list of specific non-organic crop varieties permitted by each agency. 

Board vote – August 16, 2005

13 yes, 0 no, 1 absent 

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

Rationale provided in text of recommendation below.

Response by the NOP:

Updated 2/25/05 

2
3
National Organic Standards Board 

Crops Committee Recommendation for Guidance 

Commercial Availability of Organic Seed 

Adopted by the National Organic Standards Board 

August 16, 2005 

Introduction 

The NOP and NOSB have been asked to provide guidance concerning 

determinations of the commercial availability of organic seed made by accredited 

certifying agents (ACAs). The objective of this recommendation is to establish 

appropriate practices to be followed by certification applicants, certified 

operators, and ACAs for consistent, transparent, and predictable determinations 

of commercial availability that provide regulatory certainty. 

Background 

§205.2 of the Final Rule defines “commercially available” 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.” 

§205.204(a) states that, “The producer must use organically grown seeds, 

annual seedlings, and planting stock...” 

However, §205.204(a)(1) states that “nonorganically produced, untreated seeds 

and planting stock may be used to produce an organic crop when an equivalent 

organically produced variety is not commercially available...” 

Recommendation 

In order to ensure consistent application of organic seed requirements, the 

NOSB recommends the following:

1. The establishment of a national database by an independent party to provide 

public access to current information on the availability of organic seed varieties. 

Producers using non-organic varieties not appearing on the database will need to 

provide justification for such use. 

In the interim period before such a database is developed, accredited certifying 

agents should provide every applicant and certified crop producer with resources 

relating to organic seed suppliers. Listings of organic seed sources may be found 

at www.omri.org and www.attra.org. 

4
2. An organic variety is considered to be equivalent to a specific non-organic 

variety if it meets the operation’s required site-specific agronomic and marketing 

characteristics. 

3. For an organic producer to receive an allowance to use non-organic seed or 

planting stock to produce a crop that can be sold or labeled “organic,” the 

producer must provide records to the certifying agent as a part of the organic 

system plan demonstrating lack of “commercial availability.” These records will 

provide: 

A. Justification for use of non-organic seed or planting stock, 

based on the attributes of appropriate form, quality, and quantity of 

the seed or planting stock; 

B. A description of the site-specific agronomic or marketing 

characteristics required by the operation; 

C. Written evidence of efforts to locate and source organic seed by 

contacting at least three suppliers of organic seed – written 

evidence may include letters, faxes, e-mail correspondence, and 

phone logs; or 

D. Written description of trials comparing organic and non-organic 

seeds or planting stock. If the producer makes a claim that the 

varieties of organic seed are not equivalent to non-organic seed 

that the producer prefers to use, supporting documentation must be 

provided to the certifying agent. (Certifiers may grant an allowance 

from the organic seed requirement if an applicant or operator 

conducts “on farm” trials comparing organic and non-organic seed 

varieties. If so, documentation of “on farm” trials should be recorded 

in the operation’s organic system plan.) 

4. Buyers of organic agricultural products who contractually require organic 

growers to grow selected varieties should require or provide organic seed or 

planting stock. When a producer is contractually obligated by a buyer of organic 

agricultural products to use a variety or varieties that are not currently available 

as organically grown seed or planting stock, the producer must receive written 

documentation from the buyer describing: 

 (a) the unique characteristics sought by the buyer; and 

 (b) the non-availability or non-equivalency of organic varieties. 

5. In granting an allowance that organically produced seed or planting stock is 

not commercially available, the accredited certifying agent shall: 

5
A. Evaluate the applicant’s claim that no organic seed or planting 

stock was commercially available in the equivalent variety, form, 

quality, or quantity needed; 

B. Validate that the applicant has properly and completely 

documented that the organic seed or planting stock was not 

commercially available. This includes validation of the 

documentation producers receive from buyers who require the use 

of non-organic varieties. 

C. Require certified operators to update commercial availability 

information in each organic system plan update; and 

D. Maintain and annually submit to the National Organic Program 

an up-to-date list of specific non-organic crop varieties permitted by 

each agency. 

NOSB vote 

Yes: 13 

No: 0 

Abstain: 0 

Absent: 1 

6
Addendum A: 

COMMENTS OF THE NATIONAL ORGANIC STANDARDS BOARD ON 

DOCKET NUMBER TMD-00-02-FR 

“COMMERCIALLY AVAILABLE” 

ADOPTED MARCH 7, 2001 

 SUBMITTED MARCH 21, 2001 

Recommended criteria and procedures for assessing organic seeds and planting 

stock

Seeds and planting stock should be handled separately from processing and livestock 

inputs. 

The NOSB recommends that certifying agents handle determinations and documentation 

of commercial availability through the organic farm plan requirements stated in 

205.201(a)(2) and the normal verification process. 

The essential criteria for determination of commercial availability are stated in the 

definition: 

appropriate form, 

quality, and 

quantity. 

The NOSB recommends that excessive price considerations for organic seeds and 

planting stock should not be included at this time because no consensus has been reached 

to cover all regions, and because of pricing differences. The NOSB acknowledges that 

this may need to be reconsidered in the future if problems develop in implementation. 

The NOSB recognizes that certifying agents have experience monitoring commercial 

availability claims for untreated seeds, including pricing and appropriate forms. The 

NOSB recommends that these systems be adapted to verify the availability of organic 

seeds and planting stock. 

Because of the volume involved (many growers plant a large number of varieties and

crops) and the timing of the planting cycle relative to the filing of the organic farm plan, 

prior approval by certifying agents should not be required. Compliance would be 

reviewed in the context of the organic farm plan, which is verified during the annual farm

visit. A pattern of inadequate documentation and lack of good faith effort to obtain 

organically grown seeds and planting stock would be considered noncompliance and 

might result in the certifying agent requiring prior approval regarding commercial 

availability issues in future planting cycles. 

7
Addendum B: NOP Questions and Answers posted at: 

http://www.ams.usda.gov/nop/Q&A.html#Production/Handling 

Q: Does Breeder Seed need to be raised organically in order for its progeny; i.e., 

Foundation, Registered, and/or Certified1 Seed, to be sold, labeled, or represented 

as organic seed? 

 A: No. The seed of any generation planted with conventional, untreated seed and 

produced under organic conditions can be certified as organic. In other words, untreated 

seed of Foundation, Registered, or Certified generations may be sown in an organic seed 

field/cage/greenhouse, and the progeny will qualify as organic seed. Many varieties are 

only legal for sale as a class of certified seed according to the Plant Variety Protection 

Act (PVP), Title V. Check with your official state seed certification agency for the 

specific varieties protected by PVP, Title V. Additionally, it is not necessary to use only 

genetically1 certified2

 untreated seed to produce organic seed. Any generation of 

“common,” untreated seed may also be used. 

1 The use of the term “genetically” in this sentence in no way implies or authorizes the 

use of genetically modified organisms. 

2 Certified – As defined by the Federal Seed Act Regulations (7 C.F.R. 201(2) (ee)). 

Q: Does organic seed always need to be used to produce an organic crop? 

A: For edible sprouts, yes; for all other organic crops, no. The National Organic 

Standards (7 C.F.R. 205.204 (a) (1)) provides that nonorganically produced, untreated 

seeds may be used to produce an organic crop when an equivalent organically produced 

variety is not commercially available. The National Organic Standards (7 C.F.R. 

205.204 (a) (2)) also provides that nonorganically produced, treated seeds may be used to 

produce an organic crop when an equivalent organically produced or untreated variety is 

not commercially available. The seed treatment, however, must be with a substance 

included on the National List of synthetic substances allowed for use in organic crop 

production. The only time that a seed treated with a prohibited substance may be used to 

produce an organic crop is when use of the prohibited substance is a requirement of 

Federal or State phytosanitary regulations. 

Q: How does the National Organic Program (NOP) interpret “equivalent variety” 

in 7 C.F.R. 205.504(a) (1-2)? 

A: An equivalent variety means a variety exhibiting the same “type” (such as head 

lettuce types, leaf lettuce types, etc.) and similar agronomic characteristics such as insect 

and disease resistance when compared to the original varietal choice. 

“Type” is defined by the Federal Seed Act of 1939 (7 U.S.C. 1551-1661.) as either (A) a 

group of varieties so nearly similar that the individual varieties cannot be clearly 

differentiated except under special conditions, or (B) when used with a variety name

means seed of the variety named which may be mixed with seed of other varieties of the 

8
same kind and similar character, the manner of and the circumstances connected with the 

use of the designation to be governed by the rules and regulations prescribed under 

section 1592 of the Federal Seed Act. 

 Variety is defined by the Federal Seed Act as a subdivision of a kind which is 

characterized by growth, plant, fruit, seed, or other characters by which it can be 

differentiated from other sorts of the same kind, for example, Marquis wheat, Flat Dutch 

cabbage, Manchu soybeans, Oxheart carrot, and so forth. Kind means one or more 

related species or subspecies which singly or collectively is known by one common 

name, for example, soybean, flax, carrot, radish, cabbage, cauliflower, and so forth. 

Q: How many generations removed from the present must a grower research the 

breeding techniques for a given variety to ensure compliance with the NOP? In 

many cases it is impossible to research breeding techniques of older varieties as 

breeding methods are usually highly confidential and in some cases lost to history. 

 A: Effective October 21, 2002, plant breeders developing new varieties for use in 

certified organic production must comply with the requirements of the NOP. 

All varieties (open pollinated and hybrid) in existence prior to October 21, 2002 may be 

used by organic producers provided that these varieties have not been produced using 

Genetically Modified Organisms (GMO). 

What constitutes GMO is defined by NOP through the term “excluded methods,” (7 

C.F.R. 205.2). 

9