USDA to Address Green Waste Compost Ruling

August 18, 2016

On June 20, 2016, a judicial decision from the United States District Court for the Northern District of California ruled that the USDA National Organic Program (NOP) published guidance titled Allowance of Green Waste in Organic Production Systems (NOP 5016) was a legislative rule subject to notice-and-comment rulemaking under the Administrative Procedure Act (APA). The court prospectively vacated NOP 5016, effective on August 22, 2016, and grandfathered in compost purchased or used between 2010 and that date.

In response to the court’s decision, the USDA Agricultural Marketing Service (AMS) plans to conduct a notice-and-comment rulemaking. A proposed rule is under development.

In the interim, accredited certifying agents must continue to review and approve all materials used by organic producers, including compost, as part of an operation’s organic system plan. Certifying agents are responsible for ensuring that all materials used by organic producers comply with the USDA organic regulations. Certifying agents may request additional information deemed necessary to evaluate compliance with the regulations (§§ 205.201(a)(1) and 205.201(a)(6)). To determine whether a compost product may comply with the regulations, certifying agents may gather information from the compost supplier and/or from the organic producer, including the type and source of feedstocks used. Information may include results of bioassay testing or other quality assurance testing from the compost supplier or results of any on-farm bioassay testing. The information gathered must be sufficient to verify compliance with the USDA organic regulations. As always, testing is performed at the discretion of certifiers and state organic programs “when there is reason to believe that the agricultural input or product has come into contact with a prohibited substance or has been produced using excluded methods.” 7 C.F.R. § 205.670(b).