By Chris Grigsby
On August 5, 2020, the USDA National Organic Program (NOP) published a long awaited proposed rule titled Strengthening Organic Enforcement. This proposed rule is the single largest update to the standards since their inception in 2002 and was mandated by language in the 2018 Farm Bill. Congress was concerned about recent high-profile fraud cases, both domestic and international, and the rule aims to increase oversight, codify existing NOP guidance into regulation, and address and adjust the existing allowance of exemptions and exclusions for some operations within the organic industry. There was a 60-day comment period that closed on October 5, 2020.
The following is an excerpted summary in the Federal Register that describes the scope of the proposed rule:
“The United States Department of Agriculture (USDA) Agricultural Marketing Service (AMS) proposes amending the USDA organic regulations to strengthen oversight and enforcement of the production, handling, and sale of organic agricultural products. The proposed amendments are intended to protect integrity in the organic supply chain and build consumer and industry trust in the USDA organic label by strengthening organic control systems, improving farm to market traceability, and providing robust enforcement of the USDA organic regulations. Topics addressed in this proposed rule include: applicability of the regulations and exemptions from organic certification; import certificates; recordkeeping and product traceability; certifying agent personnel qualifications and training; standardized certificates of organic operation; unannounced on-site inspections of certified operations; oversight of certification activities; foreign conformity assessment systems; certification of grower group operations; labeling of nonretail containers; annual update requirements for certified operations; compliance and appeals processes; and calculating organic content of multi-ingredient products.”
MOFGA Certification Services (MCS) reviewed the rule extensively and submitted public comments. Overall we support many of the proposed changes, though we did ask that the NOP clarify several areas. The proposed rule provided the regulatory text along with a lengthy preamble as supporting documentation. The preamble described areas of intent that the NOP tried to distill into the regulations, which can present challenges with interpretation and consistency amongst certification agencies if the regulations aren’t explicit. We specifically addressed this in our comments, as this has been a perennial issue in other areas of the standards. The preamble to the standards in 2002 described the intent of the NOP and the Organic Foods Production Act (OFPA), but because the specific intent language didn’t make it into the final rule there have been differing interpretations of applicability. An example of this playing out is the allowance of hydroponically produced crops to be certified organic – despite OFPA’s requirement of soil fertility, maintenance and improvement.
Additionally, MCS commented and asked what role the NOP will have in oversight. The language regarding implementation in parts of the proposed rule falls heavily on certifiers, which could impact smaller certification agencies who may not have the staffing to fully implement the changes put forth. The NOP assumes that certifiers will increase fees to cover the additional expenses, which shifts the burden to small producers – who are largely not the cause of the fraud taking place. In addition, the recent announcement by USDA to reduce the federal cost share rebate from 75% to 50% only exacerbates the overall costs of certification, especially for small to midsize operations. We feel that because this is a federal program, additional appropriations from Congress to the NOP should be considered to cover the implementation costs, instead of relying on fees from organic operations and certification agencies.
Anyone wishing to read the proposed rule or access additional details, including a side-by-side comparison of the existing regulations compared to the proposed rule, can find it at this link: https://www.ams.usda.gov/rules-regulations/strengthening-organic-enforcement-proposed-rule.
Chris Grigsby is the director of MOFGA Certification Services LLC.