IOIA RESPONSE TO THE NOP FINAL RULE

IOIA First published this statement in October 2000.
Many people worked to create this document, including Steven Wisbaum and Chip Kraynyk.

INTRODUCTION:
The Independent Organic Inspectors Association (IOIA) is a membership and training association with 239 organic farm and processing inspector members in over 19 countries working for dozens of government and private organic certification bodies (CB). IOIA has trained over 2000 organic inspectors worldwide. Organic inspectors are the link and face, representing the CB to the farmer and processor. It is from our perspective that we have watched the organic movement worldwide come to a general consensus regarding the definition of the term "organic".

In its final rule, the USDA has incorporated concepts that should foster strong programs nation-wide: a good definition of organic production, strong language regarding crop rotations and provisions for dealing with all levels of fraud, the creation of a database of all certified and non-certified entities, and addressing certifier hopping with the requirement to include all prior notices of non-compliance in new application files. In addition, inspectors' interests are respected by keeping inspectors "in the loop" through requiring CBs to share notices of non-compliance as a result of the inspection, and requiring CBs to provide inspectors with previous inspection reports.

In reading the preamble and the body of the final rule, IOIA observes that the inspector's role is being re-defined. These new requirements include adherence to the ISO guidelines regarding the difference between inspection/auditing and consultation. IOIA has worked with the USDA and developed educational materials to clarify these requirements. Our membership is actively discussing these issues in our training and on the Internet IOIA Forum. As the premiere inspector training organization in the world, IOIA sees itself as an integral part of the NOP program and is meeting the challenge of providing the necessary training to state and private agencies certification programs.

While new and existing certification programs and the industry as a whole could benefit from USDA oversight, it is important that the USDA be flexible in its interpretation and implementation to respond to the ever-changing issues facing organic agriculture. Even though it has taken over 10 years to develop this rule, its practicality has not been tried in the real world and it will need further revising. Upon careful study, we have determined and are in agreement with many others in the industry, that certain areas of the final rule obviously need to be modified prior to its implementation.

Portions of the Final USDA Organic Rule create difficulties for the very people it originally intended to serve, the producers, processors and especially the consumers of organic foods. IOIA perceives the "maximum standard" provision as its overriding conceptual flaw. IOIA is urging the USDA to consider the points below to implement the 1990 OFPA's intent: to nurture and reward innovation in this fast growing ecological movement in agriculture.

THE OVERLYING FLAWS:
1. Minimum/ Maximum USDA Standards: Subpart F§ 205.501(b)(2) on accreditation. Prohibits private CBs from requiring compliance as a condition to use their identifying mark with any production or handling practices, other than those provided for in the Act. The 1990 OFPA required that a national law provide for "consistent" national standards and reciprocal transactions among certifiers (OFPA § 6501 (2)). The USDA has set the national standard as a maximum standard. Accordingly, private CBs cannot require these standards to be exceeded as a condition for the use of their seal. There is no public purpose served by this restriction. A minimum standard is a consistent standard. All other government standards are minimum standards.
The primary purposes of adopting a national organic standard were (1) to prevent trade barriers and (2) to prevent fraud in organic labeling. A minimum national organic standard meeting CODEX regulations and ISO guidelines achieves both objectives without unintended adverse consequences on the developing organic agricultural industry. Reciprocity between CBs could be mandated as part of the minimum requirement for compliance while still allowing them to encourage their producers to greater excellence. The rule must be changed to reflect a minimum standard provision.

2. In §205.501(a)(11)(i), which deals with accreditation, the conflict of interest provisions prevent a certifier's board of directors, managers and owners from being certified by that agency. This restriction undermines the foundation of the organic movement as a membership based institution. It is also contradictory to other agricultural crop board structures that allow and encourage grower participation. The USDA prohibition goes far beyond the requirements of § 6515 (h) (1) of the 1990 OFPA or the requirements of ISO Guide 65 §5.2.2 (a) (b). Existing certification bodies with member non-profit boards have been accredited by private agencies, such as IFOAM, which operates under the same ISO guidelines without problems arising as a result of their member-based governing structures. The rule must be interpreted as allowing CBs to be administered by member-based board of directors.

3. On P.80663 of the preamble regarding the regulatory impact of the Final rule, it is stated: "The impact of this regulation on small certifying agents and other small businesses has also not been measured but may be significant". We urge the USDA to explore ways to encourage small producers and CBs, as they are integral to innovation in this "grass roots" movement.

SOME BASIC CONCEPTS OF ORGANIC AGRICULTURE ARE COMPROMISED
4. While IOIA applauds a systems approach to the Rule, we are concerned that it is not applied consistently throughout. In places the Rule exemplifies a product orientation. A clear illustration of this is the fact that it permits certified organic fields to rotate out of organic practices, go through transition and be re-certified.

5. The failure of USDA to ban the intentional rotation of fields in and out of organic status seriously compromises the organic systems management principle of organic agriculture: that one is building up the health and vigor of the soil food web over time. Chemical applications impoverish many species of soil biota, as do many of their breakdown products. Chemical inputs are considered by existing CBs to be a band-aid approach to greater problems of soil imbalances and they ban the practice of rotation in and out of organic. The thirty-six month period is the minimum amount of time that a transitioning producer has to start establishing a soil building crop rotation, which will sustain the production system over time without the need for chemical inputs. We strongly encourage the USDA to immediately implement a standard as stated in the rule preamble: "if AMS receives evidence that the rotation of fields in this manner threatens to compromise organic production, the NOP and NOSB will collaborate on developing standards to remedy it".

6. Time for transition in § 205.202 (b) and as explained on p. 80568 of the preamble, the 36-month chemical free period required prior to organic certification of a field "restricts the application of a prohibited substance, not its residual activity". The standard should prescribe a minimum of 36 months. This would allow for a case-by-case application based on residues and the establishment of acceptable rotations.

7. In Subpart A "Definitions" and § 205.202(c), buffer zones as defined do not prescribe a minimum distance between an area, which received a prohibited material, and ground from which an organic harvest can occur. The industry standard has been established to be a minimum twenty-five feet from any potential source of contamination. It has been up to the discretion of the CB to increase this buffer distance. According to the USDA Rule, it would be up to the individual inspector, who has been on-site to assess the buffer, or the certifier, who has the report of the inspector, to establish minimum buffer zone requirements in all cases. Therefore, it is possible that each inspector would suggest different and varied buffer zones including ones of less than 25 feet. This could create a moving target from year to year, which would confuse the growers and make verification by different inspectors unworkable. Also, this provision confuses the role of the inspector as an auditor. We recommend requiring certified farmers to play an active role in monitoring and mitigating the chemical and genetic trespass risk on their farm. The current practice is for the inspector to report observations on trespass issues and the operator's use of buffers to the CB. It is then up to the CB to decide whether or not to accept the operator's practices or to require changes as a condition to organic certification. A minimum buffer requirement should be added to the USDA standard.

8. Subpart G, the National List is not user friendly for farmers, inspectors, and certifiers. It lacks clear guidelines and a specific list of allowed natural or organic materials. With the present Rule, the growers will not have an easily accessible list of allowed materials such as ash, blood and bone meal, BT, fish emulsion, mined materials, humates, kelp, pH buffers, pheromones, soaps, suffocating oils, micro-nutrient products, tree seals, virus sprays, etc. IOIA recommends adoption of the OMRI materials lists and recommends that the NOSB refer their ongoing materials decisions to OMRI to include in their literature and publications.

9. Sodium Nitrate referred to in §205. 602(h) has high solubility and is used in place of good farming practices such as crop rotation, cover cropping and the use of compost, instead representing the "shot in the arm" approach of chemical input farming. Its use cannot only lead to contamination of ground water but also to increased pest pressures. In addition, it must be transported thousands of miles to American farms. It should be prohibited.

10. The composting standard in §205.203 (2) (i-iii) would be difficult for small growers to follow as it requires frequent turning and temperature monitoring over a short period of time and therefore the purchase of costly specialized equipment. Current organic standards such as the AOS §4.42 and §5.5.3.6. B do not over-prescribe the methods used to produce compost such as the composting time and frequency of turning; they are flexible enough for small-scale operations to comply with. Page 80564 of the Preamble states: "We agree with commenters who stated that, given the diversity of composting systems covered by a national organic standard, requiring full compliance with the NRCS practice standard would be overly prescriptive". The preamble goes on to refer to the OFPA's restriction of the use of un-composted manure§6513 (2)(iv). Note that nowhere in the OFPA is compost mentioned. In requiring the use of the NRCS definition of compost developed to kill pathogens in sewage sludge, the NOP is contradicting the above-quoted statement and should, in the opinion of IOIA, stick with what was written in the OFPA and the AOS.

11. Allowance of factory farm manure: On pages 80567 and 80568 of the preamble is a discussion regarding the NOP's position regarding the use of manure from non-organic operations. It is stated that residue testing is sufficient to address concerns regarding the contamination of soil from residual antibiotics and heavy metals. The environmental and social importance of providing for the disposal of manure from non-organic confined livestock operations is cited as a consideration for allowing these manures as organic compost feedstock. The fact that the use of such manures is against CODEX and EU Annex II is brushed aside and no reason for this is provided. It is quite feasible that this will be a major barrier for US organic producers to export. The failure to prohibit confined livestock effluent in organic faring, as human sewage sludge is prohibited for the same reasons, appears to be rooted in the NOP's failure to define "factory farming" as it is stated on p.80572 of the preamble. Organic farms should not be dumping grounds for wastes generated by factory style feedlots. It is these factory operations that need additional USDA regulations to prevent externalizing the costs of their concentrated wastes on the environment. Organic producers should be encouraged with the creation of standards to strive for the creation of self-sustaining nutrient production and cycling systems that include livestock, composting, green manure, and soil building crop rotations.

12. The dairy herd transition clause in §205.236(a)(2)(i)(ii) presents the following problems. First, the USDA Rule reduces to 3 months, the OFPA recommendation §6509 (e) (2) where it is stated "… for not less than the 12 month period immediately prior to the sale of such milk and milk products". Although it is stated on p. 80570 of the preamble that the non-organic feed cannot contain antibiotics or hormones, it does not mention GMOs and one can easily assume after the "Star link fiasco" that GMOs would be part of the feed in a converting herd. Second, on page 80570 of the Preamble to the Rule it is stated that this is a one-time transition for any farmer. However, the Rule itself is silent on this point. Finally, cattle that were previously treated with rBGH will be allowed to be transitioned to organic production, as the Final Rule does not specifically prohibit it.

13. Sections 205.105(e), 205.301(f), and 205.2, and the Rule in general, does not explicitly prohibit the "products" of excluded methods from either organic farming or processing. It only prohibits the farmers and processors from using the excluded methods themselves, which they would not be doing in any event since they are typically not genetic engineers. The Rule should explicitly state that the "products produced using excluded methods" are prohibited in all aspects of organic farming and processing.

SOME BASIC CONCEPTS OF ORGANIC PROCESSING ARE WATERED DOWN

14. § 205.302(a) of the Final Rule which defines the method by which processors and inspectors are to determine the percentage of organic ingredients in a product for the purpose of identifying its labeling category (100%, 95%, 70%, or<70%) is unworkable. First, it is obvious that 100% organic product does not require complicated calculations to determine its eligibility to be labeled as such. Of greater concern is the method of calculation outlined in §205.302 (a) (1). It states that the percentage must be calculated by "dividing the total net weight (excluding water and salt) of the combined organic ingredients at formulation by the total weight (excluding water and salt) of the finished product". Parts 2 and 3 deal with liquid and solid/liquid formulations in the same manner. This effectively allows a non-organic ingredient to be added to an organic product (100% or 95%) as long as quantities (weight or volume) of the end product are equal to, or less than, the original quantities of organic ingredients. Non-organic ingredients could feasibly contaminate any product that requires cooking or drying. For example, if a non-organic liquid ingredient added along with other organic ingredients in a recipe that requires thickening of the final product by cooking, water would be lost and it would leave an amount of the non-organic ingredient in the finished product which would result in the contamination of the finished organic product with non-organic ingredients. However, the calculation would indicate that the finished product qualifies for 95% or 100% organic labeling. In over 20 years of organic processing certification, never has the calculation been performed as is required in the Final Rule. Logically, one must divide the weight of the organic ingredients, by the total weight of all the ingredients, not the weight of the finished product.

15. Synthetics in processed food: Although the 37 synthetics now listed are relatively benign, this category of materials is open to repeated expansion. The NOP and NOSB should be aware that the language included in §205.605(b), is contrary to the plain language of the OFPA §6510(a)(1) and 6517(c)(1)(B)(iii), which require that all substances in an organic product must be non-synthetic.

16. In Section 205.301(b) the term "commercial availability" is used to circumvent the National List in 95%/5% products. OFPA 6517(c)(1)(C) requires the 5% products to be on the National List and does not allow unlisted inputs to be used if the National List products are not commercially available. Please rectify this in the Rule.

MAJOR LOOPHOLES IN THE FINAL RULE COULD ALLOW FOR FRAUD

17. Transparency on organic certificates: § 404(b)(3) of the Rule only requires that the organic farm certificate have the business office address and broad categories of crop types, identified. As a result of our work as inspectors, IOIA feels that the organic certificate is the most important document to all parties involved. It provides the inspectors and certifiers a complete and legal summary to use for specific crop and field identification and the grower of the crop with a one-piece guarantee of organic certification to use in marketing. It is the most public of documents because without the certificate of organic integrity, the organic product has no organic premium value in consumer preference or market place.

18. In OFPA § 6502(9) retailers who do no processing are exempt. Likewise §205.101(b)(2) exempts delis and restaurants from inspection and certification. However, as defined in the OFPA §6502 (17), nearly all retailers do some kind of processing and should be subject to organic integrity audits, if not organic certification.

19. §205.101(b)(1) of the final rule exempts brokers, traders, wholesalers and distributors from certification that is a contrast to OFPA §6502(10) and §6505(a), which requires them to be certified. Significant commerce and processing occurs under the umbrella of these entities. Without an organic inspection and certification, the consumer is not protected from fraud or incorrect use of the organic label when these items are produced, private labeled, co-packed, re-packed, distributed or warehoused by these types of businesses.

20. Organic fiber, pet foods, and body care products are not listed as agricultural products requiring certification under the definitions §80502 (1) of the OFPA. Since 1990, the organic industry has grown to include these as products that need to be certifification. They are in the marketplace and the word organic is used liberally on labels and advertisement campaigns. IOIA feels that any organic claim needs to be backed with certification regardless of who the end user is. This is a consumer protection issue.

CONCLUSION:
The Independent Organic Inspectors Association appreciates the USDA's efforts to create a National Organic Program that meets the needs of both the farmers and the consumers. We recognize that the USDA has responded to the concerns of the public and the industry through positive changes made to this document during its evolution over the last 10 years. We are pleased that inspector issues are well covered within and hope that our comments will be useful in the implementation phase. Of utmost importance in these suggestions is to create a minimum standard by which the USDA is to accredit CBs. We believe that changing this portion of the rule will allow for the industry to better adapt to the USDA's oversight, while continuing to strengthen the organic certification process and back organic claims. Other areas of the rule that were pointed out above including the percentage calculations for labeling purposes seem to be administrative oversights and should be corrected as appropriate. This legislation has the potential to reinvigorate the health of the small farmers in the United States, improve US farmers' access to the international market place, as well as protect the environment and health of the North American citizenry.