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The Green Guide

Latest Update on National Organic Standards by Jim Riddle

USDA Proposed Rule - What are some issues of concern?

Compiled by James A. Riddle, Organic Independents/Organicworks!
Rt. 3 Box 162C, Winona, MN, 55987, Ph/fax: 507-454-8310.
Revised March 29, 2000.

Despite major improvements in the proposed rule, there are a number of
issues of concern, where comments are needed to create a National Organic
Program which meets the needs and expectations of organic farmers and
consumers. Among them are the following:
Subpart A - 205.2 Terms defined. Does not provide a definition of "organic
agriculture," or contain a statement of "Principles of Organic Production."
See NOSB p.199 (155 words) or AOS 4.105 (45 words). Definition of "system
of organic production and handling" is inadequate. Focuses on "maintaining
the integrity of organic agricultural products" and includes the subjective
phrase "without the use of extraneous synthetic additives or processing."

Subpart A - 205.2 Terms defined. Genetically Manipulated Organisms (GMO s)
are defined by a new term "excluded methods" - see preamble discussion.
"Excluded methods" needs to include language to cover products and
derivatives of GMO s, and needs to be directly linked to the definition of
"prohibited substances" by inserting, after "A substance," the words
"including the products of excluded methods," in the definition of
"prohibited substance" on p.13612.

Subpart A - 205.2 Terms defined. Terms, including "agricultural inputs,"
"audit trail," "buffer zone," "compost," "fertilizer," "inert ingredient,"
"mulch," "nonagricultural substance," and "sewage sludge" need to be
carefully assessed for accuracy and applicability. Other terms, including
"contract specification," "extraneous synthetic additives," "food
additive," "ionizing radiation," "management," "organic integrity,"
"pasture," and "stage of production" need to be defined.

Subpart A - 205.2 Terms defined. "Apiculture" needs to be defined, and
basic standards written. See AOS 6.11. Basic standards for organic
specialty products, such as maple syrup, mushrooms, greenhouses, sprouts,
and textile processing, need to be approved by the NOSB and included in
this regulation, since these products already have a significant market
presence.

Subpart B - Applicability. No transitional labels are defined or
recognized. See State regulations and AOS 5.1.3 for draft language. This is
an opportunity to set a consistent national standard for transitional products.

Subpart B - Applicability. 205.101(a)(1). The $5000 small farm exemption,
which under OFPA applied to total farm sales, is extended to include
"organic sales" and handling sales, adding up to a potential total annual
exemption of $10,000 in organic product sales.

Subpart B - Applicability. 205.101(b)(1). Brokers, distributors,
warehousers, and transporters are excluded from certification. OFPA
includes operations which receive, acquire, process, package, or store
agricultural products in the definition of "handling operation."

Subpart B - Applicability. 205.101(b)(2). Retail operations, including
those with delicatessens, salad bars, bakeries, and juice bars, are
excluded from certification. OFPA only excludes "final retailers that do
not process agricultural products." The proposed rule goes beyond the NOSB
recommendation, and does not provide for consumer right to know, or protect
against potential fraud.

Subpart B - Applicability. 205.101. No oversight or certification is
required for operations that use the word "organic" in the ingredient list
only, even though such operations are required by the proposed rule to
protect organic integrity and retain purchase and production records.

Subpart C - Production and Handling. 205.200. Requires both producers and
handlers to "maintain or improve the natural resources of the operation,
including soil and water quality." May not be applicable to all handlers.

Subpart C - Production and Handling. 205.202. Split operations, including
those with parallel production, are allowed with no restrictions or
additional considerations. See OFPA 6506(b)(1) and NOSB "Organic Plan," p.146.

Subpart C - Production and Handling. 205.203(b). Requires producers to
"budget" nutrients. This could place undue burdens on producers,
inspectors, and certifiers.

Subpart C - Production and Handling. 205.203(c)(1). No restrictions are
placed on the quality, quantity, or potential contaminants in manure from
"factory farms" or industrial agriculture operations. (This is contrary to
Codex and EU requirements, and may lead to continued trade disputes.)

Subpart C - Production and Handling. 205.203(c)(3). Requires compost to be
produced in compliance with NRCS compost practice standard code 317. The
practice standard requires use of a "facility", and may be inappropriate,
unreasonable, and inadvertently prohibit vermicomposting.

Subpart C - Production and Handling. 205.203(d)(2). Allows use of Chilean
nitrate and potassium chloride without requiring them to be listed on the
National List, and without including annotations recommended by the NOSB.
(Also contrary to EU requirements.)

Subpart C - Production and Handling. 205.203(e)(3). Prohibits burning of
crop residues, which may inadvertently prohibit the organic production of
certain native and medicinal plants.

Subpart C - Production and Handling. 205.204(a)(2). Seed treatments are
only allowed if they are on the National List, yet none are listed, meaning
that the use of treated seeds will be prohibited.

Subpart C - Production and Handling. 205.204(a)(2). Seeds for sprouts not
required to be organic. See NOSB p.141 and AOS 5.10.4.

Subpart C - Production and Handling. 205.206. Does not address the use of
treated lumber for crop or livestock production. See NOSB p. 177 and AOS
5.7.4.1.

Subpart C - Production and Handling. 205.236. Uses the words "livestock"
and "animals" interchangeably without defining the word "animals."

Subpart C - Production and Handling. 205.236(a)(2). Contains no allowance
for new herd dairy clause, seriously inhibiting the ability of small dairy
farms to convert to organic production. Should include 1 year certifier
"supervision" with allowance for 9 months at 80% organic feed and 3 months
at 100%. NOSB Livestock Committee recommendation needs to be refined and
approved.

Subpart C - Production and Handling. 205.238(b)(1). Breeder stock could
receive parasiticides while lactating. See AOS 6.7.4.2.C)2).

Subpart C - Production and Handling. 205.238(c)(1). Antibiotics are
prohibited, but antibiotics in vaccines and semen are not addressed.

Subpart C - Production and Handling. Stocking rates and space requirements
per animal are not addressed. Buffers for pastures are not addressed.

Subpart C - Production and Handling. 205.271(b)(1). The allowance of
"augmentation or introduction of predators or parasites for the pest
species" in food processing facilities may violate Good Manufacturing
Practices.

Subpart C - Production and Handling. The concept of "commercially
available" is applied to organic seeds only - it is not applied to minor
ingredients, processing aids, or livestock inputs.

Subpart D - Labeling. 205.301(b). Allows the 5% ingredients in an "organic"
product to be "nonagricultural substances or nonorganically produced
agricultural products" without requiring handlers to attempt to source
organic ingredients.

Subpart D - Labeling. 205.301(d). Products labeled with the word "organic"
only on the ingredient list could contain non-organic ingredients from
"excluded methods" or produced using prohibited materials.

Subpart D - Labeling. 205.303. Does not address use of the word "organic"
as a modifier in a product name on the principal display panel when the
ingredient modified is not organic - e.g. "Organic Cherry Sweets", where
the cherry is a natural flavor, but not an organic ingredient. Such
labeling is misleading to consumers.

Subpart D - Labeling. 205.301. Product composition. For 50% and above label
claims, the non-organic ingredients must not contain or be created using
excluded methods, sewage sludge, or ionizing radiation. This places new
burdens on manufacturers, inspectors, and certifying agents.

Subpart D - Labeling. 205.310. Wording of seal "USDA Certified Organic"
indicates certification by USDA. This appears to violate ISO Guide 61,
General Requirements for Accreditation Bodies, Section 2.4.2, which
prohibits the accreditation body s mark from being used on a product to
imply certification. Should be changed to "Certified Organic - USDA
Accredited," or "Certified Organic - USDA Approved."

Subpart E - Certification. 205.404(b). Should require expiration dates on
all organic certificates.

Subpart F - Accreditation. 205.500(c). Foreign equivalency deals only
government to government - no provisions are made for recognition of
certifiers not under a government program or not accredited by the USDA.
This ignores the NOSB recommendation which allows for accreditation by an
"International Organic Standards Organization." NOSB p. 41.

Subpart F - Accreditation. 205.501 (a)(11). Excludes all responsibly
connected parties, including employees, directors, board members, committee
members, volunteers, contractors, and immediate family members from being
certified by the same agency they are active in. This is beyond the scope
of ISO requirements, and places an undue burden on membership based
certification agencies and the operators they serve.

Subpart F - Accreditation. 205.501(a)(12). New section needs to be inserted
requiring certifying agents to provide certification services to all
applicants who comply with USDA regulations. Language also needed requiring
certifying agents to provide non-discriminatory services.

Subpart F - Accreditation. 205.501(a)(12). Requires certifier to accept the
certification decisions of all other USDA-accredited certifiers.
Reciprocity to a consistent national standard must function at the USDA
organic level.

Subpart F - Accreditation. 205.501(b)(2). Needs to be reversed to allow
certifying agents to issue licensing agreements or certification contracts
with "contract specifications," in order for certified operators to use the
certifying agent s seal. This allows certifying agents to maintain control
over their licensed trademarks, and prevents a violation of commercial free
speech.

Subpart F - Accreditation. 205.209. Peer review is weak. Peer review "may"
be used, even though OFPA 6516(a) states "the Secretary shall consider a
report concerning such applicant that shall be prepared by a peer review
panel." In addition, reviewers are required to act as individuals and they
are prohibited from being compensated.

Subpart F - Accreditation. 205.510(c)(1). Evaluation of certifying agents
occurs once every five years. This should be amended to include annual
reports and "mini-visits" to be compliant with international norms. (ISO
Guide 61, section 3.5.1.)

Subpart F - Accreditation. 205.501(c)(2). An accredited certifier must
provide "reasonable security" to the USDA. This amount is unspecified and
its affordability is of concern.

Subpart F - Accreditation. 205.508(b). "An initial site evaluation of an
accreditation applicant shall be conducted before or within a reasonable
period of time after issuance of the applicant's notification of
accreditation. " The practice of conducting the site visit after
accrediting a certifying agent contradicts the NOSB (p. 20) and may violate
ISO Guide 61, section 2.3.1.

Subpart G - Administrative. National List. Does not contain or reference
OFPA or NOSB criteria to evaluate materials. Should be inserted or cited
per each National List section or at 205.607, "Amending the National List."

Subpart G - Administrative. State Programs. 205.620. Confuses "State
organic certification programs" and "State organic programs." It is unclear
if this section applies only to States which act as certifying agents, or
if it also covers State organic programs. It is also unclear if States can
have additional requirements, and take enforcement actions, without
establishing certification programs. Strike the word "certification" from
the definition "State organic certification program" on p.13612, and in
sections 205.620, 621 & 622, if this section is intended to cover State
organic programs. State certifying agents are defined and dealt with elsewhere.

Subpart G - Administrative. Compliance. 205.660. Deals only with
de-certification and de-accreditation. Does not address investigation and
compliance of non-certified, excluded, and exempt operations making
"organic" claims.

Subpart G - Administrative. Compliance. 205.662(e). No penalties are
assigned other than suspension and de-certification. Need to cite OFPA
6519(a), and develop regulatory language to implement.

Subpart G - Administrative. Compliance. Funding for investigation and
enforcement action is not addressed.

Subpart G - Administrative. Inspection and Testing. 205.670(b) says that
residue tests must be conducted at the certifier s "own expense". This
constitutes micro-management by the USDA, and should be deleted.

Subpart G - Administrative. Inspection and Testing. 205.671 sets maximum
allowable residue levels at "estimated national mean" (ENM) without
providing information on what those levels are. ENM needs to be posted on
the NOP website and assessed by the organic community.

Subpart G - Administrative. Inspection and Testing. Provides no protection
of organic producers from chemical or genetic trespass; liability for
damages is not addressed. Length of transition after contamination by
government mandated spray program or misapplication is not addressed.

Subpart G - Administrative. Inspection and Testing. 205.671. Does not set
or propose any rejection levels for GMO contamination. Chemical residue
rejection levels are set at ENM and unavoidable residual environmental
contamination (UREC). UREC levels are not specified.