Organic Rule Still Needs Comments

At last, the USDA Final Organic Rule -- or is it?

On December 20, 2000 USDA published CFR Part 205: the "Final Rule with request for comments." The Rule has been long-debated and much-awaited as what would become the consistent national standard for organic food, feed, and fiber. But will it serve the organic consumers and industry? Is it the Rule that past Ag Secretary Dan Glickman hoped the "public will embrace?"

The bulky Rule, over 500 pages long, is only partly CFR Part 205 (the actual regulation that appears in the Federal Register). Much of the most interesting reading is in the Preamble, which allows us to see USDA's reasoning for what they wrote and what they see ahead.

It is obvious that USDA sees the Rule as an ongoing work. There are still sections to be written, clarifications to communicate, and many questions to answer regarding the meanings of the final language. As with all regulations, when things go awry and end up in court, interpretation can be diverse. The organic community is still puzzled by parts of the Rule and disappointed by others.

The document is not carved in stone. The title alone indicates that the work is not finished, and the language immediately following offers a deadline of 90 days for the comment period on "specified aspects of the final regulations." One must dig deeply into the document to find those aspects (covered below).

Throughout the Preamble there is mention of the need for comments on aspects of the Rule. Though not all of them are the calls for comment on the "specific aspects" mentioned at the beginning of the Rule, others are worth noting since they provide an indication of future requests for comment as well as what areas are not finished.

It is never too early to provide comment to USDA, whether they specifically ask or not. Comments are considered as well as absence of comments on any given issue. Staying silent could be interpreted as an indication that we agree with what USDA proposes.

For the purpose of clarity we will segregate USDA's mention of comment into two categories.

* Call for Comment: 90 days

Pages 60-61: The need for a standard for the term "commercially available."

Agricultural Marketing Service (AMS) is soliciting comments and information on a number of issues concerning the development of standards for the commercial availability of organically produced agricultural commodities used in processed products labeled as "organic." AMS will develop a commercial availability standard and incorporate it within the Final Rule prior to the commencement of certification by accredited certifying agents. This approach will enable organic handlers and certifiers to incorporate consideration of commercial availability of ingredients in an organic system plan. Specifically, AMS requests responses addressing the following:

• What factors, such as quantity, quality, consistency of supply, and expense of different sources of an ingredient, should be factored into the consideration of commercial availability?
• What relative importance should each of these factors possess, and are there circumstances under which the relative importance can change?
• What activities and documentation are sufficient to demonstrate that a hand-ler has taken appropriate and adequate measures to ascertain whether an ingredient is commercially available?
• How can AMS ensure the greatest possible degree of consistency in applying the commercial availability standard among multiple certifying agents?
• Could potentially adverse effects of a commercial availability standard, such as uncertainty over the cost and availability of essential ingredients, impact or impede the development of markets for organically processed products?
• What economic and administrative burdens are imposed by the commercial availability standards found in existing organic certification programs?
• How would producers benefit from market incentives to increase use of organic ingredients that result from a commercial availability standard?
• Would lack of a commercial availability standard be a disincentive for hand-lers of products labeled "organic" seeking additional organic minor ingredients?
• What impacts could this have on producers of minor ingredients?

AMS welcomes any new or unpublished research or information concerning a commercial availability standard. AMS specifically invites comment from establishments which operate using commercial availability or a comparable provision, in the conduct of their business.

* Future Comments

USDA mentions the need for future comment in the following areas. For clarity, the lines which mention comment are underlined.

Retail Establishments Excluded

Under OFPA, retailers who "process" are required to be certified, yet USDA has decided to exclude them from this requirement in the Final Rule. There are already arguments that this decision is not compliant with the Act. There will be more on retail certification in the next issue of Cooperative Grocer; readers should be aware of what may be coming.

Page 20: "... A retail food establishment or portion of a retail food establishment that processes on the premises of the retail food establishment raw and ready-to-eat food from certified agricultural products labeled as "100 percent organic," "organic," or "made with..." is excluded from the requirements in these regulations... There is clearly a great deal of public concern regarding the hand-ling of organic products by retail food establishments. We have not required certification of retail food establishments at this time because of a lack of consensus as to whether retail food establishments should be certified, a lack of consensus on retailer certification standards, and a concern about the capacity of existing certifying agents to certify the sheer volume of such businesses. Retail food establishments, not exempt under the Act, could at some future date be subject to regulation under the NOP. Any such regulation would be preceded by rulemaking with an opportunity for public comment."

Additional Production Categories

Page 35: "... During the 18-month implementation period, the NOP intends to publish for comment certification standards for apiculture, mushrooms, greenhouses and aquatic animals. These standards will build upon the existing final rule and will address only the unique requirements necessary to certify these specialized operations."

The NOP Program Manual

Page 38: "The proposed rule made several references to program manuals as a mechanism for further clarifying certain portions of the rule." USDA will "...use the NOSB public meeting process to seek guidance from industry and the public on what information would be useful in a program manual and to provide input on the program manual as it is developed. ... If in developing program guidance, it appears that modifications or changes in the NOP final rule are required, such modifications would be made through notice and comment rulemaking."

Provisions for Livestock

Page 90: "...The proposed rule established the health, nutritional, and behavioral needs of the particular species and breed of animal as the primary considerations for determining livestock living conditions. The proposed rule also identified essential components of the practice standard, including access to shade, shelter, exercise areas, fresh air, and direct sunlight, while stating that species-specific guidelines would be developed in conjunction with future NOSB recommendations and public comment.

Confinement Space Requirements

Page 98: "...The proposed rule did not establish space requirements for livestock living conditions but stated that a producer must accommodate the health and natural behavior of animals under his or her care. ... We anticipate that additional NOSB recommendations and public comment will be necessary for the development of space requirements...."

Financial Security

Pages 211-212: "... The August 9, 2000, advanced notice of proposed rulemaking solicited comments on all aspects of reasonable security and protection of the rights of program participants....Six questions were provided to facilitate public comment on the advanced notice of proposed rulemaking. ... Following analysis of the comments received, we will publish a proposed rule on reasonable security in the Federal Register. The public will again be invited to submit comments.

Detecting the Presence of GMOs

This future call for comments is one to watch; it will affect more than organics:

Page 325-326: "... the testing methodology for the presence of products of excluded methods has not yet been fully validated. Testing methods for some biotechnology traits in some commodities are becoming commercially available. ... FDA, for example, is developing guidance for food producers who voluntarily chose to label biotechnology- and nonbiotechnology-derived foods. USDA is also preparing a Federal Register Notice to seek public comment on the appropriate role, if any, that it can play in facilitating the marketing of agricultural products through the development of "quality assurance" type programs that help to preserve the identity of agricultural commodities...."

Raising the US Organic Standard

A most interesting section of the preamble concerns "Limitations on the Use of Certifying Agent's Marks." The issue of certifiers wishing to maintain higher standards than USA and label accordingly has been an item of contention for many years. It is during discussion on this matter that USDA informs us of how to raise the US Organic Standard.

Pages 230-231: Amending the Rule: "...The national standards implemented by this final rule can be amended as needed to establish more restrictive national standards. Anyone may request that a provision of these regulations be amended by submitting a request to the NOP Program Manager or the Chairperson of the NOSB. Requests for amendments submitted to the NOP Program Manager will be forwarded to the NOSB for its consideration. The NOSB will consider the requested amendments and make its recommendations to the Administrator. When appropriate, the NOP will conduct rulemaking on the recommended amendment. Such rulemaking will include an opportunity for public comment."

Ongoing Work: The National List

Maintenance of the National List is the one thing we knew would be ongoing. USDA expects the maintenance of the National List to be a dynamic process. Any person seeking a change in the National List should request a copy of the petition procedures. (There is no deadline for National List Petitions.)

Deadline for comment: March 25, 2001. Comments or requests for a copy of petition procedures should be sent to:

Keith Jones, Program Manager, National Organic Program, USDA-AMS-TMP-NOP, Room 2945-So., Ag Stop 0275, PO Box 96456, Washington, DC 20090-6456. Written comments on specified aspects of the final regulations should be identified with the docket number TMD-00-02-FR. Comments may also be filed via the Internet at: www.ams.usda.gov/nop

For updates on the Rule, also visit www.iquest.net/ofma/