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Daily News Blog

28
Sep

Tell USDA to Strengthen Organic Enforcement and Allow More Time for Public Comment

(Beyond Pesticides, September 28, 2020) These comments are due by October 5 at 11:59 pm EDT. Separate comments to the National Organic Standards Board are due October 1 at 11:59 EDT.

After hearing for years about inadequate enforcement of the rules governing organic production, USDA has issued a massive draft rule on strengthening organic enforcement (SOE). The draft rule presented to the public constitutes an impressive and far-reaching rewrite of the regulations implementing the Organic Foods Production Act (OFPA). However, unlike the process by which the initial regulations were established in 2002, the National Organic Standards Board (NOSB) was only consulted on a portion of the elements in this draft rule. Public engagement was, thus, also limited.

USDA’s National Organic Program (NOP) is accepting comments on its draft rule via Regulations.gov. Please use this opportunity to remind USDA of the proper public process while commenting on the proposed rule itself. Please join us in asking for an extension of the pubic comment to facilitate fuller public scrutiny.

Tell USDA that strengthening organic enforcement starts with the National Organic Standards Board.

USDA must involve the NOSB and public as required by law.

Section 2119 of OFPA states the Secretary shall establish the NOSB to advise the Secretary on “… the implementation of this title.” Furthermore, the law states, “The board shall provide recommendations to the Secretary regarding the implementation of this title.” [emphasis added]

The promulgation of the original rule was preceded by a thorough discussion by the NOSB, intended by Congress to be a diverse panel of expert stakeholders, with abundant opportunity for public input from the most knowledgeable and experienced community and industry participants. This process was clearly fulfilling the intent of Congress.

Although the current draft SOE rule includes many meritorious elements, a number of them have not been discussed publicly. Given the narrow time window for public comments, concurrent with stakeholders and public interest groups working on formal comments pursuant to the upcoming NOSB meeting, and taking into account the impact this pandemic has had on the productivity of many organizations, a wide discussion within the organic community has not been possible—although a number of separate stakeholder constituencies have been discussing this rule in isolation without benefit of widely sharing their knowledge and perspectives.

Thus, an extension of the comment deadline is necessary to allow an opportunity for the organic community to collaborate on this proposal prior to proceeding to final rulemaking. Such an industry-wide discussion must be orchestrated by the NOSB and we recommend scheduling a third meeting during 2021 for that purpose.

Improvements in Organic Enforcement are Needed

As a starting point, Beyond Pesticides and its investigative arm OrganicEye, in general, support the detailed comments submitted by the National Organic Coalition (NOC). Furthermore, we also support the comments related to strengthening oversight on imports submitted by the Organic Farmers Agency for Relationship Marketing (OFARM).

In addition, we would emphasize the following points:

  1. There is no reason for a 10-day delay in communicating electronic certificates. They are electronic! They should be transmitted simultaneously with shipment. Twenty-four hours is more than adequate. 
  2. This rule is massive and, despite many meritorious elements, adds, in the aggregate, tremendous additional regulatory burdens. As such, it deserves additional time to be thoroughly and thoughtfully evaluated, including through public discussions, before public comment closes. 
  3. Regarding a recommendation on accreditation of organic certifiers by the NOSB in October 2018,  it is time to look at risk-based oversight of certified operations, rather than putting honest farmers through the ringer every year with inspections and audits while massive fraud is being simultaneously perpetrated by malefactors. Although OFPA requires annual inspections, farmers and small processors who have demonstrated a high level of compliance and low risk should be given the option of yearly virtual inspections, using artificial intelligence and a national database to compare acreage, production, and sales, along with more comprehensive, periodically staggered, full site inspection/audits. This will free up resources in the certification and inspection sector for a much more aggressive approach to unannounced inspections, testing, and full, comprehensive audits. It should be noted that the IRS does not audit every taxpayer every year. Holding the hammer of unexpected and comprehensive audits ensures a high level of compliance.
  4. A new, more efficient, and focused approach to inspections and audits of certified organic operations must be coupled with more aggressive penalties, enforcement action, and monitoring. It has become standard practice for NOP to negotiate settlements with alleged perpetrators, leaving some in business without substantive penalties. For the current or proposed regulatory oversight to be effective, prosecution of willful violators to the full extent of the law is needed as an effective deterrent.
  5. USDA should mandate strict criteria for residue testing and unannounced inspections, including assisting in the selection of audit targets based, in part, on complaints and other reports from the public. The draft rule allows for far too much discretion by certifiers. Given that certified entities hire their certifier, clear criteria are especially important. Establishing enforcement requirements for certifiers is also critical if USDA reduces the emphasis on annual inspections/audits and shifts to more random and risk-based auditing.

How to Submit Comments

  1. Navigate to the gov comment page. 
  2. Enter your comment and identifying information. You may copy, paste, and edit the points below. See our video tutorial for steps in doing this.
  3. Press the “Submit” button.

Here are points you may want to include:

  • This rule is massive and, despite many meritorious elements, adds, in the aggregate, tremendous additional regulatory burdens. As such, it deserves additional time to be thoroughly and thoughtfully evaluated, including through public discussions, before public comment closes. This should be facilitated by the National Organic Standards Board.
  • I support the detailed comments submitted by the National Organic Coalition (NOC) and the comments related to strengthening oversight on imports submitted by the Organic Farmers Agency for Relationship Marketing (OFARM).
  • There is no reason for a 10-day delay in communicating the electronic certificates. They are electronic! They should be transmitted simultaneously with shipment. Twenty-four hours would be more than adequate.
  • Consider risk-based oversight of certified operations rather than putting honest farmers through the ringer every year with inspections and audits while massive fraud is simultaneously perpetrated by malefactors. Farmers and small processors who have demonstrated a high level of compliance and low risk should be given the option of yearly virtual inspections, using artificial intelligence and a national database to compare acreage, production, and sales, along with more comprehensive, periodically staggered, full site inspection/audits. This will free up resources in the certification and inspection sector for a much more aggressive approach to unannounced inspections, testing, and full, comprehensive audits. Note that although the IRS does not audit every taxpayer every year, the hammer of unexpected and comprehensive audits ensures a high level of compliance.
  • A new, more efficient, and focused approach to inspections and audits must be coupled with more aggressive penalties, enforcement action, and monitoring. It has become standard practice for NOP to negotiate settlements with alleged perpetrators, leaving some in business without substantive penalties. Willful violators need to be prosecuted to the full extent of law, as a deterrent, for any current or proposed regulatory oversight to be effective.
  • USDA should mandate strict criteria for residue testing and unannounced inspections, including assisting in the selection of audit targets based, in part, on complaints and other reports from the public. The draft rule allows for far too much discretion by certifiers. Given that certified entities hire their certifier, clear criteria are especially important. Establishing enforcement requirements for certifiers is also critical if USDA reduces the emphasis on annual inspections/audits and shifts to more random and risk-based auditing.

Tell USDA that strengthening organic enforcement starts with the National Organic Standards Board.

In separate comments, please don’t forget to submit comments on NOSB proposals by October 1 at 11:59 pm EDT. Click on the link below to see our analysis and suggested comments.

While you are visiting Regulations.gov, please remember to tell the National Organic Standards Board to support core organic values.

 

Share

2 Responses to “Tell USDA to Strengthen Organic Enforcement and Allow More Time for Public Comment”

  1. 1
    Susan Wright Says:

    please let us have organic food

  2. 2
    Mara Says:

    Thank you so much for alerting us about the proposed rule.
    I submitted my comments tonight.

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