Fire Against the Glaciers: Checking our Temperature in Seattle

By Stephen Walker, Operations Manager

In late April, Jackie DeMinter and I represented MOSA at the Spring National Organic Standards Board (NOSB) meeting, in Seattle, WA. We appreciated the chance to catch up with many organic community colleagues, bring some practical and friendly MOSA perspective to the discussion mix, and check the temperature of our National Organic Program and wider organic community. The NOSB has a couple of public meetings each year. They’re a great exercise in democracy and an important confluence of good minds, hearts, and hands-on regulatory work. They also mark the passage of time. This was the 55th NOSB meeting, going back to the 1990’s. I’ve participated in most of these over the last 15 years or so. While this meeting addressed some tough issues and was not without controversy, I appreciated that there seemed to be fewer fireworks - more respect - than some previous meetings.

We talked a lot about how our Program is working, and heard frustration over inconsistent regulations’ affect on struggling farms, the slow pace of improvements, and inactivity on standards development. But, we made some regulatory progress, and heard clarification on NOP enforcement.

For many years, we’ve struggled with similar themes around the slow pace of regulatory change. The particular issues may vary, but the concerns about catching up with our work have been a constant. At another NOSB meeting in San Antonio (2014), the NOP update noted progress toward aquaculture, origin of livestock, and pet food standards. In reaction, Jim Pierce, then with Oregon Tilth, testified about the glacial pace of change. He said the standards were “glacially progressing through the python.” Jim is always good for metaphor, or a mixed metaphor. It’s not lost on me that we’ve still not seen standards come about for those three issues from five years ago.

I arrived in Seattle a day early, to attend the National Organic Coalition’s pre-NOSB meeting, where many organic leaders discussed various organic policy concerns. Here and over the next several days, we heard some common community concerns regarding fraud prevention, livestock standards (particularly, need for USDA action on Origin of Livestock rulemaking), and consistency of enforcement. We also heard some new thought-provoking ideas on how we might change some governmental structure around making and approving regulations, to gain efficiency, to better be able to respond to innovation, and to maintain better control over organic community intentions. (One idea - from Miles McEvoy, former head of NOP - was to consider a separate standards setting authority, as is done in Canada. Another - from Laura Batcha, Organic Trade Association - proposed redefining how the Office of Management and Budget determines potential financial impact of regulations, but may not consider the negative impacts of maintaining the status quo.) We also heard more concerns about requirements for hydroponic and container production. This uncertainty continues to fester.

In her opening remarks, NOSB Chair Harriet Behar provided some measured criticism around our state of organic. She noted challenges with fraud, loopholes, enforcement of pasture requirements, the Origin of Livestock rule, poultry outdoor access, and lack of consistency. She said a fear of having regulatory decisions legally challenged has hampered our regulatory process, and, she pointed to a number of NOSB proposals (representing a lot of work and public input) that have not been taken up by the NOP. She said we need a better NOP system to address regulations sooner, not later. But, she noted that our community is tenacious. We want strict regulations. NOP Deputy Administrator Dr. Jennifer Tucker listened intently, and initiated a round of applause after Behar’s remarks concluded.

Glyphosate prohibited. Boundary guidance needed.

There was some fire ahead of the meeting. It was alleged that organic operations were treating their land with glyphosate just ahead of putting growing containers on that land (with a plastic barrier). Dr. Tucker opened her report on NOP work by affirming, repeatedly, that “glyphosate use is not allowed in organic systems.” Organic production requires at least a three-year transition period from conventional agriculture to a certified organic harvest. However, mis-stepping into controversy, Tucker had told Civil Eats, “The three-year transition rule applies to a soil-based system. A greenhouse does not need to go through the three-year transition period.” This raised concerns ahead of the meeting and across the globe.

Tucker also noted there’s no indication that prohibited substance use is happening on container-based farms. NOP investigated one of the operations reported to have used glyphosate, and its certifier, and found no violations. She’d said, “I’m confident glyphosate was not applied to the soil below this system.” The Civil Eats article also quoted Lee Frankel, from the Coalition for Sustainable Organics, the primary organization representing hydroponic farms. He affirmed, “I am not aware of that ever occurring.” Tucker had added that different growing environments can lead to different kinds of production systems—but the same rules around organic certification apply everywhere. “Certifiers look at site-specific circumstances, what’s the platform or organic system at hand, and apply the regulations.”

In Seattle, Dr. Tucker claimed her prior statements were taken out of context; they were not representative of NOP policy. She expressed some regret for commenting on a hypothetical scenario. But, public commenters and concerned NOSB members repeatedly asked for confirmation that no operation seeking organic certification can use prohibited materials, including glyphosate, during their required three-year transition period. Treading carefully, Tucker continued to refuse comment on hypotheticals, and repeated that “glyphosate is not allowed in organic production.” She reminded that NOP needs specific complaints before they can evaluate practices against the regulations.

In Seattle, we discussed boundaries around this issue at with Accredited Certifiers Association colleagues. There was general agreement that the land requirements at Standards section 205.202 require a three year transition after any application of a prohibited substance to any farm parcel. But, we also recognized a need for more clarity around the land requirements boundaries, split production, and container production in general.

NOP clarification received June 3rd stated in part: Certifiers are to assess land use histories for container system sites, just as they would for an in-ground soil-based system. If a prohibited substance was applied to the land at the farm or site within the three-year period before the first organic harvest, then the harvested crops shall not be sold, labeled, or represented as “organic” until the three-year period has passed; and, Certifiers must evaluate the compliance of the overall system, including maintaining or improving natural resources, supporting nutrient cycling, promoting ecological balance, and conserving biodiversity. This memo applies to all new container systems that have not yet been certified under the organic program. It is not retroactive to already certified operations and sites. All currently certified container system operations retain their certification as long as they maintain compliance with the regulations.

Initial stakeholder reactions included appreciation for the clarification, disappointment in the lack of retroactivity, and uncertainty as to whether production buildings are to be viewed differently than production in or on a field.

NOP Update

Dr. Tucker’s full NOP update included a number of Program successes and updates on rulemaking. Most notably, we’re waiting with anticipation for a forthcoming proposed rule on Strengthening Organic Enforcement. That’s expected this fall. This will likely require certification for some operations that are currently exempt or excluded. It will also address: import certificates, nonretail container labeling, unannounced inspections, certificates and certificate expirations, training and qualifications, international oversight, noncompliance procedures and due process, group certifications, and supply chain traceability and fraud prevention. We’ll want plenty of time to offer comments. We envision that the enforcement rule could be a last, best chance to set the course for making our regulatory work sustainably sound. We’re cautious that new requirements do not make a more burdensome system in a world that needs organic to be more accessible.

To successfully address 21st century challenges, technological innovation is essential. In March, the NOP launched a new database to improve tracking compliance issues, show compliance patterns, and help support enforcement and investigations.

For improved import oversight, NOP is working with the Office of Inspector General to conduct risk-based oversight of organic supply chains, through farm-level yield analysis, supply chain research, fumigation investigations at ports (with the Animal and Plant Health Inspection Service), ship-specific surveillance, certifier investigations, and country-commodity studies. As a result of new directives on unannounced inspections and product testing, 180 (60%) operations in the Black Sea Region have lost their organic certification, and remaining operations are under continued scrutiny. Also, some fumigated organic products were re-labeled, not sold as organic. And, additional noncompliances and proposed suspensions for certifiers and farms continue to insure organic import integrity.

The NOP has also been conducting unannounced inspections of organic dairy operations nationwide to verify dairy standards compliance. This compliance project is underway again this spring in the midwest. So far, all operations surveilled demonstrated at least 120 days of grazing and at least 30% dry matter intake. Some investigations are ongoing, and one operation received a fine. The dairy compliance inspections identified areas where additional training is needed for certifiers and operators. That will be addressed through the NOP’s new Organic Integrity Learning Center.

The Organic Integrity Learning Center was launched a few weeks ago. It offers online training to supports the professional development and continuing education of organic certifiers, inspectors, reviewers, and others working to protect organic integrity. We’ll be incorporating this into our training program for MOSA staff.

And, the NOP staff is expanding, with a new Associate Deputy Administrator, a Trade Systems Director, a Quality Manager, and another Accreditation Manager. NOP also posted multiple Livestock Compliance Specialist positions, and several accreditation auditor positions which allow for remote work - a rarity within NOP.

NOSB meeting decisions and discussion

Ahead of the meeting, the Board reviewed nearly 900 written comments, including a handful from MOSA. Unfortunately, the comment period was again too short - just 22 days to digest and give feedback on nearly 70 documents and proposals. During some 14 hours set aside for public comment at the meeting, the Board asked a lot of questions and engaged in thoughtful dialogue. All our written comments are on our website’s news and commentary section. Jackie and I were among the 114 persons presenting verbal testimony.

The NOSB passed five new proposals. These are now referred to the USDA for approval and implementation. (Five petitions for allowance of new materials were rejected.)

• The Board passed a proposal to strengthen NOP Guidance 5029 for the required use of organic seed. This had been under discussion for several years. Noting minor areas where adjustments could be made, commenters still widely supported this proposal.
• We have an update to the guidance for making excluded methods determinations. Newly defined as excluded methods are transposons developed via use of in vitro nucleic acid techniques, and cisgenesis.
• And, several new materials are recommended for allowance. Commenters and NOSB members were generally supportive of allowing oxalic acid for varroa mite control in apiculture (honey bees). It’s a less harmful alternative to formic acid, has a unique application for use in package bees, and is approved in other international organic standards. Commenters also widely supported the addition of pullulan as a non-agricultural substance for capsules for dietary supplements labeled as “made with organic…” And, though comments were split regarding the allowance of collagen gel for sausage casings (with some concern about the use of CAFO byproducts) NOSB members saw benefits toward growing the organic meat market, so collagen gel was approved.

The NOSB also reviewed a number of discussion documents, with the intent of bringing forward proposals at future meetings.

• Commenters supported embryo transfer as a needed tool in livestock production. Embryo transfer was determined to NOT be an excluded method.
• There was discussion of several options for addressing environmental impact of marine materials harvested for use in crop inputs (e.g. kelp/seaweed fertilizers and soil amendments). There’s wide agreement that continued work is needed, but no consensus on which direction/option can adequately address the environmental concerns. This fall, an expert panel will address ecology, environmental considerations, regulatory certification and legal oversight of marine algae production and harvesting.
• Most comments opposed the pilot project described in the genetic integrity transparency of seed grown on organic land discussion document. Harriet Behar explained the intent was to give information to farmers about purity level of seeds so that they can protect themselves if they sell to sensitive markets. The NOSB does not want the seed testing burden to only impact organic farmers, and is looking for shared responsibility from others. Questions remain about how regulatory solutions might best address GMO contamination challenges within our industry.
• NOSB members repeatedly stated that the assessing cleaning and sanitation materials used in organic crop, livestock and handling discussion is NOT intended to remove sanitizers from allowance, but commenters still expressed concern, and noted sanitizers’ essentiality for food safety. Discussion is intended to develop reference information so NOSB members can better evaluate new sanitizers.
• The NOSB received substantive comments on priorities for oversight improvements to deter fraud. Next steps may include hearing about enforcement experiences from California’s State Organic Program, exploring ways to capture data from operations in countries for which we have recognition or equivalency agreements, and learning more about the fresh produce supply chain.
• A discussion document on excluded methods vaccines in organic livestock production presented three options. Comments were most supportive of allowing excluded methods vaccines as a class, or, allowing excluded methods vaccines only if non-GMO vaccines aren’t commercially available. NOSB will continue to explore this option.
• And, commenters continued to stress the necessity of paper transplanting pots. The NOSB is looking at synthetic fibers in paper, and requested a Technical Report for more information. NOSB is also considering other allowed uses for paper, and aims to avoid creating inconsistencies.

What’s next?

The Fall NOSB meeting will be in Pittsburgh, PA, in late October. Notable work agenda topics will include marine materials in crop production, embryo transfer in livestock, research priorities, petitions for paper pots, potassium hypochlorite, and fatty alcohols, and votes on 2021 sunset materials.

In the meantime, we certifiers will do our best to define boundaries, weighing regulations’ letter and intent against various challenges on real organic operations. When we find something new, we seek counsel, consensus, or precedent from other certifiers and from the NOP. I appreciate NOP’s sensible take on regulatory discretion and generally find that our National Organic Program is in good hands, but sometimes the system and current administration creates handcuffs.

In my testimony before the NOSB, I noted that I used to be frustrated when we’d seek NOP guidance and hear “we don’t have a policy on that.” But, I noted how at a certifier training a few years ago, Dr. Tucker explained that when there’s no specific published policy, then ACA’s are empowered and expected to make reasoned - and ethical - certification decisions.

I continued, “Certifiers are skilled navigators on a changing landscape. We tend standards, organic values, and forward thinking. I value certifiers’ autonomy and ability to align, define boundaries, improve. For example, we’re currently working with other certifiers on best practices for hydroponic/container production, requiring nutrient cycling, biological activity, biodiversity enhancement, and natural resources improvement. Organic choices in these systems must meaningfully serve our ailing planet. We need NOP and NOSB help to develop applicable regulations. This part of our house is still on fire. We need action. Let’s get this back on NOSB work plans and consider requirements for the farm system, beyond the container.

“Out here on the front lines defending organic integrity, we see a lot of good work, inspiring hope. But there’s also despair and frustration. It’s hard to maintain faith in organic as a solution to global crises. Some perspective: MOSA certifies 600-some dairy farms, averaging 64 cows per herd. Failure to move forward vetted, agreed-upon rules hurts our farm families, rural economies, and our Seal. Stagnation also disables the resolve needed to heal our planet. Let’s move forth the Origin of Livestock final rule, this year.

Certifiers navigate the grey and draw boundaries every day. We’re good, but today as our community is threatened at its core, we need clear guidance, and teeth.”

It’s as Harriet Behar stated in her opening remarks as NOSB Chair, “The NOSB and NOP have a responsibility to live up to the trust of the organic community… Without integrity, we are nothing.”

NOSB Chair Harriet Behar gives opening remarks as NOP Deputy Administrator Jennifer Tucker looks on

MOSA’s Certification Policy Manager Jackie DeMinter testifies before the NOSB in Seattle