Fruit and Vegetable Programs
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Stop 0237, Room 1406-S
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December 6, 2010
RE: Notice of Request for Extension of the Organic Assessment Exemption; Doc. No. AMS-FV-10-0069; FV10-900-1NC; Federal Register, Vol. 75, No. 193, Wednesday, October 6, 2010, p. 61694; All Marketing Orders
To Whom It May Concern:
The Organic Trade Association (OTA) is pleased to provide comments on this notice regarding the Organic Handler Market Promotion Assessment Exemption under 26 Federal Marketing Orders, OMB Number 0581-0216.
OTA is the not-for-profit 501(c)(6) membership-based trade association for organic agriculture and products in North America. Its members include growers, shippers, processors, certifiers, farmers' associations, distributors, importers, exporters, consultants, retailers and others. OTA’s Board of Directors is democratically elected by its members. OTA's mission is to promote and protect the growth of organic trade to benefit the environment, farmers, the public and the economy (http://www.ota.com/).
OTA advocated for this exemption because the organic market is substantially different from the non-organic market, and organic farmers and handlers feel that the best selling point of the product is that it is organic. Absent a “Got Organic Milk?” campaign and similar efforts, the single most marketable factor in an organic farmer’s products—the fact that it was produced organically—is not being marketed through current marketing and promotion orders. Therefore, OTA was a major advocate for an exemption for organic farmers and handlers to these orders.
The 2002 Farm Bill, Section 10607 (SEC. 10607. Exemption Of Certified Organic Products From Assessments), says:
`(e) EXEMPTION OF CERTIFIED ORGANIC PRODUCTS FROM ASSESSMENTS-
`(1) IN GENERAL- Notwithstanding any provision of a commodity promotion law, a person that produces and markets solely 100 percent organic products, and that does not produce any conventional or nonorganic products, shall be exempt from the payment of an assessment under a commodity promotion law with respect to any agricultural commodity that is produced on a certified organic farm (as defined in section 2103 of the Organic Foods Production Act of 1990 (7 U.S.C. 6502)).
`(2) REGULATIONS- Not later than 1 year after the date of enactment of this subsection, the Secretary shall promulgate regulations concerning eligibility and compliance for an exemption under paragraph (1).'.
OTA thanks AMS for its attention to this matter. The regulation should state the law: that a person that produces and markets solely 100 percent organic products, and that does not produce any conventional or nonorganic products, shall be exempt from the payment of an assessment under a commodity promotion law with respect to any agricultural commodity that is produced on a certified organic farm (as defined in section 2103 of the Organic Foods Production Act of 1990 (7 U.S.C. 6502)).
Scope of exemption
OTA believes AMS has interpreted the law too narrowly. The concern about farms selling products that are not organic is based on the fact that some farms have “split” operations, where both organic and non-organic forms of the same product are grown. This is especially the case during a farm’s transition to organic production, which may happen over a longer period than the mandatory three year transition period. These farms might grow have both organic and non-organic forms of a product covered under a marketing order, and would therefore benefit proportionately from that marketing or promotion order.
OTA agrees that such farms should be exempted from the respective marketing or promotion order. Nonetheless, farms that grow only organic cotton, for example, should not be subject to the assessment for cotton under the current promotion order. However, if the farm also sells non-organic corn, for example—for which there is no marketing or promotion order—it should not be prohibited from exemption from the cotton assessment. An organic farm is an operation defined by its organic system plan. Anything that falls outside that plan—either a product like non-organic corn or, say, firewood, which presently is not certifiable as organic—is outside of the organic operation, which is what is being exempted from assessments. Therefore, the exemption from assessment should be based only on whether a farm grows both organic and non-organic product covered by that marketing or promotion order.
The exemption form
Our comments below focus on the form required. First, the form should be presented as a notification and simple affirmation of 100% organic status, with an accompanying certificate, rather than an application for exemption. An operation is either exempt or not by statute.
(1) Whether the proposed collection of information is necessary for the proper performance of the functions of the Agency, including whether the information will have practical utility
The operation that produces solely 100 percent organic products is exempt from promotion assessments by statutory law, such an operation should not be required to apply for such exemption, but simply to notify AMS that it is exempt, attaching a copy of its certificate.
Such an operation’s organic system plan will already be filed with a USDA-accredited certifying agent, which is therefore available to AMS for verification for independent verification. Organic farmers are already required to include in their farm plans whether their operation includes any non-organic crops. These farm plans are filed with USDA-accredited certifying agents, so if there are any questions about any particular operation it should not be difficult to ascertain whether the operation is in fact eligible.
In the National Organic Program Final Rule, “100% organic” is a specific labeling category applying only to manufactured products, and which does not include farm produce. Therefore, “100% organic” in the statute can only mean an operation that only produces organic product (of the kind regulated by the order). That said, there are products covered by marketing and promotion orders, such as milk (required to incorporate vitamins A and D), that do not fall under the “100% organic” designation in the rule. This is not the same as an operation that produces only organic product (of the kind regulated by the order), and so the language of the law, correctly interpreted, should be used, allowing organic milk to be exempted. If the “100% organic” term in the law is interpreted according to the rule, no produce at all would be covered, which was clearly not Congress’ intent.
Filing a notice of eligibility annually is meaningless and overly burdensome on the organic producer. An organic operation is certified until its certificate is suspended, surrendered, or revoked, and should only be required to notify the commodity board upon suspension, surrender, or revocation of its certificate. OTA requests AMS to require the organic producer to file only an initial notice of compliance with the requirements for exemption, together with an organic certificate, or in the case of a producer with less than $5000 in income, an affidavit, and to notify the appropriate board of any change in eligibility within 30 days of a change in status.
(2) the accuracy of the Agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used
Based on the 2008 Farm Bill Language exempting 100% organic producers from marketing promotion assessments, OTA believes that the only burden should be one of notification, not of application. The current form (OMB No. 0581-0217, or in the case of the United Soybean Board, OMB 0581-0093) could be easily adapted.
OTA believes that more than 65 farms that would be affected. According to the National Organic Program (http://apps.ams.usda.gov/nop/), there are over 230 farms producing organic beef cattle alone. Some of these may be split operations, but many may not be.
The 30-minute burden seems most applicable when the exemption forms are easily found on the internet. Sites where this is not the case include the Boards for beef; eggs; fluid milk; Hass avocados; mangos; peanuts; popcorn; potatoes; and watermelons.
OTA notes that while many of the promotion programs include on-line forms (as above, OMB No. 0581-0217, or in the case of the United Soybean Board, OMB 0581-0093), not all do, and some exemption forms do not appear to be accessible via the internet. Also, the forms are often not accessible from the otherwise welcome home-page links to general information for organic producers on promotion order program web sites; these merely provide information regarding the law or rule, while the form is found elsewhere on the site. Boards with this arrangement include lamb, pork, and sorghum. The U.S. Blueberry Council web site has a link under “rebates” rather than “exemptions,” which OTA finds misleading, and the link was not working when it was checked prior to submitting this comment.
Since it would be easy to provide a link to the form (and any accompanying information) on the page giving the law and rule, such a link should be provided. Better yet would be a single page linked from the home page with all relevant information, instead of providing two separate and unlinked pages.
(3) ways to enhance the quality, utility and clarity of the information to be collected
As above, the question should be whether the farm produces both organic and non-organic products of the commodity being covered under the marketing or promotion order rather than all possible farm products.
(4) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
The only necessary information to be collected is that of an operation’s organic status. Regarding the form’s requirement that all commodities grown, handled, or exported by organically produced, OTA does not feel it is necessary to require that all commodities produced be listed. The requirement is that all commodities must be organically grown. A single check-off box would be sufficient.