Continuous Improvement and Accountability in Organic Standards

Apiculture (Rulemaking): In 2010, NOSB recommended to establish specific production standards for organic apiculture (honeybee) production. This recommendation would minimize the wide variation currently used by applying the current livestock production standards to these production systems. Apiculture standards were previously listed on the Unified Agenda and NOP was developing a proposed rule although it was never published. Apiculture was removed from the Unified Agenda in 2018.  There has been no formal action on rulemaking for practice standards although some inputs specific for apiculture production have been added to the National List.

Aquaculture (Rulemaking): Between 2007 and 2009, NOSB passed a series of recommendation to create new standards for organic aquaculture standards. Together the recommendations would authorize organic certification of aquatic plants and animals including finfish and molluscan shellfish, and establish specific standards for feed, health care, facilities, and living conditions for this unique type of livestock. Aquatic animals are currently excluded from the organic regulations; therefore, this series of recommendations would create a new certification scope and market for organic aquaculture products. Aquaculture was previously listed on the Unified Agenda and NOP had completed writing of a proposed rule although it was never published. Aquaculture was removed from the Unified Agenda in 2017.

Biodegradable Mulch (Rulemaking): Biodegradable biobased mulch film (BBMF) is currently listed on the National List of allowed materials for crop production as a weed barrier. The final rule to add BBMF to the National List was published September 30, 2014, in response to an NOSB Recommendation in fall 2012. The preamble to the final regulations adding BBMF to the National List require that BBMFs must not contain any non-biobased content (further explained in a 2019 NOP Memo). Because of the 100% biobased requirements, the final rule was not effective to allow use of the petitioned material intended to be allowed. Commercially available BBMFs contain around 20% biobased content, therefore there are no products on the market that meet the terms of the NOP allowance. An effective regulatory solution has not yet been identified. This is a current NOSB work agenda item.

Calculating Organic Percentages of Organic Products (Rulemaking and Guidance): In 2013, NOSB passed a recommendation to clarify the requirements for determining the percentage of organic ingredients in multi-ingredient products. The recommendation would make calculations based on "all ingredients", not "finished product", which is consistent with OFPA and NOP. The recommendation would standardize practices for developing self-calculating forms, excluding salt, excluding water, processed-single ingredient calculations, multi-ingredient product calculations, and organic labeling versus organic content. The recommendation also would ensure that the organic community with easily accessible, web based, detailed Guidance on these topics. In 2016, NOP published a Draft Guidance 5037 in an attempt to implement the recommendation, but this has not been finalized. Portions of the SOE Proposed Rule 2020 also partially address these issues.

Certifier Oversight and Inspector Qualifications and Training (Rulemaking and Guidance): NOSB has passed a series of recommendations for the establishment of guidance to strengthen the training and qualification requirements for inspectors who perform on-site reviews of organic operations, and certification review personnel who assess the organic system plans of organic operations and the inspection reports of these operations. NOSB also passed a recommendation to develop criteria for risk-based accreditation and oversight of certifiers. Portions of the SOE Proposed Rule 2020 address these issues.

Commercial Availability Criteria for Non-organic Agricultural Ingredients (Guidance): In 2007, NOSB passed a recommendation to establish standardized criteria to be used by NOSB, ACA’s, and the organic industry when making commercial availability determinations for agricultural ingredients that are listed on §205.606. NOP accepted the NOSB Recommendation but has not taken action to implement the guidance.

Excluded Methods Prevention Strategy (Guidance): In 2015, NOSB passed a recommendation to develop guidance that identifies best management practices for organic operations to prevent unintended GE presence in seed and crop production, livestock production, and handling. NOP responded favorable to the recommendation but has not taken action on implementing the guidance.

Excluded Methods Terminology (Guidance): In 2016, NOSB passed a recommendation that would establish guidance for interpreting the excluded methods provision of the organic regulations. The recommendation includes definitions, principles, criteria that help address the increased diversity in types of genetic manipulations performed on seed, livestock and other inputs used in agriculture. The 2016 recommendation and subsequent recommendations between 2016-2019 identify specific technologies and whether they are prohibited under the existing regulatory definition of excluded methods. NOP has not taken action on implementing guidance.

Genetic Integrity Transparency of Seed Grown On Organic Land (Instruction): In 2019, NOSB passed a recommendation to establish instructions for certifiers to inform certified producers that information on possible genetic contamination of seeds with GE equivalents could be obtained from their seed suppliers to improve transparency of genetic integrity of seed grown on organic land. NOP's response to the recommendation was neutral (under review) and there has been no action on implementing the instruction.

Greenhouse Standards (Production Standards for Terrestrial Plants in Containers and Enclosures) (Rulemaking): In 2010, the NOSB passed a recommendation that would allow container and greenhouse production of organic crops under specific provisions that support natural and diverse soil ecology within the container, while prohibiting hydroponic production, with an exception for mushrooms, sprouts, and micro-greens. This recommendation would minimize the wide variation currently used by applying the current crop production standards to these production systems. Hydroponics is defined in the 2010 NOSB Recommendation as “the production of normally terrestrial, vascular plants in nutrient rich solutions or in an inert, porous, solid matrix bathed in nutrient rich solutions.” In 2017, NOSB considered another proposal on hydroponics and container-growing, but the proposal did not pass. However, a motion specific to prohibiting aeroponic production did pass. Hydroponics was the subject of recently litigation, where in the courts concluded that OFPA is ambiguous about hydroponics to the extent that USDA did not abuse its discretion in denying a petition for rulemaking to prohibit hydroponics based only on OFPA. NOP published a memo in 2019 attempting to clarify requirement for land-based container production although many questions still exist from certifiers about the requirements for container and greenhouse production. The Accredited Certifiers Association worked for 6+ months to develop best practices for certifying greenhouse and containers but were unable to come to consensus, and therefore communicated to NOP that inconsistent interpretations among certifiers can only be resolved through rulemaking. Wide variation of policies and significant inconsistencies continue to exist across certifiers, and operations are certifier-shopping.

Grower Groups (Rulemaking): Between 2002 and 2008, the NOSB passed recommendations to establish specific requirements for certification of operations with multiple production units, sites or facilities-- including operations consisting of legally-constituted groups--based on their organic system plan, their internal control systems and other oversight provided by certifying agents. The NOP published a Policy Memo in 2011 to instruct certifiers to use these recommendations until implementation was finalized. The 2020 Proposed Rule on Strengthening Organic Enforcement included a section on grower group certification.

Inert Ingredients (Recommendation to Change the EPA List 4 Annotation): EPA List 3 and 4 are no longer in use and the EPA requested that these references be removed from the NOP Regulations in 2010. In 2015, NOSB passed a recommendation that would revise the listing for inert ingredients at §205.601(m) and §205.603(e) to remove the outdated and obsolete references to EPA Lists 3 and 4, and replace with EPA’s current mechanism for approving the least-toxic inert ingredients. In NOP’s response to the 2015 NOSB Recommendation, NOP stated “The NOP has reviewed the NOSB’s recommendation and plans to collaborate further with EPA’s Safer Choice Program to develop a program for inert ingredient review, and to initiate notice and comment rulemaking to revise the annotations for inert ingredients at §205.601(m) and §205.603(e).” For a short time after the 2015 NOSB Recommendation was passed, NOP made some effort to provide verbal updates at NOSB meetings to the organic community on its progress of implementing the recommendation, although this has not occurred since 2016.  At the Fall 2020 NOSB Meeting, the Board voted unanimously in favor a resolution calling for NOP action to resolve this regulatory interagency conflict and modernize the system for reviewing inert ingredients. NOP's response to the Fall 2020 resolution indicates it intends to publish an Advanced Notice of Proposed Rulemaking.

Mushroom Production (Rulemaking): In 2001, NOSB passed a recommendation to establish specific production standards for organic mushroom production. This recommendation would minimize variation among certifies applying the current crop production standards to these production systems. NOP was previously working on developing a proposed rule although it was never published. There has been no formal action on rulemaking for practice standards although some inputs specific for mushroom production have been added to the National List.

Native Ecosystems (Eliminating the Incentive to Convert in Organic Production) (Rulemaking): In 2018, NOSB recommended a requirement for a ten-year waiting period between conversion of land supporting native ecosystems and subsequent organic certification. NOP's response to the recommendation was neutral (under review) and NOP has not taken action on rulemaking.

Origin of Livestock (Rulemaking): The Origin of Livestock Proposed Rule published in 2015 was based on 6 NOSB Recommendations passed between 1994 and 2006. The rulemaking would clarify and narrow the requirements for the transition of dairy animals (cows, goats, sheep) into organic milk production as a one-time event. Once a distinct herd has been converted to organic production through one year of organic management, all dairy animals must be under organic management from the last third of gestation. The practice of continuously transitioning and/or cycling dairy animals in and out of organic production would be explicitly prohibited. NOP published a proposed rule that would implement this policy in 2015, re-opened the comment period 2019, but has still has not implemented a final rule. NOP recently announced it plans to open a third public comment period to address additional questions to inform the rule.

Parasiticides in Livestock (Clarifying “Emergency” Use of Synthetic Parasiticides in Organic Livestock Production) (Rulemaking): In 2018, NOSB passed a recommendation to add definition of “emergency use” to §205.2 (Definitions) and amend §205.238(b) to providing clear protocols that need to be in place before the use of approved synthetic parasiticides are used on organic livestock. The goal of the recommendation is to promote consistent implementation when certifiers allow the use of the National List approved synthetic parasiticides, as well as providing clear direction to certified organic operators so they can plan their animal health strategies which first promote animal health through a wide variety of practices. Following the NOSB Recommendation, NOP Responded that it was reviewing the recommendation. NOP has not proceeded with rulemaking action on this recommendation, but NOP has implemented other National List revisions relevant to parasiticides.

Personal Care (Rulemaking): In 2009, NOSB passed a recommendation to recognize personal care products (cosmetics, body care) under the scope of National Organic Program enforcement. This recommendation will ensure that USDA can police organic claims on personal care products and require compliance with organic standards. NOP published a Policy Memo (22-1) and a Fact Sheet in 2008 although has not taken any action on rulemaking.

Pet Food (Rulemaking): In 2008, NOSB passed a recommendation to recognize pet food under the scope of National Organic Program enforcement. This recommendation will ensure that USDA can police organic claims on pet food and require compliance with organic standards specific to organic pet food composition, handling, and labeling. Pet food standards would create a market for organic livestock operations’ slaughter byproducts and other types of meat feed ingredients under consistent and appropriate standards. Pet food standards were previously listed on the Unified Agenda and NOP was developing a proposed rule although it was never published. Pet food was removed from the Unified Agenda in 2018.

Retail Compliance and Certification & Voluntary Retail Certification: NOSB passed two recommendations that would provide clarify organic compliance requirements for retailers of organic products. The 2014 Recommendation provides education and guidance to clarify several specific sections of the rule as it applies to the retail sector. The 2009 Recommendation identifies key areas that need clarification, as well as define the role of NOP, ACAs and retailers in improving the marketing and implementation of USDA organic retailer certification. Together these recommendations will also improve consistency and integrity in merchandising, handling and marketing of organic products in retail establishments, and improve consumer understanding of the distinction between “organic” and “certified organic” retailers. NOP responded favorably to these recommendations, and portions of the recommendations are addressed in the 2020 SOE Proposed Rule.

Strengthening Organic Seed Usage (Rulemaking): In 2018, NOSB passed a recommendation to implement a rule change that would require certified crop producers to demonstrate improvement in sourcing and use of organic seed/planting stock every year. NOP accepted the recommendation but has not taken action on rulemaking.

Strengthening Organic Seed Usage (Guidance): In 2019, NOSB passed a recommendation for a series of improvements to the existing NOP Guidance 5029 Seeds, Annual Seedlings, and Planting Stock in Organic Crop Production that includes both incentives and practical language to aid producers and certifiers in overseeing and encouraging the use of organic seed. NOP accepted the recommendation but has not taken action on rulemaking.

Uncertified Handlers (Rulemaking): In 2017, NOSB passed a recommendation to clarify which operations are excluded from certification through updates to language and additional examples in Guidance NOP 5031 Certification Requirements for Handling Unpackaged Organic Products. Also included are recommendations for additional training of USDA-accredited certifiers and certified handlers, as well as a recommendation to USDA to include in its audits of certifiers a verification that adequate audit procedures are in place. The 2020 Strengthening Organic Enforcement Rule implements this recommendation.

Vaccines in Livestock (Use of Excluded Methods Vaccines in Livestock Production) (Rulemaking): In 2019, NOSB recommended to limit the use of livestock vaccines made from excluded methods only when an equivalent alternative not made from excluded methods is not commercially available to prevent a specific disease. There has not been any NOP action since its response to the NOSB Recommendation that “AMS is reviewing the NOSB’s recommendation."