Commentary on the Section 610 Review of the NOP
by Jerome Rigot, Ph.D.
The conclusion of a review of organic regulations by the USDA’s Agricultural Marketing Services (AMS), which administers the organic program, states that “overall, the National Organic Program (NOP), which oversees regulations for the production, handling, and labeling of organically produced agricultural products, is ‘not overly complex’ and there is ‘no critical need’ to amend any regulations implemented under the Organic Food Production Act (OFPA) since it became law in October 2002.”
This would seem to be a reasonable conclusion were it based on several hundred to several thousand reviews submitted through diverse public comments and if the USDA responded with this analysis in a timely manner. After all, according to the NOP there were 18,513 certified organic farms and processing facilities in the United States at the end of 2013.
However, let’s look at some data: the notice (Notice of Regulatory Flexibility Act, section 610 review of the USDA organic regulations) was published on Feb 25, 2011 in the Federal Register requesting that the general public and interested parties submit written comments: “Written comments, views, opinions, and other information regarding the impact of the NOP regulations on small businesses are invited.” The public comment period was then closed on April 26, 2011.
In response to this notice, the AMS received written comments from five organic farmers (two crop, one wild crop, and two livestock), three accredited certifying agents, three handlers (an ingredient supplier, a retailer, and a beverage association), two consumers, and an organic business consultant, for a total of 14 comments!
One would think that two months should be plenty of time to submit comments. However, in many states excluding ones with late winters, most farmers are quite busy during the early and mid-spring period. Realistically, for any chance of receiving a meaningful number of responses from farmers, a notice requesting comments should be posted in early December and closed late January.
When asked whether the comment period was extended in consideration of the few comments received, Stacy Jones King, a staff member in the Standards Division of the NOP, said that the comment period was closed as scheduled since the posting period requirements were met. Perhaps as long as the posting requirements were met it did not matter how many people commented? This begs the question, did the AMS really care?
Was there any additional advertising done to promote the review and its importance besides the posting on the Federal Register? Such as a press release, a request to the certifiers to inform their clients of the review and its solicited comments, etc.? Ms. King responded that nothing else was done to inform the public of the review. She said that today it would be standard to write about such a review in the NOP Insider, an email publication targeting organic stakeholders with several thousands of subscribers. Ms. King also commented, “More outreach could have been done to inform the stakeholders of this review.”
Indeed, and should have been done considering the portent of this review.
So, let’s recap:
- As of the end of 2013 there were 18, 513 certified organic farms and processing facilities in the United States.
- The 610 review of Organic Regulations inviting written comments, and other information regarding the impact of the NOP regulations on small businesses, was posted at the end of February 2011.
- The public comment period was closed at the end of April 2011.
- The review and its public comments period were posted in early to mid-spring, a time of the year when a large percentage of the stakeholders are extremely busy.
- Only 14 comments were received.
- The findings of the review and the conclusions drawn from it were posted and effective on May 6, 2015 only six days after the end of the 2015 National Organic Board Meeting but four years after the public comment period closed.
Considering these facts, several questions stand out:
Are the number of comments sufficient to justify the conclusions drawn by AMS – “Based on the findings from the review, AMS has determined that the NOP is not overly complex and does not significantly overlap or conflict with other regulations” and that there is no “critical need” to amend organic regulations. – ?
Here’s a big disconnect: If that was an accurate assessment why would the department be spending $1.8 million contracting with consultants to simplify and redesign the certification program under their “Sound and Sensible” initiative?
More importantly, how are findings derived from comments collected in 2011 relevant or significant to today’s NOP?
Finally, the final conclusion of the review is quite interesting: “Based upon the review, AMS has determined that the NOP should continue. The USDA organic regulations are dynamic in nature and the NOP continues to collaborate with the NOSB and the organic community on rulemaking and development of guidance documents, (…).”
But here’s some news for the USDA officials: The National Organic Program was created by Congress to assure honesty and fairness in the industry. It is not within the purview of bureaucrats to decide to discontinue it regardless of what conclusions were derived from a questionably meaningful survey, answered by a paltry 14 industry stakeholders.
Actually, the final conclusion is quite revealing considering that Rex A. Barnes, the Associate Administrator of the Agricultural Marketing Service, signed the Section 610 Review findings and conclusion on the last day of the spring 2015 NOSB meeting, which he attended as a silent spectator.
Particularly interesting is the choice of words the “NOP should continue”; this strongly reminds one of the “Big Brother” concept as described by George Orwell’s novel “Nineteen Eighty-Four”.
Furthermore the assertion that “the NOP continues to collaborate with the NOSB” (this really should read “the NOP continues to undermine the intent of Congress by stripping the authority of the NOSB to determine its own rules, work plan and agenda”) overwhelmingly suggests that this report is a script for a play in the continuing Organic Regulatory Theater of the absurd in which the puppet master came to watch his own show and wildly applauded its ending.
This story was previously published in the Summer 2015 Cultivator, Cornucopia’s quarterly newsletter.