USDA Power Grab! Shifting Authority Away from The National Organic Standards Board

AUTHORS:

The Cornucopia Institute, an organic industry watchdog, has released an in-depth review of the proposed changes to the policies and procedures governing the organic industry’s regulatory board. Cornucopia’s analysis concludes that the proposal would further erode public trust in how the National Organic Standards Board (NOSB) conducts its business. Find your TAKE ACTION KIT here!

The Policy and Procedures Manual (PPM) has been the de-facto operating manual for the NOSB since its release in 2002. The original PPM was developed by the NOSB with public review and formal input from organic stakeholders before it was approved by the USDA. The PPM was comprehensively reviewed and updated by the NOSB in 2012.

“These new changes, cloaked in the minutia of ‘government-speak,’ represent a wholesale hijacking of the authority Congress vested in the NOSB,” said Will Fantle, Cornucopia’s codirector. “Congress gave the NOSB—a 15-member expert advisory body—direct authority over what nonorganic ingredients and materials would be allowed in organic food production. Lawmakers also mandated that the USDA Secretary seek input and advice from the NOSB into how the federal organic regulatory law is executed.”

The current iteration of the PPM was developed after a formal notice in the Federal Register soliciting public input. Dr. Barry Flamm, chairman of the NOSB at the time of the last major update stated that, “Thousands of hours of board and public work and debate over the years went into the development of the 2012 PPM. I personally spent hundreds of hours on it as Policy Development Committee chair and board chair.”

The Cornucopia Institute and 14 other stakeholder groups have separately sued the USDA, claiming that some of the changes they are now attempting to institutionalize through the rewritten PPM are being enacted illegally.

Cornucopia and others allege that the USDA, in an arbitrary and capricious manner, threw out the previous draft of the PPM, disregarding the hard work that the NOSB and the public had invested in the process and circumventing proper administrative process, including public notice.

Speaking to the ultimate effect of these changes, Cornucopia’s Fantle states, “This puts the regulatory oversight of the organic industry squarely in the hands of bureaucrats with close relationships to the Organic Trade Association, the powerful industry lobby group.”

When the recent changes to the PPM draft were unveiled by the USDA at the NOSB’s fall 2015 meeting, there was general surprise and outrage. The agency’s draft almost entirely rewrites and reorganizes the 2012 version. Breaking from precedent, the rewrite was done by the USDA’s National Organic Program (NOP) rather than the NOSB, bringing in new procedures and policies and deleting, or heavily editing, much of the existing text.

Based on the negative response and debate at the fall 2015 meeting, the NOSB Policy Development Committee produced another draft in February 2016. This new draft addressed some of the concerns with the NOP rewrite, but many of the radical, troubling proposals remain.

“I don’t understand the need [for] most of the changes. In my five years on the Board, I never heard anyone on the NOSB, or the public, suggest the PPM should be totally rewritten. But that is what is being proposed,” Flamm stated.

The current adversarial relationship between members of the organic community and the USDA‘s organic program was ignited four years ago when Cornucopia published The Organic Watergate, a white paper profiling inappropriate corporate influences on the NOSB. Forced to respond to the outcry, the NOSB started more aggressively reviewing and excluding some synthetics from the National List of Approved Substances that were up for their five-year Sunset review.

During this period, the NOSB voted to remove two antibiotics from organic use, tetracycline and streptomycin, which were being applied to control fireblight in apples and pears. The organic business lobby was outraged, calling the removal of the antibiotics a “travesty,” even though there was scientific evidence that biological controls were effective and certainly more compatible with organic philosophy.

The USDA’s response was to, in essence, change the rules of the game by making it demonstrably harder to remove synthetics from the National List at their five-year Sunset review. This change was made without the knowledge or input of NOSB members or the public.

Now, crystalized in the new draft PPM, materials are destined to stay on the National List forever unless the Board proactively acts to remove them. Even then, with the proposed changes, it now takes a supermajority of the board to remove a substance, compared to what had been only one-third of the Board. Industry observers assume that powerful corporate lobbyists were behind this spontaneous and consequential policy rewrite by the USDA.

The NOSB’s only response has been that, “The PPM should reflect the current operating procedures of the NOSB.” This clearly disregards the pending lawsuits, public protests and historic policy.

In addition to the overall broadening of the USDA’s bureaucratic power, and limiting of the NOSB’s, there are other significant changes to the PPM. “One thing you immediately notice is how much formatting and substantive editing of the text was done when you compare the 2015/2016 drafts with the existing PPM,” stated Marie Burcham, an attorney and farm and food policy analyst at Cornucopia who performed the group’s analysis.

She continued, “We prepared our review because, based on the draft released by the USDA, it was near-impossible for organic stakeholders to analyze and fully grasp the impact of all the changes.” Management at the NOP failed to provide a detailed side-by-side comparison that could inform meaningful public comment. Only after public criticism did the NOSB release a redline version of the changes in early 2016. Burcham added, “It feels like they are trying to slide something by us in the chaos of a multiplicity of draft changes.”

In addition to gutting the power of the NOSB at Sunset, another proposed change to the PPM weakens the NOSB’s Policy Development Subcommittee.

“The current rewrite of the PPM appears to intrude on the authority of the NOSB, allowing the USDA’s bureaucrats to interfere with the Board’s vital duties, a possible violation of the Federal Advisory Committee Act. The language now gives the USDA/NOP authority to direct the NOSB’s work,” added Burcham.

Cornucopia’s Fantle speaks directly to why organic stakeholders should care: “If the NOSB’s duties are constricted by NOP management, it will undoubtedly infringe upon the Board’s ability to act as a link to the organic community and to defend the integrity of organics.”

MORE:

[Additional comments attributable to Cornucopia’s Burcham unless noted.]

Many of the proposed changes to the PPM appear to undermine the statutory authority of the NOSB found in the Organic Food Production Act (OFPA). For example, the draft PPM states that the NOP can act to maintain the listing of materials when there is no NOSB action, and that the NOP is now given discretionary control over many aspects of in-person public comment at meetings. These duties belonged to the NOSB before as mandated by OFPA and should not be removed from the NOSB’s control.

Every five years, at what is known as Sunset, the NOSB reviews every substance on the National List to confirm that the material continues to meet the legal criteria for use in organics. In the past the materials only remained on the list when they received two-thirds support from the NOSB.

Essentially the old procedure set a high bar for synthetic compounds to remain on the list, with the ultimate goal on reducing synthetics used under the organic label. Now, under the USDA power-grab, Sunset review by the NOSB is turned on its head with materials on the National List being automatically renewed every five years unless two-thirds of the Board votes to remove the materials from the list.

With respect to the Policy Development Subcommittee (PDS), the 2015/2016 drafts of the PPM drastically change the Subcommittee’s role (this group was called the Policy Development Committee in the 2012 draft). The changes diminish the NOSB’s ability to establish their own procedures.

Responding to public comment on the issue, the 2016 draft added back in the Policy Development Subcommittee’s role in updating and revising the PPM. However, the PDS role of “guidance” was removed and the language defining the PDS’ role is limited compared to the 2012 PPM. In addition, the new draft places the Policy Development Subcommittee in a collaborative role with the NOP. While collaboration should be encouraged in other areas, the NOSB has always dictated their internal policy.

“Of special importance,” states Dr. Flamm, “is the ability to develop a work plan that reflects needs identified by the Board, which may also respond to public and NOP requests. The NOSB should be free to provide perhaps unwanted advice to the Secretary and NOP, but that is very different than having to operate in a collaborative role.” The language from the 2012 manual permitting the Policy Development Committee to give guidance to the Board is stripped in the new draft PPM.

Although subordinate to the Organic Food Production Act, the NOSB is administrated under the Federal Advisory Committee Act (FACA). This legislation mandates that federal bureaucrats not interfere with decision-making by independent advisory committees. Cornucopia believes that many of the USDA’s proposed changes in the PPM undermine the NOSB’s independence and open up undue influence by political appointees overseeing the program as well as by management at the NOP.

Other significant changes are the following:

  • The 2015 draft alters many policies and procedures regarding Technical Reviews. Since the NOSB is not a scientific body, Congress gave them the ability to contract with independent experts to advise them. Technical Reviews are supposed to be produced by a third-party to gather unbiased information about materials proposed for use in organics. After Cornucopia’s research uncovered agribusiness executives and consultants producing Technical Reviews, the USDA responded to the criticism by keeping the identity of the authors secret.The language in the 2016 edits requires that third-party contractors be named in Technical Reviews. These changes, however, do not require that the individual scientists authoring the reports be named. This makes it impossible to ascertain whether conflicts of interest exist. For the sake of transparency and consumer trust it is imperative that the authors of any Technical Reviews, or any other third-party expert evaluation, be made public.
  • The passages concerning “conflict of interest” in the draft have moved away from finding a conflict even when there are suspicious circumstances. For example, when NOSB board members work for agribusinesses that have a financial investment in organics and the Board is charged with reviewing a material used by a Board members’ own business or employer, the draft would find no conflict of interest. Vague language complicates this problem, as it leaves no procedural stopgap to protect the organic industry from conflicts of interest within the NOSB itself.
  • Board participation and attendance by electronic means would be allowed in the pending draft (it is currently prohibited). Due to the ambiguity, it is unclear in the new draft which specific situations would allow for meeting via the phone or internet rather than with in-person public access (as has been the practice for the full board). The boundaries for electronic meetings must be clearly defined in the PPM with a preference for methods that maximize public participation.
  • The 2015 draft adds language that may have the effect of silencing minority opinions within the NOSB. In the recent past, the board chair, in concert with some of the subcommittee chairs, restricted the voices of board members from formally sharing minority or dissenting opinions. The new PPM language could institutionalize this practice. The PDS failed to revise this change when they released the 2016 draft, essentially choosing “collaboration” over effective and transparent recordkeeping and public discourse.

Click here for a comprehensive analysis, including a side-by-side comparison, of the new draft and existing PPM. The radical changes to the governance of the NOSB will be debated at its upcoming meeting, the week of April 25, in Washington DC.

The Cornucopia Institute has also created an Action Alert, for its members and other organic stakeholders, encouraging comments to the NOSB asking that they table the dramatic changes to the PPM at its upcoming meeting. Comments are due by midnight (Eastern) on April 14.

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