USDA Must Complete Rulemaking Initiated by the National Organic Standards Board
USDA is dragging its heels in completing rulemaking recommended by the National Organic Standards Board (NOSB)—including recommendations passed as early as 2001 and including those concerning both materials and organic practices. This threatens organic integrity and public trust in the process governing the USDA organic label. When the Organic Foods Production Act (OFPA) was passed in 1990, supporters had grave mistrust of the commitment of the U.S. Department of Agriculture (USDA)—a department that had embraced chemical-intensive agriculture and promoted the dependence on pesticides and chemical fertilizers. Therefore, Congress built into the law protections by assigning a major role for the NOSB—an advisory board comprised of representatives of all the stakeholders including producers, processors, retailers, certifiers, consumers, scientists, and environmentalists. Not only must the NOSB vote on allowed synthetic materials used in organic production, but USDA must also consult with the NOSB on all aspects of the National Organic Program (NOP).
>>Tell USDA that NOSB recommendations must be proposed as regulations.
Crucial to organic practices, and written into OFPA, is the concept of continuous improvement. The importance of this concept is most apparent in materials review, which includes a sunset provision that requires all synthetic materials used in crop and livestock production and non-organic ingredients used in processing to be re-considered every five years. If organic producers no longer need those materials or new issues of concern have been identified, they should no longer be allowed. However, continuous improvement extends to all aspects of the organic program, including regulations governing organic practices.
USDA has had difficulty with the concept of continuous improvement because it requires flexibility that is unusual in regulatory programs across government. The biggest obstacle, according to USDA, is the Office of Management and the Budget (OMB). Ever since the Reagan administration, regulatory review by the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and the Budget (OMB) has prevented agencies from promulgating new regulations based on new science and technologies that are more protective of health and the environment—the argument being that it causes economic dislocation for the regulated industry. OIRA acts as a gatekeeper to new regulations and has generally resisted changes to the status quo—even in regulations designed to adapt to new science and technology.
Immediately following his inauguration, President Biden issued an Executive Order (EO) directing the heads of all executive departments and agencies to produce recommendations for improving and modernizing regulatory review, with the goal of promoting public health and safety, economic growth, social welfare, racial justice, environmental stewardship, human dignity, equity, and the interests of future generations. This Executive Order reverses the historical trend of status-quo regulatory reviews required by the White House Office of Management and Budget (OMB) that typically support vested economic interests of polluters (e.g., petroleum-based pesticide and fertilizer manufacturers). Instead, the President's EO, Modernizing Regulatory Review, sets the stage for the adoption of agency policy across government to seriously and with urgency confront the climate crisis, biodiversity collapse, and disproportionate harm to people of color communities (environmental racism). It allows—even promotes—the policy of continuous improvement.
NOP's list of NOSB recommendations includes those on which USDA has refused to take action as well as those which have lingered for years. USDA has refused to prohibit the use of sodium nitrate, carrageenan, inulin-oligofructose enriched, Turkish bay leaves, and whey protein concentrate as recommended by the NOSB. It has failed to act on recommendations to examine individual non-disclosed “inert” ingredients. It has closed consideration of several practice standards and let others languish. If the EO has any meaning, then USDA must act to bring these recommendations to the regulatory arena, where the public may provide comments and they can be evaluated against the new criteria of the EO, as well as the old criterion of continuous improvement.
>>Tell USDA that NOSB recommendations must be proposed as regulations.
Letter to USDA Secretary Vilsack
Congress built into the Organic Foods Production Act a major role for the National Organic Standards Board (NOSB)—an advisory board comprised of representatives of organic stakeholders, including producers, processors, retailers, certifiers, consumers, scientists, and environmentalists. Not only must the NOSB vote on the allowance of synthetic materials used in organic production, but USDA must also consult with the NOSB on all aspects of the National Organic Program (NOP).
Unfortunately, USDA still fails to complete rulemaking recommended by the NOSB—including recommendations passed as early as 2001 and including those concerning both materials and organic practices.
Crucial to organic practices is the concept of continuous improvement. The importance of this concept is most apparent in materials review, which includes a sunset provision that requires all synthetic materials used in crop and livestock production and non-organic ingredients used in processing to be re-considered every five years. If organic producers no longer need those materials or new issues of concern have been identified, they should no longer be allowed. However, continuous improvement extends to all aspects of the organic program.
USDA has had a difficulty with the concept of continuous improvement because it requires flexibility that is unusual in regulatory programs. The biggest obstacle, according to USDA, is the Office of Management and the Budget (OMB). Ever since the Reagan administration, regulatory review by the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and the Budget (OMB) has prevented agencies from promulgating new regulations. OIRA acts as a gatekeeper to new regulations and has generally resisted changes to the status quo—even in regulations designed to adapt to new science and technology.
Immediately following his inauguration, President Biden issued an Executive Order (EO) directing the heads of all executive departments and agencies to produce recommendations for improving and modernizing regulatory review, with a goal of promoting public health and safety, economic growth, social welfare, racial justice, environmental stewardship, human dignity, equity, and the interests of future generations. This Executive Order reverses the historical trend of status-quo regulatory reviews required by OMB that typically support vested economic interests. Instead, the President’s EO, Modernizing Regulatory Review, sets the stage for the adoption of agency policy across government to seriously and with urgency confront the climate crisis, biodiversity collapse, and disproportionate harm to people of color communities (environmental racism). It allows—even promotes—the policy of continuous improvement.
NOP’s list of NOSB recommendations includes those on which USDA has refused to take action as well as those which have lingered for years. USDA has refused to prohibit the use of sodium nitrate, carrageenan, inulin-oligofructose enriched, Turkish bay leaves, and whey protein concentrate as recommended by the NOSB. It has failed to act on recommendations to examine individual non-disclosed “inert” ingredients. It has closed consideration of several practice standards and let others languish. If the EO has any meaning, then USDA must act to bring these recommendations to the regulatory arena, where they can be judged by the public against the new criteria of the EO, as well as the old criterion of continuous improvement.
Thank you for your attention to this important issue.