INSIDE ORGANIC: The NOSB Completes Fifteen Often Bumpy Years Dealing with USDA Facilitating Public Participation and Protecting Organic Integrity (Nov/Dec 07)

by Roger Blobaum · Inside Organics · Nov/Dec 2007

The National Organic Standards Board, the one-of-a-kind official body that recently completed 15 sometimes bumpy years advising and assisting the U.S. Department of Agriculture in implementing the Organic Foods Production Act, (OFPA) deserves the kind of report card most students dream about.

The organic community, like a good teacher rewarding exemplary performance, should give the NOSB all “A’s” for its commitment to organic integrity and overall record of performance since its first 14 members were appointed in January of 1992. NOSB members volunteer for 5-year terms and have formal meetings that last three or four days several times a year. This heavy work schedule, plus a steady load of committee work between meetings, makes serving on the NOSB a part-time, unpaid job.

USDA, on the other hand, deserves a “C+” at best, partly for the disrespect and overall bad attitude it has shown at times toward the NOSB. This mediocre grade would also be partly for sporadic official moves, mostly unsuccessful, to engage in end runs and other attempts to undermine the NOSB’s advisory role and authority mandated by Congress. This includes USDA’s unsuccessful attempts to take away the authority Congress gave the NOSB to control materials allowed on a national list of approved materials.

This unusual board is appointed by the Secretary of Agriculture and made up of individuals in seven legally-defined categories. The organic law reserves slots for four certified organic farmers, three public interest representatives, three environmental representatives, two organic processors, one retailer, one scientist, and one certifying agent representative.

An Important Role

The NOSB was established in response to widely shared apprehension about transferring responsibility for a national organic guarantee from the private sector to regulation by a federal agency. It reflected deep distrust of USDA, which had joined the House Agriculture Committee in waging a bitter fight against the legislation. If an institution like the NOSB with some statutory authority had not been included, the OFPA would never have made it through Congress.

Probably the NOSB’s most important single accomplishment was emphasizing public participation and transparency in developing the first set of recommendations for rulemaking submitted to USDA at the end of a long and continuing process. More than 100 volunteers from the organic community were already at work drafting pieces of the implementation rule when the new NOSB took over. USDA representatives knew they needed plenty of help in putting a rule together and welcomed this public contribution. This spirit of cooperation continued, for the most part, throughout the time the NOSB‘s recommendations were put together.

The NOSB process included day-long public comment periods and tours of local organic farms and processing facilities in 13 states plus public review and comment on multiple drafts of proposed recommendations. The detailed recommendations submitted to USDA at the conclusion of a participatory process that lasted four years was a consensus document the organic community supported and endorsed.

Defending the National Materials List

Another significant accomplishment, possibly the most important in guaranteeing the NOSB’s long-term ability to protect organic integrity, was its refusal to knuckle under to USDA’s initial attempt to take away its statutory authority over the national materials list.

This first challenge, launched by a USDA representative at an early NOSB meeting, was turned back in an unusual 8-4 roll call vote. The representative contended the NOSB, as an advisory board established under the Federal Advisory Committee Act (FACA) and appointed by the Secretary of Agriculture, should not be passing a resolution that insists that the Secretary’s own advisory board has more authority than the Secretary does for certain aspects of the program.

The NOSB resolution noted that the organic law clearly requires it to evaluate, and to recommend to the Secretary, the universe of synthetic materials acceptable for organic production. “The Secretary cannot, at any time, add synthetic materials to the list that are not first recommended by the NOSB,” the resolution stated. “This statutory responsibility makes the NOSB unique among USDA advisory boards.”

The issue was considered nonnegotiable by NOSB members defending its national list authority. The resolution stated that giving in on this issue would violate “the common understanding of those involved in the construction of the law, including the organic, environmental, consumer, and humane care organizations that came together in support of the OFPA and now support the National Organic Program.”

The NOSB’s authority was challenged again in 1977 when USDA’s first proposed rule rejected many NOSB recommendations, including its initial National List of Approved and Prohibited Substances. USDA’s proposed rule significantly changed many of the NOSB’s recommended practices, directly altered its initial National List, removed its annotations and restrictions on use that accompanied the National List, and attempted to undermine the NOSB’s future governance of the National List process. This ignited a storm of protest, rallied public support for the NOSB, and generated more than 278,000 negative comments.

Strong organic community reaction to these and other proposed changes dealing with new topics like sewage sludge and GMOs forced USDA to withdraw the proposed rule and propose a new version that restored the NOSB’s authority. This seems to have settled once and for all the NOSB’s authority over allowed and prohibited materials and the main elements of the NOSB’s overall participation in the public-private partnership mandated by Congress.

Other Challenges

But there have been other, more recent, flareups over the NOSB’s assigned advisory role. One that turned out badly for USDA was the end run the National Organic Program attempted to make around the NOSB in 2004 with a series of regulatory changes that became known in the organic community as the four directives. Included were changes allowing the use of fish meal with unapproved synthetics as a poultry and livestock feed, approving organic calves treated with antibiotics and other medications to stay in organic herds, and allowing pesticides that contained unidentified harmful chemicals.

The directives were rescinded in an embarrassing election year retreat by the Secretary of Agriculture following a national outcry that included highly critical editorials in the New York Times and elsewhere. The followup included a meeting with organic community representatives where USDA representatives agreed to do more to make certain the NOSB is in the official loop when issues of this kind are decided.

But that process was missing again early this year when the NOP Director announced at a meeting in Germany that USDA would start requiring inspection of all small farms in grower groups instead of accepting the internal control systems allowed internationally for many years. And the NOSB found yet again that it had been bypassed.

Worse yet, the strong global protest that followed led to disclosure that the NOSB five years earlier had prepared a recommendation for formal grower group rulemaking at USDA but that it had been filed away and never implemented. The result was another embarrassing policy reversal with the NOP agreeing to back off from the arbitrary position announced in Germany, to allow certifiers to follow the 5-year-old NOSB recommendation, and to begin implementing the grower group rulemaking the NOSB had recommended.

NOSB Integrity Also Jeopardized

If USDA no longer challenges the NOSB’s authority over the national list and keeps the NOSB in the official loop when regulatory decisions are made, can the organic community relax and assume that everything is being done at USDA to protect organic integrity? The answer is that USDA’s willingness to violate the specific categories established by Congress for appointment of NOSB members is still another problem that threatens the integrity of the NOSB itself.

The latest example is the appointment early last year of industry representatives to two of the three NOSB slots reserved for consumer/public interest representatives. Public interest and consumer groups, angered by the appointments, immediately launched a campaign to force USDA to rescind the appointments.

All of the leading consumer organizations with a continuing interest in organic food and farming, in a rare cooperative effort, signed a letter of protest to Agriculture Secretary Michael Johanns. The impressive lineup included Consumers Union, Center for Food Safety, Center for Science in the Public Interest, Consumer Federation of America, Organic Consumers Association, Food and Water Watch, Beyond Pesticides, and Public Citizen. However, Johanns declined to rescind the appointments. One appointee withdrew, and the other remains on the NOSB.

Although appointments to legally-designated NOSB slots have been a continuing problem, this was the first to generate strong public opposition and the first to complain specifically about the appointment of industry people to slots reserved for others. Maintaining the balance of interests provided by the OFPA through the specific allocation of slots is critical to protecting the interests of both organic farmers and consumers when rules and materials decisions are made.

The NOSB has earned the broad public support it can count on after 15 years of A-level performance in the public interest. It is time for USDA and the NOP to finally acknowledge the 1990 Congressional mandate to work closely and cooperatively with the NOSB in this public-private partnership. Organic farmers, consumers and others committed to organic integrity should stop tolerating USDA’s record of resistance and disrespect and insist that this official relationship be finally and fully implemented.