“The Sixty-Six Points of Darkness” || January 15-16, 1998

The following document lists brief descriptions of key issues flagged by participants at the National Campaign’s January meeting. The rough notes contained sixty-six numbered items (hence the sinister title) but some were redundant and others were really several issues in one. The entries here have attempted to smooth out some of these rough spots, so there is not an exact correspondence to the original list of sixty-six.

The issues have been grouped under the major section headings of the rule itself. In most cases the assignment to a section was obvious, but a number of the entries do have relevance to more than one section, and we have tried to note this in the description of the item. In addition, many entries are annotated with reference to conflict with NOSB recommendations (“N”=Conflict with NOSB or NOSB language should be substituted) or the OFPA statute (“L” = Conflict with OFPA).


Please note that this is not a comprehensive digest of problems with the Rule. This list only documents the issues raised at the January meeting by the meetings participants under severe time limits. Other issues have been identified since then and the understanding of others has changed. Furthermore, the representation of each issue here is very brief and may not do justice to the salient point raised at the meeting.

A more complete digest of issues and possible solutions or alternatives will be produced by the Campaign in the near future.   This document should be used by meeting participants and others to provide input to the Organic Committee by way of providing details on specific issues and expanding (or shrinking) the list of issues.

A. Definitions

(1). “Commercially available” :  Violates organic integrity -“performance based” v. prescriptive. Also violation of consumer expectations

(2). “Organic” definition.     This is a definition of advanced IPM. Based on reducing the use of substances. They left off consumer definition. N

(24).  “Genetic Engineering”.    definition and usage .   Violation of international norm

(29).  “Active” and “Incidental” Substances: Allows irradiation as “extraneous.” The preamble language requesting comment is not directly related to what is in the national list. Definitions seem to mean broad Ok to plant GE stock, use sludge. This is separate from putting different GMOs on National List. Look at this technology’s inappropriateness for organic production. Did NOSB say this was compatible? Case by case decisions on GMO would not satisfy EU position for total ban. Regulatory impact analysis. What will consumers buy? Turn consumer’s comments into an economic argument.

(37).  “Natural” v. “non-synthetic”. Could propose a definition of natural as opposed to non-synthetic.

B. Production & Handling


(3). Use of term, “Measurable degradation” as key performance test. Requires proven deterioration of soil and water over 2 crop years. This is unworkable; certiifers will not be able to discern cause and effect regarding questionable substances/practices. Linked to definitions of “incidental” and “active”. Verification requirements of “degradation” not detailed for soil, not even speculated for water.

(5).  “Orders of Preference” v. necessary (prescriptive) approach: Little ability to verify basis of preferences chosen. Extra implication in terms of inspection. Difficult to quantify.   u  Provisions are inconsistent. They allow preference to go too far. Order of preferences is a (potentially) good concept. Provides protection/flexibility for certifiers. W/in context of farm plan there needs to be discretion for certifiers.

What is objectionable: they have put it into the hands of the operator, not in the hands of the certifiers. The certifiers must prove that the producer and handler doesn’t need preferred choice or should choose higher on list. Goes back to “degradation” issue.

(6). Regional Considerations    e.g. Raw Manure application

(12). Raw manure application: (only) no less than 60 days before harvest on food crop. QUESTION FROM RULE: should it be 120 days?   Fresh is OK on Perennial, non-edible crop.

B.2. Livestock

(13). Lack of Aquaculture standards. Should have a RESERVED section to cover seaweed and fish.

(14). Livestock feed and antibiotics.   NOSB: intended all organic feed w/ emergency provisions. Rule’s 20% non-organic is too loose, difficult to verify.

(15). Livestock access to outdoors. Rule’s Preferences allow unacceptable confinement.

(16). Livestock: Implementation of Rule is totally dependent on future “Operating Manual”. This removes our ability to comment on ultimate actual standard, and not likely that Manuals will be written acceptably.

(18).  Animal cannibalism/Transmissible Spongiform Encephalopathies: Rule allows refeeding of (some?) animal remnants.

(19). 90-day conversion of whole-herd dairy.   NOSB: Addressed it but didn’t pass it YET. Scale issue (which way?). (Some differences of opinion on this standard.)

B.3. Handling

(20). Allowed processes: The law says that you can do biological and mechanical processing not chemical processing. The Rule re-defines processing as including chemical. They don’t explicitly say that chemical processing would be illegal. Rule doesn’t talk about quality of processing (e.g. Heat it to what temperature).

(21). Exemption of certain handlers to be certified.    Who must be inspected? Was there a class of direct sales that should be exempt (CSAs, Farmers Mkts)?     Handling section is confusing.

(22). Requirement for organic handling plan? Described in subpart D-205.205(e), but not mentioned in Handling section. (Oversight should be noted in comments on Paperwork Reduction Act Section, which does not evaluate impact of requiring Handling Plans.)

B.4. Prohibited Substances

(23). Allowance of EPA “List 2” & “List 3” Inerts. NOSB recommended fast-tracking review of these.   Is this a food safety issue? Ignores the FQPA process, which is supposed to change evaluation of inerts.

(25). GMOS not clearly prohibited. This is a trade barrier – violation of international norm.

(26). Biosolids not clearly prohibited. This is a trade barrier – violation of international norm. Could be allowed as “non-synthetic” with “incidental” or “extraneous” additives. (Check Legislative Intent).

(27). Irradiation not clearly prohibited. This is a trade barrier – violation of international norm. As a form of processing, would have to be labeled?

(28). Definition of Synthetics. This is a trade barrier – violation of international norm. They changed definitions They have not even proposed criteria for determining “synthetic”. Could be basis for legal challenge?

STRATEGY on 25-28. (OFPA?) did not raise the thought that these are (might not be considered?) synthetic. Because the law does not address it, there is no legal leg (for us?) to stand on. Are they synthetic? The key is to identify them as such.

(34). Rule extends concept of active and inert from registered pesticides to everything, opening large doors under concept of “inactive”.

(48).  Fumigation at borders/re-entry    MARCH NOSB MEETING NEEDS TO GIVE LANGUAGE.

Methyl bromide could be considered “inactive”!

B.5. National List

(9). Seed treatment w/ any pesticide allowed. Considered a “non-active synthetic” and/or “incidental additive”. Below international norm.

(30). Synthetic substances allowed for use in processing: Long list, beyond NOSB recommendations. No NOSB annotations or restrictions included.  Law says no synthetics in processing, which is problematic, because most certifiers and NOSB want to allow for some limited. Rule (FED Reg. 65869 column 1 bottom) says law only disallows “extraneous” synthetics in processing. Criteria(?) are all growing criteria.

(31). NOSB “Neutered”. General Operating procedures for the list. Petition process for list is giant loophole. Does not use NOSB role.Leaves Secy discretion to decide which category it falls in before it goes to NOSB.

(35). No prohibited Naturals. Consumer faith is breached. NOSB conflict.

(36). Extraction methods don’t matter; conflict with Law. Mere preference (p.65493) of naturally extracted over synthetically extracted potentially could be interpreted to allow synthetically extracted soil amendments that have historically been prohibited (e.g. “super phosphates”). Allow synthetic – Allow anything.

(38). Allowance of disinfectants, cleansers, cleaning aids, all as “Incidentals”. Organic farms need a proactive policy on food safety issues.

(56). Neutering NOSB – Covered in discussion of the list.

C. Labeling

(39). Other “EcoLabels may not be allowed: OFPA prohibits directly or indirectly implying organic. Does not affect producers who claim that their product does not use pesticides as long as they don’t use the term organic. Also “directly/indirectly” is different from Senate intent, (Senate Report. P. 292). In general statutes there is an allowance of a wide range of labeling. Historic precedence to allow labeling. Constitutional issues. Can this be challenged as a broad prohibition or a case by case basis?

(41). Labeling of additional claims and meaning to consumers.   (NOSB: p.46 of Green Book).

Extra claims not allowed by Rule. How long does that arm reach? As opposed to requiring percentage, it should be allowable. Is specific wording ok? Rule encouraging use of 50% + . Contrary to IFOAM (which encourages specific percentage on label?)

(42). No different private seal. Certifiers’s Label:      Fed.Reg. 65952   (205.301ss.B(2)) private certifiers…cannot have compliance w/ anything other than national organic standards. Product Label: can you add more standards on your label? Not clear.

D. Certification

(8). Organic Plan. (Senate Report:   P. 292).      Loses the improvement clause.

(43). Not letting [private] certifiers do their job.   Intended for USDA to enter into a partnership w/ state and private certifiers. Law Also lets certifiers establish their own fees. Private certifiers can’t deny certification -only the administrator. Some feel certification programs under this rule will cease to exist. Cert. Companies may apply to become an agent of the govt. Then the govt, is ultimately responsible b/c it is their cert. Program. [Ref. Legisl. : House, Senate, and Conference.  ” legis. intent” is different from just the senate report.] Some different opinions about whether argument over “who is the certifier” is meaningful.

(44).   Accreditation criteria v. certification program. Comparison between IFOAM, EU, and Rule. Different approaches to oversight of verification systems.

(45).  Small farmer exemption from certification: Is $5,000 limit severely outdated? Any way to expand exemption without changing law?

(46). Residue testing procedures.   NOSB conflict.    Certifier burden unaccounted for in Paperwork Reduction Act analysis.

(47). Certification sector inability to verify “performance standards”, e.g.      “Measurable degradation”. Rule seems to eliminate existing requirements for documentation of producer/handler actions/inputs.

E. Accreditation

(49).  “Additional Security” What does reasonable security mean? Prevents the private certifiers from applying, for fear it would be onerous. Taking the power away, but then require bonds.

(50). How much latitude given to certifiers?   Rule gives broad ability for certifiers to interpret, but no incentive to be more rigorous. Sets up a “Race to the Bottom” as clients are drawn to most lax certifiers.

(51). Annual Inspector Evaluation requirement   It makes inspectors look like employees.

Over burdensome to certifiers (200-300/ yr, many overlapping among diff. certifiers). Proposal for different language? IOIA?

(52). Lax conflict of interest provisions,   e.g., The only established conflict is 12 months prior to inspection of operation.       Necessary to strengthen. NOSB vague; see OFPA. Organic Certifiers Caucus of OTA has been working to develop conflict of interest policy.      International — conflict of interest preclusions built into many different criteria throughout. Prohibiting farmer-inspectors will hurt w/ small local certifiers (?) See CCOF definition of employees/ conflict of interest. (53). Accreditation and certifying AGENTS. (See #43 above?)

(54). Timing for Certification Implementation.    Conflict w/NOSB (Green Book: p.81-82). Too short a turnaround time. Timeline for new operations is 12 months? Process is backwards of international norm. What will EU argue? 2-month plan is absurd.

(55). Enforcement    This rule is fundamentally flawed b/c it does not have any provision for enforcement.  There will be no enforcement. No $. Who decertifies? No one.

(57). Public Access to Information — are Farm Plans public?   NOSB reccomendation not clear. Access to certifiers application?   “Confidential Business Information” problematic, used as shield from legitimate scrutiny. Consumer right to know must be asserted.

(58). Peer Review Panel: No connection btwn the screening of application and the visit. Change to bar all employees of USDA (as in the law) not just AMS.

(59). Evaluation Visits:   BIG GAP from NOSB recs. What is the cost? As a certifier, you have no way of knowing how much this will cost.   Additional visits whenever?

(60). Whole accreditation system does not have any ability to target where the problems are. It will apply the same fees, etc. to all sizes.

F. Additional Functions

F.l. States

(61). Who is competent authority in each state? Confusion for certifiers if state does not establish clearly.

F.2. Fees

(62). Fees — Impact on Small Farmers.   NOSB: impossible to forecast. USDA expected to pay for 1st round, and keep good records to determine fair system. “Fees are outrageous.” (False?) Promise of enhancement to small farmers/certifiers.        “Get big or get out.” is the message. Regressive nature of fee structure. Who is not paying?     Clear conflict of interest. NOP needs to raise $1 million.  Add to comments: data on small producers.

How does this fee structure compare to other user fee programs at USDA? In EU they have recognized that certifiers are carrying out a govt, function — they give the certifiers grants to do this.

F.3. Residue Testing/Compliance

10,           Unavoidable residual contamination   L:     NOSB: broke each down

  • spray drift
  • doesn’t define if it is determined in case of specific incident or specific material or specific location or specific time frame.. Doesn’t protect consumer

11.           Spray drift non-existent and no compensation           NOSB: p. 154

4. Appeals

63. Appeals    NOSB:Y

NOSB did a lot of work on this.

5, International Equivalency

64.  International   NOSB:           BIG GAP

International trade barrier due to inconsistency w/ existing rules. The only thing the rule requires of foreign certifiers is to certify to at least the US standard.

If US comes out with very low standards, and find US products not allowed for sale worldwide,   they will go to       WTO.     Race to the Bottom

XX. Structural issues/assumptions

4.  Prescription v. Performance.  Committee Report Language: Y

International norm is production and process based.  But performance based only works about final product.  They have proposed performance standards:

measurable degradation.; residue testing instead of examining method of production.  Violates concept of OFPA

7.  Risk Assessment v. Precautionary definition

Goes to organic definition based on product rather than practice.  The means to determine if something-can be used is toxicological rather than ecological. Violation of international norm.  Goes to definition of system.

17.  Term: “Consistent w/ organic principles” Senate Rpt.: Y; NOSB: Y Not much in these rules