USDA releases Strengthening Organic Enforcement Proposed Rule

For years, organic stakeholders have repeatedly called on USDA’s National Organic Program (NOP) to take significant steps to improve oversight of organic systems and enforcement of the USDA organic regulations. The need for this action stems from a rapidly expanding organic market, high demand for organic products, an increasingly complex supply chain, and unfortunately, the growing occurrence of organic fraud.

On August 5, USDA’s Agricultural Marketing Service (AMS) published its formal response in the form of a 124-page proposed rule, titled “Strengthening Organic Enforcement.” This action is the largest single piece of rulemaking since the implementation of NOP, and will transform the oversight and enforcement of organic production worldwide. The proposed amendments set out to close gaps in the current regulations, to deter and detect organic fraud, and improve transparency and product traceability across the organic supply chain. The proposal was tagged with a brisk 60-day comment period, with an October 5 deadline.

What are the proposed changes and what will they do?

The Organic Trade Association, on behalf of its members, has been in the driver’s seat with Congress in the 2018 Farm Bill debate leading up to this historic rulemaking. As a result, several of the proposed requirements that we are tracking closely are the outcome of our successful legislative work and are mandated by Congress:

  • Exemptions from Organic Certification: To remove gaps and weaknesses in the organic supply chain, the proposal limits the type of operations that operate without USDA-NOP certification--including importers, brokers, traders of organic products. AMS estimates that “961 domestic, and an equal number of foreign-based operations” would need to become certified as a result of this rule. Operations that may continue to be exempt from certification include retailers, transporters, and storage facilities depending on their handling and sales activity. The proposal also clarifies the organic requirements that exempt operations must still follow, although they do not require certification.
  • Required Import Certificates: Currently, NOP does not require NOP Import Certificates for organic imports from countries that the United States does not have organic equivalency with. This proposal requires that all organic products must be declared to the U.S. Customs and Border Protection (CBP), and that each shipment passing through the U.S. Port of Entry be associated with a mandatory NOP Import Certificate. This will provide trackable and auditable verification that a specific shipment of imported organic products complies with the USDA organic regulations.
  • NOP Oversight of Certification Activities: Certifying agents commonly operate multiple offices spread across several different countries. This has created oversight challenges for USDA. The proposal would clarify NOP’s authority to oversee certification activities, including the authority to act against an agent or office of a certifying agent. Additionally, certifying agents must notify NOP upon opening a new office, which will allow NOP to provide more effective and consistent oversight of certifying agents and their activities.

The proposed rule also includes many important actions that work in alignment with the provisions mandated by Congress that should further strengthen the enforcement of the USDA organic regulations.

  • Organic Fraud Prevention Plans: This section of the proposed rule will arguably have a game-changing impact on reducing the opportunity for organic fraud. The proposal will require certified operations to clearly identify products as ‘organic’ on all records and labels, and maintain records that will document a product’s source and chain of custody across the supply chain. Moreover, certified operations will be required to develop an organic fraud prevention plan to describe how they are preventing fraud and verifying suppliers. The Organic Trade Association applauds this requirement and its alignment with our private sector initiative launched in March 2019.
    • Enroll in OTA’s program “Organic Fraud Prevention Solutions” to learn how to conduct an organic fraud vulnerability assessment and develop an Organic Fraud Prevention Plan.
  • Labeling of Non-retail Containers: In response to concerns shared collectively by the organic produce community, the proposed rule requires non-retail containers used to ship or store organic products to include “organic” ID and the name of certifying agent. Currently, the regulations only require the use of a lot number. Requiring additional information on non-retail containers will clearly identify organic products, reduce the mishandling of organic products, and support traceability. This is needed to maximize the linkage between operation certificates and import certificates and the organic product.
  • Grower Group Operations: The existing regulations are silent on a practice known as “grower group certification” where multiple growers are organized and certified as a single crop. Although NOSB passed a recommendation in 2002 and 2008 and the practice is common, regulations have not been developed to date. This action will specify certification requirements for grower group operations, to provide consistent, enforceable standards and ensure compliance with the USDA organic regulations.
  • Conditions for Establishing Equivalency Agreements: Equivalency arrangements are key factors in facilitating trade. Historically, the primary method of considering equivalency was through overcoming barriers to differences in practice standards and national list allowances. Now there is a larger consideration of oversight and integrity at the center of these discussions. This proposal clarifies the conditions for establishing, evaluating, and terminating equivalence determinations with foreign government organic programs, based on an evaluation of their organic foreign conformity systems. This will ensure the compliance of organic products imported from countries that have organic equivalence determinations with the United States.
  • Standardized Organic Certificates and Data Reporting to INTEGRITY: The appearance of organic certificates varies depending on the certifying agent. This has led to an ease in the fabrication and use of fraudulent organic certificates. This proposal would require certifying agents to issue standardized organic certificates generated from USDA’s Organic Integrity Database (INTEGRITY) and to maintain accurate and current certified operation data, such as organic acreage, in INTEGRITY on all operations for which they certify. Standardization of certificates could simplify the verification of valid organic certificates and import certificates while mandatory data reporting, provided it includes organic acreage, would significantly increase the organic sector’s ability to conduct mass-balance audits and reconcile organic acreage with organic products.
  • Certifier and Inspector Qualification, Unannounced Inspections: Improvement in qualifications and training of certifier personnel are critical direct steps for monitoring, detecting and addressing organic fraud. The proposal revises existing requirements that are vague to specify detail about the qualification and training requirements for certifiers and inspectors. This includes maintaining an inspection staff to timely complete annual inspections, unannounced inspections on a minimum of 5 percent of the operations it certifies annually (as required by this proposed rule), and any other inspections that may be warranted for investigations or reinstatements. Requiring that personnel meet minimum education and experience qualifications will ensure rigorous certification and oversight practices.
  • Compliance, Appeals and Mediation: The proposed rule would also clarify requirements to strengthen and streamline enforcement processes, clarify noncompliance procedures and increase the efficiency and accessibility of mediation. Notably, it will give NOP the ability to initiate enforcement action against any violator of the organic law, including responsible parties, and it will clarify that a person who is responsibly connected to an operation that violates the law or organic regulations may be subject to a suspension (if the responsibly connected person is certified), civil penalties or criminal charges and/or may be ineligible to receive certification. This will bolster the enforcement capacity of AMS by ensuring that penalties for violations of the organic law extend to all accountable parties.
  • Calculating Organic Content of Multi-Ingredient Products: Finally, although a bit outside of the rest of the certification and compliance provisions found in the proposal, NOP has taken the opportunity to clarify the method of calculating the percentage of organic ingredients in a multi-ingredient product. The revision corrects terminology that has created confusion for years, and clarifies that the calculation of organic content is to be made at the time of formulation. The proposed changes are consistent with the NOSB recommendation of December 2016, and will help promote consistent interpretation of the regulation.

Looking for more detail? Check out our Enforcement and Oversight webpage as well as our complete SUMMARY of the proposed rule.

ENGAGE: Are you ready? Prepare your business for the changes!

If you are engaged in the organic industry, you will likely be affected by this landmark proposed action. We expect the final rule will be effective and fully implemented by spring of 2022. Will you be ready?

  • Do you need to get certified, and if so, do you know the steps to certification?
  • Do you know how to request and use the NOP Import Certificate?
  • Have you enrolled in Organic Fraud Prevention Solutions for training and a step-by-step guide and process for developing an Organic Fraud Prevention Plan?
  • If you are a retailer, do you have systems in place to comply with the requirements for exempt operations?
  • If you are an operation using non-retail containers for shipping or storing products, are you prepared to make label changes?
  • If you are an inspector or certifier, have you logged professional training on food fraud vulnerability assessments and/or organic fraud prevention plans?
  • If you check “no” to any of these questions, or if you are not sure, reach out to the Organic Trade Association and we will help you prepare!

Gwendolyn Wyard is Vice President of Regulatory and Technical Affairs at the Organic Trade Association. //