SOE Proposed Rule Series - Post #1: Overview of the Proposed Rule in Draft Form
This is the first in a series of blog posts that the National Organic Coalition will publish in the coming weeks to provide information about the Strengthening Organic Enforcement (SOE) proposed rule.
The USDA National Organic Program released the SOE Proposed Rule in draft form on July 8, 2020 as the organic community awaits publication of the rule in the Federal Register. Once published, organic stakeholders will have 60 days to provide comments on the proposed rule.
The SOE proposed rule will update and modernize the organic regulations to strengthen oversight and enforcement and reduce fraud in the organic marketplace. Additionally, the SOE proposed rule will implement provisions from the 2018 Farm Bill, as well as multiple recommendations from the National Organic Standards Board (NOSB). The regulation is needed as organic sales have risen to more than $55 billion annually in the U.S. and as supply chains have become more complex, with many uncertified entities handling organic products, and thus increasing the potential for fraud due to lack of direct oversight from the USDA National Organic Program.
Provisions Included in the Proposed Rule
The proposed rule will strengthen enforcement of the USDA organic regulations through several actions mandated by the Agriculture Improvement Act of 2018 (the ‘2018 Farm Bill’):
1. Reduce the types of uncertified entities in the organic supply chain that operate without USDA oversight—including importers, brokers, and traders of organic products. This will safeguard organic product integrity and improve traceability. See pgs. 13-22 of the draft proposed rule.
2. Require the use of NOP Import Certificates, or equivalent data, for all organic products entering the United States. This proposed change will expand the use of NOP Import Certificates to all organic products imported into the United States, improving the oversight and traceability of imported organic products. See pgs. 22-28 of the draft proposed rule.
3. Clarify the 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 the NOP upon opening a new office, which will allow the NOP to provide more effective and consistent oversight of certifying agents and their activities. See pgs. 48-50 of the draft proposed rule.
Additionally, this proposed rule includes several discretionary actions that work in alignment with the provisions above to further strengthen enforcement of the USDA organic regulations:
4. Clarify the labeling of nonretail containers used to ship or store organic products. Requiring additional information on nonretail 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. See pgs. 28-30 of the draft proposed rule.
5. Specify the minimum number of unannounced inspections of certified operations that must be conducted annually by accredited certifying agents, and require that supply chain audits be completed during on-site inspections. See pgs. 31-33 of the draft proposed rule.
6. Require certifying agents to issue standardized certificates of organic operation generated from the USDA’s Organic Integrity Database (INTEGRITY) and to keep accurate and current certified operation data in INTEGRITY. Standardization will simplify the verification of valid organic certificates and import certificates. It will also reduce reporting, by eliminating the need to provide notices of approval or denial of certification and annual lists of certified operations to USDA. See pgs. 33-37 and pgs. 39-40 of the draft proposed rule.
7. Clarify that certified operations only need to submit changes to their organic system plan during annual updates, and clarify that certifying agents must conduct annual inspections of certified operations. This will reduce paperwork burden for organic operations and ensure that all organic operations are inspected at least once a year. See pgs. 37-38 of the draft proposed rule.
8. Establish specific qualification and training requirements for certifying agent personnel, including inspectors and certification reviewers. Requiring that personnel meet minimum education and experience qualifications and requiring continuing education will ensure quality and consistency of certification activities performed by certifying agents. See pgs. 40-48 of the draft proposed rule.
9. Clarify 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. See pgs. 50-54 of the draft proposed rule.
10. Clarify requirements to strengthen and streamline enforcement processes, specifically noting that the NOP may initiate enforcement action against any violator of the OFPA, including responsible parties; defining the term “adverse action” to clarify what actions may be appealed and by whom; and clarifying NOP’s appeal procedures and options for alternative dispute resolution. See pgs. 55-62 of the draft proposed rule.
11. Specify certification requirements for grower group operations, to provide consistent, enforceable standards and ensure compliance with the USDA organic regulations. Grower group certification would be restricted to crop production and handling only, and would require the use of an internal control system to monitor compliance. See pgs. 63-72 of the draft proposed rule.
12. Clarify the method of calculating the percentage of organic ingredients in a multi-ingredient product to promote consistent interpretation and application of the regulation. See pgs. 54 and 72-73 of the draft proposed rule.
13. Require certified operations and certifying agents to develop improved recordkeeping, organic fraud prevention, and trace-back audit processes. Information sharing between certifying agents and documented organic fraud prevention procedures are also required. See pgs. 74-81 of the draft proposed rule.
The USDA National Organic Program provided 38 min informational webinar describing the provisions in the SOE proposed rule: Recording, Slides and Chat
Stay tuned for more information and analysis of the provisions in the proposed rule in the coming weeks. Make sure you don’t miss an update by signing up to our newsletter and following us on social media.
NOC Members and Network Affiliates are invited to participate in a discussion and conversation about the proposed rule on Tuesday, September 1 from 2:30 to 4: 30 pm eastern. Register here: https://www.nationalorganiccoalition.org/events