April 30, 1998

Dear Mr. Secretary:

We add our voices to the tens of thousands of Americans who have provided comments on the Proposed National Organic Program. Organic agriculture encompasses a myriad of environmental, small farmer, and food safety issues that we have worked on together in the United States Senate over the years.

We are proud to represent all Vermonters whether they use traditional farming methods or organic farming techniques or whether they buy only organic foods or simply occasionally purchase organic.

The importance of constructing a workable and defensible National Organic Program cannot be underestimated. In this letter, we urge you to amend your proposal in several critical areas and repropose the National Organic Program in the Federal Register later this year.

A second proposal is important so that USDA may regain the confidence of organic producers and consumers. In our home state of Vermont, organic production has been phenomenally successful.

Also, we have attached a petition to you signed by hundreds of our fellow Vermonters and signed by both of us. In addition, attached is a transcript taken at the Northeast Organic Farming Association Conference in Randolph, Vermont, on February 21, 1998. We appreciate that you sent representatives to hear that testimony at the Vermont Technical College. We are also presenting you with a letter signed by many of our Senate colleagues, and ask that all of these items be included in the official comment file.

Just a decade ago, Vermont had only 17 certified organic farms covering 138 acres with gross annual sales less than $500,000. Today, 170 certified producers have 13,900 acres in organic production and generate more than $25 million in gross annual sales. The viability of this growing industry is threatened by the Proposed Rules.

The petition requests that you substantially change the Proposed Rules to adhere to the recommendations of the National Organic Standards Board (NOSB). In this letter, we elaborate on each of the concerns raised in that petition. As you know, both of us worked together on the Organic Foods Production Act which was included in the 1990 farm bill. We implore you along with many of our Senate colleagues to revise the Proposed Rules to reflect the recommendations of the NOSB.

The Case for ReProposal

The public anxiously awaits an announcement of the next step in the rulemaking process. Almost all of the thousands of comments are highly critical of the Proposed Rules. We urge you, however, not to succumb to the temptation to withdraw the proposal and start anew. An unprecedented number of people and organizations have devoted themselves to analyzing and responding to the Proposed Rules. Their comments should be carefully cataloged, evaluated, and responded to in the Final Rules. To otherwise toss aside their comments in the process of withdrawing the Proposed Rules would anger citizens who have little extra time to reissue opinions on detailed government proposals.

We recommend that you repropose the National Organic Program following substantial revision. The reproposed rules should indicate clearly that the public comment received between December 16, 1997 and April 30, 1998 will "count" and be responded to in the Final Rules. In other words, when you end up publishing the final rule you should explain the basis and purpose of that rule taking into account the public input you received in December 1997, through April 1998, and taking into account additional input on your reproposal.

This will assure citizens that their earlier comments and efforts were not in vain and allow them to target any subsequent comments to the newly proposed areas. Also, you will not be flooded with thousands of repeat comments if you make these points clear.

As you begin drafting a reproposal, we urge you to work more closely with the NOSB and organic agriculture advocates within the environmental, consumer, and farming communities. The Supplementary Information to the Proposed Rules states that USDA "designed the proposed rule to be as consistent as possible with existing industry practices, while satisfying the specific requirements of the OFPA." Nevertheless, the Proposed Rules differ dramatically from industry norms, consumer expectations, and the mandates of OFPA.

The NOSB has requested guidance as to how the Board may best collaborate with you and your staff on a reproposal consistent with the Administrative Procedure Act. We are hopeful that the necessary flexibility for greater partnership can be found. Organic standards have always evolved through extensive public dialogue and the acceptance of the National Organic Program, depends to some extent, on the ability of the USDA rulemaking process to mirror the transparent and participatory nature of state and private certification standard setting.

Please submit a reproposal to the Federal Register by October 1, 1998. This should allow sufficient time for your staff to analyze the public comment and make necessary adjustments. We ask that the comment period on the reproposal be no less than 90 days. This may seem long, given the current comment effort, but it is necessary given the grassroots nature of the organic farming movement, the timing of harvest, and the numerous holiday interruptions at that time of year. With this timetable, we would hope that Final Rules would be published in the Federal Register in the spring of 1999, with the goal of final implementation in 2000 growing season.

We are certain that you share our disappointment that we are not closer to implementation of the OFPA, something we have awaited for almost eight years. But now is not the time to move quickly only to meet arbitrary deadlines. As congressional sponsors of the OFPA, we believe that time must be taken to develop a National Organic Program that wins the praise of Vermonters, the organic industry, and the environmental and consumer groups who worked so hard for passage of the legislation.

Issue #1: The Importance of PublicPrivate Partnerships

We do not want to reinvent the wheel. There presently exists a system of state and private certification systems that work effectively and efficiently. The USDA should accredit, not certify, these state and private certification organizations. Despite this fact, some of the proposed rules exceed this intention.

With the passage of OFPA, we wanted to establish National Standards for organic agriculture, but we did not give that authority solely to USDA. The authority was to be shared between the USDA and the NOSB, yet the Proposed Rules usurp the NOSB authority. We urge you to review the entire proposal to make it better reflect the publicprivate partnership envisioned by Congress and the many grassroots groups who supported the OFPA.

Issue #2: The Role of the NOSB in Establishing the National List

We were disappointed by the Department's decision to deny the authority Congress granted to the NOSB to determine the universe of synthetic materials on the National List. The Department's disregard of the statute and congressional intent concerning National List procedures threatens to destroy the entire program and forfeit public support for our efforts.

Maintaining the integrity of the National List exemptionsetting process is critical to protecting the consumers' confidence upon which the organic market depends. The OFPA was carefully written to prevent widespread exceptions or 'loopholes' in the organic standards which would circumvent the intent of the legislation. We carefully designed the law to grant the NOSB sole authority to place synthetic materials on the National List. The Secretary was given authority to remove materials from the NOSB's proposed National List, either before or after public comment but the Secretary is prohibited from adding synthetic materials to the National List not first approved by the NOSB. The language of this statutory provision is clear:

(d) Procedure for establishing National List

(1) In general. The National List established by the Secretary shall be based upon a proposed national list or proposed amendments to the National List developed by the National Organic Standards Board.

(2) No additions. The Secretary may not include exemptions for the use of specific synthetic substances in the National List other than those exemptions contained in the Proposed National List or Proposed Amendments to the National List. 7 U.S.C. § 6517(d).

This statutory language is clearly explained by the Senate Committee Report:

Several steps must be taken before an item appears on the National List. . . . first, the Organic Standards Board must review the substances in question based upon criteria cited in the bill and with the aid of the Board's technical panels. The Board may decide what substances require review . . . . The Board then constructs a proposed National List which is submitted to the Secretary as a recommendation for the composition of the final National List.

The Secretary may not include exemptions for synthetic substances other than those exemptions recommended by the National Organic Standards Board. S. Rep. No. 101357, at 299.

Finally, this point was underscored again in the Conference Report:

The Secretary may not include exemptions for synthetic substances other than those exemptions recommended by the National Organic Standards Board. H.R. Conf. Rep. No. 101916, at 1179.

We are at a loss as to how this could be written more clearly. Despite this obvious statutory language and legislative history, the Department has nevertheless proposed a National List with synthetic substances not proposed and approved by NOSB. Although the Department has not offered a justification for this action, it has been suggested that the Department finds the authority to disregard the NOSB's role in a subtle change in grammar within the statutory language.

We would expect to find several subtle changes in grammar if we scoured the massive 1990 farm bill. You will recall that Senator Leahy and members of the Agriculture Committee spent long nights working through this complex legislation. Let us assure you that any subtle changes in grammar should in no way indicate that the Congress had any other intent than to restrict the Secretary's ability to place synthetic materials on the National List.

The statute is clear on its face there are no hidden signals in that language. Furthermore, it is suggested that the Department has judged Congress' delegation of authority to the NOSB to be unconstitutional. If you feel that to be the case you should explain that view.

Courts have upheld statutory grants of power to citizen boards not unlike the NOSB. We have looked at the letter and memorandum submitted to you from the NOSB on March 25, 1998, concerning the authority to add synthetic substances to the National List. The letter provides a solid legal argument for upholding the NOSB authority to determine the universe of synthetic materials that may be placed on the National List. We commend the NOSB for its careful analysis of this important issue.

The National List and the role of the NOSB in constructing that List was central to our design of the OFPA. It embodied the concept of a publicprivate partnership building upon historic norms and working with organic farmers, environmentalists, and consumers.

Issue #3: Unwanted Materials

Two genetically engineered materials (genetically engineered toxins and chymosin), ionizing radiation, and biosolids were among the synthetic substances rejected by the NOSB but added to the National List by the Department. These materials are prohibited for use in organic production by the Vermont Natural Organic Farmers Association (NOFA), as well as by almost every state, private, and foreign certification program.

While many arguments have been advanced to support such a prohibition, we see no need to reiterate them. The plain fact is the NOSB considered these materials and overwhelmingly rejected them. As stated earlier, the Department does not have the authority to add synthetic materials to the National List — including genetically engineered organisms, ionizing radiation, and biosolids — unless the NOSB has first approved their use.

We have two additional concerns regarding these issues. First, many of the synthetic materials approved by the NOSB for the National List were approved only on the condition that they be used under highly prescribed circumstances. The NOSB provided these use restrictions to the Department but they do not appear in the Proposed Rules. We urge the Department to follow the NOSB recommendations which will severely limit the use of National List materials, consistent with industry norms and consumer expectations.

Finally, we are concerned by the discussion in the Supplementary Information that rationalizes the Department's addition of one synthetic material (the synergist piperonyl butoxide) to the National List because it failed to win NOSB approval by only one vote. This demonstrates a lack of understanding of the role of the NOSB, its composition, and the importance of the specific voting procedures dictated by statute. The NOSB and the voting procedures were carefully constructed to ensure that materials decisions would require approval by the organic, environmental, and consumer representatives on the Board.

The membership of this Board was carefully selected to provide a balance of interests and decisions require a twothirds vote. This provides a good structure where no one interest can control the board.

Issue#4: Small Farmers

The organic industry was built by small farmers and their nonprofit certification organizations. This point is highlighted in your Small Farm Commission report which credits organic agriculture for the survival of many small farms. Most of the farms in the northeast are small, with many grossing less than $5,000 annually:

Organic Farms in the Northeast

source: The Natural Farmer, Spring 1988, Vol. 2, No. 36

It would be disastrous if the program we designed to help small farmers did just the opposite. The fee structure in the Proposed Rules, however, does not account for differences in the size of farms or certification agents. All organic farmers grossing more than $5,000 annually must pay an annual fee of $50 to USDA; handlers grossing more than $5,000 must pay an annual fee of $500. The Proposed Rules would charge all certification agents, regardless of size, an application fee and administrative fee of $2,640 each year. At least once every five years, and possibly more often, USDA would conduct a site visit to certifying agents which will cost each organization an estimated $3,500. Finally, certification agents will have to furnish "reasonable security," although no guidance is provided as to the meaning of reasonable.

These fees may not seem onerous compared to other USDA programs. Unlike those other programs, the National Organic Program was established to help small and moderatesized farmers. After analyzing the proposed fees, the Natural Farmer, a publication of the Northeast Organic Farming Association, concluded that these fees "will result in a probable 50% loss of certified farms" in the northeast.

This analysis is not surprising. Take the example of a small Vermont farmer who makes his/her own maple syrup, jam, relishes, and the like. If this farmer earns $5,001 as a "farmer" and $5,001 as a "handler," the farmer must pay $550 annually to the USDA just to be in business. On top of these flat fees, the farmer's certification costs will escalate because Vermont NOFA, our small nonprofit certification agent, will have to raise its certification fees because of the newly imposed USDA accreditation costs. Small farmers and the certification organizations they have come to rely on will not survive the proposed fee schedule.

We urge you to repropose a progressive fee structure that takes into account the size of farm, handling, and certification operations. A sizesensitive fee program will maintain the diversity of organic operations that so impressed the Small Farm Commission and that are so essential to the Vermont economy.

The Department should continue to seek funds to support the National Organic Program. The OFPA does provide an authorization of appropriations as well as the authority to impose fees. The intent was that fees would cover the direct costs of accreditation. Other program activities, such as the NOSB work, staff attendance at important organic agriculture meetings here and abroad and staff work to consult with federal and state partners would be paid out of appropriated funds. We look forward to working with you to ensure strong budgets for the National Organic Program.

Issue #5: Livestock Standards

The Proposed Rules on livestock fail to meet international standards or industry expectations. By all accounts, the Proposed Rules are too permissive in several areas; access to the outdoors, refeeding of animal parts and manure, use of antibiotics, and feed sources. Of particular concern is the proposal to allow livestock sold as "organic" to be fed as much as 20% nonorganic feed. You must revisit every component of the livestock proposal.

A decade has passed since we asked the Department to remove its prohibition on labeling meat and poultry as organic. Many wouldbe organic livestock producers have been waiting an inordinate time to enter this market. Since the National Organic Program will need to be reproposed, these producers will suffer further delays. We recommend that the Department provide for an interim organic livestock label so that this market can begin to flourish, as the reproposal is designed.

Issue #6: EcoLabeling

Congress never intended to prohibit various forms of ecolabeling under the OFPA and ask that you strike Section 205.103 from the Proposed Rules. At the time the law was written, we were aware of fraudulent organic claims and intent on eliminating abuses of the organic label. The OFPA was never envisioned to prohibit claims like "no antibiotics and hormones," "ecologically produced" or any other term listed in this section with the possible exception of "pesticide free." In 1990, the Federal Trade Commission settled a dispute with a Californiabased supermarket chain concerning the use of "pesticide free" and its potential to mislead. We were aware of that controversy and raised the concern that consumers may fail to distinguish "pesticide free" from "organic."

The growth in ecolabeling is exciting and without compelling data that suggests that particular ecolabels are problematic, the Department should defer to the Federal Trade Commission which has been monitoring ecolabel developments. Ecolabels have led to important changes in agricultural practices which have benefited both producers and consumers. We do share your concern that consumers can be mislead and that many of these terms merit closer scrutiny. We encourage the Department to collect data to better understand the ecolabels now on the market. Such an analysis must occur before any sort of regulation is contemplated.

The Proposed Rules must change substantially. While many of the Docket comments focus on genetic engineering, ionizing radiation, and biosolids, Final Rules that merely prohibit these materials would be unacceptable.

Our letter has focused on several issues of concern, but there are many others. For example, sections on residue testing, appeal procedures, crop rotations and even the basic definition of organic farming need amendment. While organic advocates prefer the Department's preOMB June draft document over the Proposed Rules, they advise us that even the June document is fatally flawed.

Despite the wave of criticism, there is good news. The task of rewriting the Proposed Rules should not be overwhelming. The NOSB provided you with comprehensive recommendations that were arrived at through extensive public dialogue during the past five years. The NOSB recommendations reflect the consensus between the organic industry, environmental, and consumer groups over appropriate national organic standards and program requirements. If reproposed rules reflect the NOSB recommendations, they will receive popular support. For a more complete understanding of how the Proposed Rules differ from the NOSB recommendations, we suggest you review comments from Vermont NOFA, the Organic Trade Association, the Henry A. Wallace Institute for Alternative Agriculture, and the NOSB itself.

We appreciate the work that has gone into the development of the Proposed Rules. This has been an historic effort by the Department and by the citizens who have contributed their views.

Sincerely,