State and regional certifiers weigh in on National Organic Program
Some parts of implementation of the federal Organic Rule are working, agency leaders say, but there’s plenty that still needs fixing

By Dan Sullivan

Posted March 23, 2004: When National Organic Program (NOP) Manager Richard Mathews was a no-show at the recent Eco-Farm Conference workshop dedicated to a discussion of federal Organic Rule implementation from certifiers’ perspectives, the absence set a theme of sorts that ran throughout the hour-and-a-half question-and-answer session. (According to conference organizers, Mathews was unable to attend due to USDA budget cuts and related travel restrictions.)

What came out of the discussion was that, while some aspects of the rule are working, the NOP in Washington, D.C., has generally been less than responsive to the National Organic Standards Board (NOSB)—an advisory group made up of organic industry stakeholders—and to the concerns of certifiers on the ground, particularly where the appeals process is concerned.
Appearing on the panel were Pete Gonsalves, executive director of Oregon Tilth; Brian McElroy, California Certified Organic Farmers (CCOF) manager of certification services; and Miles McEvoy, president of the National Association of State Organic Programs (NASOP) and manager of the Organic Program at the Washington State Department of Agriculture. Moderator and CCOF President Brian Leahy asked panel members a series of questions, some prepared in advance and others fielded from the audience. Following is a sampling of those questions and responses:

Q: Has the implementation of the National Organic Program provided consumers with assurance that products meet a consistent standard?
A—Gonsalves (Oregon Tilth): “I certainly would not give the USDA all the credit for how good the organic market is, but I think the USDA involvement has had a positive impact on consumers’ ability to trust the label…even when they don’t fully understand it.”

McElroy (CCOF): “I believe consumers have been given a consistent standard. There’s consistent labeling, and people can go in and buy something organic and have a pretty darn good idea of what that means."

McEvoy (NASOP and Washington state organic program): “…There’s also been some studies that have been done that show that consumers are responding to this one-label concept of the USDA organic label and that it has led to increased sales, and that there is consumer confidence in the USDA organic label."

[A follow-up question about whether a uniform federal rule has led to easier interstate exchangeof organic products was answered in the affirmative by all panel members.]

Q: Did the accreditation process of USDA improve your certification operation?
A—Gonsalves: "Certainly to have any outside reviewer come in and evaluate a program is beneficial. They always have a different set of eyes, they can see little glitches in our system, and that helps us improve. Any sort of audit is a learning experience and works to improve the program."

McEvoy: “…Some of the things that they’re requiring certifiers to do in the audit process is…not in line with the rule. There have been things that we’ve been fighting with USDA, in terms of their interpretation, that they’ve written us up for hold points or nonconformities that we disagree with, and it takes some time to work that whole system out."

Q: Do you feel that USDA has been consistent in its accreditation; that it’s looking at organizations in the same way?
McElroy: “…Certification became a much more streamlined service that we were able to provide. The actual audit process isn’t that helpful. When the auditors walk in they’re really picking nits on files and pulling out this detail or that detail and taking things out of context…The auditors are nice, they’re professional, but the actual audit process itself is just kind of a grind.

“…Miles [McEvoy] and I can sit down and compare the nonconformances we’ve received and sometimes they make sense and sometimes they don’t. The same thing with Pete [Gonsalves]...Then the NOP is providing letters to certified parties and saying ‘We’ve found that you can do this with your poultry, or that is allowed, or suddenly this material doesn’t work for them…

“And those things are not written in policies that are intelligible on the website or in any way that’s communicated to the certifiers. Often these letters are communicated directly to a client, so one certifier hears about it and none of the others do. The communication and leadership is just really fractured and really not benefiting us.”

McEvoy: “…In any new program it takes awhile to work out all the details. They admit that they’re in the process of developing this federal accreditation system, so we can give them some time to develop it. I think the accreditation system in and of itself is improving the quality of certification programs and their consistency in terms of the application of the rule…

“…But the one problem is that there’s an inherent difference between different types of certifiers. If you’re ISO 65 [an international quality systems guide] accredited you get audited every year, if you’re NOP accredited it’s only once every five years. That yearly accreditation system will lead to more consistency in a much shorter period of time. If you’re only audited every five years, there are a lot of things that could be different and changed within that period of time.

“The other thing is that there are some NOP-accredited certifiers who still haven’t been audited. That’s an uneven application of the rules where some certifiers have been audited twice and others haven’t even had their first audit yet.”

Gonsalves: “…With the NOP accreditation, there are annual updates required similar to farmers turning in some annual paperwork, so there is some desk auditing going on, at least on an annual basis. And, despite the fact that some accredited certifiers have not yet received an on-site audit, they have all had to pass through that paperwork stage. And it’s fairly extensive, especially up-front, to have all these systems in place to qualify as a certifier, and there have been some unsuccessful applications, so there genuinely has been some screening of potential certifiers.”

Q: Does your certifier still matter; in other words, are there certification programs that are still applying more organic integrity to their programs than others?
McEvoy: “There’s a lot of variation. There’ve been a lot of efforts to try and get consistency among programs. The Organic Certifiers Council has tried to promote consistency in interpretation of the standards. NASOP…has also tried to do that through state programs, but there’s still a long way to go. There’s not enough communication between certifiers to make sure that they are implementing the rule in a consistent fashion.

“So it matters to an individual who they’re certified by, depending upon the kind of customer service they want, whether or not they can have access to somebody to answer questions, whether they’re locally based or somewhere far away, the cost. There are a lot of different factors that are involved in your choice of a certifier. The way it’s set up now…you have a lot more choices than you had in the past, but it’s based primarily on customer service.

“On the other hand, the way that certifiers are enforcing the standards there is a fair amount of variability in terms of what a certifier will consider a violation, or a minor violation versus a major violation. There’s no guidance currently provided by the National Organic Program to make that determination between a minor and major noncompliance. There are some programs that are much more intense in terms of enforcing the rule and others that are much more loose in terms of their interpretations.”

McElroy: “Service is a big part of it. Price is a huge issue still. Certifiers' prices are all over the map; you can get a lot of value out there now. There are a lot of certifiers that have come into this just because it’s another business line. They can add to their lab work… or people who’ve started shops in their homes running certification programs.

“You have to look at what are your core values and what do you get from a certifier who is either regionally based and helping you with regional issues or a certifier who is plugged back into the world of advocacy in support of the organic industry. All three of the certification programs up here [on the Eco-Farm panel] are plugged into the local issues and plugged into advocacy and promotion of organic. A lot of certifiers are just out there, ‘Oh, it’s another business service; here I am,’ and they run it out and it doesn’t help the community as a whole. So there are still very big differences.”

Gonsalves: “I would echo all those comments.”

Q: How good a job has the National Organic Program done in communicating to the organic food industry and the certifiers and the states?
McElroy: “Perchlorate [a highly toxic component of rocket fuel] was a great example of a sudden knee-jerk reaction from some regulators. It was a prohibited material, and [the NOP said] CCOF should go out there and start decertifying people. We said ‘Wait a minute, it’s in the irrigation water. And the answer was, ‘Well, they don’t have to irrigate.’ We said ‘HELLO, IT’S CALIFORNIA.’…That one went away…it took a couple phone calls but they got it. And there are endless stories like that…That’s just one example of how bad it can get.’

McEvoy: “The thing that’s most disappointing to me is that the certifiers are…we’re basically federal agents at this point in terms of the regulatory agency—doing the inspections, doing the certification work for the USDA and the National Organic Program. And the communication between the NOP and the certifiers is very, very poor. It would be very easy for them to put together a distribution list and let us know when they have new policy statements. Have they done that? Occasionally, over the last six months, they’re starting to do that. There’s not that many of us…maybe 100 accredited certifiers? It’s not that difficult to set up some kind of communication strategy with your main implementers of this new National Organic Program. I’m very disappointed with how USDA has communicated with certifiers. I think they can do a much better job, and I think this is really the poorest area…in regard to the National Organic Program.

Q-Is the National Organic Program enforcement effective?
Gonsalves: “Enforcement to a large extent has operated out of a different office in Washington D.C.…While the NOP monitors the rules and the accreditation process for certifiers, there’s another office which is the cops.... We’ve had quite a bit of interaction with this enforcement branch. Very shortly after full implementation…we had a phone call saying that they had received complaints about operators marketing their product as organic without being certified. And when they contacted those operators the operator said ‘Yeah, I’m signing up with Oregon Tilth; I’m working on it.’ And within a few days we had a communication saying ‘Is this true? Are the following companies in touch with you to get their certification in line?’ And it turned out that…I think all three or four of them had at least contacted if not actually submitted an application. We’ve had various incidents continuing since then where they’ll have a complaint, they’ll forward it and let us investigate and report back to them….But again, it’s a different office from the NOP itself.”

McEvoy: “…I think most of the enforcement is actually happening through the certification process and certification agencies to address minor noncompliances and bring everybody into line with the National Organic Program. I think that aspect of the rule is fairly well described…and gives certifiers a lot of ability to provide enforcement in terms of certification…They do have a complaint part of the National Organic Program where you can file complaints and they are investigating those complaints and following up on those complaints. It takes a long time through the federal process but we have certainly seen the results of some of those complaints and the investigations that they’ve done and the actions that they’ve done. I think that they’ve done a relatively decent job on that. The one area that they haven’t figured out very well is appeals…and also in regard to giving certifiers the distinction between a minor and major noncompliance and what should be the sanctions for different types of violations.”

Q: How essential are the certifiers to the NOP?
McElroy: “The NOP is an office of some six or eight people back in Washington and that’s it. They have no presence outside of their office and their block. So, the certifiers are it; the inspectors, the certifiers, the certified parties—that’s where the real information’s coming from. The complaints that are coming in and the enforcement are coming in from other certified parties, some well-educated consumers, other certifiers…Without the certifiers on the ground actually doing the work, giving feedback as to how it works in the real world, the NOP is pretty much clueless….

“…The rule is built around private certifiers to be their agents.”

Q: Has the National Organic Programs diluted the standards that you had before?
McEvoy: It’s mixed because some of the standards in Washington state were stricter. For instance, we had mandatory certification since 1992…. The National Organic Standards also has mandatory certification but expands the number of excluded and exempted parties from certification way beyond what we had in Washington state. There are many parties that used to be required to be certified in our state that are no longer required to be certified, so that would be a dilution. The livestock standards are a strengthening of the standard…. The materials, the national list is much stricter than we had or I believe any certification agency had…. There’s many more restrictions on the materials that can be used than previously….”

McElroy: “...In California, you could be registered and sell all kinds of product as organic and not have to get certified. Now, if you sell more than $5,000 worth of product in California, you must be certified. So that was a huge improvement in California. It didn’t have anything to do with CCOF standards, but it helped us…in terms of how much organic product was coming out of California companies that were just avoiding certification.

“Fungicide treated seed just kept showing up and we just couldn’t get a stopper on it…. The federal rule came up, that’s it; no more fungicide-treated seed. I think that’s a real benefit to consumers.

“We had really strict, kind of intolerable livestock standards, thus we had no livestock people in our program. But now we have quite a lot of livestock because the standards are much more consistent…. I think overall, thank God to consumers and those 257,000 emails and letters, the NOP Standards came in looking very much like, on average, what we were all doing.”

Q: Are the large, corporate organic farms tending to the soil and otherwise adhering to the organic philosophy?
Gonsalves: “I don’t think it’s strictly based on size. We certify some rather large operators…but they’re doing a great job. They do crop rotation, they have composting…just like an ideal small farm, taking very good care of their soil. I have on occasion seen organic farms where they’re out there with tillage equipment and a half an inch of water on top of the soil at the same time. That makes me much less comfortable about regarding that as an organic operation.

“Historically, before the NOP, this was…an ongoing struggle to retain as much freedom for an individual operator to manage their operation. In trying to set limits or draw lines... 'you can’t do this. You can do that’…pretty soon you have a perfectly legitimate operation that’s a bit unusual that crosses that line that you’ve tried to set for everybody. So we’ve tended to avoid strict tillage limits and carried some time with no cover on the ground, and emphasize the benefits of these things through education and advocacy, with the idea that they would come up with their own system that would be well protective of the soil.

“Some of the language in the National Organic Standards…is right on point where the operator has to…maintain the chemical, physical, and biological nature of the soil. So that lends a tool for certifiers to say ‘If you’re out there tilling when it’s wet, you’re blowing it. You’re destroying the structure of that soil.’ So we now do have a flexible yet applicable tool to apply in that kind of situation. I think there are opportunities to tighten that up but still be flexible for different operators that need to run two tillages one year when they only planned on one or something.”

McElroy: “The organic community is really good at poking itself in the eye over this big farm, small farm, corporate farm, family farm thing. We just can’t stop harming ourselves with the debate. I actually think that some of the very large farms that have the ability to control very large acreages are where we have the greatest potential to have a benefit on the overall environmental state of a large landmass.

“Over 10 years I’ve watched one or two companies that are quite large, that manage quite a lot of land, and every year the organic program managers come back happier and happier saying, 'This year the conventional side of our operation realized that organic was using like half the nitrogen’ and that they were producing a good crop. And so the conventional side cut way back on its nitrogen use. So there was this huge benefit, not only to the organic acreage but to all the conventional acreage, environmentally. This year I talked to the same farm manager and…he said ‘This year the conventional side came and bought product from the organic program to sell conventionally,’ because the conventional side was so ridden with disease, had so much stuff out of control, that it couldn’t keep their production levels up where they needed them…Stories like that are going on.

“And I’ve got to say, conventional farmers have walked into our program with an ethic for good soil conservation and good soil practices. They just were conventional because they used conventional nitrogen or because they used some conventional pesticides, but as far as soil conservation and as far as their farming practices go, they were very astute people who had a real eye toward soil quality and soil science…I just don’t think it’s about large farm, small farm, organic farm, conventional farm. I really think it’s about individuals.”

McEvoy: “…The rule gives us the tools to enforce that the operator has to improve or maintain the quality of the soil. The difficulty is how to both consistently apply that and how to measure whether or not they're actually doing that. We’re looking at ways of actually measuring whether or not soil quality is improved or maintained by working with the NRCS [Natural Resources Conservation Service] on their soil conditioning indexes, one particular way to measure that particular component….”

Q—What’s the current relationship between the NOSB and the NOP?
[Two NOSB ( members in the audience characterized the relationship as evolving and said that when NOSB members voiced impassioned concerns that NOP members took those concerns to heart.]

A— McElroy: “I wish the NOP would use the NOSB more. I wish the NOP would take more of the NOSB’s comments and just work with them as best they could and move forward. The NOSB is really producing the perspectives that are really helpful in helping us define the issues. For some strange reason, there’s a certain drama that just doesn’t need to be there…It would make their lives so much easier if they just went a little easier with the NOSB.”

[One NOSB member in the audience commented that these sticking points are typically over legal issues that scare the NOP. Another NOSB member acknowledged that both groups are working hard to eliminate those elements of fear and drama and to improve the level of communication and trust.]

Q—Is the National Organic Program’s appeals process working?
A—Gonsalves: “Any applicant for certification or somebody who’s already certified organic that receives a notice concerning their status from their certifier which they feel is inappropriate, they have the right to rebut, appeal, or mediate [request investigation]…. When it gets to the point of issuing a denial or a notice of intent to revoke certification, where the certifier has determined that there’s a genuine problem here, they’re not going to be able to fix it, we are required to give a certain number of days notice before the revocation becomes fully effective. That window is provided for them, again, to either rebut, to ask for mediation, or to file an appeal. The appeal does not go to the certifier, the appeal goes to the USDA. Or, if there’s a state organic program that’s been officially recognized by the NOP, then state organic programs are authorized to handle those appeals. So that’s the basic process.

“The USDA would make a decision as to whether to uphold the appeal, say, ‘Yes, the operator’s correct. They shouldn’t have been threatened with revocation.’ Or they can deny the appeal and say ‘No, the certifier was right in the first place. You should not be selling product as organic. You haven’t figured out how to do it right yet.’

So what’s happened in practice is the appeals go to USDA in Washington [long pause]—that’s it. To my knowledge, it’s not a program that has worked or been worked through yet…This is a new program for them, they are very tight with their lawyers as to what they can do and what they can’t do regardless of what they want to do sometimes, and so the appeals that Oregon Tilth is involved in have not been resolved, and we’re waiting for their lawyers to figure out what they’re going to do.

McEvoy: “You can deny certification and an applicant can appeal that. If they’re already certified then it’s a noticed of proposed revocation and that can be appealed.”

Gonsalves: “Their status remains the same on either side; it’s just that the uncertified person stays uncertified.”

[In answer to a question as to how long appeals have gone unresolved—or without even being acknowledged as received by the NOP/USDA—panel members listed worst-case scenarios from 1 year to 20 months.]

Gonsalves: “If a certified operation remains certified with us, and especially in a case where we felt revocation was appropriate, we’re ongoing monitoring, we’re surprise inspecting them, they get their annual update. In one case we actually came full circle and issued another Intent to Revoke. It’s sitting right on top of the first one….

“Every situation is unique, you have a company where most of the people are trying to do the right job but somebody in a key position is not on board and kind of screws it up for the rest of the crowd. So it’s not like it’s a totally outright fraudulent operation, they just haven’t quite got their act together. And so we monitor them fairly closely. I don’t believe any conventional product has gone out labeled organic. So this delay in the appeal process has not led to that problem to the best of our knowledge.”

McElroy: “The California Department of Food and Agriculture Organic Program has applied to be a state organic program…if they’re given [this] status, then enforcement occurs at the state level; appeals go to the state. In some cases the appeals might even be heard at the level of the agricultural commissioner. CCOF is really supporting that the state of California be given the state organic program status because it’s going to bring these appeals back to a place where we can participate…we can ensure that due process is observed.”