[Federal Register Volume 87, Number 25 (Monday, February 7, 2022)]
[Notices]
[Pages 6839-6842]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-02429]


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 Notices
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains documents other than rules 
 or proposed rules that are applicable to the public. Notices of hearings 
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  Federal Register / Vol. 87, No. 25 / Monday, February 7, 2022 / 
Notices  

[[Page 6839]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

[Doc. No. AMS-NOP-21-85]


National Organic Program; Notice of Public Listening Session With 
Request for Comment

AGENCY: Agricultural Marketing Service.

ACTION: Notice of public meeting.

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SUMMARY: The U.S Department of Agriculture (USDA), Agricultural 
Marketing Service (AMS), National Organic Program (NOP), is announcing 
a public listening session, with request for comment, regarding 
upcoming standards development activities, including feedback about 
specific recommendations received from the National Organic Standards 
Board (NOSB). AMS intends to use the information received from public 
comments to prioritize future rulemaking and standards development 
activities. This Notice also includes a summary of NOP rulemaking 
currently in progress, for which the NOP is not accepting comments.

DATES: AMS will host a virtual meeting on March 21, 2022, from 1:00 
p.m. to approximately 3:00 p.m. Eastern Time (ET). The deadline to sign 
up to make oral comments during the meeting is February 28, 2022. The 
deadline to submit written comments is March 30, 2022.

ADDRESSES: The virtual meeting can be accessed via the internet and/or 
phone. Access information will be available on the AMS website prior to 
each event. Detailed information can be found at https://www.ams.usda.gov/event/national-organic-program-priorities-listening-session.

FOR FURTHER INFORMATION CONTACT: Erin Healy, Director, Standards 
Division, National Organic Program, Telephone: (202) 617-4942; Email: 
[email protected].

SUPPLEMENTARY INFORMATION:

Executive Summary

    This Notice seeks input from stakeholders on upcoming standards 
development activities by AMS NOP, including feedback about specific 
recommendations from the NOSB. The NOP's mission is to protect the 
integrity of USDA organic products and the organic seal and to develop 
and grow the organic market by supporting organic farms, businesses, 
and those exploring the organic market. NOP develops the market and 
protects organic integrity by establishing clear standards that create 
a level playing field, providing oversight of third-party certifying 
agents, and enforcing the regulations. The NOSB is a Federal advisory 
committee established by the Organic Foods Production Act (OFPA). The 
NOSB's mission is ``to assist in the development of standards for 
substances to be used in organic production and to advise the Secretary 
on any other aspects of the implementation of [OFPA].'' (7 U.S.C. 
6518(a))
    The USDA is committed to transparently sharing the status, 
priorities, decision criteria, and current positions on NOSB 
recommendations. As such, in response to stakeholder interest in 
organic standards development and in the status of outstanding NOSB 
recommendations, AMS is hosting a listening session with request for 
public comment. AMS intends to use information received from public 
comments to guide the prioritization of organic standards development. 
Stakeholders that may be affected by future actions on this topic 
includes certified organic operations, certifying agents, operations 
transitioning (or seeking to transition) to organic, consumers, and 
other interested parties.
    The listening session will be recorded, and a transcript will be 
posted following the session on the NOP website at https://www.ams.usda.gov/event/national-organic-program-priorities-listening-session.
    Oral Comments: Individuals that want to present oral comments 
during the virtual listening session must pre-register by 11:59 p.m. 
ET, February 28, 2022. Each commenter will be allotted one 3-minute 
speaking slot during the virtual listening session. Instructions for 
registering to present oral comments can be found at https://www.ams.usda.gov/event/national-organic-program-priorities-listening-session.
    Written Comments: Interested persons are invited to submit written 
comments on NOP rulemaking priorities and development activities. 
Written comments must be submitted on or before March 30, 2022, via 
http://www.regulations.gov. All written comments should reference the 
document number and the date and page number of this issue of the 
Federal Register. All comments submitted in response to this Notice 
will be included in the record and the identity of the individuals or 
entities submitting the comments will be made public on the internet at 
the address provided above. AMS, Specialty Crops Program, strongly 
prefers that comments be submitted electronically. However, written 
comments may also be submitted (i.e., postmarked) via mail to the 
person listed in the FOR FURTHER INFORMATION CONTACT section by or 
before the deadline.
    Meeting Accommodations: If you are a person requiring a reasonable 
accommodation, please make requests in advance for sign language 
interpretation or other reasonable accommodation to the person listed 
under FOR FURTHER INFORMATION CONTACT. Determinations for a reasonable 
accommodation will be made on a case-by-case basis.

Background

    The NOP's mission is to protect the integrity of USDA organic 
products and the organic seal. AMS protects organic integrity by 
establishing clear standards that create a level playing field and then 
enforcing those standards. AMS also develops and grows the organic 
market by supporting organic farms and businesses and those exploring 
the organic market. The program also oversees third-party certifying 
agents in their implementation of the organic standards with organic 
operations and develops training to support standards implementation 
and oversight.
    AMS also supports the work of the NOSB, an Advisory Board with a 
mission to assist USDA in the development of standards for substances 
used in organic production and to advise the Secretary on other aspects 
of implementation of OFPA. The NOSB has specific statutory authorities 
with respect to the National List, found in the OFPA and the USDA 
organic

[[Page 6840]]

regulations. The Board's activities include analyzing petitions, 
Technical Reports, and other documents to make recommendations for 
certain materials to be included in or excluded from the National List. 
Beyond its National List responsibilities, the Board also has and 
exercises authority to make recommendations on other topics related to 
organic agriculture and food production, including new standards, 
clarification of existing standards, or the role of organic in broader 
policy issues such as climate-smart agriculture or creating a more 
resilient and equitable agriculture system. Some of these work agenda 
topics are AMS-initiated (import oversight, human capital); others are 
proposed by NOSB members and approved by AMS. NOP and NOSB members 
collaborate to develop work plan items and meeting agendas.
    For all of its work, the Board develops and reviews discussion 
papers and proposals, and also considers stakeholder input through oral 
and written comment. If a NOSB proposal passes with a ``decisive vote'' 
(\2/3\ of the vote), it becomes a recommendation to the USDA for 
consideration. An NOSB recommendation is not USDA policy. USDA reviews 
the recommendation to determine whether to advance it through the 
standards development process.
    The NOSB and the NOP both operate under the authority of the OFPA, 
and standards developed by the program must align with OFPA provisions. 
In addition to the OFPA, the NOSB is also governed by the Federal 
Advisory Committee Act (FACA). The NOP establishes standards, including 
conducting rulemaking and developing policies, in accordance with the 
Administrative Procedure Act (APA), 5 U.S.C. 551 et seq., and the 
Office of Management and Budget (OMB) rules and policies. The NOSB and 
NOP evaluate policy using overlapping, but distinct regulatory 
criteria. For example, where the NOSB focuses on the OFPA criteria and 
stakeholder input to develop its proposals and recommendations, the NOP 
must also consider other factors including the regulatory impact, 
including costs and benefits, to regulated entities.
    As of October 2021, the NOSB has made 678 recommendations to USDA 
AMS related to organic production and substances since the NOSB was 
first chartered in 1992. USDA AMS has reviewed and implemented 87 
percent (592) of the Board's total recommendations and 80 percent of 
the NOSB's recommendations specific to practice (non-materials-related) 
standards. Not all recommendations have required rulemaking; AMS has 
implemented many NOSB recommendations through guidance, instructions 
and letters to certifiers, training, and policy statements.

AMS NOP Current Rulemaking Priorities

    AMS has a number of rulemaking priorities in progress. This section 
summarizes these rules; however, AMS is not accepting comments on these 
rules in this listening session. Rather, they are included here to 
provide the status of ongoing regulatory priorities. AMS will be 
accepting comments on these four rules once they are published in the 
Federal Register.

Strengthening Organic Enforcement (SOE) Final Rule

    In August 2020, AMS published the Strengthening Organic Enforcement 
(SOE) proposed rule to strengthen the oversight and enforcement of 
organic control systems. This was needed to respond to the increasing 
complexity of organic supply chains and market growth. The proposed 
rule includes provisions related to handler certifications, import 
certificates, and certifier oversight. The proposed rule would 
implement the requirements from the 2018 Farm Bill, other provisions 
informed by program experience, and several recommendations from the 
NOSB, including:
     Calculating Percentage Organic in Multi-ingredient 
Products (April 2013);
     Establishing Criteria for Certification of Grower Groups 
(October 2002);
     Certifying Operations with Multiple Production Units, 
Sites and Facilities Under the National Organic Program (November 
2008);
     Clarifying the Limitations of Uncertified Handlers under 
Sec.  205.101(b) (October 2010);
     Strengthening Inspector Qualifications and Training (May 
2018);
     Publishing Guidance on Unannounced Inspections (December 
2011);
     Information on Certificates of Organic Operation (March 
2005);
     Using Expiration Dates on Certificates of Organic 
Operation (November 2006); and
     Standardized Certificates (November 2007).
    AMS has written the SOE final rule and it is under review. We 
expect the final rule to be published in 2022.

Origin of Livestock (OOL) Final Rule

    In 2015, the NOP published the Origin of Livestock (OOL) proposed 
rule to clarify requirements for the transition of dairy animals into 
organic production. The OOL rulemaking is to implement previous NOSB 
recommendations. The final rule has been written and, as of December 
2021, was under review at the Office of Management and Budget (OMB).

Organic Livestock and Poultry Standards (OLPS)

    The Organic Livestock and Poultry Practices (OLPP) final rule was 
originally published under Secretary Vilsack in 2017 and withdrawn 
under Secretary Perdue in 2018. A new proposed rule--Organic Livestock 
and Poultry Standards (OLPS)--has been written and, as of December 
2021, was under review at OMB.

Inert Ingredients in Pesticides for Organic Production

    Materials and ingredients that support organic crop and livestock 
production and organic processors are vital for the day-to-day work of 
organic farms and businesses. In addition to periodic rules and notices 
(2-6 per year) to maintain and change the National List to respond to 
NOSB recommendations, AMS is finalizing an Advanced Notice of Proposed 
Rulemaking to address the use in organic production of ``inert'' 
substances, which is currently based on Environmental Protection Agency 
(EPA) regulatory reference lists that have expired. Future rulemaking 
is needed to update the National List to resolve the references to the 
expired EPA reference lists, to provide market certainty, and to 
maintain industry confidence in the National List process.

Overview of Program Structure

    Standards development is one of many activities conducted by the 
NOP. The NOP is made up of six groups: Accreditation Division, 
Compliance and Enforcement Division, International Activities Division, 
Trade Systems Division, Standards Division, and the Office of the 
Deputy Administrator. The Accreditation Division and Compliance and 
Enforcement Division conducts audits of certifying agents and their 
satellite offices, prepares noncompliance and evaluates corrective 
actions; considers reinstatement requests from suspended operations; 
reviews certifier records and reports; investigates complaints; 
conducts surveillance of operations and regions or countries based on 
market growth and risk; conducts the program's livestock compliance 
program; conducts focused import oversight investigations; and develops 
and delivers training for certifiers and operations.

[[Page 6841]]

    The International Activities Division monitors existing organic 
trade arrangements and leads technical negotiations for new 
arrangements. The Trade Systems Division is responsible for all 
technology development and data dashboard development for the program, 
including leading the development of the import certificate reporting 
system required by the 2018 Farm Bill. The team also leads the 
Interagency Organic Import Oversight Working Group. The Office of the 
Deputy Administrator houses the NOP appeals function, quality 
management, communications, Organic Integrity Learning Center 
development, the human capital initiative, special projects, and 
general customer service and organizational management.
    The Standards Division develops organic rules and policies; 
provides technical and administrative support to the NOSB; and 
evaluates materials conflicts from certifiers. The Division also serves 
as USDA's authority on interpreting the organic standards and provides 
critical input to NOP and other USDA officials concerning USDA policy 
positions on organic production, handling, processing, and labeling.
    AMS believes that the current structure of the Program 
appropriately supports the Program's mission. AMS invites public 
comments on this structure.

Outstanding NOSB Recommendations: Practice Standards

    Experience has shown that organic rulemaking is most successful 
when it addresses the needs with the most cross-community support, when 
the economic benefits are clear, and when rulemaking resolves known 
market inconsistencies. Below, AMS outlines what it believes to be the 
current outstanding NOSB recommendations, focusing on practice 
standards. Some NOSB recommendations were passed very early in the life 
of the program, before there was an active NOP Standards Division. Some 
recommendations have been addressed through training, guidance, or 
instructions for certifiers. NOSB recommendations referenced above as 
being addressed by current rulemaking priorities are not repeated here.

Organic Apiculture Production Standards (October 2010)

    NOP drafted a proposed rule that would establish organic apiculture 
standards during the Obama Administration; however, the rule was not 
published. AMS invites comments on whether to prioritize this 
rulemaking.

Organic Pet Food Product Standards (November 2008)

    NOP drafted a proposed rule that would establish organic pet food 
product standards during the Obama Administration; however, the rule 
was not published. AMS invites comments on whether to prioritize this 
rulemaking.

Organic Mushroom Production Standards (October 2001)

    NOP has completed preliminary research for this standards 
development work. Producers are currently certifying mushrooms under 
the organic crop standard. AMS invites comments on whether to 
prioritize this rulemaking.

Organic Aquaculture Production Standards (March 2007)

    NOP drafted a proposed rule that would establish organic 
aquaculture standards during the Obama Administration. The rule was 
placed on hold at the end of the Administration due to interagency 
concerns during OMB review; agencies with interest in the rule included 
the National Oceanic and Atmospheric Administration (NOAA), Small 
Business Administration (SBA), and Office of the United States Trade 
Representative (USTR). The rule would require interagency coordination 
to advance. The NOP currently permits the sale of organic aquaculture 
products that are certified under other government organic standards 
(e.g., European Union). AMS invites comments on whether to prioritize 
this rulemaking.

Hydroponic/Aeroponic Production and Create Greenhouse and Container 
Production Standards (April 2010; November 2017--Prohibit Aeroponics)

    The certification of hydroponic production systems as organic is 
currently allowed by AMS if the producer can demonstrate compliance 
with the USDA organic regulations; there are certified organic 
hydroponic operations in the U.S. at this time. While the NOSB 
recommended a rulemaking that would prohibit organic certification for 
those operations, AMS does not to intend to propose the prohibition of 
these production systems. However, AMS agrees that there are currently 
inconsistencies among certifiers with respect to the certification of 
greenhouses and container systems. AMS invites comments as to whether 
standards should be established for these specific production 
environments.

Clarification of Emergency Synthetic Parasiticide Use With Organic 
Livestock (October 2018)

    NOP has not made this recommendation a regulatory priority and 
believes it should continue to be a low regulatory priority, as there 
has not yet been a demonstrated need or justification for advancing 
this recommendation. There are no known situations where parasiticides 
have been used in a manner inconsistent with the National List, nor 
have certifiers reported having issues determining what is considered 
``emergency use.'' AMS invites comments on this prioritization.

Eliminate Incentive To Convert Native Ecosystems to Organic Production 
(April 2018)

    NOP has not made this recommendation a regulatory priority. 
Provisions within this recommendation appear to contradict the wild 
crop standard which allows product harvested from unmanaged land to be 
certified as organic. Before proceeding with this recommendation, NOP 
would like to see significant support by the organic industry and 
Congressional action may be needed. AMS invites comments on this 
prioritization, including whether increased utilization of existing 
USDA programs could help meet some of the goals of this recommendation.

Establish Standard Criteria for Commercial Availability 
Determinations--Agricultural Ingredients in Processed Products 
Standards (November 2007)

    NOP has not made this recommendation a regulatory priority because 
the Accredited Certifiers Association (ACA) has issued Best Practices 
documents for commercial availability that are currently in use among 
the industry. Certifiers have not communicated a strong need for this 
recommendation to move forward. AMS invites comments on this 
prioritization.

Require Increased Use of Organic Seeds (April 2019)

    NOP has not made this recommendation a regulatory priority because 
NOP believes the recommendation is already addressed by USDA organic 
regulations for commercial availability related to seeds and planting 
stock. Therefore, additional rulemaking is not needed. The NOP has 
completed training on organic seed sourcing as a practical, high-impact 
step; the training is available in the Organic Integrity Learning 
Center. The ACA has also

[[Page 6842]]

published a Best Practice Document for certifiers to increase 
consistency. AMS invites comments on this prioritization.

Recommendations Related to Genetic Engineering and Excluded Methods 
(Multiple)

    NOSB has made a number of recommendations related to genetic 
engineering and included methods. For example, ``Require Genetic 
Integrity for Transparency of Seed Grown on Organic Land--Instructions 
to Certifiers'' (October 2019) and ``Guidance of GMO Prevention 
Strategies'' (October 2015) both recommend establishing thresholds for 
addressing the presence of genetic material contamination, with 
significant cost implications for testing and monitoring. The NOP has 
not prioritized these two recommendations given the significant 
implementation requirements and likely costs involved. AMS invites 
comments on this prioritization.
    The NOSB has also recommended developing ``Guidance for Determining 
which New Technologies are Considered Excluded Methods'' (October 
2019). NOP has not made this recommendation a priority because it 
believes the current definition of Excluded Methods in the USDA organic 
regulations is sufficiently broad to cover a large range of new 
technologies. Augmenting this regulatory definition with a long list of 
prohibited technologies may cause confusion and could lead to an 
implied ``allowance by omission'' for technologies not listed. We 
believe the intent of this recommendation could be achieved by 
communicating the program's position on excluded methods (that they are 
not allowed) more directly and investing resources into communicating 
with certifiers about NOP's expectations for oversight. AMS invites 
comments on this prioritization.

Develop Organic Personal Care Product Standards (December 2009)

    NOP has not made this recommendation a regulatory priority. This 
rulemaking would be very complex and would require a significant 
expansion of existing regulations. NOP has published two items: 
``Policy Memo: ``Organic Personal Care/Cosmetics'' and ``Fact Sheet--
Personal Care Products'' that have allowed certifiers and operations to 
find a path to certification for these products within the existing 
rules and standards. Other private standards have been developed that 
are specific to organic cosmetic certification. Regulatory action in 
this area would require significant interagency cooperation and review, 
as it would need to harmonize with current Food and Drug Administration 
(FDA) regulations regarding ingredient statements on cosmetics and 
personal care products. AMS invites comments on this prioritization.

Restrict the Use of Livestock Vaccines Made From Excluded Methods 
(October 2019)

    NOP has not made this recommendation a regulatory priority. There 
has not been a strong justification or demonstrated need for this 
rulemaking. The organic livestock industry is not large enough to 
support the development, testing, and deployment of non-genetically 
modified (GMO) vaccines. Rulemaking would involve adding the non-GMO 
commercial availability as an annotation to Sec.  205.603(a)(4). AMS 
invites comments on this prioritization.

NOP Handbook Updates

    Along with the OFPA and the USDA organic regulations, the NOP 
Handbook, titled, The Program Handbook: Guidance and Instructions for 
Accredited Certifying Agents and Certified Operations provides those 
who own, manage, or certify organic operations with guidance, 
instructions, and policy memos that can assist them in complying with 
the USDA organic regulations. The Handbook is consistent with OMB's 
Bulletin on Agency Good Guidance Practices (GGPs) published January 25, 
2007 (72 FR 3432-3440). The purpose of the OMB's GGPs is to help ensure 
that program guidance documents are developed with adequate public 
participation, are readily available to the public, and are not applied 
as binding requirements.
    The NOP Handbook is an important tool for organic operations and 
for certifying agents. There are a number of guidance, instructions, 
and policy memos that are part of the NOP Handbook that will need to be 
updated as a result of SOE; several also need updates to align with 
current NOP policy (e.g., label use-ups when certifiers exit the 
organic program; accreditation process updates based on NOP's increased 
staffing and capabilities; and references to conservation tools 
administered by other USDA agencies). AMS invites public comments with 
respect to which NOP Handbook documents need updates from the organic 
community's perspective.

Request for Public Comments

    AMS seeks comments on the prioritization of outstanding NOSB 
recommendations and NOP Handbook updates (specifically, comments on 
whether issues not currently included should be considered for 
regulatory action) as it considers future rulemaking and policy 
development activities. AMS welcomes input about whether current 
resources should be allocated in a different manner to support 
standards development, or other program priorities. Comments received 
in response to this notice will inform future regulatory and policy 
development activities.

Erin Morris,
Associate Administrator, Agricultural Marketing Service.
[FR Doc. 2022-02429 Filed 2-4-22; 8:45 am]
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