Last September, USDA strengthened and added greater transparency to the sunset process for the National Organic Standards Board (NOSB). The new process ensures that the NOSB will fully review all materials allowed on the National List of Allowed and Prohibited Materials List every 5 years. Adding or removing any items from the National List is only done with the support of a 2/3 majority of the NOSB. This is consistent with the requirements of the Organic Foods Production Act of 1990.
The revision to the sunset process was made to protect organic farmers, handlers and consumers by ensuring an effective and timely process. The revised sunset process increases public engagement by providing for two meetings instead of one every year to review substances up for sunset review. More public comment opportunities allow more farmers, processors, consumers, and organic groups to provide their input on proposed changes to the list of materials used in organic production.
The revision ensures that the NOSB will thoroughly review all substances and recommend removal when the substance no longer meets the organic criteria specified in the Organic Foods Production Act. All previous NOSB recommendations for removal have happened with the support of at least 2/3 of the NOSB members. We expect the NOSB to continue to recommend removals under the strengthened sunset process.
USDA strongly supports organic agriculture, and ensures a level playing field for all organic farms and businesses. Public participation is vital to USDA’s work in organics. We encourage all members of the public to take part in future formal comment opportunities. All public comment periods are announced in the Organic Insider newsletter; sign up at http://bit.ly/NOPOrganicInsider
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More Information About Revised Sunset Process
Organic standards are designed to allow most natural substances in organic farming while prohibiting most synthetic substances. The National List—part of the USDA organic regulations—lists the exceptions to this basic rule and the non-organic substances allowed in processed organic products. The National Organic Standards Board (NOSB), a citizen advisory committee appointed by the Secretary of Agriculture, must review all National List substances every 5 years. Through the sunset review process, the NOSB can recommend to USDA the removal of substances based on adverse impact on human health, the environment, or other criteria under the Organic Foods Production Act (OFPA). After the NOSB has completed this "sunset" review, the USDA must renew or remove the substances on the National List to complete the process. About “Sunset”
On September 16, 2013, the National Organic Program (NOP) announced a transparent and streamlined sunset review and renewal process. While many members of the organic community have been very supportive of these process changes, we wanted to provide additional information on the revised sunset process.
We believe that the revised process is in the best interest of the organic community and the public. It clarifies the process, provides increased opportunity for public input, and ensures a decisive, majority vote for all recommendations to change the National List. Furthermore, this revised process enables USDA to put more resources into implementing NOSB recommendations, such as origin of livestock.
The initiative for improving the sunset process came from the NOP management team. The NOP spent considerable time and resources on sunset rulemaking activities, even in cases where the NOSB hadn’t proposed changes to the National List. We had challenges meeting deadlines and didn’t have time to complete other important projects. We also considered the following additional factors:
- The NOSB Policy and Procedures Manual (PPM) has conflicting information about whether NOSB should vote to remove or relist substances (PPM, page 57). The PPM procedures have led to confusion among stakeholders about whether substances automatically expire from the National List or whether the NOSB must vote to remove them from the National List through sunset.
- We were asked by the NOSB to review the decisive vote section of the OFPA as an outcome of the corn steep liquor vote.
- We heard from various groups that there was no incentive to petition to remove substances from the National List because it was easier to remove substances during sunset. They described how a minority of the board (6 members) could recommend removing substances from the list.
- We had difficulty clearing rules and notices through departmental and government offices. Rule development and clearance involves meeting the requirements of a variety of Executive Orders. Under these requirements, the agency must consider the economic impact (cost and benefit) of every regulatory change. For rules with significant impacts, these actions must undergo additional review and clearance. Recently, many NOP actions have been considered significant, and, therefore, the timeframe for review and clearance of these rules is longer and more extensive.
In the organic spirit of continual improvement, we felt there was considerable justification to begin looking for areas where we could improve the sunset process. We were committed to align the process with the statute and proceeded to examine the relevant OFPA provisions.
In brief, we confirmed the following:
- The NOSB has the authority to recommend which synthetic materials can be used in organic production and handling. This requires a two thirds majority for recommendations to pass.
- The OFPA sunset provision provides that every 5 years, the NOSB review these substances to ensure that they still meet the OFPA criteria. The NOSB is responsible for reviewing the list and making recommendations regarding any changes to the list. The Secretary is responsible for deciding whether to continue (i.e., “renew”) the substances on the National List.
- The statute clearly distinguishes the NOSB’s responsibility to review and the Secretary’s responsibility to renew. If upon review the NOSB believes the substance no longer fits the criteria for an exemption or prohibition, the NOSB can recommend (by a decisive two thirds vote) to remove the substance from the National List.
The September Federal Register Notice clarifies the sunset process, thereby ensuring transparency, consistency and facilitating public input. Towards those goals, we’d like to reiterate the following key elements of the revised sunset process:
- At any time, an individual or organization may submit a petition to add or remove a National List substance, or change an existing listing. This process involves NOSB’s review, multiple public comment opportunities, and potential rulemaking by the Agricultural Marketing Service (AMS).
- Once a substance is added to the National List, the NOSB must review the listing every five years. This process is referred to as the “sunset review.” This process seeks to determine if there is any new information about a substance’s conformance with the criteria for placement on the National List.
- The Secretary’s responsibility is then to decide on the renewal of the substances based on the NOSB’s review. For substances that NOSB does not recommend for removal, AMS may renew the substances through a Federal Register notice. This will conserve critical resources that AMS previously used for proposed and final rules. For substances that NOSB recommends for removal, AMS will work to remove the substance through notice and comment rulemaking.
- The revamped process increases consistency by requiring that two thirds of NOSB members must support any change to the National List for it to be recommended as a change to the USDA —whether during sunset or the petition process.
- In 2011, NOSB adopted a policy so that NOSB could recommend new restrictions (change annotations) to specific substances during the sunset review. AMS had initially expressed concerns with this approach, and experience has since confirmed it to be unworkable. There are too many problems with clearance, economic impact analysis and deadlines to change annotations during sunset. The notice clarifies that changes to annotations will need to go through the petition process rather than sunset.
In summary, the revamped sunset process provides several benefits:
- First, it is a more transparent sunset review process because it provides 2 public comment opportunities before the NOSB completes its review of each substance. This will enhance NOSB’s ability to thoroughly review sunset substances.
- Second, it ensures that any change to the National List is supported by a two thirds majority of the NOSB.
- Third, it streamlines the administration of the National List. Previously, AMS addressed all substance listings, both removals and renewals, through rulemaking.
With the new process, AMS will only use rulemaking if the NOSB recommends removing a substance from the National List. This will enable AMS to focus on other important priorities such as organic aquaculture, apiculture, and pet food, as well as clarifying how new dairy animals can be sourced. We believe this revised sunset process will allow resources currently invested in rulemaking to be redirected into these other mission-critical efforts.
We’ve heard concerns that it will be extremely difficult to remove substances from the National List. We don’t believe this is accurate. The NOSB has passed dozens of recommendations with two thirds majority votes. Substances that have been removed from the list have all had 2/3 votes supporting their removal (e.g., sulfur dioxide for rodent control, forms of pectin, forms of lecithin, forms of silicon dioxide, hops). When new information or alternatives become available, experience shows that the organic community forms a consensus and the NOSB makes recommendations to remove based on two thirds majority votes.
We look forward to your support as we implement the revised sunset process. We will work with the NOSB to ensure the Policy and Procedures Manual aligns with these revisions. We look forward to the organic community’s continued engagement, perspective and comments on the NOP and the NOSB. How to Submit Comments