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Re: OFMA position on Small Farm Exemption and NOSB history
Hello Larry,
Appreciate your thoughts on the analysis below. On the OFMA Web site,
http://www.iquest.net/ofma/ (which address I know you are familiar with
Larry, but I constantly repeat for other folks) on the main page, is a link
to the comments the Organic Farmers Marketing Association supplied over a
year ago to the Regulatory Flexibility Act's Chief Advocate Counsel. Please
review and improve on them, by individually contacting or working with OFMA.
Many of our concerns at the time were to make sure the integrity and
truthfulness of the "organic" label is not maligned and made to mislead the
purchasing public. To bring a truly permanent organic market into being, the
highest of all priorities is that the customer can trust the certification
procedures and the label "organic".
Here is some information gotten off the Web by searching for Regulatory
Flexibility Act. This Act was tremendously improved by the 94 Congress and
is meant to correct many of the abuses carried out under administrative rule
making in the past. OFMA's proposals to have different requirements for
small to moderate size organic farmers, handlers and certifiers could be
enlarged on by active participation of those effected. The Web is obviously
the place to develop that national consensus. To me the first necessity is
for all those entering the discussion to understand clearly the power and the
language of the RFA, and to follow the SBA's format for making RFA work for
the organic community.
From the Web: Small Business Administration
Office of Advocacy
Laws and Regulations
Affecting Small Business
The Regulatory Flexibility Act (RFA) is designed to require federal agencies
to analyze the impact of proposed and final rules on small businesses. For
annual reports on agency compliance with the RFA, see the Annual Report of
the Chief Counsel on Implementation of the Regulatory Flexibility Act.
A Guide to the Regulatory Flexibility Act is a document written to provide an
overview of the Regulatory Flexibility Act (RFA). March 29, 1996, President
Clinton signed the Small Business Regulatory Enforcement Fairness Act. The
new law amends the RFA (originally passed in 1980) to allow judicial review
of any agency's compliance with the law. For a copy of these statutes, please
write the U.S. Small Business Administration, Office of Advocacy, 409 3rd
Street, S.W., Mail Code 3113, Washington, DC 20416.
Advocacy provides a summary for the Small Business Regulatory Enforcement
Fairness Act of 1996, which amended the Regulatory Flexibility Act.
For a list of comments sent by the SBA's chief counsel for Advocacy to
various government agencies addressing compliance with the Regulatory
Flexibility Act and the impact of proposed regulations on small business, see
the Index of Regulatory Communications for 1996 and 1997.
For a current list of the chief counsel's legislative activity, see
Congressional Testimony of the Office of Advocacy for 1996 and 1997.
The SBA Small Business Size Standards must be used by federal agencies in
most cases for performing Regulatory Flexibility Act analyses. Standards are
listed by SIC.
Last Modified: 8-16-97
And now some details on NOSB Small Farm Exemption Recommendations:
Below are the recommendations of the NOSB regarding the Small Farm Exemption.
The Small Farm Exemption NOSB recommendations are onerous and illegal. The
language was developed by the Crop Committee under the direction of Gene
Kahn. The thinking was to not allow those small farms exempted under the
Small Farm Exemption from marketing through exporters, wholesalers, brokers,
processors, or retail chain warehouses and from processing and selling their
products (in this last instance, small farms would have to be certified as a
organic handling operation to do so). OFMA has taken the position that this
was neither the language or intent of the Act. OFPA was designed to promote
small and innovative new businesses as well as to relieve all farms with
gross sales of under $5000 from even having to be formally certified. The
intent of the Act certainly was not to add more requirements to the Small
Farm Exemption as the NOSB has recommended through the rule writing
procedures. An Exemption means an unequivocal exemption from the Act.
OFMA felt the NOSB recommendation was so contradictory to the Act that the
USDA/NOP would never make it part of the Proposed Rule. It remains to be
seen, but certainly if it is part of the USDA's Proposed Rule, removing the
additional requirements should be a simple win for organic farmers under the
Regulatory Flexibility Act and OFPA.
NOSB Final Recommendations
B. SMALL FARMER EXEMPTION
STATUTORY PROVISIONS
U.S. Organic Foods Production Act of 1990, Section 2106 (d): "Small
Farmer Exemption.--Subsection (a)(1)* shall not apply to persons
who sell no more than $5,000 annually in value of agricultural
products."
(A) a person may sell or label an agricultural product as
organically
produced only if such product is produced and handled in
accordance
with this title; and
(B) no person may affix a label to, or provide other market
information
concerning, an agricultural product if such label or
information
implies, directly or indirectly, that such product is produced
and handled using organic methods, except in accordance with
this
title."
RECOMMENDATION
Persons who sell no more than $5,000 annually in value of
agricultural
products and sell or label a portion or all of such agricultural
products as organically produced or handled are exempted from
certification by an USDA-accredited agency but are required to
produce and handle organic products in accordance with the
production
and handling standards provided for in the OFPA.
The exempted person shall demonstrate compliance with the OFPA
by the implementation of the following measures:
(1) Signature on a completed Declaration form, which attests
to a thorough knowledge of the provisions of the OFPA and to
the
production and handling of organic products according to the
OFPA.
(2) The development of an Organic Farm and/or Handling Plan,
in accordance with the requirements of the OFPA.
(3) The establishment of record-keeping adequate to trace an
organic product from production site through to sale for
consumption.
Records must be kept for five years.
(4) The provisions of public access to the above documents.
Exempted Small Farmers who demonstrate compliance with the OFPA
shall be able to market non-certified organic products from their
farms directly to consumers at direct sales outlets. Examples
of direct sales outlets include roadside stands, farm markets,
and consumer subscription programs (Community Supported
Agriculture).
Exempted Small Farmers who wish to market directly to retail
outlets may do so by providing copies of the Declaration form
to the individual retail outlet. In no instance shall
non-certified
organic products be marketed through exporters, wholesalers,
brokers,
processors, or retail chain warehouses.
Furthermore, an exempt farmer may not sell or label an agricultural
product as "certified organic" unless certified by
an USDA-accredited certifying agency.
The exempted Small Farmer and/or retail outlet may display the
Small Farmer Declaration form at the place of sale. There shall
be no mandatory filing requirements for the above small farmer
exemption provisions. All required information must be on file
and available on the premises of the exempted farmer.
The above provisions shall not be construed as precluding a State
from issuing additional regulations regarding the Small Farmer
Exemption.
. . . . . . . . . . . . . . . . . . . . . . . . . . . .
SMALL FARMER EXEMPTION FROM USDA CERTIFICATION PROGRAM
ANNUAL DECLARATION OF _____________________
1. I declare that I sell no more than $5,000 annually in all
agricultural
products and that all agricultural products that I sell as
organically
produced or handled are produced and handled in accordance with
the Organic Foods Production Act of 1990 (OFPA).
2. I declare that:
a. I have read and understand the regulations regarding
production
and handling of organic products to the OFPA;
b. I have developed an organic farm and/or handling plan in
accordance
with the requirements of the OFPA;
c. I have records tracing the organic production from
production
site to sale; and
d. I will provide reasonable public access to the above
documents.
3. I declare under penalty of perjury under the laws of the
United
States of America that the foregoing is true and correct.
EXECUTED this _______ day of ____________________, 19___, at
____________________________.
(city & State)
___________________________________
(Signature)
. . . . . . . . . . . . . . . . . . . . . . . . . . . .
To call small farmers uncertified is inconsistent with OFPA, among all the
other inconsistencies in the NOSB proposal. A person producing under $5000
that meets the USDA/NOP calls themselves "organic", that is all there is to
say.
A Last Word:
If the organic community wants small farms exempt, I think it will take an
Act of Congress. By the same token, I am convinced this is not the approach
to take. Instead, get certified by an accredited certifying agent (wait
until the Act is implemented) and take control of the USDA/NOP by getting
some folks (we have Bill Welsh now on the NOSB) on the NOSB and puttting all
our energies into implementing the OFPA as it is written--to make the
"organic" label so legitimate that markets expand so fast, small farmers can
establish permanent local and regional clientele, plus market excess through
the marketing association they control, the Organic Farmers Marketing
Association. Votes count, not dollars you make, when we get down to the
nitty-gritty. OFMA and Ozark Small Farm Viability Project carried the small
farmer position forward at the NOSB meetings, with the USDA/NOP staff, right
to the highest levels of USDA, EPA, FDA, FSIS over the last 6 years so small
to moderate size organic farmers would not get decimated in the process of
implementing a credible National Organic Program. Now, it is time for all
those who are the rebels to take up the action during the Proposed Rule
comment period. We need a quality analysis critiqued by many. We need a
consensus that responds so clearly: quality standards, that satisfy consumer
perception to establish a permanent and trustworthy organic label, that
consumers will support nationwide.
From me to you brothers and sisters,
Eric