National Organic Standards Board

Policy Development Subcommittee

Disclosure of Interest (DOI) for a Determination of a Conflict of Interest (COI)

August 29, 2013

I. Introduction

The current policy and practice in force for the disclosure of an interest (DOI) for a determination 

of a conflict of interest (COI) for the National Organic Standards Board (NOSB) are contained in 

a National Organic Program (NOP) memo entitled “Conflict of Interest Guidelines” dated March 

29, 2013. The NOP issued these guidelines as NOSB policy based on its authority under 

section FACA §102-3.105. The NOP memo gives this reason for issuing its guidelines:

The NOSB’s Policy and Procedures Manual includes language about conflicts of 

interest. In the past year, however, the Board has worked on alternative language to 

further define conflict of interest and to outline procedures for managing conflicts as they 

are identified. The Board has not been successful in passing new language. As such, 

the National Organic Program (NOP) is issuing this memorandum to describe how the 

USDA views conflict of interest and appearance concerns, and to present the NOP’s 

expectations for how you are to evaluate and report these conflicts in the future.

The NOSB over the years has passed policy on COI, which is contained in the Policy and 

Procedures Manual (PPM). Nevertheless, this DOI proposal recommendation by the NOSB’s 

Policy Development Sub-Committee (PDS) is intended to correct the deficiencies mentioned 

above and align the NOSB’s PPM with NOP guidelines on COI.

 

II. Background

The NOSB recognizes that members have been specifically appointed to the NOSB to provide 

advice and counsel to the Secretary of Agriculture concerning policies related to the 

development of organic standards and the creation of amendments to the NOP’s National List. 

NOSB members have been appointed because they represent various interests involved in the 

organic community, enabling them to advise the Secretary of Agriculture on the implementation 

of the Organic Foods Production Act (OFPA). 

NOP document entitled, “Conflict of Interest Guidelines,” dated March 29, 2013, states 

“Representatives are appointed to speak in “we” terms, serving as the voice of the group she/he 

represent (e.g., “we farmers/growers believe......”). As such, each NOSB members are not 

expected to provide independent expert advice, BUT rather advice based on the interests of the 

group served. Therefore, the farmers/growers representatives must articulate the viewpoints 

and interests farmers/growers; the handlers representatives must articulate the viewpoints and 

interests of handlers; the certifier representative must articulate the viewpoints and interest of 

certifiers; the scientist representative must articulate the viewpoints and interests of scientists; 

the environmentalists/conservationists must articulate the viewpoints and interests of 

environmentalists/conservationists; the scientist representative must articulate the viewpoints 

and interest of scientists; the consumers/public interest representatives must articulate the 

viewpoints and interest of consumers/public stakeholders; and the retailer must articulate the 

viewpoints and interest of retailers.” The statutory composition of NOSB is composed of 15 

members. OFPA describes the composition of the NOSB as follows:

• four (4) members who own or operate an organic farming operation;

• three (3) members with expertise in areas of environmental protection and resource 

conservation;

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• three (3) members who represent the public interest or consumer interest groups;

• two (2) members who own or operate an organic handling operation; 

• one (1) member who owns or operates a retail establishment with significant trade in 

organic products;

• one (1) member with expertise in the fields of toxicology, ecology, or biochemistry; 

and

• one (1) member who is a certifying agent.

NOSB members – like most federal advisory board members - are chosen specifically because 

of their professional expertise within a given area. Especially since NOSB members represent 

sectors of the industry directly impacted by the board’s decisions, it is necessary to maintain a 

clear and detailed NOSB COI policy. To prevent overt advocacy for direct financial gain and the 

appearance of self-interest or the appearance of wrongful activity, the NOSB has adopted a COI 

policy (NOSB, Policy & Procedures Manual 2011, pgs. 6-9). At this time, the PDS of the NOSB 

seeks to update the Board’s policy and procedures on COI to align with NOP’s policy and 

practice guidelines for dealing with a DOI and COI by NOSB. 

The PDS considered three primary options in developing this proposal. The first option, called 

Option A, had a number of recommendations, including referencing the NOP Conflict of Interest 

Guidelines and placing it in the PPM as an appendix; inserting definitions and updating within 

the PPM; adding language related to Technical Report authorship disclosures; and outlining 

procedures for COI management that included the NOSB (in addition to the NOP) having a role 

in deciding whether another Board member’s interest warrants recusal. 

Option A included many of the same recommendations as in the proposal voted on called 

Option B; the critical difference related to the procedure. Option A gave decision authority to the 

NOSB, whereas the voted-upon Option B acknowledges NOP as the sole decision-maker. 

Those who supported Option A felt that it provided clearer guidance to the COI process and left 

determinations less to the discretion of the NOP. They also supported a procedure that required 

disclosure of interests to the full board and the public, rather than only the NOP, in the belief 

that decision making of a board of representatives requires input from all perspectives, but also 

the recognition by other Board members of the perspectives from which differing opinions come. 

Option C had only one recommendation, which included a reference to the NOP Guidelines and 

a definition of conflict of interest. 

Vetting of the options (A, B & C) resulted in the conclusion that the majority of PDS members 

preferred Option A, in complete form. One member felt that a subsection of Option A would 

suffice. Nonetheless, it was determined that since the NOP noted that the PDS would be 

precluded from putting forth option A for public consideration and NOSB determination (because 

of its conflict with the NOP memo) and since Option C was seen as much too simplistic for the 

PPM context, that Option B would be the considered option for moving ahead.

III. Relevant Areas of the Rule

The OFPA establishes the NOSB at §2119 (7 U.S.C. 6518) (a). It reads, “The Secretary shall 

establish a NOSB (in accordance with the Federal Advisory Committee Act (5 U.S.C. App. 2 et 

seq.) 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 this title.” The 2012 

NOSB Revised Policy and Procedures Manual (PPM) dated April 11, 2012 on page 9 sets forth 

the current NOSB’s COI policy uses the terms potential or perceived COI without a clear 

definition. On page 7 of the PPM, the ability for NOSB to hear and make a determination on 

various types of COI is recognized beyond a direct financial gain. On page 11 of the PPM, 

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perceived COI is included in the concern. The wording “immediate family interests” is included 

on page 11 of the PPM. 

The relevant statute is FACA § 102–3.105 “What are the responsibilities of an agency head? (h) 

Assure that the interests and affiliations of advisory committee members are reviewed for 

conformance with applicable conflict of interest statutes, regulations issued by the U.S. Office of 

Government Ethics (OGE) including any supplemental agency requirements....” The NOP 

memo on COI, dated March 29, 2013 is guided by the USDA Office of Ethics ruling that fits 

within the “supplemental agency requirements” clause.

IV. Discussion

The benefits of the proposed recommendations include providing definition of COI and providing 

procedural steps for a DOI for a determination of a COI in the course of the NOSB’s business

that align with NOP guidelines on COI policy and procedures for NOSB. The updated COI policy 

upon a DOI should provide greater transparency and confidence in Board decisions by the 

organic community. 

The salient fact is that NOP guidelines are the current approach being used. As NOSB seeks to 

revise the PPM, the COI language needs to be updated to address current NOP policy and 

approach for managing a DOI for a determination of a COI. Presently, the PPM has at least 

eight (8) instances in three (3) sections that reference COI matters. Therefore, the alignment of 

the PPM with the current policy of the NOP and NOSB is vital and necessary. Despite current 

Board member concerns that may linger on whether NOSB or NOP should be the arbiter of DOI 

for a determination of a COI and the extent to which a DOI will be public, the fact remains that 

NOP guidelines on COI are presently and actively in force. 

V. Recommendation 

The Board references the NOP memo (Conflict of Interest Guidelines, Miles McEvoy, March 29, 

2013) on conflict of interest (see appendix X) based on NOP's position, citing NOP 

discretionary policy under the Federal Advisory Committee Act (FACA), that it is has the sole 

authority to define and manage the COI process.

NOP notes that previous public comments to the NOSB urged members to fully disclose the 

nature of their conflicts of interest to other NOSB members and the public. While NOSB 

members may share whatever information they wish with other Board members and the public, 

this level of disclosure is voluntary. For both legal and ethical reasons, the NOP respects the 

privacy of its volunteers, and does not require full disclosure of the nature of conflicts of interest 

to parties outside the NOP. Therefore, in an attempt to align NOSB’s COI policy and practices 

with the NOP guidelines on COI, the following recommendations are shown below. 

Recommendation #1

If an NOSB member fails to disclose having a COI and votes on the item where a conflict exists, 

and COI is later revealed, it may lead to a reconsideration of the vote by the NOP. It could lead 

to a revote on said matter, if deemed so by NOP, at some point in the future. 

Recommendation #2

Use COI as a general term rather than defining the terms of (1) perceived COI and (2) potential 

COI. 

The term “conflict of interest” is defined as a situation in which there is an actual or potential COI 

of a Board member, which could impair the individual's objectivity or which has the potential to 

create an unfair competitive advantage. The following persons or entities specifically affected 

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are, (1) a member of your household, (2) a former employer or a prospective employer, (3) a 

client of yours or your spouse or partner, (4) a person or organization with which you have some 

kind of business or contract relationship, (5) your spouse or partner, or (6) a close family 

member. 

Recommendation #3

Existing PPM Language

The Duty of Loyalty requires Board members to exercise their power in the interest of the public 

and not in their own interest or the interest of another entity or person. A Board member’s 

loyalty is to the organic community and the public at large.

Proposed Language Change

The Duty of Loyalty requires Board members to exercise their power in the interest of the group 

she/he represents (e.g., “we farmers/growers believe......”) As such, each NOSB members are 

not expected to provide independent expert advice, BUT rather advice based on the interests of 

the group serves.

Recommendation #4

Sub-Committee Level

As soon as a Board member discloses that she/he may have a COI with respect to a topic being 

worked on, she/he should inform the NOP. Said Board member may voluntarily share with or 

answer question(s) about the nature of the conflict from other subcommittee members. The 

NOP, working with the USDA Office of Ethics as needed, will validate whether a said disclosure 

is a COI and determine the level of said Board member participation (discussion and/or vote) on 

said matter wherein the disclosure is noted. 

Recommendation #5

Full Board Meetings

Approximately 2-4 weeks before the meeting, the NOP’s DFO will provide a matrix of all NOSB 

members in advance of the meeting that lists the documents being voted on at the meeting. If a 

Board member identifies that a COI exists on any item(s) on the matrix, she/he must use the 

columns on the matrix to disclose having the COI and declare a recusal from voting on the 

item(s). 

If a Board member is not sure whether a DOI interest is acceptable or poses problem, or is 

uncertain whether recusal is needed, then she/he must contact the NOP Associate Deputy 

Administrator to fully disclose the possible problem; the NOP will provide feedback verbally and 

via email to the member. The NOP determination is final. See NOP memo entitled, “Conflict of 

Interest Guidelines” dated March 29, 2013 for greater details. All DOI and COI must be 

recorded in the meeting minutes. 

Recommendation #6

Technical Reviewers

All technical reviews should disclose the names and address of all authors on the first page of 

the TR below the TR title. 

Recommendation #7

Existing PPM Language, pg. 7

Address conflicts of interest — Board members bring to the NOSB particular areas of expertise 

based upon their personal and business interests in organic production and marketing. Board 

members may have interests in conflict with those of the public interests. Board members must 

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be conscious of the potential for such conflicts and act with candor and care in dealing with such 

situations. Board members must abide by the NOSB conflict of interest policy. 

Suggested Language Change

Address conflicts of interest — Board members are expected to disclose interests that do not 

raise the level of being in conflict for the purpose of full disclosure for the public. 

Recommendation #8

Existing PPM Language, pg. 8

Recognize corporate opportunity — Before a Board member votes upon an issue in which they 

have a direct financial interest, that Board member must disclose the transaction to the Board in 

sufficient detail and adequate time to enable the Board to act — or decline to act — in regard to 

such transaction. 

Suggested Language Change

Mandatory and Voluntary Disclosure of COI - A Board member must disclose any COI 

according to NOP guidelines and procedures. Failure to do so could result in a revote on a 

matter, shortly or long after the initial vote was taken. A Board member must mandatorily 

disclose her/his DOI to NOP in sufficient detail in writing and allow adequate time to enable the 

NOP to act — or decline to act — in regard to such matter. Said Board member may voluntarily 

share her/his DOI with NOSB. 

Recommendation #9

Existing PPM Language, pg. 9

Conflict of Interest 

The NOSB recognizes that members have been specifically appointed to the Board to provide 

advice and counsel to the Secretary concerning policies related to the development of organic 

standards and the creation and amendment of the National List. NOSB members have been 

appointed because they have professional expertise, which enables them to advise the 

Secretary. This professional expertise may, at times, present an inherent perceived conflict of 

interest. To prevent overt advocacy for direct financial gain and the appearance of self-interest 

or the appearance of wrongful activity, the NOSB has adopted the following conflict of interest 

policy.

Be it resolved by the National Organic Standards Board: 

Members of the Board shall refrain from taking any official Board action from which that Board 

member is or would derive direct financial gain. Board members shall disclose their interest to 

the Board and the public, when they or their affiliated business stand to gain from a vote, which 

they cast in the course of Board business. Under certain circumstances, the Board may 

determine whether it is appropriate for the member to vote. 

That members of the Board shall refrain from promoting for consideration any material, process 

or practice for which the member is or would derive direct financial gain arising out of such 

Board action. The act of promoting such material, process or practice shall include private 

discussion with members of the Board advocating the value of the material, public discussion 

and/or written advocacy. 

A "direct financial gain" is defined as monetary consideration, contractual benefit or the 

expectation of future monetary gain to a Board member, including but not limited to, financial 

gain from a party who manufacture distributes or holds exclusive title to a formula for a material 

or product, process or practice

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Suggested Language Change

Delete this language since the NOP‘s March 29, 2013 COI guidelines broaden COI beyond a 

direct financial gain. 

Recommendation #10

Existing PPM Language, pg. 11

Fully disclose any conflict of interest positions — Members having any commercial or immediate 

family interest that poses a potential or perceived conflict of interest must disclose that conflict 

to the Board and abide by any decision of the Board in dealing with the situation. 

Suggested Language Change

Disclosure of and Interest — Members that provide a DOI may voluntarily disclose to NOSB and 

mandatorily disclose to NOP and abide by the final decision of NOP in said matter. 

Recommendation #11

Existing PPM Language, pg. 38

2. If the committee does not have the expertise or resources (e.g., time), the Committee chair 

should make a request to the Chair of the Materials Committee for a third party expert 

specifying: 

a. the third party expert’s required background and level of expertise 

b. Existence of potential sources of conflict that could result in biased reviews. 

Suggested Language Change

None

 

VI. Summary

NOSB members with diverse backgrounds are recruited to provide balance to the NOSB. The 

recommendations put forth in this document are responsive to a number of requests by 

stakeholders and the NOP recent guidelines framework. The proposed recommendations help 

provide the essence of providing greater transparency of and expectations around NOSB 

members’ work and technical reviewers on behalf of the organic community and the general 

public.

The current policy and practices in force for a DOI for a determination of a COI for the NOSB 

are entitled “Conflict of Interest Guidelines” dated March 29, 2013. The guidelines centers on 

recognizing and reporting COI and appearance concerns. The DOI proposal herein by the 

NOSB’s PDS is intended to align with NOP guidelines on COI. 

VII. Committee Vote:

Motion to accept the language as presented in Option A above.

Moved: C. Reuben Walker

Second: Jay Feldman

Yes: 5 No: 0 Abstain: 0 Absent: 1 Recuse: 0

Approved by Colehour Bondera, Subcommittee Chair, to transmit to NOSB August 29, 

2013

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