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USDA NOP Publishes Proposed Rule for Comment
The proposed rule was published in the Federal Register on April 28, 2015. The USDA has given plenty of time for the organic community, stakeholders, and consumers to submit written comments on the proposed rule, with comments having to be submitted by July 27, 2015.
This proposed rule does provide clarity and a single standard for the one time exemption, with specificity on what the transitioned animals and their progeny can be used for. Under this proposal, the eligibility for a one-time transition is tied to a producer, as specified on an organic certificate, and they would need to meet the definition of a dairy farm and other proposed requirements.
Using the producer as the one time exemption is a compromise that does allow for members of families to start their own organic herd and does make it easier for certifiers to verify who is able to use the exemption but shuts the door on the same entity using the one time transition numerous times with new operations/herds or allowing continuous transition or the use of heifer ranches.
It still leaves open the ability for existing producers or corporations to start an LLC, as a new entity, to use the one time transition exemption again under a different certified entity/producer. It also does allow a certified entity to transition their operation and then sell the animals as organic to an existing organic milking herd. One concern that NODPA has had in the past with using the producer rather than the “responsible connected person” as the eligibility criteria is that an LLC can easily be set up and transition a large number of dairy cows and then sell them as organic milkers to an existing organic dairy under a different named entity but with the same owners. Producers looking to take advantage of short supply in organic milk and low priced milk in the conventional market will be able to transition all the animals they want and sell them to their own or other existing organic operations by using convenient LLC’s. The need for a sufficient land base to support those animals on organic pasture rather than purchased organic feed does mitigate this risk of exploiting the organic market and harming the integrity of organic dairy.
Recordkeeping is not well defined except by reference to other parts of the rule so that may be an area were there needs more clarity in a final rule. It also raises the question about communication between different certifiers about the past history of producers, and the need for some degree of uniformity in certificates of organic certification, especially important for organically certified auctions. The fact that a transitioned animal and any progeny fed third-year transitional crops can never be sold as organic beef will need specific attention in any record-keeping and on-farm accountability.
We have waited a long time for this rule that will still take at least another year to be implemented and it will provide clarity in an area which has been very confusing and which has been interpreted very differently in different regions of the country. It is not as prescriptive as many producers wanted and does have loopholes that can be easily exploited. Consumers need to trust the integrity of the organic system and regulations, and hopefully won’t realize that it only takes one year of organic management to flush out all the antibiotics, hormones, and other nasties they don’t want. As we now have a mature organic dairy industry with a good supply of organic replacements, which we did not have when this process started fifteen years ago, do we need any exemption at all?
Below are the changes that this proposed rule is suggesting, the changes are in BOLD:
§ 205.2 Terms defined.
§ 205.236 Origin of livestock.
a) Livestock products that are to be sold, labeled, or represented as organic must be from livestock under continuous organic management from the last third of gestation or hatching: Except, That:
(1) Poultry. Poultry or edible poultry products must be from poultry that has been under continuous organic management beginning no later than the second day of life;
(2) Dairy animals. A producer as defined in §205.2 may transition dairy animals into organic production only once. A producer is eligible for this transition only if the producer starts a new organic dairy farm or converts an existing nonorganic dairy farm to organic production. A producer must not transition any new animals into organic production after completion of this one-time transition. This transition must occur over a continuous 12-month period prior to production of milk or milk products that are to be sold, labeled, or represented as organic, and meet the following conditions:
i. During the 12-month period, dairy animals must be under continuous organic management;
ii. During the 12-month period, the producer should describe the transition as part of its organic system plan and submit this as part of an application for certification to a certifying agent, as required in §205.401;
iii. During the 12-month period, dairy animals and their offspring may consume third-year transitional crops;
iv. Offspring born during or after the 12-month period are transitioned animals if they consume third-year transitional crops during the transition or if the mother consumes third year transitional crops during the offspring’s last third of gestation;
v. Offspring born from transitioning dairy animals are organic if they are under continuous organic management and if only certified organic crops and forages are used from their last third of gestation;
vi. All dairy animals must end the transition at the same time;
vii. Dairy animals that complete the transition are transitioned animals and must not be used for organic livestock products other than organic milk;
viii. After the 12-month period ends, transitioned animals may produce organic milk on any organic dairy farm as long as the animal is under continuous organic management at all times on a certified organic operation; and
ix. After the 12-month period ends, any new dairy animal brought onto a producer’s dairy farm(s) for organic milk production must be an animal under continuous organic management from the last third of gestation or a transitioned animal sourced from another certified organic dairy farm.
(3) Breeder stock. Livestock used as breeder stock may be brought from a nonorganic operation onto an organic operation at any time, Provided, that the following conditions are met:
(i) Such breeder stock must be brought onto the operation no later than the last third of gestation if its offspring are to be raised as organic livestock; and
(ii) Such breeder stock must be managed organically throughout the last third of gestation and the lactation period during which time they may nurse their own offspring.
(b) The following are prohibited:
(1) Livestock, edible livestock products, or nonedible livestock products such as animal fiber that are removed from an organic operation and subsequently managed on a nonorganic operation may not be sold, labeled, or represented as organically produced.
(2) Breeder stock, dairy stock, or transitioned animals that have not been under continuous organic management since the last third of gestation may not be sold, labeled, or represented as organic slaughter stock.
(c) The producer of an organic livestock operation must maintain records sufficient to preserve the identity of all organically managed animals, including whether they are transitioned animals, and edible and nonedible animal products produced on the operation.
Section 205.237 is amended by revising paragraph (a) to read as follows:
§ 205.237 Livestock feed.
(a) The producer of an organic livestock operation must provide livestock with a total feed ration composed of agricultural products, including pasture and forage, that are organically produced and handled by operations certified to the NOP, except as provided in §205.236(a)(2)(iii), except, that, synthetic substances allowed under §205.603 and nonsynthetic substances not prohibited under §205.604 may be used as feed additives and feed supplements, Provided, That, all agricultural ingredients included in the ingredients list, for such additives and supplements, shall have been produced and handled organically.
Section 205.239 is amended by revising paragraph (a)(3) to read as follows:
§ 205.239 Livestock living conditions.
(a) (3) Appropriate clean, dry bedding. When roughages are
used as bedding, they shall have been organically produced in accordance with this part by an operation certified under this part, except as provided in §205.236(a)(2)(iii), and, if applicable, organically handled by operations certified to the NOP.