The 20th Annual NODPA Field Days Producer-Only Meeting: A Summary

Here is a summary of the call which took place before the results of the Presidential election was known:

There were over 20 folks on the call, made up of both NODPA and WODPA members. The principal area of discussion was the Origin of Livestock (OOL) update plus whether to sign on to the Organic Trade Association (OTA)/CROPP Cooperative /Danone letter complaining about the National Organic Program’s (NOP) decision not to publish a Final Rule. Ed Maltby started the discussion with a summary of the facts and the current situation.

The decision not to publish the Final Rule and move instead to a third Proposed Rule on OOL was announced as part of the NOP report at the National Organic Standards Board’s (NOSB) virtual meeting on October 28th 2020. This new Proposed Rule will address the concerns raised by the USDA Office of General Council (OGC) which was summarized as:

1. More enforceable – the Proposed Rule will need to clarify whether the exception for the transition is tied to the producer or the certified entity as defined within regulation. The processors are pushing for the operation as the certified entity. To ensure enforceability the regulatory unit has to be the same across all the NOP livestock standards.
2. The second area has to do with animal movement and to close the loopholes that allow for continuous transition or changing the organizational business structure to an LLC. The organic status of transitioned animals needs to be addressed in a way that can be enforced.
3. Address whether the proposed regulation falls within the scope of Organic Food Production Act (OFPA). OFPA allows for a one year transition period and although regulations as written do go further than the Act, further modifying the regulations does call into question the authority of OFPA. Some lawsuits do relate to that authority.
4. The new Proposed Rule will address legal concerns based on OGC feedback that anyone who thinks the Rule did not follow appropriate process could sue USDA if it was determined that they did not follow appropriate process as governed by the Administrative Procedures Act.

The overwhelming consensus from participants on the call was that NODPA/WODPA should stick with our joint statement and not sign on to the letter. Subsequently, the National Organic Coalition (NOC) and the Organic Farmers Association (OFA) also decided not to sign on. The letter from OTA can be found at the end of this summary.

OTA was concerned that the USDA would use the failure of the Final Rule to pass through USDA agency review to further justify their lawsuit’s defense for not allowing the Organic Livestock and Poultry Practices (OLPP) to be implemented. USDA has said that the OFPA does not give it the authority to deal with animal welfare issues (they can only deal with healthcare, not animal welfare). OTA and OV attorneys say that OFPA does give USDA the authority to implement regulation involving animal welfare and fear that USDA accepting the decision of OGC will impact the success of their lawsuit. Whereas the OLPP does deal with health care, OOL does not. It is a simple regulatory issue about what defines organic certification of dairy animals.

Some points that were raised on the producer’s call:

1. The time to object to USDA’s position was back in August when it could possibly have had some effect. There was no attempt at that time to have a community wide letter to USDA.
2. Objecting now is just pandering; the way that support was aggressively sought, by both OTA and CROPP, to sign on to the letter with a very short timeline ignored the decision-making process of the organizations that were being asked to sign on.
3. It’s better to go on the record seeking action on this issue as soon as it’s practical because if there is a transition in Washington, the new administration will have to deal with many more pressing issues which are of higher importance than this.
4. With the announcement by Jenny Tucker at the NOSB meeting, USDA has gone on the record as saying that the Final Rule as written will not be enforceable. It has also gone on the record that the OGC has said there are legal flaws in the Rule as written. Effectively, they have provided the perfect legal position for any operation or producer (depending on what the Rule says) who has a non-compliance to say that the rule is invalid and USDA will not enforce it.
5. We do not know what the Final Rule says or exactly what OGC objected to – Can we find out?
6. OGC has raised a long unspoken contradiction that OFPA says one thing and the 7 CFR § 205.236 regulation something different. We are assuming that another Proposed Rule will address that question or give an opportunity for us to address it by asking those questions during comments on a Proposed Rule. By addressing this in a new Proposed Rule we will be able to negate what OGC has said and possibly provide a strong legal argument that can make the regulation more enforceable in law.
7. The assumption is that if the administration does not change, Perdue will continue as he seems to be, in line with Trump’s agenda, and there is no logical reason why they would go against the OGC and the implied potential objections of OMB.
8. If the administration changes, then it will be at least 6 months before they are able to instruct NOP to change their position if indeed they can be persuaded to publish a Final Rule that was not approved through the USDA review process. It seems more logical and quicker to work with NOP on a new Proposed Rule that can answer the question raised within NOP and OGC, and takes Jenny Tucker at her word that this is a priority for NOP.
9. NOP uses both the producer and the operation as the certified entity in different situations, as do certifiers, so there are some fundamental issues here that were raised within comments on the Strengthening Organic Enforcement Proposed Rule (SOE).
10. The agreed goal was to have an enforceable regulation that is implemented quickly, even if it is imperfect, since the longer, continuous transitions are allowed, the worse it will become for organic dairy producers.
11. We need to work together as producers to have an enforceable regulation.

Statement from Producers on the publication of the OOL – 10/28/2020: Transitioning of conventional dairy cows to organic production on new organic dairy operations

The Western Organic Dairy Producers Alliance and the Northeast Organic Dairy Producers Alliance welcome the announcement by the National Organic Program that clarifies the situation with the Origin of Livestock Final Rule. We strongly urge the NOP to quickly move to publish a new Proposed Rule with a short comment period followed by the timely publication of a Final Rule with immediate implementation.

Our producers have been working for the last two decades to bring clarity, consistency and regulatory enforcement to how conventional dairy cows can be transitioned to organic production. We want a level playing field for all organic dairy producers, no matter the size of their operation, location, certification agency or ownership.

We need a regulation that will stop continuous transition, and stop the two track system that has caused an uneven economic playing field for how dairy producers can move to, or grow, their organic production. The whole one-time transition must happen over a twelve-month period and under the supervision of a certifier as part of the producer’s Organic System Plan. We need one regulation for all organic dairy producers, whether they are large or small operations, which recognize the unique needs of beginning organic dairy operations. We want to encourage and facilitate the increase in the number of organic dairy producers, recognizing the sweat equity and commitment of existing organic dairy producers and their families while retaining the integrity of the organic seal and support of the consumers.

We need a regulation that can be enforced with consistency, using the existing infrastructure of the National Organic Program that reflects the intent of the many parts of the Organic Food Production Act (OFPA) of 1990 and recognizes the current state of the organic dairy industry 30 years later. There needs to be clarity as to whom or what is the responsible ‘person’ (as defined by the regulation) that is recorded within the organic database. Some parts of organic regulations look to the operation, while other parts to the producer as the “person” of record. Tracking and accountability will need to be well defined with any Final Rule to ensure that organic dairy producers and their production practices retain the trust of the organic consumer.

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Letter to USDA initiated by OTA and CROPP

October 30, 2020

The Honorable Sonny Perdue

Secretary, United States Department of Agriculture

Jamie L. Whitten Building, Room 116A

1400 Independence Ave., SW

Washington, D.C. 20250

RE: National Organic Program – Origin of Livestock Rulemaking

Dear Secretary Perdue,

The recent announcement by the National Organic Program (NOP) to backtrack and initiate yet another proposed rule on the Origin of Livestock is extremely disappointing.

As you well know, the ongoing divergence in certifier’s application of the Origin of Livestock creates unmistakable competitive harm among market participants. This failure has long been recognized, and the 2015 proposed rule offered a remedy allowing a one-time event that permits the transition of a conventional herd to organic and thereafter the dairy farm/producer will only source from dairy livestock managed as organic from the last third of gestation.

The 2015 proposed rule garnered strong public and industry support through two comment periods with over 2300 comments and 99% of commenters supporting the general premise of the proposed rule offered by the NOP.

Additionally, there is clear Congressional intent for this rule to be finalized quickly, evidenced by the December 20, 2019 FURTHER CONSOLIDATED APPROPRIATIONS ACT which stated:

SEC. 756. Not later than 180 days after the date of the enactment of this Act, the Secretary of Agriculture shall issue a final rule based on the proposed rule entitled ‘‘National Organic Program; Origin of Livestock,’’ published in the Federal Register on April 28, 2015 (80 Fed. Reg. 23455): Provided, That the final rule shall incorporate public comments submitted in response to the proposed rule.

The enactment of the federal law requiring USDA action on Origin of Livestock was over 300 days ago.

A second proposed rule and yet again another comment period is unnecessary and has not been justified to the impacted industry. There is very little or nothing to be discovered or gained from a second proposed rule on the Origin of Livestock and a third public comment period, especially since the last public comment period was less than a year ago.

We do not agree that the impediments USDA has claimed to have identified would prohibit the immediate issuing of a final rule.

We urge USDA to issue a final rule on the Origin of Livestock without delay.

Sincerely,

CROPP Cooperative | Organic Valley

Danone North America

Farmers Union

Stonyfield Farm, Inc

Maple Hill Creamery

Straus Family Creamery

Accredited Certifier Association

Oregon Tilth

Montana Organic Association

Midwest Organic & Sustainable Education Service

Aurora Organic Dairy

California Certified Organic Farmers

Pennsylvania Certified Organic

Georgia Organics

Tilth Alliance

Sheffers Grassland Dairy LLC

Pleasantview Farm

Maine Organic Milk Producers

Organic Egg Farmers of America

Dairy Grazing Apprenticeship