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NODPA Speaks Out On The Origin of Livestock

Next Steps to Save Organic

By Ed Maltby, NODPA Executive Director.

The National Organic Standard Board (NOSB) met in St Paul, MN, from Wednesday, October 24, 2018 to Friday, October 26, 2018. On the last day of the meeting they made a clear and unanimous recommendation to the Secretary of Agriculture on the need for a Final Rule on the Origin of Livestock. They have opened the door to reactivating the 2015 Proposed Rule and bring the consistent interpretation of the one-time exemption for transitioning conventional dairy animals called for by the USDA Inspector General in 2013.

The Final Rule would need to be as simple as possible: One time transition for a conventional herd to organic that is tied to place and ownership. No exceptions. No loophole. No implementation timeline.

Friday was the day that the Board considered livestock issues and they kept the following livestock sunset materials on the list Alcohols: ethanol, isopropanol; Aspirin; Biologics- vaccines; Electrolytes; Glycerin; Phosphoric acid; Lime, hydrated; and Mineral oil. They voted to delist sucrose octanoate esters. The Board wholeheartedly agreed that there was a need for apiculture standards.

The Board then moved on to the Origin of Livestock debacle. They recognized the pressure from all sides of the organic community to present another recommendation on the Origin of Livestock Rule. Over the years, they have been asked to support the need for rulemaking and have not acted. Stimulated by a discussion at the National Organic Coalition (NOC) pre NOSB meeting, attended by 100 organic stakeholders, they passed a unanimous resolution urging USDA Secretary Perdue to issue a Final Rule on the origin of livestock that reflects the will of public stakeholders and the organic community. This was the first time in twelve years that they have acted on this issue with the following resolution:

It has come to the attention of the National Organic Standards Board (NOSB) that the continued state of varying interpretations and practices around the Origin of Livestock standards is creating market instability for organic producers. The 2015 USDA Origin of Livestock Proposed Rule was based on six recommendations from the NOSB between 1994 and 2006. The proposed rule responds to findings from the July 2013 USDA Office of Inspector General (OIG) audit report on organic milk operations stating that certifying agents were interpreting the origin of livestock requirements differently. Rulemaking is necessary to ensure consistent interpretation and enforcement of the standards for origin of livestock and to provide industry with additional clarity of application of the organic dairy standards. In early 2017 the Origin of Livestock Proposed Rule was removed from the government’s Unified Agenda of Regulatory and Deregulatory Actions. Support for this rule has been expressed through public comment by the majority of organic stakeholders. Strong federal oversight is essential for fair, consistent certification and for creating a level playing field for all certified organic operations. Therefore, be it resolved by unanimous vote, the National Organic Standards Board—as USDA’s Federal Advisory Board on organic issues and representing organic farmers, ranchers, processors, retailers and consumers—urges the Secretary to directly issue a final rule for Origin of Livestock that incorporates public comments submitted in response to the Proposed Rule (Docket Number AMS-NOP-11-0009).


The National Organic Program has, as they do with any issue that is brought to their attention, asked for producers to write to the Secretary specifically asking for rulemaking on the origin of livestock. They are requesting clear examples of how the lack of consistent enforcement and fairness has contributed to economic hardship and the oversupply of milk in the marketplace, with devastating effects on pay prices to organic dairy farmers. They have also asked for economic data on the different costs involved in rearing organic replacements from the last third of gestation as compared to raising conventional dairy animals. At this NOSB meeting, the National Organic Program's Deputy Administrator, Jenny Tucker, made it clear that they need all proposed regulations to be linked directly to the Organic Foods Production Act of 1990 (OFPA or Act), with a legal analysis showing how it is connected to the Act. She emphasized that the primary goal of this administration is to enforce regulations, and that the language in current regulation is not clear enough to provide a solid legal basis for enforcement. She also advised that she needs all requests for action be sent to her, and to the Secretary, by early January 2019 because they will be considering their work plan at that time.


At the present time, there are many different interpretations of the existing regulation of the one-time transition allowance despite the wording of the Act, the regulation and the 2003 NOSB recommendation. There is nothing in the preamble which indicates that, once converted, operations are allowed to continuously bring conventional animals into the organic dairy herd. Indeed, the preamble and the regulation strongly support a "systems" approach to organic production. Continuous introduction of conventional dairy replacement animals undermines, and is contrary to, a systems approach.


It is important to look back on what the preamble of the December 21, 2000 Federal Register National Organic Program Final Rule says. It contains several statements (page 80570) that frame the principles the Rule Writers intended regarding dairy herd conversion and dairy replacement animals, including the following:

- After the dairy operation has been certified, animals brought on to the operation must be organically raised from the last third of gestation.

- The conversion provision also rewards producers for raising their own replacement animals while still allowing for the introduction of animals from off the farm that were organically raised from the last third of gestation. This should protect existing markets for organically raised heifers while not discriminating against closed herd operations.

- ...a whole herd conversion is a distinct, one-time event... It is a one-time opportunity for producers working with a certifying agent to implement a conversion strategy for an established, discrete dairy herd in conjunction with the land resources that sustain it.

- ...the conversion provision cannot be used routinely to bring non-organically raised animals into an organic operation.

What the regulations say from the Final Rule in 2000:

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:

(2)Dairy animals. Milk or milk products must be from animals that have been under continuous organic management beginning no later than 1 year prior to the production of the milk or milk products that are to be sold, labeled, or represented as organic, Except,

(i) That, crops and forage from land, included in the organic system plan of a dairy farm, that is in the third year of organic management may be consumed by the dairy animals of the farm during the 12-month period immediately prior to the sale of organic milk and milk products; and

(ii) That, when an entire, distinct herd is converted to organic production, the producer may, provided no milk produced under this subparagraph enters the stream of commerce labeled as organic after June 9, 2007: (a) For the first 9 months of the year, provide a minimum of 80-percent feed that is either organic or raised from land included in the organic system plan and managed in compliance with organic crop requirements; and (b) Provide feed in compliance with SS 205.237 for the final 3 months.

(iii) Once an entire, distinct herd has been converted to organic production, all dairy animals shall be under organic management from the last third of gestation.


Then in 2003, the NOSB made a recommendation to change a few words, and a punctuation mark to further emphasis that dairy herd transition be used only one time, when a producer with a farm initially transitions from conventional to organic production:

(iii) (3) Dairy animals replacement stock. Once an entire, distinct a dairy herd has been converted to organic production, all dairy animals shall be under organic management from the last third of gestation.


This recommendation was ignored in the 2006 Rule on the Origin of Livestock that ended the 80/20 provision for conversion because of the Harvey court case. In the 2006 Rule the USDA NOP recognized that "this change still leaves two methods of replacement of dairy animals for organic dairy operations and that this is a matter of concern in the organic community. To address the issue of dairy replacement animals for all certified organic dairy operations, USDA will draft an advanced notice of proposed rulemaking (ANPR) to invite public comment on further changes necessary to the NOP regulations dealing with the origin of dairy livestock under subparagraph SS 205.236(a)(2), Dairy Animals." Proposed changes were part of an ANPR on the Access to Pasture Rule in 2008 but were left out of the Proposed and Final rule to allow certifiers to concentrate on the changes to Access to Pasture Final Rule published in 2010.

The following solutions to the problems raised by the current interpretation of the Origin of Livestock have been suggested but are neither practical nor timely:

1. Termination of the OFPA provision that allows the transition of conventional animals to organic. This would require Congressional action which would require the support of the national buyers and key members of Congress plus the trade organization OTA and other advocates. This support is not there from the national milk buyers, congress or the OTA because it would limit how quickly the organic milk supply could grow.

2. Through an add-on label that shows that the milk labeled would be only from dairy livestock that were organic from the last third of gestation. This would be difficult to accredit, validate and enforce. This would also give buyers a great deal of leverage to dictate which certifiers to use and would undermine the national power and recognition of the NOP Seal.

3. Some have said guidance might work but the NOP has said they cannot legally enforce non-compliance of any guidance document. They have also said they can not enforce the current wording of the regulation and have allowed blatant abuse that includes allowing organic calves to be reared conventionally and then return to organic.


Regulation is the only practical way forward. In order to move forward quickly we need to petition the USDA NOP to reactivate the 2015 Proposed Rule and immediately make it into a Final Rule, taking into account the comments already submitted in response to the Proposed Rule. Any request to reactivate the Proposed Rule and put it on the 2019 work plan must not include any suggestions that diverge dramatically from the recommendations the Proposed Rule has made otherwise the NOP would have to start the process from the beginning with another Proposed Rule and comments, causing years of delay. The idea of only allowing a small herd of 100-200 organic dairy animals to take advantage of a one-time transition is biased to small operations and difficult to get approved so any regulation that included that recommendation would need a new Proposed Rule.

The Final Rule would need to be as simple as possible: One time transition for a conventional herd to organic that is tied to place and ownership.

- A one-time, 12 month opportunity for a producer that wants to convert heifers and milk cows that are currently on that existing dairy operation to organic under the supervision of their certifier.

- Anyone wanting to establish a new herd would have to buy organic cows and heifers. There would be no allowance for half the herd to be converted in one year and the rest in future years.

- No continuous transition.

- No allowance tied to what feed was given to transition livestock.

- Transitioned cows and heifers could not be sold as organic; only animals from the last third of gestation would be able to be sold as organic.

- Implementation would be immediate except for those whose transition has already started. For some, this would seem harsh to many producers who would follow the intent of the law and want to encourage as many transitions to organic as possible. But we need a regulation that is as simple as possible to implement consistently with no loopholes.

We need to maintain the integrity of the organic seal and respect the letter and intent of OFPA, NOSB recommendations and regulation. This is an emerging story. NODPA will provide continuous updates at and in the monthly e-newsletter.

If you have questions, you can call NODPA at 413-772-0444.