Founded in 1971, the Northeast Organic Farming Association (NOFA) is one of the oldest organic farming education and advocacy groups in the country. NOFA is a grassroots, regional federation of seven independent state Chapters in NY, VT, NH, MA, CT, RI and NJ. Beyond their work on state initiatives, the Chapters work together regionally, nationally and internationally via the NOFA Interstate Council (NOFA-IC).

The Organic Livestock and Poultry Practices (OLPP) rule, which has been under consideration for more than ten years, was approved as a final rulemaking action by the executive branch at the beginning of 2017 with overwhelming support from the expanding organic farm and food movement. So too have NOFA’s 6,000+ farmer and consumer members overwhelmingly supported the OLPP rule from its inception all the way through the final rule-making process.

We are extremely dismayed at the Agricultural Marketing Service’s decision to unilaterally withdraw the rule and we strongly advise the USDA to permit the OLPP rule to become effective immediately. At stake is consumer confidence in the organic seal – which USDA/AMA is mandated by Congress to uphold and further. These new rules are necessary to ensure consistency and uniformity of the organic standards and to advance organic production in the marketplace.

1.Invalidity of AMA’s Threshold Question:
NOFA’s Comments center around the fact that the AMA’s stated reasoning for withdrawing the OLPP is based on an erroneous interpretation of the Organic Foods Production Act of 1990 which states in Sec. 2110 [7 U.S.C. 6509] Animal Production Practices and Materials:
g) Notice and Public Comment – The Secretary shall hold public hearings and shall develop detailed regulations, with notice and public comment, to guide the implementation of the standards for livestock products provided under this section.
Additionally, according to; 7 U.S.C. 6509 (d) Health care, Standards “The National Organic Standards Board shall recommend to the Secretary standards in addition to those in paragraph (1) for the care of livestock to ensure that such livestock is organically produced”.

And leaving no doubt, this key “care” provision is further defined and clarified in the report language accompanying the statute. It calls for the National Organic Standards Board (NOSB) to provide for further specificity in livestock standards in future years: “that after due consideration and the reception of public comment, the Board will determine the necessary balance between the goal of restricting livestock medications and the need to provide humane conditions for livestock rearing. The Board shall recommend livestock standards, in addition to those specified in this bill to the Secretary”.

The stated intent of Congress makes it clear that additional care standards should be defined and be broader than simply health care practices. Clearly animal welfare and health care provisions are not mutually exclusive – completely obviating AMA’s “threshold question” as stated in the notice of withdrawal as to whether Congress has authorized the proposed action. Both the statute and report language show clearly that livestock care includes welfare and protection and that the intent of Congress was that these additional provisions be defined in regulation.

>>>Contrary to AMA’s rationale for the proposed withdrawal, organic requirements were never intended to be severely limited to only preventing illness or designating allowable animal drugs, but to provide for the overall health and wellbeing of certified organic animals.

2. AMA’s failure to consult the National Organic Standards Board:
In issuing this attempted withdrawal of the organic animal care standards – this unilateral action was carried out without consultation from the National Organic Standards Board – the representative group of farmers, processors, scientists, and public representatives designated by Congress to advise USDA on organic standards.

3. AMA’s flawed cost burden justification
AMA’s erroneous reliance on an estimated cost burden to producers who would be faced with implementing the proposed OLPP standards are immaterial to the decision-making criteria and framework established under OFPA. Assumed production cost concerns cannot justify the rejection of new standards and regulatory improvements that ensure the organic industry is meeting the integrity standard established by OFPA.

Further, AMA’s application of the Regulatory Flexibility Act is not justified as the legal precedents do not provide a direct correlation to implementation of the Organic Foods Production Act. The legal cases cited in the withdrawal notice Section B. (Impact of OLPP final rule on Producers) pp.10, speak to the imposition of unnecessary regulatory burdens. Distinct from mandatory regulation, OFPA is a voluntary, opt-in program based on market demand and perceived value of food produced in a way that conforms to the standards of the law and responsive to the public value placed on the integrity inherent in organic production systems.

Unlike top-down regulations imposed by government or industry -certified organic farmers modify their operations, voluntarily apply for organic certification and willingly abide by the rules and regulations to meet the standards. NOFA’s farmers fully support the OLPP and many have already modified their operations to comply.

If any entities – small or large – decide that the rules provide an undue burden then they have the ability to not comply simply by exiting the organic marketplace. There is nothing that requires them to continue to seek the organic label as there are many market outlets for agricultural products that do not require producers to be subject to the rules of OFPA. Indeed, the very nature of the higher standard organic label dictates that not all entities can or should participate in the organic market.

4. AMA’s Favoritism to Industrialized Operations
The Organic Livestock and Poultry Practices final rule is a fully vetted standard developed and supported by the industry, using the process established by Congress. There is longtime and widespread agreement within the organic community that the new rules are essential and absolutely critical for preserving trust in the organic label. In fact, the majority of organic livestock farmers already comply with these rules. This is clear in the number of public comments requesting implementation of the rule through the repeated delay and comment periods as well as the 2010 report from the USDA Office of the Inspector General which found inconsistent application of outdoor access requirements and recommended that USDA clarify requirements regarding outdoor poultry access for poultry.

However, organic livestock and poultry farmers adhering to high standards are being undercut in the marketplace because of loopholes that allow a small number of producers to deny meaningful outdoor access to animals. These new rules ensure fairness and a level playing field. Because the National Organic Standards Board and the organic community have consistently called for meaningful outdoor access for poultry dating back to 1998, it is deceitful for poultry operations that do not meet these requirements to claim that they have been caught unawares. For those who need to make changes the rule allows ample time to for them to comply.

In closing, NOFA reiterates our very strong opposition to the withdrawal of the OLPP rule. This action betrays the trust of the public, the interests and viability of organic producers and erodes the integrity of the USDA organic label that AMA is mandated to uphold.

On behalf of the Northeast Organic Farming Association – Interstate Council:

Steve Gilman
Interstate NOFA Policy Coordinator

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