Oregon Tilth, Inc. is a non-profit 501(c)(3) organization that supports and promotes biologically sound and socially equitable agriculture. Oregon Tilth offers educational events throughout the state of Oregon, and provides organic certification services to organic growers, processors, and handlers both at home and internationally. Oregon Tilth Certified Organic (OTCO) has been an NOP accredited certifier since 2002 certifying dairy operations across the states, affording us a broad perspective of current practices and challenges faced by the dairy industry.

Oregon Tilth supports continued efforts to ensure strong, consistent standards for organic dairy production–critical to maintaining credibility, improving transparency, and ensuring a level playing field for all certified operations. We urge the NOP to swiftly finalize the proposed rule and to implement it immediately upon publishing (with an exception to allow currently certified producers with animals in transition to complete the transition as approved by their certifier).

In addition to Oregon Tilth’s previous comments provided in 2015 and 2019, we emphasize the importance of the following:

Oregon Tilth does not support a business that is based on transitioning for the sole purpose of facilitating an organic sale, such as in the Heifer Mill Business Model. Furthermore, Oregon Tilth does not support the sale or transfer of transitioned dairy animals as organic.

A. Transitioned animals should only produce organic milk at the operation where they were transitioned. An allowance for sale or transfer of transitioned animals as certified organic creates a loophole to be exploited and therefore diminishes the integrity of this rule. The most effective way to fully close this loophole for continuous transitions and ensure transition is used as originally intended is to prohibit the sale or transfer of transitioned animals. In doing so, the NOP would prevent people from certifying then surrendering a series of distinct business operations that could then transition a herd to be milked at other operations. Preventing these activities would protect and solidify the essential intent behind this proposed rule.

B. Valuing transitioned animals as equal to animals raised organically from the last third of gestation creates an unfair economic advantage for operations continually sourcing off-farm transitioned animals. A transitioned animal would not have equivalent inputs as a dairy animal raised on organic feeds and managed organically for its whole life. Therefore, a transitioned animal should not have as high an economic value as dairy stock managed as organic from the last third of gestation.

C. Oregon Tilth can conceive of reasonable circumstances where allowing the sale of transitioned animals as organic could help support organic farm viability while upholding the one-time transition restriction. As examples, in the event of a death in the family requiring someone to sell its stock to another operation or when someone is exiting the dairy business. However, these exceptions are not currently built into the proposed rule. There is a strong concern that additional loopholes would likely develop while trying to establish exceptions to merely restrict sale or transfer of transitioned animals as organic. The only way to truly close this detrimental continuous transition loophole and follow the path of highest integrity is to entirely prohibit the sale of transitioned animals as organic.

D. Oregon Tilth would only support an exception to the one-time transition requirement if a temporary variance were permitted as per §205.290 or in the case of an allowance for re-transition following federal or state emergency pest or disease treatments as outlined in §205.672. Oregon Tilth does not support any additional exceptions to the one-time transition requirement for scenarios where the current regulations would not apply.

Oregon Tilth prefers that the final rule use the term “certified entity” or “certified operation” rather than “person” or “producer.”

A. OTCO prefers the term “operation” over the term “producer.” The concern over using the terms “producer” or “person” is that tying transition to a person (or an entity often viewed as synonymous with “person”) might prevent organic dairy farmers from selling their farm to another farmer or transferring ownership of their farm to their children. Rather than tying a transition to a “person” or “producer,” OTCO recommends, as it has previously, using the term “certified operation.”
Utilizing the term “certified operation” would allow for the above-stated scenarios in addition to facilitating for traceability. What’s more, it would not inhibit growth within the industry or ownership changes on the farm. Finally, using the term “certified operation” would be preferable to using “person” or “producer” because it more clearly identifies who can have a one-time transition, helping with oversight of eligibility. In doing so, a certifying body can more easily verify if an operation has previously been certified.

B. When considering the most appropriate label for a regulated entity, Oregon Tilth recognizes the parameters set by the NOP’s question, and shares our preference for the label “certified operation” over that of “producer” in paragraph 2-A. However, we believe the best choice for identifying a regulated entity was not presented as an option. We present that option below

Oregon Tilth respectfully suggests that the best option to the naming controversy is to not provide a synonymous label. The term “regulated entity” or “certified entity” works perfectly well on its own and does not invite interpretation. In fact, it is the clearest option of the three and would result in the most consistent application and the fewest disputes.
“Entity,” as defined by Black’s Law Dictionary, 4th Ed., is “a person, partnership, organization or business.” Furthermore, as defined, an entity can be legally bound and is something that is uniquely identifiable from all others. The adjective “certified,” in this case, refers to an entity certified to and regulated by the USDA NOP. Therefore, using the term “certified entity” precisely identifies the subject of the regulation, while at the same time, ensures that none of the issues surrounding transference would become problematic.

Thank you for the opportunity to comment on this important proposed rule. Oregon Tilth would like to emphasize that our approach to the origin of livestock, as it relates to dairy animals, is already concurrent with the proposed rule. As it now stands, we hold all our operations, regardless of size, to the same requirements. As such, once the final rule is published, our certified operations will likely feel very little impact, apart from the assurance that all other organic dairy operations are being held to the same standard. Overall, Oregon Tilth believes that this proposed rule will greatly benefit the organic dairy industry and look forward to the NOP’s swift finalization and immediate implementation.

Respectfully submitted,

Oregon Tilth, Inc.