[Federal Register Volume 71, Number 71 (Thursday, April 13, 2006)]
[Proposed Rules]
[Pages 19131-19134]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-3541]


 ========================================================================
 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
 
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 

  Federal Register / Vol. 71, No. 71 / Thursday, April 13, 2006 / 
Proposed Rules  

[[Page 19131]]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 205

[Docket Number: TM-05-14]
RIN 0581-AC57


National Organic Program (NOP)--Access to Pasture (Livestock)

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Advanced notice of proposed rulemaking with request for 
comments.

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SUMMARY: The United States Department of Agriculture (USDA) invites 
comments from producers, handlers, processors, food manufacturers, 
exporters, consumers, scientists, industry representatives, and all 
other interested parties on how USDA should address the relationship 
between ruminant animals, particularly dairy animals, and pasture or 
land used for grazing under the NOP regulations. During the development 
of the NOP, and since its implementation, various parties, including 
the National Organic Standards Board (NOSB), have expressed concern 
about the role of pasture in organic management of ruminant animals--
particularly dairy animals.
    The NOP is authorized by the Organic Foods Production Act of 1990 
(7 U.S.C. 6501 et seq.) (OFPA). The Agricultural Marketing Service 
(AMS) administers the NOP. Under the NOP, AMS oversees national 
standards for the production and handling of organically produced 
agricultural products. This action is being taken by AMS to ensure that 
NOP regulations are clear and consistent, stimulate growth of the 
organic sector, satisfy consumer expectations, and allow organic 
producers and handlers flexibility in making site-specific, real-time 
management decisions.

DATES: Comments on this ANPR must be submitted on or before June 12, 
2006.

ADDRESSES: Interested parties may comment on this ANPR using the 
following procedures:
     Mail: Comments may be submitted by mail to: Mark A. 
Bradley, Associate Deputy Administrator, Transportation and Marketing 
Programs, National Organic Program, 1400 Independence Ave., SW., Room 
4008-So., Ag Stop 0268, Washington, DC 20250.
     E-mail: Comments may be submitted via the Internet to: 
[email protected].
     Internet: http://www.regulations.gov.
     Fax: Comments may be submitted by fax to: (202) 205-7808.
     Written comments on this ANPR should be identified with 
the docket number TM-05-14.
     Commenters should identify the issue or questions of this 
ANPR to which the comment refers. Comments should directly relate to 
issues or questions raised by the ANPR.
     Comments should be supported by reliable data. Commenters 
may include a copy of articles or other references that support their 
comments. Only relevant material should be submitted.
    It is our intention to have all comments to this ANPR, whether 
submitted by mail, e-mail, or fax, available for viewing on the NOP 
homepage. Comments submitted in response to this ANPR also will be 
available for viewing in person at USDA-AMS, Transportation and 
Marketing, Room 4008-South Building, 1400 Independence Ave., SW., 
Washington, DC, from 9 a.m. to 12 noon and from 1 p.m. to 4 p.m., 
Monday through Friday (except official Federal holidays). Parties 
wanting to visit the USDA South Building to view comments received in 
response to this ANPR are requested to make an appointment in advance 
by calling (202) 720-3252.

FOR FURTHER INFORMATION CONTACT: Mark A. Bradley, Associate Deputy 
Administrator, Transportation and Marketing Programs, National Organic 
Program, 1400 Independence Ave., SW., Room 4008-So., Ag Stop 0268, 
Washington, DC 20250. Telephone: (202) 720-3252; Fax: (202) 205-7808.

SUPPLEMENTARY INFORMATION: This action has been determined to be 
significant for purposes of Executive Order 12866, and therefore, has 
been reviewed by the Office of Management and Budget.
    When the OFPA was drafted in 1990, many private certification 
standards did not require pasture for ruminant animals. Certification 
standards for dairy herds permitted a wide range of practices, from 
pasture-based systems to conventional dry-lot operations. The OFPA, 
therefore, contains no provisions regarding the role of pasture or 
conditions for livestock confinement in organic livestock production 
systems.
    Appropriate access to pasture has been a topic of discussion in the 
organic community for many years, including by the NOSB, because of a 
lack of statutory language and widely varying private certification 
standards for the relationship between ruminant animals, particularly 
dairy animals, and pasture.\1\ The NOP final regulations on livestock 
feed, health care, and living conditions were based on recommendations 
made by the NOSB and public comment offered through various issue 
papers and two proposed rules, from 1994 through 2000. In addition, the 
NOSB has further explored the issue several times in public meetings 
since the NOP regulations were implemented in October 2002. The NOSB 
has also drafted several recommendations and guidance which it has 
proposed to AMS at various times either for guidance or rulemaking 
under the NOP.
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    \1\ The NOSB is appointed by the Secretary of Agriculture and is 
comprised of representatives from the following categories: farmer/
grower; handler/processor; retailer; consumer/public interest; 
environmentalist; scientist; and certifying agent (7 U.S.C. 6518).
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Background

    Over the period 1994-2005, the NOSB made six recommendations 
regarding access to the outdoors for livestock, pasture, and conditions 
for temporary confinement of animals. Also during this period, USDA 
issued two proposed rulemakings and a final regulation regarding 
national standards for production and handling of organic products, 
including livestock and their products. The NOSB as well as the public 
commented on these rulemakings with regard to these issues.
    (1) In 1994, the NOSB recommended that certified operations provide 
``access to shade, shelter, fresh air, and daylight suitable to the 
species, the stage of production, the climate, and the environment.'' 
The NOSB also proposed

[[Page 19132]]

that design of animal housing must accommodate ``the natural 
maintenance, comfort behaviors, and the opportunity to exercise'' 
required by specific species.
    (2) In 1995, the NOSB modified its recommendation on organic 
livestock living standards by specifying the conditions under which 
temporary confinement may be justified. These conditions were inclement 
weather, the health, safety and well being of the livestock and 
protection of soil and water quality.
    (3) In 1998, the NOSB reaffirmed its earlier positions on 
confinement and recommended that no exceptions be made for large 
livestock concentrations. However, the NOSB did not further define or 
add context to the phrase ``large livestock concentrations''.
    In our December 1997 first proposed rule (62 FR 65850, December 16, 
1997), based on NOSB recommendations, we proposed that, if necessary, 
animals could be maintained under conditions that restrict the 
available space for movement or access to outdoors if other living 
conditions were still met so that an animal's health could be 
maintained without the use of a permitted animal drug.
    The provision for temporary confinement considered the effects of 
climate, geographical location, and physical surroundings on the 
ability of animals to have access to the outdoors. Our understanding 
was considered in balance with other animal health issues, such as the 
need to keep animals indoors during extended periods of inclement 
weather. The determination of ``necessary'' was to be based on site-
specific conditions described by the producer in an organic system 
plan, which requires approval from the certifying agent. We stated in 
the preamble to that first proposed rule that such flexibility ``would 
allow operations without facilities for outdoor access to be certified 
for organic livestock production and would permit animals to be 
confined during critical periods such as farrowing.\2\ As a part of the 
1997 proposal, we specifically requested public comment as to the 
conditions under which animals may be maintained to restrict the 
available space for movement or access to the outdoors.
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    \2\ Federal Register, Vol. 62. No.241, Proposed Rules, 7 CFR 
205, Preamble, p. 65881, December 16, 1997.
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    In October 1998, we released an issue paper, ``Livestock 
Confinement in Organic Production Systems'' to obtain further input on 
this issue and improve the drafting of the Department's second proposed 
rule that was published in March 2000 (65 FR 13512, March 13, 2000). In 
response to the March 2000 proposed rule, commenters stated that the 
requirement that ruminants receive ``access to pasture'' did not 
adequately describe the relationship that should exist between 
ruminants and the land they graze. Many of these commenters requested 
that the final rule require that ruminant production be ``pasture-
based.'' The NOSB shared this perspective and also requested that the 
final rule require that ruminant production systems be pasture-based.
    Other comments we received stated that a uniform, prescriptive 
definition of pasture was inappropriate to be applied universally over 
all dairy farms. These comments stated that the diversity of growing 
seasons, environmental variables, and forage and grass species could 
not be captured in a single definition and that certifying agents 
should work with livestock producers to evaluate pasture on an 
individual farm basis. These comments disagreed with a pasture-based 
requirement and stated that pasture should be only one of several 
components of balanced livestock nutrition. These comments said that 
making pasture the foundation for ruminant management would distort 
this balance; it would also deprive crop producers of the revenue and 
rotation benefits they could earn by growing livestock feed.
    The Department considered all these comments but ultimately decided 
to retain the proposed ``access to pasture'' requirement in the final 
regulations published in December 2000 (65 FR 80548, December 21, 
2000). No comments were submitted that defined a pasture-based system 
or how a pasture-based system would replace access to pasture.
    The March 2000 proposed rule also retained provisions allowing for 
temporary confinement for animals: inclement weather, stage of 
production, conditions under which the health, safety, or well-being of 
the animal is jeopardized, or risk to soil or water quality.
    Many comments were received that expressed concern that the 
exemption for stage of production might be used to deny an animal's 
access to the outdoors during naturally occurring life stages, 
including lactation for dairy animals. Commenters overwhelmingly 
opposed such an allowance, stating that the stage of production 
exemption should be narrowly applied. Commenters stated that a dairy 
operation, for example, might have seven or eight distinct age groups 
of animals, with each group requiring distinct living conditions. Under 
these circumstances, these commenters maintained that a producer should 
be allowed to temporarily house one of these age groups indoors to 
maximize use of the whole farm and the available pasture. In drafting 
the final rule, we retained the stage of production exemption because 
of the difficulty of adding further restrictions to the confinement 
exemption based on species, age group, production stage, or in relation 
to pasture.
    Following both the March 2000 proposed rule and December 2000 final 
regulations, the NOSB continued work on a recommendation to address the 
relationship between ruminant animals, conditions for temporary 
confinement of ruminant animals, and pasture.
    (4) In June 2000, the NOSB recommended that ``the allowance for 
temporary confinement should be restricted to short-term events such as 
birthing of newborn, finish feeding for slaughter stock, and should 
specifically exclude lactating dairy animals.''
    (5) In June 2001, the NOSB recommended that ``ruminant livestock 
must have access to graze pasture during the months of the year when 
pasture can provide edible forage, and the grazed feed must provide a 
significant portion of the total feed requirements.'' The NOSB further 
recommended that ``the producer of ruminant livestock may be allowed 
temporary exemption to pasture because of conditions under which the 
health, safety, or well-being of the animal could be jeopardized, 
inclement weather or temporary conditions which pose a risk to soil and 
water quality.''
    (6) In February 2005, the NOSB modified its June 2001, 
recommendation by proposing to further amend the livestock living 
condition requirement for access to pasture (section 205.239). Under 
this requirement, the producer of an organic livestock operation must 
establish and maintain livestock living conditions which accommodate 
the health and natural behavior of animals, including providing 
``access to pasture.'' The NOSB proposed to replace the phrase ``access 
to pasture'' with the phrase ``ruminant animals grazing pasture during 
the growing season.''
    The NOSB also proposed exceptions to the general requirement for 
pasturing: for birthing, for dairy animals up to 6 months of age and 
for beef animals during the final finishing stage--not to exceed 120 
days. Finally, the NOSB recommendation noted that lactation of dairy 
animals is not a stage of life that may be used to deny pasture for 
grazing.
    At the same time, the NOSB asked the NOP to issue guidance to 
interpret the

[[Page 19133]]

existing NOP pasture requirements, and the NOSB drafted the guidance 
that it wanted NOP to issue. The NOSB guidance would have, for the 
first time, imposed specific requirements within a livestock producer's 
organic system plan (OSP). An organic system plan is the basic business 
plan that must be developed by each organic operation and agreed to by 
an accredited certifying agent (ACA) (section 205.201). An OSP has six 
required elements and is a fundamental requirement of the NOP final 
regulations. Under the NOSB guidance, the requirements would have 
imposed the following for livestock producers:
     The OSP shall have the goal of providing grazed feed 
greater than 30 percent of the total dry matter intake on a daily basis 
during the growing season but not less than 120 days;
     The OSP must include a timeline showing how the producer 
will satisfy the goal to maximize the pasture component of total feed 
used in the farm system;
     For livestock operations with ruminant animals, the OSP 
must describe: (1) The amount of pasture provided per animal; (2) the 
average amount of time that animals are grazed on a daily basis; (3) 
the portion of the total feed requirement that will be provided from 
pasture; (4) circumstances under which animals will be temporarily 
confined; and (5) the records that are maintained to demonstrate 
compliance with pasture requirements.
    The NOSB's guidance also addressed temporary confinement and the 
conditions of pasture. In NOSB's guidance, temporary confinement would 
be permitted only during periods of inclement weather such as severe 
weather occurring over a period of a few days during the grazing 
season; conditions under which the health, safety, or well being of an 
individual animal could be jeopardized, including to restore the health 
of an individual animal or to prevent the spread of disease from an 
infected animal to other animals; and to protect soil or water quality. 
The guidance also stated that appropriate pasture conditions shall be 
determined according to the regional Natural Resources Conservation 
Service Conservation (NRCS) Practice Standards for Prescribed Grazing 
(Code 528) for the animals in the OSP.
    The NOSB requested public comments on organic system plan 
requirements; temporary confinement; and what constitutes ``appropriate 
pasture conditions.'' In particular, NOSB asked for input on specific 
dry matter intake from pasture language; reference to regional NRCS 
prescribed grazing standards; and whether or not any of the text 
described above should be recommended to the NOP for rule change.
    USDA posted the NOSB guidance and received comments from the 
public, including farmers, consumers, and at least one accredited 
certifying agent. Many consumers that supported the NOSB guidance 
stated that they expected organic dairy animals to be grazed on 
pasture. Many commenters identified themselves as organic dairy 
producers and said they would support the NOSB guidance. But many other 
organic dairy farmers provided comments that did not support the NOSB 
guidance. These commenters said that although they were organic farmers 
in compliance with the NOP regulations and that they supported the 
principles of organic management and production, they would be 
decertified under the minimum number of days required on pasture or the 
minimum amount of dry matter intake (DMI) required from pasture for 
livestock feed.
    Other comments questioned the source of the minimum DMI and days on 
pasture, suggesting that these requirements came from studies conducted 
at Cornell University and Michigan State University. If so, these 
commenters stated that such minimums would not necessarily be 
applicable or suitable for all areas of the United States, because they 
meet a particular climate and topography, namely a homogeneous climate 
with respect to growing season, precipitation, and vegetation. One 
certifying agent said that at least half of their responding livestock 
operations, most with fewer than 50 dairy cows, would not be able to 
meet the guidance criteria put forth by the NOSB despite meeting all 
other NOP requirements. Other commenters found the reference to the 
NRCS Conservation Guide troubling as it was designed for beef cattle 
operations and they stated it could not be adapted easily to dairy 
operations or to various operations in differing parts of the country 
easily. Several commenters wrote that the most complicating issue with 
the NOSB guidance would be the difficulty for both producers and 
certifying agents in measuring and verifying the minimums for feed 
derived from pasture for a single cow or an entire herd, because of 
multiple variables that change constantly over time. Such variables 
include: factors affecting the animals themselves--age of the animals, 
nutritional needs in relation to reproductive cycle, body condition, 
etc; and factors affecting the quality of the pasture--precipitation, 
animal-units per acre, species of grasses, sunlight, temperature, etc. 
These commenters asked how a producer is to calculate the minimum 
specified for each dairy cow at any particular point in time in order 
to avoid risk of losing their organic certification. One commenter said 
that if farmers want to get around the pasture requirement, they can 
get around the pasture requirement even if it is made stricter; the 
issue is enforcement, not the regulations.
    Under NOP's Good Guidance Practices (70 FR 5129, Feb. 1, 2005), 
guidance documents do not establish legally enforceable rights or 
responsibilities and are not legally binding on the public or the 
program. Guidance statements also do not introduce new requirements on 
the regulated community. Because guidance is not binding, words that 
describe a mandatory action such as ``shall,'' ``must,'' ``require,'' 
and ``requirement,'' are not used unless they describe an existing 
legal requirement. Thus, we could not accept the NOSB guidance in its 
recommended format. The nature and specificity of the NOSB's 
recommendations, moreover, are more appropriately dealt with through 
amendment of the NOP regulations.

Questions for Consideration in Commenting on This ANPR

    The topics and questions below are designed to assist in commenting 
on potential changes to the NOP. Input on these questions will aid USDA 
in determining whether there is sufficient interest in changing the 
role of pasture and whether there is adequate information to change the 
role of pasture in the regulations.

Consumer Preferences

     Are there market-based or other types of research to 
substantiate an expectation by consumers that organic milk comes from 
dairy cows raised on pasture?
     Is there evidence, data, or other types of research that 
the role of pasture as it exists in the regulations does not support 
consumers' beliefs about the relationship between organic milk and 
organic dairy cows?

Access to Pasture

     Is there evidence in dairy or animal science literature 
that supports an appropriate minimum amount of time that dairy cows (or 
other ruminant animals) should be kept on pasture?
     Is there evidence in dairy or animal science literature 
that supports a minimum amount of feed that should come from pasture?

[[Page 19134]]

     Should age and reproductive cycle of the animal be taken 
into account in determining the minimum amount of time an animal spends 
on pasture or the amount of feed derived from pasture?

Ruminant Animal Nutrition

     What is the appropriate contribution of pasture to 
ruminant animal nutrition?
     What would the effect be to require a minimum dry matter 
intake (DMI) of 30 percent derived from pasture? Is this an achievable 
goal? What evidence is available to support 30 percent as a benchmark?
     What factors could affect a minimum DMI variable?
     Does pasture quality affect DMI? Can DMI be affected by 
factors beyond producers' control, such as weather-related events 
(e.g., flood or drought)?
     Is it useful to establish a single benchmark or measure, 
such as minimum DMI, for all dairy operations in the United States and 
all foreign organic operations who want to be certified to the NOP 
standard?
     Please provide input on how the regulations should address 
forage nutritional quality factors such as crude protein, acid 
detergent fiber, neutral detergent fiber and net energy for lactation? 
Is this level of detail adequate to ensure the role of pasture is met 
for organic livestock management under the NOP regulations?

Minimum Pasture Requirements

     Please provide input on the implications of adopting a 
minimum pasture requirement, such as required that dairy animals should 
spend at least 120 days on pasture. How would the 120 days be counted?
     What evidence in dairy science or animal literature helps 
explain the appropriate amount of minimum time that dairy cows should 
be kept on pasture?
     Is the minimum time spent on pasture based primarily on 
the quality of the pasture, or the quantity of the feed provided by the 
pasture?
     How is the pasture requirement affected by drought, flood, 
or other natural disaster?
     Should pasture condition or quality be considered? Should 
there be a minimum pasture quality requirement?
     Should specific animal-unit stocking rates per acre be 
considered? How?
     In lieu of a uniform pasture requirement, could a time 
range (based on the field quality, number of cows, type of operation, 
and other farm-specific factors included in the organic system plan) 
adequately or appropriately define the role of pasture in organic 
livestock management?
     Should a livestock feed requirement uniformly specify how 
much feed comes from pasture?

Measurement, Enforcement, and Compliance

     How would an accredited certifying agent appropriately 
measure compliance with specific measures adopted to change the role of 
pasture? For example, if dry matter intake is used as a benchmark, 
should it be measured as the average DMI over a certain time period, 
such as a calendar year or average 12 months?
     How should producers and certifying agents verify 
compliance over time for a herd of cows that are at various stages of 
growth or have varying states of nutritional needs? Can the producer 
and certifying agent determine this in the organic system plan?

Market and Other Impacts

     What are the effects on a dairy operation's cost of 
production (both fixed and variable) if the regulation is amended to 
include requirements such as minimum time or minimum amount of feed 
derived from pasture?
     Is there a relationship between the number of cows and 
number of acres on a farm and the producer's ability to comply with 
minimum pasture requirements?
     How do the age of the animal, its stage of development, 
and feed from pasture, interact to affect milk output?
     How would a larger role for pasture affect supplies of 
organic and non-organic milk and milk products? Please provide any 
evidence or research to support your discussion.
     What are the effects on consumer prices for dairy products 
if the NOP regulations include a larger role for pasture on dairy 
livestock producers?
     How would a larger role for pasture affect the 
geographical distribution of organic dairy production operations within 
the United States and foreign countries? Please provide any evidence or 
research to support your discussion.

Scope of the ANPR

    In this ANPR, USDA is seeking input on the following issues:
    (1) Is the current role of pasture in the NOP regulations adequate 
for dairy livestock under principles of organic livestock management 
and production?
    (2) If the current role of pasture as it is described in the NOP 
regulations is not adequate, what factors should be considered to 
change the role of pasture within the NOP regulations. Provide any 
available evidence in support of concerns raised.
    (3) Which parts of the NOP regulations should be changed to address 
the role of pasture in organic livestock management? Pasture appears in 
the NOP definitions (subpart B, section 205.2), and in subpart C of 
production and handling requirements under livestock feed (section 
205.237), livestock healthcare (section 205.238), and livestock living 
conditions (section 205.239). Should the organic system plan 
requirements (section 205.201) be changed to introduce a specific means 
to measure and evaluate compliance with pasture requirements for all 
producers of dairy or other livestock operations? Or, should a new 
standard be developed just for pasture alone?
    All interested parties are encouraged to comment on the issues 
raised in the scope of this ANPR. Please be specific in your comments. 
This action is being taken by the NOP to ensure its regulations are 
clear and consistent, stimulate growth of the organic sector, satisfy 
consumer expectations, and allow organic producers flexibility in 
making site-specific, real-time management decisions.

    Authority: 7 U.S.C. 6501-6522.

    Dated: April 10, 2006.
Lloyd C. Day,
Administrator, Agricultural Marketing Service.
[FR Doc. 06-3541 Filed 4-10-06; 1:14 pm]
BILLING CODE 3410-02-P