[Federal Register Volume 75, Number 31 (Wednesday, February 17, 2010)]
[Rules and Regulations]
[Pages 7154-7195]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-3023]
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Part II
Department of Agriculture
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Agricultural Marketing Service
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7 CFR Part 205
National Organic Program; Access to Pasture (Livestock); Final Rule
Federal Register / Vol. 75 , No. 31 / Wednesday, February 17, 2010 /
Rules and Regulations
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DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 205
[Doc. No. AMS-TM-06-0198; TM-05-14FR]
RIN 0581-AC57
National Organic Program; Access to Pasture (Livestock)
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Final rule with request for comments.
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SUMMARY: This final rule amends livestock and related provisions of the
NOP regulations. Under the NOP, the Agricultural Marketing Service
(AMS) oversees national standards for the production and handling of
organically produced agricultural products. AMS has taken this action
to ensure that NOP livestock production regulations have sufficient
specificity and clarity to enable AMS and accredited certifying agents
to efficiently administer the NOP and to facilitate and improve
compliance and enforcement. This action is also intended to satisfy
consumer expectations that ruminant livestock animals graze on pastures
during the grazing season. This action provides clarification and
specificity to the livestock feed and living conditions provisions and
establishes a pasture practice standard for ruminant animals. In doing
so, producers are required to: provide year-round access for all
animals to the outdoors, recognize pasture as a crop, establish a
functioning management plan for pasture, incorporate the pasture
management plan into their organic system plan (OSP), provide ruminants
with pasture throughout the grazing season for their geographical
location, and ensure ruminants derive not less than an average of 30
percent of their dry matter intake (DMI) requirement from pasture
grazed over the course of the grazing season. The proposed requirements
for fencing of water bodies and providing water at all times, indoors
and outdoors, and the requirement for a sacrificial pasture have been
deleted in this final rule. In addition, the proposed amendment to the
origin of livestock section has been deleted in this final rule as
issues pertaining to that topic will be reviewed and evaluated
separately from this action.
This final rule requires that producers maintain ruminant slaughter
stock on pasture for each day that the finishing period corresponds
with the grazing season for the geographical location. However, this
rule exempts ruminant slaughter stock from the 30 percent DMI from
grazing requirement during the finishing period. Although we are
issuing this as a final rule, we are requesting comments on the
exceptions for finish feeding of ruminant slaughter stock, as discussed
below under ``Livestock living conditions--Changes based on comments.''
The agency is providing an additional 60 day period to receive comments
on provision Sec. 205.239(d).
DATES: Effective Date: This rule becomes effective June 17, 2010.
Implementation and Compliance Dates: This rule will be fully
implemented June 17, 2011. Operations which obtain organic
certification by June 17, 2010 must comply with this final rule.
Operations which are certified as of the publication date must fully
implement the provisions of this final rule, as applicable, June 17,
2011.
Comment Date: We invite public comments on Sec. 205.239(d).
Comments should be limited to the finish feeding of ruminant slaughter
stock. To ensure consideration of your comments on that provision,
comments must be received by April 19, 2010.
ADDRESSES: Interested persons may submit comments pertaining to the
finish feeding provision at Sec. 205.239(d) in the final rule using
the following procedures:
Internet: http://www.regulations.gov.
Mail: Comments may be submitted by mail to: Toni Strother,
Agricultural Marketing Specialist, National Organic Program, USDA-AMS-
TMP-NOP, Room 2646-So., Ag Stop 0268, 1400 Independence Ave., SW.,
Washington, DC 20250-0268.
Written comments responding to this request should be identified
with the document number AMS-TM-06-0198; TM-05-14FR. Clearly indicate
whether you support Sec. 205.239(d) as published in this final rule,
in full or in part, and the reason(s) for your position. Please include
only relevant information and data to support your position.
It is USDA's intention to have all comments, including names and
addresses when provided, regardless of submission procedure used,
available for viewing on the Regulations.gov (http://www.regulations.gov) Internet site. Comments submitted in response to
this request will also be available for viewing in person at USDA--AMS,
National Organic Program, Room 2646-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). Persons
wanting to visit the USDA South building to view comments received in
response to this final rule are requested to make an appointment in
advance by calling (202) 720-3252.
FOR FURTHER INFORMATION CONTACT: Shannon H. Nally, Acting Director,
Standards Division, National Organic Programs, USDA-AMS-NOP, 1400
Independence Ave., SW., Room 2646-So., Ag Stop 0268, Washington, DC
20250. Telephone: (202) 720-3252; Fax: (202) 205-7808.
SUPPLEMENTARY INFORMATION:
Background
The NOP is authorized by the Organic Foods Production Act of 1990
(OFPA), as amended, (7 U.S.C. 6501 et seq.). 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 livestock production regulations have sufficient specificity and
clarity to enable AMS and accredited certifying agents to efficiently
administer the NOP and to facilitate and improve compliance and
enforcement. This action is also intended to satisfy consumer
expectations that ruminant livestock animals graze on pastures during
the grazing season. The Secretary of Agriculture (Secretary) appointed
members to the NOSB for the first time in January 1992. The NOSB began
holding formal committee meetings in May 1992 and its first full Board
meeting in September 1992. The NOSB's initial recommendations were
presented to the Secretary on August 1, 1994. 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.
In its February 2005 recommendation the NOSB proposed amending
Sec. 205.239(a)(2) by replacing 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 its August 2005 meeting, the NOSB formally approved a
recommendation to
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the Secretary requesting a pasture guidance document. The NOSB proposed
guidance would have provided that:
The organic system plan (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 proposed guidance also addressed temporary confinement and
the conditions of pasture. In the NOSB proposed 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 proposed guidance also stated that appropriate
pasture conditions shall be determined according to the regional
Natural Resources Conservation Service (NRCS) Conservation Practice
Standards for Prescribed Grazing (Code 528) for the animals in the OSP.
The 30 percent dry matter intake was presented to the NOSB by a
diverse group of organic producers, in terms of geography and size, who
suggested an intake level that would be attainable on productive
pastures of farming operations in varying conditions nationwide. The
Cornell Dairy Farm Business Summary and the University of Wisconsin
reportedly was stated to use 30 percent of forage intake from pasture
to delineate farms as ``grazing'' operations. While that metric is
based on an as fed, rather than dry matter intake basis, it illustrates
the use of a minimum threshold as a measurement of a significant intake
from pasture.
As recorded in the transcripts of the 2005 NOSB meetings and the
pasture symposium in 2006, the Board had examined several alternatives
to the 30 percent metric. The NOSB initially considered a 50 percent
minimum dry matter intake from pasture; but reverted to the 30 percent
dry matter intake which had been adopted as the minimum grazing
parameter for organic ruminants at an Organic Valley Task Force meeting
in 2001. In 2005, the NOSB also considered a 10 percent dry matter
intake from pasture averaged over a calendar year. This alternative was
dismissed due to concerns that 10 percent dry matter intake over a
total calendar year was more prone to abuse than 30 percent over a 120
day minimum growing season. Meeting participants expressed that a
shorter, specified period of time (with a minimum dry matter intake
parameter) would be easier to calculate, document and monitor/verify.
The 120-day minimum for the grazing season was based upon NRCS climate
data throughout the United States and was considered to be broadly
applicable so as not to disadvantage or exclude producers in any one
part of the country.
Alternatives to establishing a minimum dry matter intake and
minimum grazing season included stocking rates/densities, alone or in
combination with the 30/120 metric, or field measurements (measuring
pasture density and the grass/plant height before and after grazing to
determine the amount of pasture consumed). Both options were dismissed
as neither viable nor enforceable due to the difficulty in setting a
national standard that would be broadly applicable over varying
conditions. Stocking rates would vary significantly due to the
variability in the forage production on equal units of land area
nationwide and would not be a sufficient standalone measure for
pasture. Field measurements, moreover, were deemed to be time-consuming
and onerous for producers and would be difficult to verify.
The NOSB had also considered requiring ``significant'' intake from
pasture; however, the public commenters at the NOSB meeting expressed
concern that this descriptive rather than quantitative requirement
would not be verifiable or enforceable. The NOSB initially intended to
recommend the 30/120 metrics only as guidance, but public comments
showed strong backing for a regulatory change.
On April 13, 2006, NOP published an Advanced Notice of Proposed
Rulemaking (ANPR) (71 FR 19131) seeking input on:
(1) Whether the current role of pasture in the NOP regulations is
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; and,
(3) What parts of the NOP regulations should be amended to address
the role of pasture in organic livestock management.
We received over 80,500 comments in response to this ANPR. Support
for strict standards and greater detail on the role of pasture in
organic livestock production was nearly unanimous with just 28 of the
over 80,500 comments opposing changes to the pasture requirements.
Some commenters expressed that the suggested 30 percent-DMI and
120-day minimum pasture requirements have never been supported by
scientific evidence and appear arbitrary. Some accredited certifying
agents (ACAs) expressed the concern that quantifiable minimums may
present problems with compliance and enforcement. (An ACA is any entity
accredited by the Secretary as a certifying agent for the purpose of
certifying a production or handling operation as a certified production
or handling operation.) However, consumers and other commenters,
including small entities, expressed a clear expectation that organic
ruminants graze pastures for the purpose of obtaining nutritional value
as well as to accommodate their health and natural behavior. Commenters
supported the adoption or incorporation of quantifiable, numeric
measures into the regulations for the minimum amount of feed, measured
as dry matter intake (DMI) (30 percent of the daily need), obtained
from pasture and the minimum amount of time that ruminants should spend
on pasture during a year (120 days).
They also supported the pasturing of animals during lactation. More
generally, we received comments that lactation is not a stage of
production that justifies confinement and keeping animals off pasture.
We received comments that animals should graze during months of the
year when pasture can provide edible forage and that animals should
receive a significant portion of their diet from grazing.
We also received comments identifying the OSP as the appropriate
section of the NOP regulations to enhance a measurable role for pasture
by livestock producers. We received comments from producers who were
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concerned that regardless of the changes made, some producers would
find a way around the regulations, because the problem is not the
regulations themselves, but enforcement of the regulations.
We received comments on the NOSB recommendation that beef animals
be exempted from pasture for the final finishing stage--not to exceed
120 days. Of the over 80,500 comments on the ANPR, the overwhelming
majority spoke to the pasturing of dairy animals. However, even in
these comments, there was a consistent theme of opposition to confining
animals and feedlot feeding.
For an expanded version of the preceding background information,
please see the background statement published in the ``National Organic
Program (NOP)--Access to Pasture (Livestock)'' proposed rule (73 FR
63584).
On October 24, 2008, NOP published a proposed rule intended to
clarify and bring uniformity in application to the livestock
regulations; especially as they relate to the pasturing of ruminants.
Equitable, consistent, performance standards for all ruminant livestock
producers was a goal of the proposed amendments. It was also the goal
that the amendments would result in livestock regulations of sufficient
specificity and clarity to enable AMS and ACAs to efficiently
administer the NOP and to facilitate and improve compliance and
enforcement.
Five listening sessions were held after the proposed rule was
published during the comment period. The listening sessions were open
to the public and held in Auburn, New York (October 28, 2008); La
Farge, Wisconsin (December 2, 2008); Chico, California (December 4,
2008); Amarillo, Texas (December 8, 2008); and Gap, Pennsylvania
(December 11, 2008). Altogether a total of 121 comments were recorded
at the listening sessions, during which a few commenters traveled to
more than one listening session (their comments are counted twice).
Comments at the Auburn and Gap listening sessions were also compiled
and resubmitted by FOOD Farmers, and are acknowledged as that written
comment throughout this final action. Comments from the Texas state
government were resubmitted in a detailed written comment and taken
into account throughout this final action. Transcripts of each
listening session were posted on the NOP Web site and all oral comments
were considered in issuing this final rule and in the discussion
(``comments received'') below. All oral comments were also considered
in the summary of the listening sessions below.
A majority of commenters at the listening sessions generally
supported the proposed rule, especially as it related to the pasturing
of ruminants, but expressed concern regarding the following specific
provisions that were contained in the proposed rule: The need for a
sacrificial pasture, weekly cleaning of watering troughs, and the need
for fencing streams and other water bodies. Most of these commenters
supported adding a provision for a minimum of 120 days for finish
feeding of slaughter stock; and recognizing that barnyards, dry lots
and feedlots are useful structures for supplemental feeding of animals.
Some commenters raised concerns about appropriate bedding materials and
the requirement to provide hay in a rack for newborns. One commenter
suggested (and resubmitted in written comments) that we overstepped our
statutory authority in writing regulations for pasture for ruminant
animals.
Like the written comments we received, there was universal support
to change growing season as it appeared in the proposed rule, to
grazing season. Additionally, commenters in every region pointed out
that local and state NRCS and regulatory authorities already require
nutrient and runoff management. They conveyed that it is unnecessary to
require additional and overly prescriptive regulations in the livestock
standard that would likely place producers in violation with state and
local regulations.
Nearly every producer and every certifying agent raised concerns
about the proposed definition of inclement weather and the proposed
conditions under which animals could be confined indoors. Most
producers and certifying agents who commented also raised concern over
the possibility of either consumers or the local humane society
contacting them if weather conditions are severe enough to jeopardize
the health or safety of their animals, but the regulations would
require that they be kept outdoors as part of the proposed requirement
of year-round outdoor access.
Most commenters objected to the formula proposed for computing DMI.
Overall, commenters stated that 120 days of grazing is possible in
every part of the United States, and most believe that producers are
already achieving 30 percent DMI, but would prefer that we allow them
to calculate this in ways that permit more flexibility and over a
grazing rather than growing season.
Comments Received
We received 26,970 written comments in response to the proposed
rule. There were approximately 130 individual comments with the
remaining comments consisting of three modified form letters. Comments
were received from producers, retailers, handlers, certifying agents,
consumers, trade associations, organic associations, animal welfare
organizations, consumer groups, state and local government entities,
and various industry groups. A detailed discussion of the comments
received and the NOP's response to those comments follows below.
Definitions (Sec. 205.2)
This final rule adds 15 new terms to the NOP regulations: Class of
Animal, Dry Lot, Dry Matter, Dry Matter Demand, Dry Matter Intake,
Feedlot, Graze, Grazing, Grazing Season, Inclement Weather, Residual
Forage, Shelter, Stage of Life, Temporary/Temporarily, and Yards/
Feeding Pads. These terms were either included in the proposed rule and
supported by comments or introduced by commenters with justification.
This final rule also revises the definitions for crop and livestock.
This final rule eliminates 3 terms that were proposed as additions to
the NOP regulations in the proposed rule. The following items were
dropped in this final rule: Growing season, Killing frost and
Sacrificial pasture.
Definitions--Changes Based on Comments
This section differs from the proposed rule as follows:
Class of animal--This term was not in the proposed rule. Although
the NOP regulations contain a definition for livestock, some commenters
petitioned for the need to include a definition for ``class of
animal.'' The definition suggested most often was ``a group of
livestock that shares a similar stage of life or production.''
Variations of a definition included: ``the segment of a herd or flock
of livestock that shares a similar stage of life or production;'' ``as
examples, for dairy animals--calves, young stock, lactating animals,
dry stock; for slaughter stock--calves, young stock, stockers,
finishing stock; for poultry--chicks, pullets, broilers, layers.''
Other commenters proposed a definition for a class of livestock, with
several defining it as ``the segment of the livestock herd or flock
that shares a similar stage of life or production including, but not
limited to lactating animals, dry stock, yearlings, young stock,
finished animals.''
Most types or species of livestock animals (beef cattle, dairy
cattle, swine, sheep, goats, chickens, turkeys, rabbits), are
subdivided into different classes and various terms are used to
identify the
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classes within types of animals. The examples in the previous paragraph
are not all inclusive of the different classes among the various types
of livestock. The classes within a type or species can be identified by
those that need to be listed on feed labels. For example, feed labels
for swine, would identify one or some combination of the following
classifications depending upon the purpose of the feed: pre-starter,
starter, grower, finisher, gilts, sows, and adult boars, lactating
gilts and lactating sows.
We believe these comments have merit because it is essential that
all producers have a common understanding of animal classification.
Feed and nutrition requirements are commonly determined based upon the
classes of animal within the different species. The term, ``class of
animal,'' was included to ensure that dry matter demand would be
calculated appropriately for all animals in the herd. In accordance
with Sec. 205.237(d) of this final rule, dry matter demand and dry
matter intake must be documented and calculated for each type and class
of animal. The division of a livestock herd by class of animal will
ensure that all animals in the herd obtain at least 30 percent dry
matter intake from pasture, consistent with their nutritional needs.
After consideration of the comments, we included a definition for class
of animal in the final rule. ``Class of animal'' means ``a group of
livestock that shares a similar stage of life or production.'' To
capture the various sets of classes within a type of livestock animal,
we have also added a requirement that ``the classes of animals are
those that are commonly listed on feed labels'' to the definition.
Crop--The proposed rule would have amended the definition of
``crop'' as defined in the original regulation by adding ``pastures,
sod, cover crops, green manure crops and catch crops'' and ``or used in
the field to manage nutrients and soil fertility.'' Commenters
universally supported the revised definition of ``crop'' in the
regulations, excepting the inclusion of ``sod'' in the definition.
Commenters opposed the addition of sod for a number of reasons,
advising:
It would result in certification of organic sod for lawns;
Sod does not provide feed value;
The issue has not been discussed or vetted to any real
extent in the public forum; and
Extending the scope of certification to sod farms may
involve removing soil, crop, and organic matter in methods that may not
be sustainable and for which there are no current standards or
guidance.
As a result of the comments received, we removed the word sod from
the proposed revision to the definition of a crop. We note that all
agricultural operations are eligible to seek and obtain certification
under the NOP when they can adhere to the NOP standards to produce an
agricultural product. We acknowledge the concerns of commenters about
certification to sod farms, which may remove soil, crop, and organic
matter in methods that may not be sustainable and for which there are
no current NOP standards or guidance. It would be premature to
recognize the viability of this unique production system before the
development of relevant organic production standards. Absent parameters
to ensure sustainable production which is a major tenant of the NOP,
this would likely lead to practices that stray from the principles of
organic production.
Dry matter--The proposed definition of ``dry matter'' states, ``The
amount of feedstuff remaining after all the free moisture is evaporated
out.'' Of the comments received responding to the proposed definition
of dry matter, most supported the definition as proposed, one requested
it be deleted (because the commenter requested all of the regulation be
removed), and one suggested using the definition of the Association of
Official Analytical Chemists (AOAC). That definition reads: ``The dry
matter (DM) of a feed contains all the nutrients except water. It is
indirectly determined from the moisture content of the feed. After
determining the moisture content by drying the sample at 100 [deg]C for
24 hours, dry matter is calculated to be the difference.''
We have not accepted the recommendations to remove the definition
nor to amend it to be consistent with the AOAC. We have retained the
definition as proposed. A definition of ``dry matter'' is needed
because this term appears throughout this final rule and correct
understanding of its exact meaning is essential to implementing the
provisions of this rule. The AOAC definition has merit; however, we are
not adopting that definition because it specifies one method for
determining dry matter. There are various methods to determine the dry
matter content of feed and we intend that each producer, in conjunction
with the ACA, select the appropriate method.
Dry matter demand--This term was not defined in the proposed rule.
A number of commenters recommended adding a definition for ``dry matter
demand'' as, ``The expected dry matter intake for a class of animal.''
At least 1 commenter opposed the addition of this definition because
they had proposed removal of the related regulatory text.
We agree with the commenters that dry matter demand should be
defined and have accepted the commenters' recommended definition and
included it in this action. We believe that this definition is needed
because a common understanding of the term ``dry matter demand'' among
ruminant livestock operations will ensure a consistent basis for
determining the percentage of dry matter obtained from pasture or
supplemental feed.
Dry matter intake--This term was not defined in the proposed rule.
A number of commenters recommended adding a definition for ``dry matter
intake.'' Nearly all of these commenters recommended a version reading:
``Total pounds of all feed, devoid of all moisture, consumed by a class
of animals over a given period of time.'' Another commenter recommended
an almost identical version. At least 1 commenter opposed the addition
of this definition because they had proposed removal of the related
regulatory text.
We have accepted the recommendation to define ``dry matter intake''
as defined by the commenters above. We believe that this definition is
needed because a common understanding of the term ``dry matter intake''
among ruminant livestock operations will ensure a consistent basis for
determining the percentage of dry matter obtained from pasture or
supplemental feed.
Dry lot--In the proposed rule we defined a dry lot as ``a confined
area that may be covered with concrete, but that has no vegetative
cover.'' Dry lots were prohibited in the proposed rule, at Sec.
205.239(a)(2)(ii). Comments received on this definition included: Agree
as written; need areas for outdoor access when animals cannot be put on
pasture; delete definition; and edit. Two similar edited versions of
the definition were received. The version recommended by many
commenters, which we accepted, replaced the word ``confined'' with the
word ``fenced'' and modified vegetative cover as ``little or no.'' The
commenters opposing the proposed definition of ``dry lot'' or
recommending deletion of that definition generally did so on the basis
of opposing the prohibition on dry lots. The comments asserted that
``dry lot'' is commonly used in certain regions to describe outdoor
access areas. Commenters that recommended revising the definition to
include ``little or no vegetative cover'' were concerned that areas of
sparse vegetation could qualify as pasture. Other commenters
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recommended revising the definition to clearly characterize dry lots as
areas for continuous total confinement.
The prohibition on dry lots in the proposed rule has been stricken
from this final rule due to comments received asserting that ``dry
lot'' is a term which, in some regions of the U.S., describes a feature
that can be compatible with organic livestock production. Accordingly,
the definition of ``dry lot'' has been amended to clarify the
characteristics by which a dry lot would be acceptable for organic
ruminant livestock. We have accepted the commenter's suggestion to
modify vegetation with ``little or no'' in order to prevent the
incorrect usage of dry lots that have some vegetation, as pasture. The
definition of ``dry lot'' reads: ``A fenced area that may be covered
with concrete, but that has little or no vegetative cover.''
Feedlot--In the proposed rule we defined ``feedlot'' as ``a
confined area for the controlled feeding of ruminants.'' Feedlots were
prohibited in the proposed rule, at Sec. 205.239(a)(2)(ii). Commenters
presented the following concerns with the proposed definition of
``feedlot'': under the definition, pasture could be considered a
feedlot; the definition could encompass, and, therefore, prohibit too
many types of outdoor access areas that producers need for periods of
recognized exemption from pasture access. To address those concerns,
some commenters recommended editing or deleting the definition for
``feedlot.'' Three similar edited versions of the definition were
received. The first version recommended by commenters replaced the
words ``confined area'' with the words ``dry lot'' and replaced the
word ``ruminants'' with the word ``livestock.'' The second version
recommended by a commenter replaced the word ``ruminants'' with the
word ``livestock.'' The third version recommended by other commenters
replaced the words ``confined area'' with the words ``dry lot.'' The
suggested revisions to replace ``confined area'' with ``dry lot'' were
premised upon the removal of the words ``confined area'' from the
definition of ``dry lot.'' Since feedlots are defined as a type of dry
lot, the removal is consistent with the definition of dry lot. In
addition, commenters wanted the definition to reflect that other non-
ruminant livestock may also be fed in feedlots.
We have accepted the first version, which incorporates the
suggestions of the second and third versions. The prohibition on
feedlots in the proposed rule has been stricken from this final rule
due to comments received asserting that feedlots can be compatible with
organic livestock production. Accordingly, the definition of
``feedlot'' has been amended to clarify the characteristics by which a
``feedlot'' would be acceptable for organic ruminant livestock. This
final rule contains requirements for the size of a feedlot relative to
the number of animals at Sec. 205.239(a)(1), and that feedlots are
well maintained and do not contribute to waste runoff and contaminated
waters at Sec. 205.239(a)(5). We believe that the definition of
``feedlot'' describes an acceptable area for providing outdoor access
when pasture is not available and a location for supplemental feeding.
The definition of ``feedlot'' reads: ``A dry lot for the controlled
feeding of livestock.''
Graze--In the proposed rule, we defined ``graze'' as ``(1) The
consumption of standing forage by livestock. (2) To put livestock to
feed on standing forage.'' We received comments suggesting changes to
both parts of the proposed definition of ``graze,'' to include a
reference to residual forage. These commenters advocated allowing
management practices which maximize pasture productivity and extend the
grazing season. Methods that were mentioned include clipping pastures,
stockpiling forage (the pasture is not grazed during the growing season
in order to provide winter grazing), and cutting pastures, with cut
pastures being windrowed. Some comments also suggested a definition of
``residual forage'' as ``standing forage or forage cut and left to lie
in place in the pasture.''
We believe these comments have merit. Accordingly, we added the
words ``or residual forage'' to both parts of the definition of graze
in this final rule. Residual forage is a new term defined in this final
rule as discussed below. It is not necessary to include management
practices which maximize pasture productivity and extend the grazing
season in the definition. The definition for ``grazing'' accommodates
those practices in which livestock are outside grazing on pasture,
which may have fresh or stockpiled forage or forage that has been cut
and windrowed.
Growing season--Commenters universally opposed the proposed
definition of ``growing season'' and suggested that it be replaced with
a definition for ``grazing season.'' Many commenters asked that every
occurrence of the term ``growing season'' be replaced with the term
``grazing season.'' We received one comment that suggested that the
definition of ``growing season'' be changed to ``period of the year
during which growing conditions for indigenous vegetation and
cultivated crops are most favorable. Growing season is affected by
elevation above sea level, distance from the equator, average regional
temperatures, length of maintained temperatures, frosts, wind
conditions and other weather patterns.'' This commenter also suggested
a definition for ``grazing season.''
Comments received about grazing season as a better description for
defining periods for pasture availability made the following points:
A more practical approach to defining the time of year
when pasture forages are of a substantive quality and quantity for
grazing purposes;
The vast differences in climatic conditions across
livestock production areas precludes defining growing season by last
and first frosts;
Pastures are typically not suitable for grazing
immediately after the last killing frost and remain suitable for
grazing for a period of time following the first killing frost;
The proposed growing season definition did not account for
periods of intense rain and heat- and dry-induced dormancy periods; and
Such conditions, i.e., periods of intense rain and heat-
and dry-induced dormancy periods, would make pastures unsuitable for
grazing due to the potential for damage to the pasture stands as well
as soil and water quality.
For the reasons above, commenters have conveyed that pastures which
may not offer sufficient grazing during the growing season as defined
in the proposed rule, could sustain grazing outside of the growing
season. Therefore, we are adding a definition for ``grazing season''
and removing the proposed definition of ``growing season.''
Furthermore, in each place that the term ``growing season'' appears, we
replaced this with the term ``grazing season.'' Based on the comments
we received about the attributes and availability of pasture and
grazing, we are amending and accepting the definition of grazing season
as suggested by commenters: ``The period of time when pasture is
available for grazing, due to natural precipitation or irrigation.
Grazing season dates may vary because of mid-summer heat/humidity,
significant precipitation events, floods, hurricanes, droughts or
winter weather events. Grazing season may be extended by the grazing of
residual pasture as agreed in the operation's organic system plan. Due
to weather, season, and/or climate, the grazing season may or may not
be continuous. Grazing season may range from 120 days to 365 days.'' We
have amended the above definition of grazing season by replacing the
term ``residual pasture'' with ``residual forage,'' because
[[Page 7159]]
the latter term more closely represents what is actually being grazed.
We have also added the words, ``per year'' at the end of the definition
to clarify that each grazing season occurs within or up to a one year
period. The one year period does not have to be January through
December, but must be within a 365 day period.
Inclement Weather--In the proposed rule, ``inclement weather'' was
defined as, ``Weather which is violent, or characterized by
temperatures (high or low), that can kill or cause permanent physical
harm to a given species of livestock.'' We received many comments
suggesting changes to the definition of inclement weather, including
one to remove the definition completely. All of the suggested changes
were consistent that the definition should be expanded to include
weather conditions beyond those that can kill or cause permanent
physical harm to animals. According to the comments, as proposed, the
definition is so narrowly written that producers could be prevented
from using humane management practices if animals suffer extreme
discomfort, stress, or non-permanent physical harm. Most of the
comments suggested amending the definition by replacing ``kill or cause
permanent physical harm'' with ``cause physical harm.'' Others
suggested ``kill or cause physical harm,'' ``kill or cause severe or
permanent harm,'' or ``pose safety or humane comfort risk.'' We also
received one comment asserting that these regulations be based on
scientific measures.
We agree that nothing in these regulations should prevent humane
treatment of livestock. Therefore, we removed the words ``kill'' and
``permanent'' from the definition and added that inclement weather may
also be characterized by ``excessive precipitation.'' We added a new
sentence at the end of the definition to make clear that production
yields or growth rates of livestock lower than the maximum achievable
do not qualify as physical harm.
Certifying agents, however, should not allow producers to abuse an
allowance for denying pasture to ruminants during periods of inclement
weather. For example, a rain event on its own is not justification to
deny access to pasture for ruminants. A rain event must render the
pasture too wet for grazing without causing damage to the pasture
beyond normal wear and tear from grazing. As for extreme temperatures
and humidity, the critical factor in denying pasture to ruminants is
the health and safety of the animals--not the yield impact of
temperature and/or humidity on growth rate or output (milk yields, for
example). Further, under Sec. 205.238(a), a producer must establish
and maintain preventive livestock health care practices, including the
selection of species and types of livestock with regard to suitability
for site specific conditions. Thus, if the location is consistently too
rainy or the temperature and humidity are too high or low to safely
graze animals throughout a 120-day minimum grazing season and still
comply with all applicable parts of this regulation, the animal cannot
be raised in such location for organic production. The NOP standards
must adhere to all applicable Federal health and safety laws which in
turn may be evidenced by appropriate metrics. The NOP regulations
provide for certification of an operation based on a set of sustainable
practices in order to meet a marketing claim intended to satisfy
consumer expectations. In the case of organic ruminant animals,
consumers expect that these animals graze on pasture and derive a
significant portion of their nutrition while grazing on pasture.
Participation in the NOP is voluntary, but in order to enter the
marketplace for organic products, compliance with these regulations as
organic is mandatory in order to sell, market, or label products that
will meet consumer expectations.
Killing frost--The proposed rule contained a definition of
``killing frost'' in order to determine the beginning and end of the
growing season. Commenters who suggested removing the definition of
growing season also recommended removing the proposed definition for
killing frost. Their rationale was that removing the definition for
growing season makes the definition of killing frost unnecessary.
We agree that removing the definition for growing season makes the
definition of killing frost unnecessary. We deleted the definition of
killing frost.
Livestock--In the proposed rule, ``livestock'' was defined as,
``Any bee, cattle, sheep, goats, swine, poultry, equine animals used
for food or in the production of food, fiber, feed, or other
agricultural-based consumer products; fish used for food; wild or
domesticated game; or other nonplant life.'' The proposed rule amended
the original definition of ``livestock'' by adding the words ``bee,''
and ``fish used for food.'' The original regulation specifically
excluded bees and aquatic animals from the definition of ``livestock.''
However, the Organic Foods Production Act (OFPA) defines livestock to
include ``fish used for food'' and ``other nonplant life.'' We proposed
amending the definition of livestock in the proposed rule, to align the
definition of the regulations more closely with the definition in the
statute.
Of the numerous comments received on the definition of livestock,
all but a few called for the removal of ``fish used for food.'' These
comments recommended removal because the NOP has not undertaken
rulemaking to add aquatic species to the standards.
We do not currently allow the organic certification of aquatic
species. Therefore, we removed ``fish used for food'' from the
definition of livestock and retained the language that excludes aquatic
animals for the production of food, fiber, feed, or other agricultural
based consumer products. Comments received on bees are discussed below
in ``Changes Not Made.''
Residual forage--This term was not defined in the proposed rule.
Several commenters proposed adding a definition of ``residual forage''
as, ``Standing forage or forage cut and left to lie in place in the
pasture.'' We believe that the commenters' proposed definition for
residual forage could be interpreted to prohibit windrowing cut forage
that is left in pastures. We also believe, in light of the definition
of ``graze,'' which includes reference to standing forage and residual
forage, that standing forage should not be included in the definition
of residual forage. We added a definition of ``residual forage'' in
this final rule, based on the comments received that suggest management
practices to maximize pasture productivity and extend the grazing
season. To make it clear that windrowing cut forage is acceptable, we
removed the words ``standing forage'' from the definition of residual
forage. In this final rule, ``residual forage'' has also been added to
Sec. 205.237(c)(1), to clarify that both residual forage and
vegetation rooted in pasture should not be counted as dry matter fed.
Sacrificial pasture--The proposed rule contained a definition of
``sacrificial pasture,'' which described the purpose and
characteristics of this feature. This term was defined because the
proposed ruled contained a requirement that each ruminant livestock
operation maintain a sacrificial pasture for grazing when saturated
soil prevented grazing of other pastures. Due to the near universal
opposition expressed by commenters, we have removed the mandatory
requirement for sacrificial pasture and hence the definition is
unnecessary. Further discussion regarding the deletion of the
sacrificial pasture requirement is addressed below in the Pasture
Practice Standard section.
Shelter--We did not propose a definition for shelter in the
proposed
[[Page 7160]]
rule. However, we received comments, including from FOOD Farmers, whose
comments are supported by its members, suggesting adding a definition
for shelter to clarify the intention of Sec. 205.239(a)(1), which
addresses livestock living conditions. Three similar versions of a
definition for shelter were received. Specifically, these comments
define a shelter that can be used temporarily during the grazing season
and for longer periods of time outside of the grazing season. Suggested
definitions read (different text in the second and third definitions is
italicized):
(1) ``Structures such as barns, sheds, or windbreaks, or natural
areas such as woods, tree lines, or geographic land features that
provide physical protection and/or housing to animals;''
(2) ``Structures such as barns, sheds, or windbreaks, or natural
areas such as woods, tree lines, large hedge rows, or geographic
land features that provide physical protection and/or housing to
animals;''
(3) ``Structures such as barns, sheds, or windbreaks, or natural
areas such as woods, tree lines, or geographic land features that
are designed or selected to provide physical protection to all
animals in a herd or flock simultaneously.''
We agree with defining the term ``shelter'' to clarify its meaning
as used in livestock living conditions. We have used the first version
suggested, but added ``large hedge rows'' and ``simultaneously'' to
address unique contributions from the other two versions.
Stage of life--The proposed rule did not contain a definition for
stage of life, although we received comments requesting a definition.
Very similar variations were submitted and supported by some of the
commenters. Common to all of the suggested definitions were the words,
``a discrete time period in an animal's life which requires specific
management practices different than during other periods.'' The types
of comments we received are shown below:
Lactation, breeding and other recurring events are not a
stage of life;
Calves and chicks were cited as examples of stage of life;
this is also true for calves, piglets and chicks;
Each comment completed the example with the word etcetera.
The phrase ``time period in an animal's life'' makes it clear that the
definition is intended to cover animals of all ages.
The definition is needed to ensure that the exception
allowing temporary confinement due to stage of life in not abused;
The definition is needed to clearly distinguish between
recurring management events such as freshening, breeding, lactating
that are not a stage of life and one time life-cycle events that are in
fact a stage of life; as an example, pullets, calves, heifers, and cows
are examples of stages of life. According to this comment, stage of
life covers animals of all ages;
A more narrow definition for stage of life, as ``a
discrete time period in an animal's life which requires specific
management practices to protect the health and welfare of the animal
and/or their offspring that are different from practices required
during other periods; such as chicks and poults after hatching; sows
and piglets at farrowing, etc.''
We agree that a definition for ``stage of life'' should be added.
This final rule makes clear that an animal's ``stage of life'' does not
alone warrant temporary denial of access to pasture or the outdoors, or
temporary confinement or shelter. In order to prevent the abuse of
those exceptions, it is important for producers and Accredited
Certifying Agents to have a common understanding of ``stage of life.''
The definition from the last commenter above captures the essence of
denying access to the outdoors, temporarily, for health reasons. This
definition recognizes, through reference to ``the animal and/or their
offspring'' as well as sows, that stage of life covers animals of all
ages. It is clear from the comments we received that a definition
should cover animals of all ages. We believe a definition should fully
clarify the meaning of a term used, and use of the word ``etcetera'' in
the last comment does not provide full meaning. Accordingly, we have
included a definition for stage of life, including the recommendation
that lactation, breeding, and other recurring events (including
freshening) are not stages of life.
Yard/feeding pad--The proposed rule did not define this term. Among
the comments received suggesting a definition, there were generally
three variations (numbers in parentheses) for defining a ``yard/feeding
pad'' as:
``An improved area for feeding, exercising, and outdoor
access for livestock during the non-grazing season and a high traffic
area where animals may receive supplemental feeding during the grazing
season.'' A commenter claimed this definition ``provides a clear
distinction between yard/feeding pad and feed lots or dry lots.''
``An improved area for feeding, exercising, and outdoor
access for livestock during inclement weather, as well as supplemental
feeding during the grazing season, allowing the producer to avoid
serious damage to pasture sod, soil, and water quality, and providing
for the collection and management of animal waste.''
``An enriched area for eating and food searching,
exercising and outdoor access for livestock during the non-grazing
season and a high traffic area where animals may receive supplemental
feeding during the grazing season.''
We agree that the regulations need to provide for yards/feeding
pads and comments we received provided sound justification for the
introduction of a definition of yards/feeding pads--particularly in
light of removing the provision for sacrificial pasture in this final
rule. Yards/feeding pads are integral to grazing systems as they can
serve as an area where lactating animals are gathered and dispersed
between pastures and the milking facility. These areas minimize damage
to fields that can occur during wet conditions and high impact
activities such as feeding. We have incorporated the first definition
recommended by commenters above because this clearly conveys the
purpose of these features and the limited activities they support. We
omitted the word, ``improved'' from the commenters definition because
its meaning is unclear. The provisions in this final rule for yards/
feeding pads are discussed below under livestock living conditions.
Definitions--Changes Requested But Not Made
This section retains from the proposed rule, regulations on which
we received comments as follows:
Livestock--A commenter suggested removing ``fiber, feed, or other
agricultural based consumer products.'' This would leave the definition
exactly as stated in the OFPA. The language ``fiber, feed, or other
agricultural based consumer products'' was approved through notice and
comment rulemaking and has been in effect since December 21, 2000. This
is the only request that we have received to remove this language since
promulgation in 2000. As the commenter gave no justification for the
recommended change and as there was no additional support for that
change, we have not adopted the commenter's suggestion.
Livestock and bees--We received a comment to change ``bee'' to
``beehive'' and another to change ``bee'' to ``bee colony.'' However,
we received many comments, which called for removing ``bee'' from the
livestock definition, five never mentioned bees, and some asked for
additional rulemaking relative to apiculture. A very detailed comment
[[Page 7161]]
described the differences between bees, livestock, and other animals--
Including bees in the definition of livestock ignores
basic bee life cycle and behavior;
Honey bees are not raised as food, nor are they raised in
order to use their skins, fur or other body part;
Honey is not a product of the bee's body like milk, but is
a harvested plant product processed by honey bees;
Finally, the comment identified the differences between
honey bees and the other animals (e.g., they are not warm-blooded, not
raised as individuals, not domesticated, their movement is
uncontrollable, foraging does not damage a plant or reduce its
viability, it is difficult for beekeepers to feed bees a balanced and
nutritional artificial diet, and beekeepers cannot administer to the
bee's health in a manner similar to the other animals in the livestock
definition).
A second comment acknowledged that the definition in OFPA lists
``other nonplant life,'' but stated that it ``is incorrect to make
insects subject to the same regulations as, e.g., ruminants.'' This
commenter believes that it is necessary to exclude bees from any
regulation that does not consider their unique characteristics. The
commenter also expressed concern that listing bees in the definition of
livestock under the NOP would influence the construction and
interpretation of federal, state, and local regulations and have
adverse ramifications beyond the scope of the NOP. The commenter was
especially concerned that including bees in the definition of livestock
would restrict beekeeping within jurisdictions that prohibit or
severely restrict livestock production within their borders.
Both of these commenters, and some of the others failed to address
the fact that the certification of apiaries for the organic production
of honey and other products of the hive under the NOP is currently
allowed.
Bees are members of the animal kingdom and are managed for
pollination and the products of the hive (e.g., honey, pollen,
propolis, bee venom, beeswax, and royal jelly). We note that the
Canadian Organic Production Systems--General Principles and Management
Standards include bees in their definition of livestock. While the EU
Council Regulation No. 834/2007 (replaced EEC No 2092/91) does not
define livestock, it does define livestock production as ``the
production of domestic or domesticated terrestrial animals (including
insects).'' OFPA includes the phrase ``other nonplant life,'' which
includes bees. The wording ``other nonplant life'' is also included in
the NOP definition of livestock. Adding ``bee'' to the definition of
livestock would be consistent with the standards of two major trading
partners. Adding ``bee'' to the definition of livestock would help to
clarify that apiaries may be certified under the NOP. As proposed, we
are removing the exclusion of bees for the production of food, fiber,
feed, or other agricultural-based consumer products. This action,
however, removes the proposed addition of ``bee'' from the definition
of livestock as unnecessary due to the presence of the phrase ``other
nonplant life'' and removal of the exception of bees. Removing the
exclusion of bees as proposed in the proposed rule eliminates a
contradiction to existing policy and the current practice of allowing
the certification of apiaries under the NOP.
Temporary/Temporarily--A commenter suggested removing the
definition of ``temporary and temporarily,'' but gave no reason for
doing so. A second commenter recommended removing ``the period of time
specified by the Administrator when granting a temporary variance'' but
also gave no reason. Other commenters supported adding the definition.
One commenter wrote that overnight ``should not, unto itself, be an
allowed reason not to provide access to the outdoors or access to
pasture.''
We agree with the comment that nighttime should not in and of
itself be reason to deny access and note that the overnight confinement
must be associated with one of the conditions listed in Sec.
205.239(b), as grounds to deny access to the outdoors. Further,
justification for confinement should be addressed and documented in the
operation's organic system plan. However, we do not agree with removing
the definition, as suggested by some of the comments. We have retained
the proposed definition of ``temporary and temporarily'' to prevent
operations from exceeding a permissible period of confinement.
Use of the Term, ``Organic.'' (Sec. 205.102)
Use of the Term, ``Organic.''--Changes Requested But Not Made
As originally published, Sec. 205.102(a) required that any
agricultural product that is sold, labeled, or represented as ``100
percent organic,'' ``organic,'' or ``made with organic,'' must be
produced in accordance with livestock Sec. Sec. 205.236 through
205.239. In the proposed rule, we proposed amending Sec. 205.102(a) by
changing the provision to include proposed Sec. 205.240.
We received a few comments on the proposed amendment to this
paragraph, some of which supported as proposed, and others opposed
because they opposed publication of Sec. 205.240. One opposed because
the commenter suggested covering the proposed pasture practice standard
within the organic system plan (OSP), as described by applicable
paragraphs of Sec. 205.201.
This action retains the pasture practice standard (new Sec.
205.240) in amended form. Therefore, we have amended Sec. 205.102(a)
by changing the provision to include Sec. 205.240.
Origin of Livestock (Sec. 205.236)
Origin of Livestock--Changes Based on Comments
Origin of livestock--The proposed rule included language intended
to clarify that the two tracks for replacement dairy animals remained
in effect following the final rulemaking that was published June 7,
2006, (71 FR 32803). Thousands of commenters opposed this action. With
few exceptions, the commenters strongly urged that we work diligently
and quickly to issue a proposed origin of livestock rulemaking that
would eliminate the two track system for dairy replacement and require
that once an operation has been certified for organic production, all
dairy animals born or brought onto the operation shall be under organic
management from the last third of gestation.
We agree that this topic should be the subject of a separate
rulemaking and, accordingly, have deleted the proposed change to Sec.
205.236(a)(2)(iii). The section remains as published June 7, 2006, (71
FR 32803). Issues pertaining to this topic will be reviewed and
evaluated separately from this action.
Livestock Feed (Sec. 205.237)
Livestock Feed--Changes Based on Comments
This section differs from the proposed rule as follows:
Section 205.237(a) Organic livestock ration--This paragraph
clarifies that producers must provide an agricultural ration for
livestock composed of agricultural products handled organically,
without exception. To make this clear, we added language stating that
any agricultural ingredients contained in feed additives and
supplements must be handled organically. We received several comments
on that clarification expressing the following positions:
Disagree, because the clarification has been provided in
NOP guidance, and the impact of the clarification needs
[[Page 7162]]
further examination. A commenter explained that vitamins and minerals,
as supplied by the manufacturer, may contain very small amounts of
nonorganic agricultural carriers and this clarification would add an
obstacle to the annotation in the NOP regulation which solely requires
that nutrient vitamins and minerals are FDA approved;
Agree with the clarification provided on the basis that it
will level the playing field among producers of all sizes and guarantee
to consumers that all feed fed to organically certified livestock is
NOP certified;
Agree, but questions remain about the applicability. Does
the requirement apply to ingredients in an ingredient listing on a
package of supplements or feed additives? Or alternatively, does the
requirement apply to the agricultural component of an item in Sec.
205.603, or the substrate used to produce a nonsynthetic (natural)
ingredient?
One commenter took issue with the phrase ``by operations
certified to the NOP'' in this paragraph. The commenter stated that
each day, organic feeds are transported by haulers not certified to the
NOP. The commenter went on to acknowledge that proper procedures must
be followed to prevent contamination but stressed that this can be done
without certification and this requirement could result in an increase
in transportation costs of feed products.
Section 205.237 already requires producers to provide a total feed
ration composed of agricultural products that are organically produced
and handled. However, some additive and supplement handlers have used
nonorganic agricultural ingredients in products for which they have
sought and received certification, by claiming that the nonorganic
agricultural ingredients were supplements or used as carriers. One
example involved a supplement product, for which an organic label was
sought, and whose primary ingredient was conventionally produced
molasses. The amended language clarifies the existing requirement that
organic livestock must be provided with a total feed ration composed of
organically produced and handled agricultural products.
We agree that further clarification of the organic livestock ration
is needed. We have clarified the provision at the end of Sec.
205.237(a) to refer to ingredients included in the ingredients list.
Section 205.603 identifies synthetic substances that are allowed for
use in organic livestock production. Because these substances are not
agricultural products which could be certified organic, Sec.
205.237(a) is not applicable to those substances.
The definition of ``handle'' in the original NOP rule in Sec.
205.2, specifically excludes the transportation or delivery of crops.
Furthermore, Sec. 205.100(a) defines handling operations that must
obtain certification in order to sell, label, or represent agricultural
products as organic. Haulers are excluded from the definition of
handling operations under Sec. 205.100(a) and are not required to be
certified to transport agricultural products that are intended to be
sold, labeled, or represented as ``100 percent organic,'' ``organic,''
or ``made with organic (specified ingredients of food group(s)).''
Therefore, to address the confusion raised by the comment, we are
clarifying that haulers are not required to be certified for
transporting and delivering feed.
Section 205.237(b)(7) Antibiotics prohibited in feed--The purpose
of this proposed paragraph is to reinforce the prohibition on the use
of antibiotics currently found in Sec. 205.238(c)(1), which states
that producers must not sell, label, or represent as organic any animal
or edible product derived from any animal treated with antibiotics. We
received the following comments:
The provision is already covered by Sec. Sec. 205.237(a)
and 205.238(c)(1) and could be deleted;
Another commenter stated that ``* * * it would be
unrealistic for producers to * * * collect that data from manufacturers
of suppliers when the regulation calls for only organically certified
feed to be fed to livestock.'' The commenter went on to say that
``accredited certifiers of any purchased feed will be responsible for
ensuring that antibiotics are not used in feeds or forages as part of
their due diligence to certify the manufacturer/supplier;''
Replace the words ``to which anyone, at anytime, has
added'' with ``which contains.'' The commenters' suggested language
would read: ``Provide feed or forage which contains an antibiotic.''
We have not accepted the recommendations. Instead, we have decided
to further clarify the prohibition on the use of antibiotics by adding
``including ionophores'' to the end of the provision. In administering
this program we have found antibiotics in certified organic livestock
feed. Ionophores are antibiotics used for increasing feed efficiency or
rate of gain. By clarifying this provision we reinforce the prohibition
on the use of all antibiotics, including ionophores. Whether used for
therapeutic or subtherapeutic reasons or to increase feed efficiency or
rate of gain, all antibiotics are prohibited. This provision restates
this requirement--organic livestock feed to which antibiotics have been
added is prohibited. It is the producer's responsibility, to obtain
assurances from feed suppliers that the feed products supplied are free
of antibiotics, including ionophores.
Section 205.237(b)(8) No restriction from obtaining feed grazed
from pasture during the growing season--We received comments requesting
that ``growing season'' be changed to ``grazing season'' in this
paragraph. We also received comments requesting that we amend this
paragraph to refer to Sec. Sec. 205.239(b) and (c).
We agree and have made the change related to grazing season
consistently throughout this final action. We have added a new
definition for ``grazing season'' to Sec. 205.2 and have addressed the
change from ``growing season'' to ``grazing season'' throughout this
final rule in that section above. In addition to referencing the
exceptions in Sec. 205.239(c), we have also referenced the exemptions
provided in Sec. 205.239(b), as these exceptions for temporary shelter
and confinement also apply to ruminants.
Section 205.237(c) Dry Matter Intake (DMI)--opening paragraph and
paragraphs (c)(1)-(4)--The opening paragraph required producers to
demonstrate that during the growing season, animals are provided with
not more than 70 percent of dry matter demand from dry matter fed, not
including vegetation rooted in pasture. The paragraphs, as proposed,
identified documentation requirements for demonstrating compliance with
the 70 percent dry matter demand requirement. We received comments
specifically addressing this section, one of which carried numerous
signatures. Nearly all of the comments requested a change in the words
``growing season'' to ``grazing season.'' We also received amended
versions to the opening paragraph which are summarized as follows:
Add the phrase ``or mowed and left in the pasture to be
grazed,'' or ``clipped and left in place'' to the paragraph;
Insert ``residual forage'' into the paragraph to further
define vegetation;
Make clear that the feed consumption should be calculated
over the entire grazing season, that the grazing season must be no less
than 120 days, and that a grazing season may not be continuous;
Couple the 30 percent minimum feed required from pasture,
on average, with the not more than 70 percent DMI from dry matter fed
required by this paragraph, and exempt certain classes of
[[Page 7163]]
animals, such as dairy stock under 12 months of age, slaughter stock
typically grain finished, and breeding bulls and male stock;
Other commenters suggested language requiring that all
ruminants over 6 months of age receive an average of 30 percent of
their dry matter demand from pasture for the entire grazing season.
Commenters also submitted language found in the new definition of
grazing season, stating that the grazing season may be intermittent due
to weather, season, or climate. In addition, we received other comments
requesting that the 30 percent DMI from pasture requirement be an
average over the grazing season and that ``grazing season must be no
less than 120 days.''
The commenters also requested the clarification that each type and
class of animal, individually, must meet the 30 percent dry matter
intake from grazing requirement.
In addition to the comments above, we also received comments
requesting that an exemption be added from pasturing and the 30 percent
DMI from grazing requirement for breeding bulls and breeding male
stock--with the stipulation that such animals also be prohibited from
being sold as organic slaughter stock. Comments we received stated that
while this exemption was initially offered because of some State and
local regulations that make it illegal to pasture male bulls with other
stock, the commenters requested this exemption for all breeding bulls.
We agree that it would be beneficial to couple the 30 and 70
percent DMI requirements together for clarity. Further, we believe that
it would be beneficial to clarify the pasture derived DMI requirements
for ruminant animals denied pasture in accordance with Sec. Sec.
205.239(b)(1) through (8) and Sec. Sec. 205.239(c)(1) through (3). We
are adding a new Sec. 205.237(c)(2), that requires producers to
provide sufficient quality and quantity of pasture to graze throughout
the grazing season. They shall also provide all ruminants under the
organic system plan with a minimum of 30 percent, on average, of their
DMI from grazing throughout the grazing season. An exception is
provided for ruminant animals denied pasture in accordance with
Sec. Sec. 205.239(b)(1) through (8) and Sec. Sec. 205.239(c)(1)
through (3). That exception requires that ruminant animals who are
denied pasture in accordance with Sec. Sec. 205.239(b)(1) through (8)
and Sec. 205.239(c)(1) through (3) shall be provided with a minimum of
30 percent, on average, of their DMI from grazing for the remaining
time that they are on pasture during the grazing season. Section
205.239(c)(4) is not included because producers are expected to keep
animals on pasture long enough each day throughout the grazing season
to assure that their animals derive an average of 30 percent of their
DMI from pasture grazed throughout the grazing season. Further, as
stated in that paragraph, milking must be scheduled in a manner to
ensure sufficient grazing time to provide each animal with an average
DMI from grazing of at least 30 percent throughout the grazing season.
The paragraph also provides that milking frequencies or duration
practices cannot be used to deny dairy animals pasture.
We are replacing the words ``growing season'' with ``grazing
season'' throughout the regulation as discussed above. However, the
commenters suggested wording that ``grazing season must be no less than
120 days,'' would also permit producers to pasture animals for only the
minimum of 120 days per year, even when the grazing season for the
geographical region exceeds 120 days. Therefore, we are not accepting
this wording. This final rule requires producers to graze ruminants
throughout the entire grazing season for the geographical region, but
this period shall be no less than 120 days per calendar year. We are
accepting the comment that due to weather, season and climate, the
grazing season may not be continuous in order to provide further
clarification. The proposed rule at Sec. 205.240(c)(2) used the words
``an average of 30 percent of their DMI from grazing throughout the
growing season.'' To be consistent with Sec. 205.240(c)(2), the text
of Sec. 205.237(c) has been revised accordingly to address the 70
percent requirement as an average and the word ``growing'' has been
changed to ``grazing.'' We have also inserted a sentence to convey the
requested clarification because the dry matter demand and intake will
vary by type and class of animal.
We agree with adding ``residual forage or'' before ``vegetation,''
as this will enable producers to employ management practices to extend
the grazing season by leaving residuals in the pasture for livestock to
eat. We also added a definition for ``residual forage'' in Sec. 205.2.
We recognize it may be illegal in some localities to pasture
breeding bulls. In consideration of this factor, an exception is
provided for breeding bulls which exempts them from the pasturing and
30 percent DMI requirements. The requested exemption will assure that
all ruminant livestock producers can maintain mature males on their
operation. This exception includes a provision that excludes any animal
maintained under this exemption from being sold, labeled, or
represented as organic slaughter stock.
In summary, based on comments received, we deleted paragraphs (1)
through (4) as written and revised the opening Sec. 205.237(c) to
clearly explain the dry matter intake feed requirements and exceptions
to those requirements. The documentation requirements that were
contained in the paragraphs (1)-(4) have been revised and moved to new
Sec. 205.237(d) as discussed below. The revised Sec. 205.237(c) and
new paragraphs (1) and (2) now read: ``(c) During the grazing season,
producers shall:
(1) Provide not more than an average of 70 percent of a ruminant's
dry matter demand from dry matter fed (dry matter fed does not include
dry matter grazed from residual forage or vegetation rooted in
pasture). This shall be calculated as an average over the entire
grazing season for each type and class of animal. Ruminant animals must
be grazed throughout the entire grazing season for the geographical
region, which shall be no less than 120 days per calendar year. Due to
weather, season, or climate, the grazing season may not be continuous;
(2) Provide sufficient quality and quantity of pasture to graze
throughout the grazing season and to provide all ruminants under the
organic system plan with an average of not less than 30 percent of
their DMI from grazing throughout the grazing season: Except, that,
(i) Ruminant animals denied pasture in accordance with Sec.
205.239(b)(1) through (8) and Sec. 205.239 (c)(1) through (3), shall
be provided with an average of not less than 30 percent of their DMI
from grazing throughout the periods that they are on pasture during the
grazing season; and
(ii) Breeding bulls shall be exempt from the 30 percent DMI from
grazing requirement of this section and management on pasture
requirement of Sec. 205.239(c)(2): Provided, That, any animal
maintained under this exemption shall never be sold, labeled,
represented, or used as organic slaughter stock.''
Recommendations to exempt slaughter stock and breeding bulls and
other male stock are addressed under Livestock Living Conditions--
Changes Based on Comments.
Section 205.237(d) New paragraph--Dry Matter Intake--Formula
calculation--Under the proposed Sec. Sec. 205.237(c)(1) through (4),
producers were required to document and maintain monthly records to
show that not more than 70 percent of a ruminant
[[Page 7164]]
livestock's dry matter intake (DMI) is derived from dry matter fed to
ruminant livestock. A summary of the comments we received follows:
A document written by a university department of dairy and
animal science was submitted explaining to producers how to evaluate
forage quality;
One comment suggested that the prescriptive nature of the
DMI calculations could be avoided for most organic livestock farms by
setting a threshold acreage for pasture, below which DMI calculations
are required; that is, for less than 2 acres per 1,000 pound animal to
devote exclusively to grazing, DMI calculations must be provided as
part of the farm's organic system pasture plan;
Some commenters suggested that reference to a single
calculation should be removed because the formula provided assumes that
all animals have the same dry matter demand as a percent of body weight
(3 percent) but demand varies due to differences in animal species,
age, weight, production ability, breed; monthly frequency is onerous;
and this calculation would not be applicable to meat animals raised
entirely on pasture;
Formulas should only be offered as guidance because
producers and certifying agents should determine the most appropriate
way to document pasture intake as applicable to individual operations,
and producers should determine what records should be maintained as
part of the organic system plan to demonstrate compliance;
Replace the calculation with new provisions that are less
prescriptive, such as requiring producers to provide sufficient records
to demonstrate compliance with the 30 percent DMI requirement;
Leave the DMI calculation as is;
Provide an exemption from the 30 percent DMI from pasture
requirement for ruminant slaughter stock for the finishing period, not
to exceed 120 days, and require that animals cannot be denied pasture
during the finishing period;
Allow the producer and certifying agent to determine the
best way to document compliance with the DMI requirements;
Opposition to the 3 percent of body weight figure used in
the formula;
Allow the use of other DMI intake levels within the
formula.
We received six versions of proposed regulatory text from several
commenters intended to provide sufficient information to allow
certifying agents to assess compliance with the feed requirements of
Sec. 205.237(c) without excessive or burdensome recordkeeping. Other
commenters stressed that there are many ways to measure dry matter
intake and demand that vary by operations and classes of livestock.
These commenters and others proposed a new paragraph that would read:
(d) Producers shall:
(1) Describe the total feed ration for each type and class of
animal;
(2) Document changes that are made to all rations throughout the
year in response to seasonal grazing changes;
(3) Provide the method for calculating dry matter demand and dry
matter intake to certifier for approval.
A second similar version added that producers should incorporate
this into their OSP, and at the end of the paragraph, stated that
producers should (3) ``provide sufficient documentation to certifiers
to verify that feeding requirements of Sec. 205.237(c) are being
met.'' Other commenters proposed this same paragraph as the second
version, but added in (1) that not only must total feed rations be
documented for each type and class of animal, but also the amount of
each type of feed fed.
One commenter stated that the regulation should reinforce the role
of the OSP in documenting feed rations, changes to feed rations and
methods used to determine dry matter intake. This commenter and others
proposed a new paragraph that would read:
(d) Producers shall, as part of the organic system plan,
document all feed rations for all species and classes of animals.
For ruminants, documentation shall be maintained of changes that are
made to all rations throughout the year in response to seasonal
grazing changes such that records can verify the feeding
requirements of Sec. 205.237(c).
A commenter suggested adding to the end of this version language
that would provide for a 150 day finishing period where access to
pasture will not be practical or possible to maintain.
A certifying agent submitted a detailed comment about accurately
assessing the production techniques of organic operations and the need
for producers to supply certifying agents (ACAs) with anticipated feed
rations, which the agent does not believe is consistently provided or
collected by ACAs. According to this agent, information that must be
verified includes feed sources (both on-farm and purchased feed), types
of feed quantities required (percentage of each in the total ration),
feed supplements and additives, and amount actually fed to the animals.
With this information, ACAs can determine compliance by evaluating
purchase records, grazing records, existing inventory and herd lists at
inspection and review. Agents would have a clear indication whether
producers are providing a significant amount of animals' dietary needs
through pasture, and be able to verify accuracy of rations by
inspection. This commenter and others proposed a new paragraph that
would read:
(c) Producers shall:
(1) Describe the total feed ration for each species and class of
animal. The description must include:
(i) All feed produced on-farm;
(ii) All feed purchased from off-farm sources;
(iii) The percentage of each feed type, including pasture, in
the total ration; and
(iv) A list of all feed supplements and additives.
(2) Document the amount of each type of feed actually fed to
each species and class of animal.''
This commenter also stated that the 30 and 70 percent metrics would
be unnecessary with the following wording included in the final rule:
(1) The definition of grazing season; (2) requiring daily grazing
during the grazing season; (3) specific requirements for temporarily
denying a ruminant animal access to pasture; and (4) evidence at
inspection of a grazing system including gates, laneways, paddocks, and
a watering system, incorporated into the OSP. All of these provisions
would enable certifying agents to determine compliance with a pasture-
based rule.
We agree that different types and classes of ruminant animals have
different DMI requirements, and that producers should have the
flexibility to select the appropriate level for each class of animal.
Therefore, we have removed proposed Sec. 205.237(c)(1) through (4)
and, as noted above in the discussion, DMI--opening paragraph and
paragraphs (c)(1)-(4), replaced them with revised paragraphs (1) and
(2). We have also added a new Sec. 205.237(d) which describes the
documentation requirements for feed rations and feed fed. The NOP will
provide tools to assist producers and certifying agents in calculating
dry matter demand and dry matter intake. These optional resources will
be available on the NOP Web site.
We expect these requirements will add minimal additional paperwork
to that which is already required for organic certification, as some
commenters have indicated that many certified organic ruminant
producers already maintain these records. This completes our revisions
to Sec. Sec. 205.237(c)(1) though (4).
We agree that defining grazing season, requiring grazing during the
grazing season, specifying requirements for temporarily denying a
ruminant animal
[[Page 7165]]
access to pasture, and looking for evidence of a grazing system to
include gates, laneways, paddocks, and a watering system should all be
part of a thorough inspection, but by themselves these measures do not
assure compliance with a pasture based rule. We do not agree that these
would render the 30 and 70 percent metrics unnecessary. Many commenters
strongly support requiring that ruminants graze pasture throughout the
grazing season and that a substantial portion of their diet come from
grazing. Over half of those supportive comments specifically supported
a minimum percentage DMI from pasture. Adding a DMI from pasture
requirement completes the components necessary to assure that organic
ruminant livestock producers operate within a pasture based system. We
are retaining the 30 and 70 percent metrics.
We also support additional regulatory text that will enable
certifying agents to assess compliance with the feed requirements of
Sec. 205.237(c) without excessive or burdensome recordkeeping for the
producer. We agree that it is important that livestock producers supply
their anticipated feed rations so that the certifying agent can
accurately assess the production techniques of the operation. Further,
we concur that the certifying agent needs to verify feed sources, feed
requirements in rations, all feed supplements and additives, and
amounts actually fed to animals. Without this information, an ACA
cannot accurately determine compliance with the feed requirements of
Sec. 205.237(c). In fact, to be in compliance with the terms of their
accreditation, certifying agents should already be requiring this
information in the operation's OSP. ACAs should also review and
evaluate purchase records, grazing records, existing feed inventory,
and herd lists before granting certification and at least annually
thereafter.
Various suggested phrases were not incorporated into new Sec.
205.237(d). We did not include a reference to the OSP because Sec.
205.201(a) already requires this information. We did not include the
language ``to certifier for approval'' because Sec. 205.201(a) compels
the producer to concur with the certifying agent and the proposed
language is unnecessary. We did not include a recommendation to
``provide sufficient documentation to certifiers to verify that the
feeding requirements of Sec. 205.237(c) are being met,'' because the
entire paragraph is intended to demonstrate compliance with the
provisions of Sec. 205.237. Finally, we did not incorporate language
related to a 150-day finishing period in this section; this is
addressed under Livestock Living Conditions--Changes Based on Comments
for the discussion on slaughter stock finishing period.
Livestock Feed--Changes Requested But Not Made
Section 205.237(a) Organic livestock ration--Several commenters
directly addressed one or more issues among the proposed changes to
this paragraph. One commenter stated that the proposed revisions should
be removed because they are not directly linked to the issue of
pasture. In amending paragraph (a) to make clear that the total feed
ration must be composed of agricultural products organically produced
by operations certified to the NOP, a commenter stated that the
paragraph should be amended to permit exempt producers under Sec.
205.101(a)(1) to provide such feed, forage, and pasture. This position
was not supported by other commenters who stated that the provision
clarified existing requirements and should be included in the final
rule. One commenter in particular, whose comments were endorsed by over
700 commenters, specifically opposed the use of uncertified feed by
certified livestock operations, saying that ``inclusion of this
provision will guarantee to the consumer that all feed consumed by
organically certified livestock is certified by a NOP accredited third
party, thus ensuring the integrity of the organic seal and the future
value-added income to small operations.''
The commenter advocating for feed sources from exempt farmers
expressed the opinion that requiring all feed sources to be certified
is inconsistent with Sec. 205.101(a)(1). The commenter cites the
regulation that prohibits the use of ingredients identified as organic
in processed products and argued that ``feed fed to animals who produce
edible products * * * is clearly not an `ingredient identified as
organic' (for example, milk cartons are not labeled `Ingredients:
organic hay').'' We disagree. We have long held that livestock
producers must feed animals certified organic feed products. This
position is supported by Sec. 2110(c)(1) of the OFPA, which requires
producers to feed livestock organically produced feed that meets the
requirements of this title. We also disagree with the assertion that
this is inconsistent with Sec. 205.101(a)(1). To the contrary, we
believe this position is consistent and analogous to prohibiting the
sale of uncertified products to food manufacturers for organic
identification and be used in multi-ingredient products. The same
problems with the use of products sourced from uncertified operations
by food manufacturers exist for the use by livestock operations.
Accordingly, we have retained the clarification that livestock must be
provided with a total feed ration composed of organically produced and
handled agricultural products, including pasture and forage, by
operations certified to the NOP. Exempt producers who want to sell to
certified operations may apply for certification under the NOP. In
anticipation the impact of this provision on exempt livestock
producers, these producers may continue to feed the crops they grow to
the animals they raise.
Sections 205.237(b)(5)-(8) A commenter also recommended deleting
Sec. Sec. 205.237(b)(5), (6), and (7). Regarding Sec. Sec.
205.237(b)(5) and (6), we proposed only minor word changes at the end
of paragraphs (b)(5) and (6) in order to amend the remaining paragraphs
(b)(7) and (8). As we explained in the proposed rule, because of
comments, complaints, and noncompliances, we were proposing various
amendments to the livestock provisions of the NOP. A commenter stated
that Sec. 205.237(b)(5), which prohibits the feeding of mammalian or
poultry slaughter by-products to mammals or poultry, is unnecessary
because this is already prohibited under Federal regulations. The
commenter's assertion is not correct. The FDA regulations prohibit
certain animal proteins in ruminant feed and certain cattle origin
materials from the food and feed of all animals (21 CFR 589). The
prohibitions in Sec. 205.237(b)(5) are more comprehensive and,
therefore, we are retaining that requirement.
We received several comments about Sec. 205.237(b)(8). Commenters
suggested deleting the paragraph, which as proposed, prohibits
producers from preventing ruminant animals from obtaining feed grazed
during the growing season, except for conditions specified in Sec.
205.239(c). One comment gave no reason while the other said the issue
is already addressed in the changes proposed to Sec. 205.239. We
disagree. The proposed rule pointed out that Sec. 205.237(a) provides
for feed from pasture and Sec. Sec. 205.239(a) and (c) provides for
access to pasture and reasons for temporary confinement from pasture.
Amended Sec. 205.237(b)(8) reinforces these requirements, along with
those of amended Sec. 205.239(a)(2), which requires producers to
provide continuous year-round living conditions which accommodate the
health and natural behavior of ruminants including management on
pasture and daily grazing throughout the grazing season(s)
[[Page 7166]]
to meet the requirements of this paragraph. Amended Sec. 205.237(b)(8)
also includes an exception to this requirement for the 8 conditions
under which a producer may temporarily provide shelter or confinement,
listed in Sec. 205.239(b). The exceptions per Sec. 205.239(b) are
included because the exceptions to Sec. 205.237(b)(8) are also granted
for temporarily denying a ruminant animal pasture or outdoor access as
provided in Sec. 205.239(c).
As proposed Sec. 205.237(b)(8) prohibits livestock producers from
preventing, withholding, restraining, or otherwise restricting ruminant
animals from actively obtaining feed grazed from pasture during the
growing season, except for conditions as described under Sec.
205.239(c). Some commenters requested the words ``withhold, restrain,
or otherwise restrict'' be removed on the grounds that they are
``duplicative'' of the word ``prevent.'' We have not accepted this
recommendation. The wording is intentional and conveys that, except for
situations addressed in Sec. 205.239(c), producers shall not keep
ruminant animals from pasture during the grazing season. A few
commenters requested the words ``actively obtaining feed grazed from''
be replaced with ``accessing.'' We have not accepted this
recommendation. The purpose of pasturing ruminants is not to merely
provide them with access to the outdoors. The NOP regulations require
producers to manage pasture as a crop and to place ruminant animals on
pasture in order to provide animals with a minimum of 30 percent of DMI
from grazing pasture throughout the grazing season. One commenter
recommended that the words ``actively obtaining feed grazed from'' be
replaced with ``accessing and grazing.'' We have also not accepted this
recommendation because we believe the words ``actively obtaining feed
grazed from'' better convey the intent of these regulations that
ruminant animals must obtain feed grazed from pasture.
Some commenters recommended that the following statement be added
to the paragraph in 205.237(b)(8): ``The grazing season(s) must not be
less than 120 days per year total. Due to weather, season, or climate,
the grazing season(s) may or may not be continuous.'' We have addressed
this issue in livestock living conditions below and in the definition
of grazing season, above.
General opposition to DMI metrics--A number of commenters expressed
opposition to the 30 and 70 percent metrics. Reasons included: the 120
days grazing will be complicated enough without 30 percent or 70
percent; DMI-based feed reporting system is inappropriate; does not
consider an average 1,400 pound lactating Holstein; method of
estimating DMI is flawed; recordkeeping will be burdensome, promotes
creative ration reporting; is overly prescriptive; is unnecessary; 30
percent DMI is arbitrary; has no scientific support; opposed to the
inclusion of DMI metrics; DMI measurements only works well in rations
that are intensively managed where all inputs can be measured (weighed)
such as in feedlots; and it is impossible to document the dry matter
intake of livestock on pasture.
Commenters suggested amending Sec. 205.237(c), to substitute
animal units per acre for the 70 percent DMI requirement fed during
periods of low rainfall. The commenters suggested adding a statement at
the end of Sec. 205.237(c) that would state, ``with exception as
defined in Sec. 205.238(c)(2)'' at the end. The commenters went on to
propose an exception: ``Exception, In cases where the local growing
season is not supported by a nominal rainfall average within 10 percent of the 50 year rainfall average, the 70 percent dry
matter fed can be substituted with a maximum stocking rate not to
exceed 3 animal units per acre maximizing the DMI grazed in previous
growing seasons. DMI to be reported as defined in Sec. 205.238
(c)(1).'' We disagree and have not accepted the recommendation. The
broad range of pasture types and grazing strategies available to
producers makes a prescribed maximum stocking rate for pasture
arbitrary and often contrary to good management practices. A mandated
stocking rate could interfere with a producer's ability to balance
forage supply with ruminant demand. The producer must provide ruminants
with 30 percent DMI from grazing averaged over the grazing season and
may otherwise determine the stocking rate appropriate for each pasture
within the operation. Temporary variances due to damage caused by
drought are discussed below.
A commenter suggested that the first sentence to Sec. 205.237(c)
be amended to read: ``During the grazing season, producers shall
provide ruminant livestock with a ration that includes grazed pasture
crops.'' One commenter suggested that the first sentence be amended to
read: ``During the grazing season, producers shall provide pasture,
which includes both rooted vegetation and/or residual forage.'' This
commenter also suggested a new second sentence providing that, ``The
grazing season must be not less than 240 days per year.'' These
suggestions would eliminate the requirement that producers shall
provide not more than 70 percent dry matter demand from dry matter fed
during the growing season. We do not support that action because the
majority of consumers and producers who have commented on this rule
support the 70 percent maximum from dry matter fed during the grazing
season. A numerical threshold for pasture intake from grazing is needed
to achieve a certain consistency in both the pasturing practices of
organic livestock producers and enforcement among the certifying
agents. A requirement that specifies the minimum length of the grazing
season will not, alone, meet this purpose. Therefore we are not
adopting either of the commenters' proposals. Another suggested
rewriting paragraph (c) to include the NOSB language adopted in August
2005, including language specifying that organic producers establish
pasture conditions in accordance with the regional NRCS Conservation
Practice Standards for Prescribed Grazing. While we encourage producers
to work with their local Cooperative Extension or NRCS to develop a
pasture management plan, the dry matter intake from pasture is
necessary to demonstrate the sufficiency of the pasture plan. The
requirements for the pasture plan are discussed below in the Pasture
Practice Standard. Another suggested deleting all of paragraph (c) but
the first sentence, which would eliminate the feed ration and feed fed
documentation requirements. A commenter suggested replacing the
proposed paragraph (c) text with: ``(c) Grazing season must be
described in the operation's organic system plan and be approved by the
certifier as being representative of the typical grazing season
duration for the particular area. Certifiers, in reviewing the organic
system plan, shall confirm that adequate fields are set aside for
pasture to provide grazing for ruminants for the entire grazing season,
not just for the 120-day minimum.'' The requirement to describe the
grazing season has been incorporated into the pasture practice
standard, below, and Sec. 205.237(c)(2) requires producers to provide
pasture of sufficient quality and quantity throughout the grazing
season to meet the 30 percent dry matter intake from grazing throughout
the grazing season. Certifying agents are required to assess that
operations are complying with all requirements of this final rule.
We received one comment from a state asserting that the increased
costs of acquiring 6 acres per ruminant animal needed to supply its
16,121 organic cattle with the feeding requirement as described in the
proposed rulemaking (30 percent DMI for the growing season)
[[Page 7167]]
would cost the state just under $212 million and lead to a loss of
employment of 5,000 jobs, a loss of $230 million in personal income and
$380 million in output to the state economy. We are not persuaded that
the purchase of land alone leads to a loss of employment. The state
provided no theoretical macroeconomic support that demonstrates that
when farmers acquire more land, jobs are lost in the economy.
Therefore, the remaining relationships are also questionable. For this
to be a valid assertion, a recent Census of Agriculture finding of a
growth in the number of small farms would be a negative impact for the
U.S. economy. The states' producers have alternatives, moreover. We
amended this final rule to require grazing during the grazing season,
for a minimum of 120 days. We also provided ruminant slaughter
producers with an exemption to finish feed cattle, provided they meet
the provisions of Sec. 205.239. Producers may also use intensive,
rather than extensive, grazing systems--allowing them to use less
acreage more intensively. We received other studies challenging the
states' assertion, in fact, that land must be purchased at all (unless
producers have no land to start). These studies discuss a prevalent
misconception that grazing systems require more acres for the same
amount of output.\1\
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\1\ Kriegl, Tom, University of Wisconsin Center for Dairy
Profitability, Selected reports submitted; also comments submitted
to the proposed rulemaking; see also NRCS, Profitable Grazing-Based
Dairy Systems, Range and Pasture Technical Note No. 1, May 2007.
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We received a comment asserting that there was not sufficient land
available for pasture-based systems, especially in western States. We
did not receive data affirming this. The data available to us from the
ARM Survey and ERS indicates otherwise. In Texas, 328,477 acres are
certified pasture, for 16,121 certified ruminant dairy and beef
animals. This provides a ratio of 20 acres per animal. Similarly, in
the states of California, Washington, Montana, Colorado, and Idaho,
there is certified pasture and rangeland to provide 17, 8, 76, 23, and
11 acres per animal, respectively. Likewise, data supplied by the
Census supports adequate acreage for pasturing ruminant stock.
According to 2007 Census reported acreage, 1.6 million acres are
available for pasture--13 acres for each dairy and ruminant slaughter
stock animal in the United States, based on total numbers of certified
organic ruminant animals in the ARM survey.
Some commenters recommended moving the opening paragraph of
proposed Sec. 205.240 to Sec. 205.237(c), a recommendation based on
deleting the pasture practice standard. We have not accepted this
recommendation because we have retained Sec. 205.240.
Other commenters recommended a new Sec. 205.237 paragraph (d)
which would read:
(d) The organic system plan required in Sec. 205.201 must
include a description of pasture management, including: frequency
and duration of grazing, planting, watering, harvesting, shade and
water sources, and other attributes as applicable.
This recommendation was also based on deleting the pasture
standard, which we have not accepted because we have retained Sec.
205.240, including the combining of paragraphs (b) and (c) as an
amended paragraph (c).
The pasture practice standard requires pasture to be managed as a
crop. Therefore, producers must understand pasture productivity and
yield. The producer must know when, where, and how long to graze each
pasture. To do this, a producer must be able to determine the pasture
forage supply available for grazing. We believe that most producers
know how to determine their pasture forage supply and if they do not,
they can readily avail themselves of the information to do so.
Producers know what they provide in the form of supplemental feeds and
therefore can determine the DMI value of those supplemental feeds. A
ruminant provided with up to 70 percent of its DMI needs through
supplemental feeding will eat to its fill when provided enough time on
a pasture ready for grazing.
This final action retains the requirement that producers shall
provide not more than an average of 70 percent of a ruminant's dry
matter demand from dry matter fed (dry matter fed does not include dry
matter grazed from residual forage or vegetation rooted in pasture) for
the reasons discussed above.
DMI will adversely affect animal welfare--We received several
comments suggesting that the DMI requirements could adversely affect
animal welfare during the growing season, related to quality of pasture
or because producers might underfeed animals. Of the comments received:
Some challenged the 3 percent body weight feeding
provision in the formula to document the daily dry matter demand for
each class of animal;
One said that the DMI formula is inhumane for a large
lactating Holstein cow;
One said that the proposed formula for measuring DMI is
inconsistent with the nutritional requirements of dairy animals and
proposed that paragraph (c) require a producer to: (1) Estimate the
contribution of pasture to feed rations during the grazing season and
describe how they will satisfy the goal of optimizing a pasture
component of total feed used in the farm system; (2) describe the
amount of pasture provided per animal, the average amount of time
animals are grazed daily, the portion of the total feed requirement
provided from pasture, and the circumstances for temporary confinement;
and (3) maintain records for compliance;
Another said that pasture should be mandated only under
conditions likely to result in a net health and welfare benefit for the
animals and expressed concern that the 30 percent DMI requirement might
discourage supplemental feeding during periods of poor grass growth;
One wrote that the 30 percent DMI requirement is not a
best management practice always in the animal's best welfare,
suggesting that the 70 percent DMI limit on supplemental feeding could
increase the risk of animals being under-fed and abused; in addition,
the comment said that these requirements do not readily provide for
methods of verification and enforcement;
One said that a reasonable means of documenting pasture
intake is by subtracting dry matter fed, but questioned the arbitrary
nature of the 3 percent body weight figure, stating it does not reflect
the specific nutritional needs of different classes of animals. This
commenter recommended allowing producers to select one of several DMI
levels depending on livestock class--suggesting that, 2-, 3- and 4
percent categories would probably cover most of the livestock classes
without complicating documentation requirements and that the livestock
health care practice standard could address any concerns about
underfeeding animals;
Another comment said that the proposed rule could
unintentionally result in the malnourishment or starvation of cows by
forcing over grazing, grazing during periods of nutrient depletion in
pasture, inadequate feed nutrient levels, and use of inadequate dry
matter demand values;
One wrote that mandating 30 percent of DMI be derived from
grazing pasture, regardless of stage of production, will compromise the
health and well being of the animals and went on to state that dairy
cows suffer from a 30 percent decrease in DMI during the peripartum
period. To support the assertion, the commenter offered an article from
the 1999 Journal of Dairy Science (82:2259-2273).
[[Page 7168]]
We did not find this article supportive of the commenter's
argument. This article addresses the biology of dairy cows during the
transition period between late pregnancy and early lactation. The
author defines the transition period (also known as the periparturient
period) as the last 3 weeks before parturition (birthing) to 3 weeks
after parturition and states that this time is when most infectious
diseases and metabolic disorders occur. The author argues that a better
understanding of the biology, nutrition, and management of cows during
the transition period can offer the largest gains in productivity and
profitability during the next decade.
We removed the formula which contained the fixed variable for 3
percent body weight in order to determine dry matter demand in the
Sec. 205.237(c)(2) and allow the producer and ACA to determine the
acceptable method for determining dry matter demand. This change is
discussed above in Dry Matter Intake--Formula Calculation. The pasture
practice standard in this final action requires the producer to
establish and maintain pastures that will provide the required minimum
of at least 30 percent grazed DMI and describe how pastures are managed
to meet that provision. Producers are required to document the
percentage of the feed ration from pasture, any changes to the feed
ration, and the amount of feed fed. Coupled with the requirements of
Sec. 205.238(a)(2), the pasture standard provides the protections
necessary to assure that the producer does not underfeed animals.
Section 205.238(a)(2) requires a producer to provide a feed ration
sufficient to meet the animal's nutritional requirements. If there is
insufficient pasture to meet the 30 percent DMI from grazing
requirement, the producer must improve the quality and productivity of
the existing pastures, secure additional pasture acreage, or reduce the
number of ruminant animals maintained.
Irrigation--We received several comments addressing irrigation and
how irrigation may affect the length of grazing season and time that
animals might spend on pasture. Some commenters recommended that Sec.
205.237(c) be amended by adding a new paragraph which would read: ``(2)
Grazing season must be described in the operation's organic system plan
and be approved by the certifier as being representative of the typical
grazing season duration for the particular area. Certifiers, in
reviewing the organic system plan, shall confirm that adequate fields
are set aside for pasture to provide grazing for ruminants for the
entire grazing season, showing intent to maximize grazing beyond the
120 day minimum. Irrigation must be used as needed to promote pasture
growth when an operation has it available for use on crops.''
Additional commenters addressed this recommendation. Some only
recommended including the first sentence, one suggested changing the
grazing period to 240 days, and several wanted the second sentence to
read: ``Certifiers, in reviewing the organic system plan, shall confirm
that adequate fields are set aside for pasture to provide grazing for
ruminants for the entire grazing season, not just for the 120 day
minimum.'' Others did not include the recommended irrigation provision
in their recommended versions. The remaining supported the
recommendation as written.
Paragraph 205.240(c) requires a pasture plan to be included in the
producer's organic system plan. The regulation also requires that a
pasture plan must include a description of the grazing season for the
livestock operation's regional location; a description of the cultural
and management practices to ensure sufficient quality and quantity
pasture is available to graze throughout the grazing season, in order
to provide all ruminants with a minimum of 30 percent, on average, of
their DMI from grazing throughout the grazing season.
Subpart E, Certification, requires a certifying agent to review an
application for certification; the organic system plan for compliance
with these regulations; conduct an on-site inspection to verify
compliance with the regulations and that the operation is following its
OSP; and to review the on-site inspection report. All of this must be
done before granting initial or continuing certification. Accordingly,
to be in compliance with these regulations, the certifying agent must
determine that the grazing season used in the pasture plan is
representative of the grazing season for the producer's geographical
location and whether there is sufficient pasture to meet the grazing
requirements of these regulations. When an agent finds that a
producer's organic system plan, accompanying pasture plan, or actual
practices fail to comply with the regulations certification must be
denied for new applicants or a noncompliance must be issued for a
certified operation, according to these regulations. Irrigation is
addressed in amended form below in Sec. 205.240(a). The balance of the
commenters' recommended paragraph (2) is unnecessary and has not been
included in this action.
Temporary Variances--Some commenters recommended amending Sec.
205.237(c) to add a new paragraph that would read: ``(3) In areas where
irrigation is not available, certifiers may grant a temporary variance
from the 120 days/30 percent DMI regulation, due to damage caused by a
typical drought, flooding, excessive rainfall, or fire, that is
experienced during the normal grazing season. Variances are good for a
single farm and a producer will only be granted a total of three over a
ten year period.'' Several commenters also addressed this
recommendation. One objected; a few suggested replacing the last
sentence with ``Variances are good for a single grazing system.'' One
stated that provisions relaxing grazing requirements in drought
conditions cannot be implemented in a way that exempts livestock
operations that have access to irrigation water, or where irrigation is
generally required for crop production in the region. This commenter
went on to say that locating a livestock facility where irrigation
water is unavailable, or water rights are not sustainable, should not
be a reason for failure to comply with this action as amended. We
agree. Ruminant livestock operations may only receive certification
when they can comply with all of the NOP standards, including the
requirement that ruminant livestock receive at least 30 percent of
their DMI from grazing throughout the grazing season.
We have not accepted either form of this recommendation which would
grant certifying agents the authority to issue temporary variances.
Section 205.290 grants sole authority for the issuance of all temporary
variances to the administrator. Section 205.290(b) provides that a
State organic program's governing State official or certifying agent
may recommend in writing to the administrator that a temporary variance
from a standard set forth in subpart C of the NOP regulations for
organic production or handling operations be established provided such
variance is based on one or more of the reasons listed in Sec.
205.290(a). The reasons for variances addressed in the commenters'
recommendation are covered within Sec. 205.290(a)(2).
Stocking rates--Some comments supported animal units per acre over
minimum pasture intake requirements. One said that animal units per
acre would be simpler and easier to enforce. Another suggested
increasing the minimum days on pasture while limiting animal units per
acre. One offered the combination of managing pasture as a crop, animal
units per acre, and allowing additional pasture to
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increase both animal density and herd size, to promote good management
practices. This commenter suggested an amended Sec. 205.237(c) to
read:
(c) During the grazing season, producers shall provide access to
pasture for the lactating animals in the herd as an animal unit per
acre density not to exceed 3.0 for all pasture acres accessible to
the lactating herd and used as pasture by the lactating herd during
the grazing season. For all livestock in the herd over 6 months of
age, the animal units per acre density shall not exceed 4.0 animal
units per acre for all pasture acres under active management control
of the certified operation, Except, that producers shall be allowed,
through cooperation with their certifier and shown in a detailed
process through their OSP, that when the proportion of dry matter
intake consumed as pasture by the animals in the herd for either
group described above to be in excess of 30 percent of the total dry
matter intake consumed by the animals during the grazing season,
then animal units per acres densities for the herd may be increased
as long as the producer can show that not less than 30 percent of
the total dry matter consumed by the animals (in the respective
group) on average over the course of the grazing season is coming
from pasture.
This commenter also suggested that the term ``accessible'' may need
to be defined or clarified. The commenter suggested that the pasture
must be contiguous, and possibly limited in distance to no more than a
given mileage (e.g., \1/2\, 1, or 2 miles) between the milking facility
and the pasture gate. The commenter stated that using animal-units per
acre allows for the variation in impact on the pasture between Holstein
and Jerseys, between dairy and beef management systems, as well as
between cows and goats. In addition, the commenter opined that the
alternative proposal also offers operations that can handle a carrying
capacity of greater than 3 (and 4) animal units per acre to qualify for
those higher densities by working cooperatively with their certifying
agent and documenting the details of their production system in their
OSP.
Additional comments addressed the issue of animal units. One
criticized the 30 percent DMI from pasture requirement because it does
not consider any other pasture based management approach, such as
limiting animal units per acre. Another suggested an alternative that
the commenter believed might release most organic dairy and beef
operations from calculating DMI from grazing pasture. This commenter
said that when an operation has less than 2 acres per 1,000 lb. animal
to devote exclusively to grazing, DMI calculations must be provided as
part of the farm's organic system pasture plan. We have determined that
2 acres per 1,000 lb. animal will not work because stocking rates
depend upon the carrying capacity of the pasture which in turn depends
upon several factors including, soil productivity, rainfall,
topography, moisture and management. These factors are regional and
site-specific, and therefore this final rule does not set a stocking
rate. In some geographical locations, producers could have more than 2
acres per 1,000 lb. animal but will not be able to provide the minimum
30 percent DMI averaged over the grazing season. For example, one
commenter, opposing the 30 percent requirement, did so because it would
require 6 acres of dry pasture to support one dairy cow in the West
Texas region. (There is also the potential that an operation could have
acreage available for grazing but because of its proximity to the milk
parlor, it would not be grazed and not be used to fulfill the DMI
requirement.) Accordingly, if we were to adopt the 2 acres per 1,000
lb. animal suggestion, many animals would fall far short of receiving
the minimum 30 percent DMI averaged over the grazing season.
The commenter who submitted the recommended animal units regulatory
text argued against requiring that the producers provide their animals
with a minimum of 30 percent DMI from grazing. This commenter also
recommended removing the 30 percent language from Sec. Sec.
205.239(c)(6) and 205.240(c)(2). However, this same commenter's
recommended language for Sec. 205.237(c) includes the 30 percent DMI
from pasture requirement. Specifically, the commenter wants to
establish an upper limit on animal units per acre, but to allow that
upper limit to be exceeded when the producer can show that animals
receive a DMI from grazing in excess of 30 percent. Thus, the
commenters' proposed language conveys the message that producers should
strive to keep their grazing DMI at a level not to exceed 30 percent.
This is not the intent of this regulatory language. Producers must
provide at least 30 percent of their animals' DMI needs from grazing
pasture. The 30 percent is not a goal, nor is this language conditional
on animal units per acre or vice versa. It is a minimum level, below
which the producer must not fall in order to avoid noncompliance with
this part. Producers should strive for a more than 30 percent DMI
averaged over the grazing season and should take full advantage of high
yield periods to keep their DMI from grazing as high as possible.
Many commenters strongly supported requiring that ruminants graze
pasture throughout the grazing season and that a substantial portion of
their diet come from grazing. A significant number of commenters
specifically stated their support for a minimum 30 percent DMI from
pasture.
We continue to disagree with the concept of animal units per acre,
and have not adopted an animal-unit approach as suggested because there
is not a single stocking rate which would be appropriate for all
organic operations. This also explains why we did not define an animal
unit as suggested by one commenter. In addition, we did not prescribe a
maximum distance between milking parlor and pasture gate because this
should be determined by the producer in regard to the site specific
conditions of the operation. We have, however, retained the requirement
that producers provide their ruminant animals with a minimum 30 percent
DMI from pasture.
Livestock Living Conditions (Sec. 205.239)
Livestock Living Conditions--Changes Based on Comments
Section 205.239(a) Year-round living conditions to accommodate
behavior--The opening paragraph of the proposed Sec. 205.239(a)
differed from the original regulation by requiring producers to
establish and maintain year-round living conditions to accommodate the
natural behavior of animals. In addition, the proposed opening
paragraph further specified that producers must not in any way restrain
or restrict animals from being outdoors, except for the exemptions
provided.
We received comments on this paragraph, and nearly all objected to
the expansion of the paragraph beyond the language in the original
regulation. We agree, and have deleted the second sentence in the
proposed paragraph in recognition that operations which otherwise could
comply with this regulation might not keep livestock outdoors on a
continual basis throughout day and night. Furthermore, this would
appear contradictory to the provisions in the final rule which contain
exceptions for temporarily denying access to the outdoors. We are
retaining the addition of the requirement that producers must now
establish year-round conditions, however, despite two comments that
this should be deleted. We believe this is an important clarification
and have retained it in this action. Aside from adding ``year-round''
this action retains the original text of Sec. 205.239(a).
Section 205.239(a)(1) Description of year-round access (shade,
shelter, sunlight)--This paragraph described
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year-round access to the outdoors to include shade, shelter, exercise,
fresh air, water for drinking (indoors and outdoors), and direct
sunlight suitable, to the species, its stage of life, climate and the
environment. This paragraph differed from the original regulation by
requiring these conditions year-round for all animals, by adding the
requirements for indoor and outdoor water, and by changing stage of
production to stage of life.
We received comments on this paragraph, as described below:
Make no changes to the current regulation;
Consumers expect access to outdoors and opportunity to
graze pasture;
Daily outdoor access should only be required when
conditions permit;
Important to avoid encouraging exposure of animals
unnecessarily to adverse conditions;
Year-round outdoor access is problematic;
Oppose outdoor access for poultry;
Add ``nesting, play, exploration and development and
maintaining a stable, positive social hierarchy'';
Support year-round access to outdoors if pasture is
unavailable due to weather conditions;
Delete this paragraph.
We also received amended versions to the paragraph submitted by
commenters. Most of the comments seeking changes to the paragraph
included an exception clause as proposed under Sec. 205.239(b), which
would grant conditions to temporarily deny access to the outdoors. We
also received comments advocating that continuous, total confinement
should be prohibited. Some of these comments recommended adding that
continuous, total confinement in dry lots and feedlots is prohibited.
Reasons given included that the general practice of total confinement
is prohibited, but some well managed organic operations currently
provide feed to their livestock in what is referred to as ``feedlots''
during the grazing season or during the non-grazing season.
One comment advocated that well managed yards and feeding pads for
ruminant operations could be used for supplemental feeding. This
comment was received from many other commenters about the proposed
Sec. 205.239(a)(2). In addition, support was provided for size
specifications for the stocking density of yards, feeding pads, and
feed lots, including 250 square feet per animal, 500 square feet per
animal, or space per animal large enough to allow all animals to eat
simultaneously with no competition for food.
We received comments to remove the reference to require water to be
provided both indoors and outdoors. Some comments advocated that if
clean water is required, there would be no further need to require, as
proposed under Sec. 205.239(d)(4), that water be available at all
times except under specified conditions and prevented from fouling.
With regard to the requirement that water be provided both indoors and
outdoors, comments stated that this requirement does not take into
account extreme variations in operational management and physical
layout of farm operations, nor does it factor in low wintertime
temperatures in many areas that would make it physically and
economically impossible to provide water outside at all times.
We agree with the commenters' intention to prohibit continuous
confinement, with amendment. First, we believe reference is needed that
continuous confinement of any animal indoors is prohibited, to make it
clear that broilers and other poultry shall not be confined indoors.
Furthermore, reference to dry lots is unnecessary since a feedlot is a
dry lot for controlled feeding of livestock.
We agree that yards and feeding pads have a role in the management
of organic ruminant livestock. However, we believe that the statement
must also mention that feedlots, as defined in this final rule, are
essentially equivalent to yards and feeding pads. We do not concur that
a specified square footage per animal is needed because size will vary
by type of ruminant occupying the yard, feeding pad, or feedlot. We do,
however, agree that any feeding area must be large enough to allow all
of the ruminant animals to eat simultaneously with no crowding or
competition for food. We added a statement prohibiting continuous
confinement but also allow for well managed yards and feeding areas,
provided animals have the ability to feed without competition for food.
This makes clear that continuous total confinement also applies to
yards and feeding pads, which are synonymous with feedlots, as defined
in this final rule and that continuous total confinement in any of
these areas is prohibited.
We added an exemption for temporary denial of access to the
outdoors, with reference to the exceptions noted in Sec. Sec.
205.239(b) and (c). These exceptions are intended for animal welfare
concerns rather than production yields.
In agreement with comments, we have changed the requirement that
water be available at all times and prevented from fouling.
Furthermore, we also agree that the requirement to provide water
indoors and outdoors is inappropriate. In areas of high risk for a
potential outbreak of avian influenza, USDA's Animal and Plant Health
Inspection Service (APHIS) has published guidance on biosecurity and
disease prevention and control for non-confinement poultry production
operations that comply with the NOP. These procedures recommend that
producers provide feed and water for all non-confinement-raised poultry
in an indoor area. Accordingly, due to circumstances when restricting
open outdoor access is warranted, we have accepted the recommendation
to remove the reference to indoor and outdoor water and replaced this
with the requirement that water provided must be clean. This will allow
producers the flexibility needed to accommodate the water needs of
their livestock while also accounting for environmental factors
affecting the geographical location.
Section 205.239(a)(2) Continuous year-round management on pasture
for ruminants--Many commenters to Sec. 205.239(a)(2) supported the use
of well managed yards, feeding pads, and feed lots in organic ruminant
livestock production. Others advocated for the allowance of dry lots
while some opposed the use of dry lots. We addressed these issues in
Sec. Sec. 205.239(a)(1) above and (a)(5) below.
Many commenters requested an exemption for the finish feeding of
slaughter stock. This issue is addressed in new Sec. 205.239(d) below.
Finally, we received many comments about Sec. Sec.
205.239(a)(2)(i) and (ii)--describing the time of the grazing season
that ruminants must be managed continuously on pasture year round. Of
these comments, most advocated for only requiring pasture during the
grazing season. Other comments expressed concerns regarding the adverse
impact on soil and water quality and animal health. Another commented
on the inability of producers to simultaneously comply with the NOP
regulation to pasture the animals and regional water quality
regulations that limit animal access to pasture during the rainy
season. Some suggested that pasturing should be left to the discretion
of the producer. One stated that pasturing year-round and providing 30
percent DMI during the grazing season would require an increase in the
acreage devoted to pasture. The commenter went on to say that it would
take 6 acres of dry pasture land to support one dairy cow in the West
Texas region and that Texas would need approximately 96,726 acres to
provide pasture access to the state's 16,121 organic cattle herd. In
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conclusion, the comment stated that feeding livestock organic-certified
forage under confined conditions does not make them any less organic
than those that are fed free range. One commenter expressed concern
that requiring continual access to pasture would not allow livestock to
be transported off-site for livestock exhibitions, county fairs, or
agricultural education events.
We also received edited versions of Sec. 205.239(a)(2). Comments
recommended changing Sec. 205.239(a)(2) to read: ``For all ruminants,
provision of pasture throughout the grazing season to meet the
requirements of Sec. 205.237, except as otherwise provided in
paragraph (c) of this section.'' Another version read: ``(2) For all
ruminants, management on pasture, and daily grazing during the grazing
season(s), except as provided for in paragraphs (b) and (c) of this
section.'' Comments recommended adding a statement similar to the
definition of a grazing season to acknowledge that the grazing season
must be at least 120 days, but due to weather conditions, may not be
continuous.
Livestock producers are not compelled to participate in the NOP.
Producers voluntarily bring themselves within coverage of the OFPA and
the NOP regulations promulgated thereunder. Livestock producers must be
able to comply with the NOP regulations, however, in order to sell,
label, or represent their products as organic and to meet consumer
expectations.
Ruminant production under the NOP is pasture based and has been
since implementation. The regulations upon implementation defined
pasture, required producers to provide a feed ration to their ruminants
that included pasture, required producers to provide their ruminants
with pasture, and required producers to establish pasture conditions
that minimize the occurrence and spread of diseases and parasites.
Violation of the NOP pasturing requirements by some certified organic
producers does not mean that organic production standards should
accommodate those practices.
We disagree with the commenters who suggested that pasturing should
be left entirely to the discretion of the producer. Since
implementation of the NOP regulations on October 21, 2002, pasturing
ruminants has been a requirement for certification, but has been
implemented with considerable variation in the amount of access to
pasture provided. Due to the demand for measureable outcomes for
pasturing, we are reserving some discretion to producers to determine
how to achieve these outcomes. We also disagree that feeding livestock
organic-certified forage under confined conditions does not make them
any less organic than those that are fed free range. One of the tenants
of organic production is that animals are able to express their natural
behaviors, and exercise and move freely. The routine, regular feeding
under confined conditions does not uphold that tenant as grazing is a
natural behavior of ruminant livestock. This position not only violates
the regulations as they have existed since implementation but also
contradicts the expectations of consumers. During this rulemaking, over
26,000 commenters voiced their support for, and expectation that,
ruminants are managed on pasture as a condition for organic status.
We acknowledge that continuous year-round management on pasture may
not be environmentally sound or in the best interest of ruminant
livestock in all geographic regions due to periods of extreme heat or
cold, or saturated soil conditions. Accordingly, we have removed the
requirement that ruminants have continuous year-round management on
pasture. For example, temporary confinement may be acceptable when
animals must be removed from pasture due to rainfall during the grazing
season in order to comply with local water regulations that are in
place to prevent contamination of water. However, the recurrent and
frequent use of temporary confinement for periods of rainfall during
the grazing season for a particular geographic region, is not compliant
with these regulations. The grazing season described in the organic
system plan should establish a 120-day minimum grazing season in
consideration of regional rainfall patterns and exclude periods during
which rainfall would predictably require that animals be kept off
pasture. We have also removed Sec. Sec. 205.239(a)(2)(i) and (ii), as
suggested by some commenters. We removed Sec. 205.239(a)(2)(i) because
the issue is addressed in Sec. 205.237(c)(2). See Livestock Feed--
Changes Based on Comments above. We removed Sec. 205.239(a)(2)(ii)
because the access to the outdoors provision is addressed in Sec.
205.239(a)(1). See Livestock Living Conditions--Changes Based on
Comments above.
In amending Sec. 205.239(a)(2), we have combined the two
recommended versions quoted above, except that reference to pasture
exemptions found in Sec. Sec. 205.237(b), (c) and new paragraph (d) is
also added. Those recommendations were adopted because they clearly
state the intent of this final rule in linking the pasturing of
ruminant animals during the grazing season to meet the feed
requirements from grazing pasture.
Section 205.239(a)(3) Bedding must be organic--The paragraph, as
proposed, required producers to provide bedding for ruminants that
complies with feed requirements of the NOP regulations, if such bedding
is crop matter typically fed to animals. This proposed paragraph
differs from the original regulation only by describing specific types
of crop matter, such as hay, straw, and ground cobs, and further
specifically requires such crop matter to comply with the feed
requirements of Sec. 205.237. In the final rule implementing the NOP,
this paragraph has been subject to misinterpretation. The correct
interpretation of this paragraph is the following: appropriate, clean,
and dry bedding must be provided for animals. If, however, bedding is a
substance that is matter typically consumed by an animal of that
species--such as any type of feedstock, regardless of its feed value--
that bedding must comply with the feed requirements of Sec. 205.237,
and be organically produced and handled.
Typical comments on this paragraph included such statements as:
support that the bedding be organically produced; all bedding
originating from plants grown to produce feed for livestock must be
organic with no exceptions; exempt conventional non-GMO materials when
certified organic bedding materials are not available; agricultural
products used for bedding should be certified organic based on
commercial availability but nonorganic hay or other nonorganic feed
likely to be consumed in more than a negligible quantity should never
be allowed; hay must be organic but other agricultural materials should
be allowed from conventional sources if no prohibited substances have
been applied to the material; the added cost of organic bedding is too
high; organic bedding sources are limited; there are insufficient
supplies of organic straw; some clients have difficulty obtaining
organic bedding in sufficient quantity; remove the specific bedding
examples--organic straw should be deleted because straw is not
typically fed to animals and should not have to be organic; and remove
all of the proposed changes.
In addition, we received comments proposing variations on the
paragraph. Highlights of the variations include: removing the specific
crop listings; retaining the reference to crop matter but removing the
specific crop listings; adding a statement prohibiting the use of
genetically modified crop matter; requiring that bedding material be
non-
[[Page 7172]]
toxic and otherwise suitable for the species and stage of life; and
qualifying the requirement for appropriate clean, dry bedding by adding
``when necessary'' or ``as necessary.''
We received comments recommending changes to the various types of
bedding listed in the proposed Sec. 205.239(a)(3). A few felt that
listing a few examples of bedding materials could create more confusion
about which materials must be certified organic; one said that, as
written, producers might believe that agricultural products not listed
do not have to be certified or handled organically. Another recommended
removing the specific types of bedding for the sake of clarity and not
to limit the requirement to those crop products. One commenter stated
that straw is not typically fed to animals and should be exempt,
because animals provided with sufficient feed and adequate nutrition
will not typically consume bedding straw.
A commenter who espoused a commercial availability clause for the
requirement that agricultural products used as bedding be certified
organic, also stated that nonorganic hay or other nonorganic feed
products used as bedding and likely to be consumed in more than a
negligible quantity should never be allowed. One commenter also wrote
that demand for organic bedding will not develop unless organic bedding
materials are required. Other commenters acknowledged limited organic
straw supplies in some areas but pointed to other areas where organic
straw is sold to the conventional market due to a lack of buyers.
Additional comments report limited organic bedding sources or supplies.
Some commenters suggested adding ``as necessary'' to appropriate
clean, dry bedding. One comment said the reason was to clarify that
beef animals on the range, and other production systems where bedding
is not necessary, do not need to be provided with bedding. Another
stated that otherwise this requirement appears to make bedding
mandatory as written.
A few commenters acknowledged that the bedding requirement in the
original regulation is widely interpreted in different ways by
producers, inspectors, and certifying agents. This is further
reinforced by comments from producers who use conventional bedding
materials and a certifying agent who stated that their clients have
trouble sourcing organic bedding materials. This same certifying agent
expressed the belief that the use of non-organic bedding does not
affect the integrity of the organic product. In all, several certifying
agents and certifying agent organizations offered comments on this
issue, including a statement that the current regulation is adequate
and one to delay implementation of the requirement to source organic
bedding materials for 24 months. A consumer group submitted the comment
that if animals are using bedding materials that they may consume, such
materials must also comply with the feed requirements, and doing so
will help strengthen the integrity of the label.
We disagree that the original regulation is adequate with respect
to bedding as evidenced by the different interpretations among the
certifying agents. Section 205.239(a)(3) requires that all livestock
feed products used as bedding must be organic but needs clarification
to eliminate the inconsistent application across certifying agents. We
proposed changes to this paragraph because in the administration of
this regulation, we have observed the use of conventional bedding
typically consumed by the animal species. Such producers claim that
their animals do not consume their bedding. However, the regulation
does not say that organic bedding is required when the animals consume
their bedding. It requires organic bedding when crop matter typically
consumed by the animal species is used as bedding. We agree with those
commenters who stated that all bedding originating from crops raised to
produce feed for livestock must be organic and that conventional straw,
corncobs, hay and other agricultural products are not allowed.
In order to eliminate the erroneous interpretation of this
paragraph, we have amended Sec. 205.239(a)(3) to read: ``Appropriate
clean, dry bedding. When roughages are used as bedding, they shall have
been organically produced in accordance with this part by an operation
certified under this part, except as provided in Sec.
205.236(a)(2)(i), and, if applicable, organically handled by operations
certified to the NOP.'' This revision eliminates the need to include a
prohibition on products of excluded methods, as requested by
commenters, since Sec. 205.105(e) already prohibits the use of
excluded methods. We have replaced the examples of bedding materials
with the term, ``roughages'' to avoid any ambiguity that only the
bedding materials listed would be subject to this requirement. We
disagree with removing the requirement for organic straw. Straw is a
feedstuff classified by the International Feed Identification System as
roughage. We also disagree with a comment that animals do not eat
bedding, as some of all edible bedding material is consumed by the
animals whether or not it is intended to provide feed value. The fact
that straw may be low quality roughage does not change the fact that
straw is roughage typically consumed by ruminants. We have not endorsed
the suggestion to allow non-organic bedding when animals consume a
negligible quantity because of the potential for wide variation in the
interpretation.
We oppose a commercial availability clause for bedding materials,
or exemptions which would have a similar effect of diluting the
standard, such as, allowing conventional non-GMO materials when
certified organic bedding materials are not available; allowing organic
hay but conventionally-sourced other agricultural materials provided no
prohibitive substances were applied; or allowing non-toxic conventional
agricultural bedding products. We agree that an organic bedding market
will not grow as long as producers use conventional roughages as
bedding in lieu of organic roughages. A commercial availability clause
or other exemptions would stifle development of the existing market for
crops that can be used as bedding material. Furthermore, conventional
crops are typically produced using prohibited substances under the NOP
and, therefore, are very likely to contain residues of those prohibited
substances.
As written, the original regulation requires appropriate bedding;
it does not mandate bedding always be provided. Adding the phrase ``as
necessary'' to ``appropriate clean, dry bedding'' would inappropriately
modify the ``clean and dry'' requirement, which is mandatory, and
weaken the requirement.
Consistent with the above livestock feed discussion, livestock
producers that meet the exemption for certification under Sec.
205.101(a)(1), may continue to use roughages they grow as bedding for
the animals they raise.
New Sec. 205.239(a)(5) Yards and passageways--Many comments
supported allowances for well-managed yards, feeding pads, and feedlots
in organic ruminant livestock production in reference to proposed rule
Sec. Sec. 205.239(a)(2)(ii) and (d)(2). Reasons included: (1) A need
when soil, water quality, animal health or humane treatment of
livestock are tenuous in certain pasture conditions; (2) commonly used
for supplemental feeding during both non-grazing and grazing seasons;
and (3) facilitates exercise and outdoor access during the non-grazing
season. Many comments emphasized the need for yards, feeding
[[Page 7173]]
pads, and feedlots to be clean and well managed. Comments also
suggested amending the paragraph to address the use of yards and
feeding pads. A few comments recommended moving the paragraph and
amending it to read: ``Yards, feeding pads, and laneways kept in good
condition and well-drained.''
We received some comments in favor of ``dry lots,'' and a few in
opposition. Reasons in favor included all those cited above; in
addition, comments also claimed that dry lots are necessary for:
Vaccination and care;
Producing high quality products;
Companies that supply organic meat and those that sell
animals to finishers and meat producers who direct market their
product, and prohibiting them would have a dramatic impact; and
Market conditions--their prohibition would decimate the
organic industry as a whole because demand would exceed supply and
drive prices to a level consumers could not afford thereby causing the
entire industry to crumble.
As noted above under Livestock Living Conditions, we agree that
yards, feeding pads, and feedlots have a role in the management of
organic ruminant livestock. Thus, we added language to Sec.
205.239(a)(1) providing that yards, feeding pads, and feedlots may be
used to provide ruminants with access to the outdoors during the non-
grazing season and supplemental feeding during the grazing season. We
also agree that for livestock living conditions, yards, feeding pads,
feedlots, and laneways must be kept in good condition and well-drained.
Accordingly, we have added a new Sec. 205.239(a)(5) to address the
management of yards, feeding pads, and feedlots. The new language
provides for the use of yards, feeding pads, feedlots and laneways that
shall be well-drained, kept in good condition, and managed to prevent
runoff of wastes and contaminated waters to adjoining or nearby surface
water and across property boundaries. This new paragraph expands upon
the provision in the proposed rule, Sec. 205.239(d)(2) which required
yards and passageways to be in good condition and well-drained. Section
205.239(d)(2) in the proposed rule has been deleted, but the contents
have been retained in this final rule Sec. 205.239(a)(5).
Sections 205.239(b) and (c) Temporary denial of outdoor access or
pasture--Under the proposed rulemaking, these two sections
distinguished outdoor access and pasture between non-ruminants and
ruminants, and the conditions under which each could be denied for
these types of animals. Paragraph (b), for non-ruminants, described two
conditions for temporary denial of outdoor access, and differs from the
original regulation by distinguishing stage of life from stage of
production. Paragraph (c), for ruminants, listed six conditions related
to illness, health, birth, weather (for goats), shearing, and milking,
under which ruminants may be temporarily denied pasture.
We received comments requesting to combine the two paragraphs, and
a comment that the exceptions in the paragraphs should apply more
generally to all types of animals. While we are not combining the
paragraphs, we have addressed the issue of applicability to all
ruminant animals. It is not appropriate to combine these as paragraph
(b) is applicable to livestock generally, while paragraph (c) is only
applicable to ruminant animals. We received numerous comments on
paragraph (b) (many of them overlapping with issues identified in
paragraph (c) which dealt with denial of access to pasture), requesting
that we take account of additional circumstances under which all
animals might be temporarily confined or provided shelter. These
comments led us to rewrite Sec. 205.239(b) accordingly. Comments
received and the changes they led to are discussed below.
Section 205.239(b) Temporary confinement or shelter--We received
comments to replace the opening text of the paragraph which states
``temporarily deny a non-ruminant animal access to the outdoors'' with
``provide temporary confinement and shelter for an animal'' because
this more accurately reflects the requirement of the exemptions for
animals which may need both confinement and shelter for their welfare.
We agree with these comments and have changed the opening wording of
Sec. 205.239(b) to allow producers to provide confinement or shelter
in the final rule.
Section 205.239 (b)(2) Lactation does not justify confinement--We
received comments recommending that ``Lactation is not a stage of life
that would exempt ruminants from any of the mandates set forth in this
regulation'' be added to the proposed Sec. 205.239(b)(2) to preclude
the potential for abuse of the stage of life exemption. We agree that
recurring confinement for the extended lactation periods would be
inconsistent with the purpose of this rule and the expectation of
consumers. We have included the recommended change in this action.
Section 205.239(b)(5) Healthcare practices--preventive and
treatment--We received comments recommending the addition of a new
paragraph to address preventive healthcare procedures. We received
comments which recommended amendments related to breeding and
preventive health care practices to Sec. 205.239(c)(1), of the
proposed rule. One comment recommended adding the words ``other
veterinary-type health care needs'' under the provisions for preventive
healthcare procedures and the treatment of illness or injury. Finally,
some comments recommended changing the phrase about various life stages
to simply state that lactation is not an illness or injury.
As we noted in the proposed rule, some producers have claimed that
lactation is a stage of production for which dairy animals require
constant veterinary care or oversight, and therefore have used this to
deny animals time on pasture or access to the outdoors. We do not
concur. An exemption from pasture or outdoor access for that period on
a recurring basis would result in confinement of the milking herd for
extended periods of lactation. While lactating cattle have unique
nutritional needs that must be carefully attended to, these animals
should not require constant veterinary care or oversight, for lactation
alone, that interferes with access to pasture. For this reason we are
explicitly defining lactation as a stage of life and stating that
neither the various life stages, nor lactation, are an illness or
injury. We also are not changing the language to ``lactation is not an
illness or injury'' because this does not fully address the issue. It
was and remains our intent that neither stage of life nor lactation is
a valid reason to deny an animal outdoor access or pasture, based on
the need for constant veterinary care or oversight.
We agree that preventive healthcare procedures, like the treatment
of illness and injury, are regular management practices that may
require temporary confinement of the animal. Therefore, we have
accepted the recommendation to add a new paragraph to address
preventive healthcare procedures. We have combined the provision
permitting temporary denial of pasture for treatment of illness or
injury, Sec. 205.239(c)(1) in the proposed rule, with a provision for
preventive healthcare procedures into Sec. 205.239(b)(5). In this
final rule, the above provision is solely contained in Sec.
205.239(b)(5).
Section 205.239(b)(6) Sorting and shipping animals--At least one
commenter opined that the regulations need to provide for the sorting
of ruminants. Some expressed the need for a provision addressing the
shipping of
[[Page 7174]]
animals. Finally, one questioned whether there should be a provision
addressing livestock sales.
To address these concerns we have added a new paragraph (b)(6) to
Sec. 205.239. This paragraph includes a provision that the animals
shall be maintained on organic feed and under continuous organic
management throughout the extent of their allowed confinement.
Paragraph 205.239(b)(6) reads: ``Sorting or shipping animals and
livestock sales: Provided, That, the animals shall be maintained under
continuous organic management, including organic feed, throughout the
extent of their allowed confinement.''
Section 205.239(b)(7) Breeding--We received comments that
recommended addressing breeding in a new paragraph. We also received
comments requesting that breeding be added as a reason for denying
access to pasture, and comments that breeding animals may be
temporarily confined for artificial insemination. We acknowledge that
breeding is a management task that may require temporary confinement of
the animal.
We have added a new paragraph (b)(7). To prevent abuse of the
allowance for confinement for breeding, we have included a provision
that bred animals shall not be denied access to the outdoors and, once
bred, ruminants shall not be denied access to pasture during the
grazing season. This precaution was taken because certain producers
have denied bred dairy animals access to pasture.
Section 205.239(b)(8) Youth events--At least 1 comment requested
the addition of a paragraph addressing 4-H, Future Farmers of America
and other youth projects. The commenter was concerned that the
regulations would preclude youth with organic animals from
participating is such events. USDA believes that youth should be
encouraged to participate in these events.
Therefore, we have added a new paragraph (b)(8) which reads: ``4-H,
Future Farmers of America and other youth projects, for no more than
one week prior to a fair or other demonstration, through the event and
up to 24 hours after the animals have arrived home at the conclusion of
the event. These animals must have been maintained under continuous
organic management, including organic feed, during the extent of their
allowed confinement for the event.''
Section 205.239(c) Temporary Denial of Pasture for Ruminants--As
noted above, this proposed paragraph outlined six conditions under
which ruminant animals could be temporarily denied access to pasture,
related to health conditions, shearing, and milking. We received
comments asking to add ``or outdoor access'' to the opening text of
this paragraph.
This comment has merit. We have accepted the recommendation in
acknowledgement of conditions which, in the interest of an animal's
welfare, shelter is warranted and that there are essential animal
husbandry practices which typically occur indoors. As discussed above,
we have amended Sec. 205.239(b) to apply to all animals. To further
clarify the relationship between paragraphs (b) and (c) we also added
``in addition to the times permitted under Sec. 205.239(b)'' to the
opening text of Sec. 205.239(c).
Section 205.239(c)(1) Parturition (birthing)--Some commenters
recommended changes to this previously designated paragraph (c)(2),
including retain as written, remove, add a provision for dry off, and
amend the one week prior to parturition provision. As proposed, the
paragraph would allow ruminants to be denied access to pasture
temporarily for one week prior to birthing, and up to one week after
giving birth. The commenters which proposed changes to the one week
prior to birthing provision submitted 5 different versions of changes
to this section. Three versions included open time period language
including pre-parturition, for brief periods, and for short time
periods. Two other versions submitted stated that one week prior should
be changed to two weeks and, in another version, to three weeks. One of
the comments asking for a provision for dry off recommended that it be
limited to the denial of pasture only, but not access to outdoors.
We believe that the recommendations for adding a dry off provision
and that it be limited to denial of pasture only have merit. We have
also accepted the recommendation to change the one week prior to
birthing to three weeks because we agree that three weeks are needed to
ensure that the producer has the ability to employ proper nutrition
science for maintaining the health and well-being of the animal after
parturition. Three weeks also addresses varying gestation lengths for
individual animals and accommodates births occurring earlier than or
later than the projected birth date. We have not accepted the open time
period language to the allowed pre parturition denial of pasture and
access to the outdoors because they leave room for abuse of the
exemption.
Section 205.239(c)(2) Housing of newborn dairy cows--We received
comments which made recommendations involving previously designated
paragraph (c)(3). Comments included retain, remove, add ``dairy'' after
``newborn'', add ``during the grazing season,'' change ``on pasture''
to ``access to pasture,'' and add a provision that a producer shall not
confine or tether an animal in a way that prevents the animal from
lying down, standing up, fully extending its limbs, and moving about
freely.
We agree with inserting the word ``dairy'' after ``newborn'' to
clarify that the provision applies only to dairy ruminants. We also
agree with adding ``during the grazing season'' to make the provision
consistent with the requirement that ruminants be on pasture during the
grazing season. We have not accepted the recommendation to change ``on
pasture'' to ``access to pasture.'' Such a change would blur the
requirement and create opportunity for abuse. We expect all ruminants
to be on pasture throughout the grazing season, except as otherwise
provided by Sec. Sec. 205.239(b) and (c). We have also accepted the
recommendation to add a provision providing that a producer shall not
confine or tether an animal in a way that prevents the animal from
lying down, standing up, fully extending its limbs, and moving freely.
This provision reinforces the requirements of Sec. 205.239(a). Finally
we have redesignated the paragraph as (c)(2).
Section 205.239(c)(3) Shearing--We received comments involving
previously designated paragraph (c)(5), which provided that shearing of
sheep could justify temporary denial of access to pasture. Comments
included removal, retain, and amend. Two versions of changes were
submitted. One recommended shortening the provision to ``for short
periods for shearing.'' The other version recommended changing the
reference to sheep to fiber bearing animals.
We agree that sheep are not the only animals sheared. As pointed
out, other sheared ruminants include alpacas, goats, llamas, and yaks.
Accordingly, we have modified the reference to fiber bearing animals
and redesignated the paragraph as (c)(3).
Section 205.239(4) Inclement weather for goats--We received
comments on this paragraph, most of which requested we remove the
paragraph or combine it with the paragraph on shearing.
We deleted the paragraph because it is redundant. Section
205.239(b)(1) would permit temporary sheltering of goats when warranted
by inclement weather.
Section 205.239(c) Short periods for milking--This proposed
paragraph,
[[Page 7175]]
previously designated as Sec. 205.239(c)(6), provided temporary denial
of access to pasture for ruminant dairy animals for short daily periods
of time for milking. This provision also stated that producers must
schedule milking to ensure sufficient grazing time to provide each
animal with an average dry matter intake from grazing of not less than
30 percent throughout the growing season and that milking frequencies
or duration practices cannot be used to deny dairy animals pasture.
We received comments on this paragraph. Comments included remove,
move the requirement that milking cannot be used to deny access to
pasture to the paragraph (b) which deals with temporary confinement or
shelter, and 6 amended versions. All of the amended versions retained
the first requirement--that pasture can be denied for short periods
daily for milking. Three versions removed the requirement that milking
must be scheduled in a way that does not interfere with ensuring that
the 30 percent DMI requirement is obtained. The other three versions
retained this requirement but changed ``growing season'' to ``grazing
season.'' Retention of the requirement that milking cannot be used to
deny access to pasture was recommended by some of the commenters, but
comments also offered edited versions to the sentence.
We have retained the paragraph as originally proposed with the
exception of changing, as done throughout this action, growing season
to grazing season and redesignating the paragraph to (c)(4). We believe
this wording is needed to clearly convey that milking practices shall
not interfere with the 30 percent DMI requirement.
Section 205.239(d) Lying area, yards, shade, water, feeding
equipment, hay in racks for newborns--Some commenters expressed
opinions on one or more paragraphs in Sec. 205.239(d). Comments
included deleting all six provisions; opposition to or change paragraph
(d)(3) so that producers only have to provide shade as appropriate;
opposition to or change paragraph (d)(5) to remove the weekly cleaning
requirement for watering equipment; and opposition to or change
paragraph (d)(6) to remove the hay in a rack requirement for newborns
beginning 7 days after birth.
We have deleted all of Sec. 205.239(d). Each of the requirements
is found elsewhere in the livestock practice standard with the
exception of paragraph (d)(6), which we eliminated altogether.
Paragraph (d)(1) addressed bedding and is covered by Sec.
205.239(a)(3). Paragraph (d)(2) addressed yards and passageways and is
covered by Sec. 205.239(a)(5). Paragraph (d)(3) addressed shade, and
paragraphs (d)(4) and (d)(5) addressed water. These are all covered by
Sec. 205.239(a)(1). Paragraph (d)(6) was removed because we agree with
comments that the requirement was too prescriptive. However, the
proposed requirement that dairy animals be on pasture not later than 6
months after birth has been retained and is found in Sec.
205.239(c)(2).
New paragraph 205.239(d) Slaughter stock finishing on pasture--
Comments on Sec. Sec. 205.237(c) and 205.239(a) and (c) included
recommendations for ruminant slaughter stock. Of the numerous comments
received addressing this provision, the major issue was the addition of
an exception to the 30 percent DMI requirement from pasture for
ruminants during finish feeding prior to slaughter and the length of a
finishing period on feed. The majority of the comments requested 120
days. Others submitted 90, 150, or some combination of this range of
days. Some comments suggested one fifth of an animal's life, not to
exceed 120 days; a few supported a 120 day finishing period, with the
condition that the finishing area have space adequate for all animals
to feed simultaneously and to display no competition for food. One
comment suggested a stocking density of at least 250 square feet per
animal--based on the Canada organic standard of 23 square meters (247
square feet) per animal.
Of the comments received on slaughter stock, most urged that
animals not be denied access to pasture during the finishing feeding
period. Of the comments received, most also recommended that during
this finishing period, animals be exempt from the 30 percent DMI
requirement from pasture. In addition to the comments on provisions for
ruminant slaughter stock, we received numerous additional comments
opposed to the confined feeding of organic beef animals.
The sentiment among most of the commenters is that there is no
place in organic agriculture for the confinement feeding of animals nor
should there be any exception for ruminant slaughter stock. This is
precisely why the commenters who supported finished feeding requested
that animals not be denied access to pasture during the finishing
feeding period. One of the comments stated that consumer expectation
that confinement is not part of organic production is not isolated to
dairy cattle; consumers are also uncomfortable with the long-term
confinement being used to finish beef cattle. This commenter stated
that it is time for the NOP to make explicitly clear that feedlots are
not acceptable in organic production.
Some commenters expressed disagreement, and asserted that there is
a valid place in organic agriculture for confinement feeding of
animals. These commenters stated there should be exceptions for
ruminant slaughter stock. One stated that the organic meat industry
relies heavily on confinement finishing of beef animals. This
commenter, and a few others, wrote that a complete prohibition on
confinement finishing would have a dramatic impact, not only on the
larger companies supplying organic meat to consumers, but also on the
cow-calf and stocker operations that sell animals to finishers and
organic meat producers who direct market their product. Another
commenter stated that eliminating dry lots would put an end to the most
efficient means of producing high quality products. A commenter claimed
that eliminating dry lots would cause the potential market for organic
calves to significantly contract. One commenter asserted that
prohibiting dry lots in organic production would decimate the organic
food industry and that demand would exceed supply, prices would
increase significantly, consumers would stop buying organic food, and
the organic food industry would crumble. One commenter expressed that a
prohibition on dry lots would be overly burdensome and very costly for
current and future organic ruminant animal producers in Texas. Another
commenter expressed the following: (1) Production systems are in place
that demand temporary confinement for finish feeding; (2) these
sections of the industry cannot be adjusted to meet the regulations;
(3) periods that animals are confined for finish feeding should be
temporary and be best managed within the organic system plan that
addresses animal welfare and environmental health; (4) the need for
temporary confinement to finish animals is valid in order to satisfy
the growing demand; (5) organic producers are currently demonstrating
that this can be accomplished within the organic standards and
principles; and (6) beef animals are out on pasture usually from the
day of birth up unto finishing, offering more consistent access to
pasture or the outdoors than dairy cattle, swine, or poultry. Finally,
a commenter supporting dry lot finish feeding acknowledged that finish
feeding on pasture is feasible. However, this commenter opined that it
is not practical to require the entire industry to finish feed on
pasture.
One commenter wrote that while some certifying agents have allowed
[[Page 7176]]
temporary confinement of livestock for finish feeding for up to 120
days, other agents have not because they believe it to be prohibited
under current regulations. Finally, this commenter argued for a
clarification for finish feeding, but not through this rulemaking
action. Other comments mentioned widespread abuse but expressed support
for the status quo provided the NOSB recommendation is either
incorporated into this rule or published as guidance and strictly
enforced. We disagree for three reasons. First, although we did not
propose an exemption for finish feeding as part of the livestock
practice standard, we acknowledged in the proposed rule that total
confinement for finish feeding was an issue. Second, the statute
requires that a consistent, uniform standard be implemented through
regulation. Third, the fact that accredited certifying agents are
applying two different standards regarding the finish feeding of
slaughter stock demonstrates that we require a clear standard. Thus,
these points are reason to revisit this issue.
Commenters opposed to finish feeding on pasture are not in
alignment with expectations and sentiments of organic consumer groups
as communicated to USDA in the rulemakings related to this subject and
the complaints submitted to NOP. We also do not concur with the
scenarios portraying an organic beef sector that will collapse if
confinement feeding is prohibited for slaughter animals. We believe
organic livestock producers will be able to work within these
standards, meet the expectations of consumers, grow the demand and
therefore, a stronger market for organically produced meats.
In the proposed rule we stated that we would not provide an
exemption for finish feeding. In consideration of the comments on
slaughter stock production, we have revised that position through the
addition of a new Sec. 205.239(d). This paragraph provides that
ruminant slaughter stock, typically grain finished, shall be maintained
on pasture for each day that the finishing period corresponds with the
grazing season for the geographical location. It also allows for the
use of yards, feeding pads, or feedlots to provide finish feeding
rations. These provisions are consistent with recommendations from
commenters supporting finished feeding provided the animals are not
denied access to pasture during the finishing feeding period. The
paragraph also includes language exempting the animals from the not
less than 30 percent DMI pasture requirement. We agree with the
commenters who recommended that the finishing area have feeding space
adequate for all animals to eat simultaneously and to display no
competition for food. Accordingly, we have included the provision that,
yards, feeding pads, or feedlots used to provide finish feeding rations
must be large enough to allow all ruminant slaughter stock occupying
the yard, feeding pad, or feedlot to feed simultaneously without
crowding and without competition for food. This addition is consistent
with the language in Sec. 205.239(a)(1) regarding yards, feeding pads,
and feedlots. As noted above, most of the commenters expressed a
preference that the finishing period not exceed 120 days. A few
recommended the further restriction that the finishing period not
exceed one fifth (\1/5\) of the animal's total life or 120 days,
whichever is shorter. The 120 days was based upon the typical timeframe
for finishing beef cattle at 18-24 months of age. Some livestock
species, however, are slaughtered at a much younger age and the 120
days would allow these animals an exception for access to pasture and
the outdoors for most of their lives. Therefore, we have accepted this
latter recommendation and included it in new Sec. 205.239(d).
As stated in the Summary section above, we are seeking further
comment on the requirements pertaining to the finish feeding of
ruminant slaughter stock. Although we are issuing this as a final rule,
we are requesting comments on the exceptions for finish feeding of
ruminant slaughter stock. This rulemaking coupled organic livestock and
organic dairy production because the use and management of pasture is
integral to both types of production. We received a substantial number
of comments concerning both the dairy component of this rule and the
lack of provisions for finish feeding. As a result of these comments,
the finish feeding provisions of this final rule differ from those in
the proposed rule. Specifically, this final rule contains an exemption
for finish feeding through the addition of a new Sec. 205.239(d).
Although finish feeding was discussed as an issue in the proposed rule,
the proposed rule did not provide for an exemption. Unlike the comments
we received that pertained to the dairy components of this rule, there
was uncertainty on the specific terms that commenters believed should
be contained as part of an exemption to allow for the finish feeding of
ruminant slaughter stock. We have determined, therefore, to receive
additional comments, limited to the finish feeding provision of this
final rule.
Accordingly, the agency is providing an additional 60 day period to
receive comments on the finish feeding provisions. More specifically,
we are seeking further comments on the following:
The length of the finishing period, i.e., not to exceed
\1/5\ of the animal's total life or 120 days, whichever is shorter;
Infrastructure hurdles and regional differences, if any,
these requirements present to slaughter stock operations, including to
those operations that graze animals on rangeland, and the estimated
economic impact;
The use of feedlots, as defined in this final rule, for
the finish feeding of organic slaughter stock.
Comments should be limited to the portions of this rule that
pertain to the finish feeding of ruminant slaughter stock. Based upon
comments received, the agency will determine whether any further action
is warranted.
Section 205.239(e) Resource management of outdoor access, including
fencing and buffer zones--This proposed paragraph (designated as
paragraph (f) in the proposed rulemaking) would require producers to
manage outdoor access in ways that minimize risk to water and soil
quality, through the use of such methods as buffer zones and fences. In
the current regulation, Sec. 205.239(c) requires producers to manage
manure in ways that do not contribute to contamination of soil or
water. This paragraph reinforces the current requirement by recognizing
that pasture and ruminants on pasture play a role in resource
management, and requires producers to actively acknowledge this
resource management through such mechanisms as fencing and buffer zones
of sufficient size to address potential contamination issues.
We received numerous comments on this proposed paragraph, with most
suggesting replacing reference to specific management practices such as
fences or buffer zones with ``devices that prevent animals and waste
products from entering bodies of water.''
The remaining comments we received are described below:
Delete everything after the word ``risk'' and combining
this paragraph with existing paragraph (c), which addresses and
protects soil and water quality;
Rangeland grazing is not concentrated enough to damage
soil, vegetation, or water quality;
In the West most water is obtained from running streams,
rangeland streams provide open water in winter, and with a proper
grazing plan, streams
[[Page 7177]]
and ponds can be managed to maintain water quality;
Fencing rangeland waterways could limit wildlife access to
their source of drinking water;
Inconsistent with the natural animal impact necessary
along small streams to maintain a healthy stream environment and
necessary downstream water flow;
Flooding washes wire and fence posts downstream;
Riparian areas can be grazed while minimizing potential
negative effects to soils, water quality, and wildlife;
Costly to small ranchers to fence and artificially convey
water; costly to ranchers with large acreage; would cost the state of
Texas organic cattle industry from $20.1 million to $26.8 million in
terms of fencing costs;
As written, could conflict with the state and local codes
that govern water quality and manure management; the Natural Resources
Conservation Service (NRCS) and State and local soil and water
conservation programs have guidelines for protecting water quality.
We acknowledge that the NRCS and state and local soil and water
conservation programs have guidelines for protecting water quality
which are specific to the ecology of the geographical location. We also
acknowledge that as proposed, the paragraph could adversely impact
wildlife in some areas, which would be inconsistent with the NOP
requirements that organic producers maintain or improve the natural
resources of the operation, which includes wildlife. Accordingly, with
minor editing, we are accepting the recommendations to delete
everything after the word ``risk,'' and to combine with current Sec.
205.239(c). This will provide producers and ACAs the flexibility to
meet this requirement in consideration of the conditions specific to
the operation and its location. Furthermore, the elimination of this
fencing requirement will relieve operations from incurring potentially
high costs to install and maintain the fencing. The NRCS soil and water
conservation programs and state and local soil and water conservation
programs combined with new paragraph (e) requirements should be
sufficient to protect ponds, streams, and other bodies of water on,
passing through, and adjacent to, organic operations.
Livestock Living Conditions--Changes Requested But Not Made
Section 205.239(a)(1) Exempt poultry from outdoor access--A
commenter asked that Sec. 205.239(a)(1) be changed to remove the
requirement that poultry be provided with access to the outdoors (the
comment also recommended removing domestic poultry from the definition
of livestock). Four reasons were given for these changes: (1) Poultry
cannot meet their nutritional requirements from grazing and forage; (2)
the NOP regulations prohibit feeding of animal origin ingredients but
chickens will pick through fecal material which will in fact contain,
among other things, sloughed intestinal cells; (3) predators are common
in rural areas and poultry are defenseless against their attack; and
(4) avian influenza.
The issues of removing the requirement that poultry be provided
with access to the outdoors and removing domestic poultry from the
definition of livestock were not specifically presented for public
comment in the proposed rule. We will not enact such recommendation
without providing the many stakeholders that could be affected by this
action, notice of the proposed change and an opportunity for comment.
Further, we are not convinced by the commenter's arguments because we
believe organic poultry producers are capable of providing all poultry
with access to the outdoors as required by Sec. 205.239(a)(1). Poultry
shall only be temporarily denied access to the outdoors in accordance
with Sec. 205.239(b)(1). This action adds a definition for ``temporary
and temporarily'' to Sec. 205.2.
USDA's APHIS has published guidance on biosecurity and disease
prevention and control for non-confinement poultry production
operations that comply with the NOP. These procedures recognize
restricting outside open access by maintaining outdoor enclosures
covered with solid roofs and wire mesh or netted sides as a protective
measures option in areas of high risk for a potential outbreak of avian
influenza. The procedures also recognize restricting outside open
access by maintaining outdoor enclosures covered with wire mesh or
netting in lower risk areas. The procedures also recommend providing
feed and water for all non-confinement-raised poultry in an indoor
area.
In consideration of the foregoing, we have not included the
recommended changes in this action.
Section 205.239(a)(4) Modification for shelter--We received
comments that recommended amendment to Sec. 205.239(a)(4).
Recommendations included modifying ``shelter'' by whatever is needed,
or needed and appropriate to the species or environment. One commenter
recommended that shelters be identified with more specificity--such as
barns, sheds, or windbreaks, or as woods, tree lines; or that shelter
describes geographical features appropriate to the species that provide
physical protection to all animals simultaneously. The commenter also
stated that shelters should be designed to allow for the instinctive
behaviors of nesting, play, exploration, and developing and maintaining
a stable, positive social hierarchy. Other comments said no changes
should be made to the paragraph.
We have not acted on this recommendation because amendment to Sec.
205.239(a)(4) was not presented for public comment in the proposed
rule. Because changes to this paragraph would affect shelter for all
types of livestock, not only ruminants, any amendment to Sec.
205.239(a)(4) would need a notice and comment rulemaking process to
adequately consider the options and concerns of the range of
stakeholders that could be affected.
Section 205.239(b) (1) Confinement due to inclement weather--Some
commenters suggested no change to Sec. 205.239(b)(1). However, more
commenters recommended 3 versions to change this paragraph, most of
which asked for the phrase, ``and conditions caused by inclement
weather.'' The principal reason for this recommendation is that the
residual effect of the weather is as great a concern as the weather
itself. An example would be ice after a storm. While we do not disagree
with the recommendation, we have not accepted it. This recommendation
is not accepted because the recommended addition is adequately covered
by Sec. 205.239(b)(3), which permits confinement and shelter
temporarily for conditions under which the health, safety, or well
being of the animal could be jeopardized.
Section 205.239(b)(2) Stage of life--In the proposed rulemaking,
this paragraph read: ``the animal's stage of life,'' and we received
comments about this paragraph. Comments included: keep as written,
remove, add provision for a 150 day finishing period, insert production
in front of life, and add ``lactation is not a stage of life that would
exempt ruminants from any of the mandates set forth in this
regulation.'' The commenters recommended the reference to lactation to
preclude the potential for abuse of the stage of life exemption.
We have added a definition for stage of life which states that an
event such as breeding, freshening, lactation and other recurring
events is not a stage of life. Accordingly, lactation is excluded by
definition from being considered a stage of life. Thus the
recommendation made about lactation is unnecessary.
[[Page 7178]]
Section 205.239(b)(3) Confinement for health, safety, and well-
being--We received comments that offered recommendations on Sec.
205.239(b)(3). Comments included no change and amend to read
``Conditions under which the health, safety, or well-being of the
animals is likely to suffer.''
The recommendation to amend Sec. 205.239(b)(3) was not an issue
presented for public comment in the proposed rule. Further, only one
commenter suggested a revision to this provision, while all other
commenters recommended no change. Accordingly, we are not accepting the
recommendation.
Section 205.239(b)(4) Risk to soil or water quality--We received
comments that offered recommendations on Sec. 205.239(b)(4), which
provided for temporary confinement due to risk to soil or water
quality. Most comments included no change, but one suggested changing
the paragraph to state that there must be an imminent risk to soil or
water quality and that the farmer must immediately make every effort to
alleviate the risk to soil or water quality so that animals are not
withheld from the outdoors any longer than necessary to protect soil or
water quality.
We do not concur that there is a need to further qualifySec.
205.239(b)(4). We believe this provision is already reinforced by Sec.
205.240(b) which requires producers to maintain pastures to provide the
30 percent minimum dry matter intake and to refrain from putting soil
or water quality at risk.
Pasture Practice Standard (Sec. 205.240)
Pasture Practice Standard--Changes Based on Comments
Opening paragraph--This paragraph requires producers to have
auditable records to document a functioning management plan (a pasture
practice standard) for pasture to meet all applicable requirements of
Sec. 205.200-Sec. 205.240. We received the following comments on this
paragraph to the pasture practice standard:
The entire practice standard should be deleted altogether;
Issue the practice standard as guidance;
Leave the opening paragraph as written;
Adopt a requirement to use a NRCS pasture plan;
Recommend a Pasture Grazing System Plan;
Condense into the Organic System Plan;
Move the opening paragraph to 205.237(c), which deals with
livestock feed.
We removed the wording ``that meets all requirements of Sec. Sec.
205.200--205.240'' because producers are already required to maintain
an organic system plan which documents compliance with the crop and
livestock practice standards in the current regulations. We do not
concur with comments to delete this section as the pasture practice
standard contains requirements that are unique to pasturing. In fact,
we believe that the provisions of the pasture practice standard will
help foster viable pasture-based operations and will help certifying
agents to evaluate the operation. In regards to the use of an NRCS
pasture plan, Sec. 205.201(b) allows producers to substitute a plan
that meets the requirements of another Federal, State, or local
government regulatory program, provided that the plan meets the
requirements of subpart C. We will likewise allow producers to use an
NRCS pasture plan that meets the requirements of this section, 205.240.
The introductory paragraph now reads: ``The producer of an organic
livestock operation must, for all ruminant livestock on the operation,
demonstrate through auditable records in the organic system plan, a
functioning management plan for pasture.''
Section 205.240(a) Manage pasture as a crop--This paragraph
requires producers to manage pasture as a crop in compliance with
applicable crop practice standards. The comments we received offered
the following suggestions:
Issue as guidance;
Support as written;
Delete;
This requirement is already covered by the application for
certification;
There are concerns over the effect on rangeland, and
another request that pasture not be subject to crop rotation;
This paragraph, together with the definition of crop
provided in Sec. 205.2, is fundamentally different. The comment
questioned the applicability of practices included in Sec. Sec.
205.202 through 205.206 to native rangeland.
We also received comments recommending that Sec. 205.237(c) should
contain a new paragraph to address irrigation, which we believe is more
appropriately addressed in the pasture practice standard. According to
the commenters, this change should read that ``irrigation must be used
as needed to promote pasture growth when an operation has it available
for use on crops.'' This change was supported by commenters as written.
We agree that not all crop practice standards apply to rangeland,
and specific reference to rangeland is conspicuously absent from the
NOP standards. We have amended paragraph (a) by removing references to
Sec. Sec. 205.200 and 205.201, which are redundant because they are
already required. We also removed Sec. Sec. 205.203(a) through (c),
205.205, and 205.206(a), which do not apply to pasture. Those removed
sections are also not applicable to rangeland because they require crop
rotation and crop pest, disease and weed control practices that would
not occur on uncultivated rangeland. We note that certifying rangeland
for organic production of livestock has occurred, with applicable
sections of 205.200 through 205.206 as the basis for certification and
this final rule does not preclude such certification. Any additional
issues that are specific to rangeland should be referred to the NOSB
for consideration whether to recommend regulatory language more
specific to rangeland.
We also amended paragraph (a) to include a sentence to convey that
land used for the production of annual crops that will be used to graze
livestock is subject to the provisions of Sec. Sec. 205.202 through
205.206. Finally, we added a sentence on irrigation to require its use,
as needed and when available, to promote pasture growth.
Section 205.240(e) (new (b)) Compliance with applicable Sec. Sec.
of 205.236-205.239--This paragraph required pasture to comply with
applicable livestock practice standards. We received the following
comments on this section:
Accept the section as written;
Delete the section;
Include this in guidance and provide for it in the
relevant section of the OSP;
Delete all but the opening paragraph of the pasture
practice standard, which should be added to the feed section;
We received comments that rewrote the practice standard.
We are retaining the provision but rather than require compliance
with all of Sec. Sec. 205.236 through 205.239, we identified the
applicable sections, moved the paragraph up, and redesignated it as
paragraph (b). With this rule, pasture management is tied to compliance
with the feed requirements for ruminants and therefore these sections
must be linked in the regulations. This section essentially requires
producers to do several things: (1) Provide ruminants with continuous
year-round access to pasture; (2) manage pasture to provide a minimum
of 30 percent of a ruminant's dry matter intake, on average, over the
course of the grazing season(s); (3) minimize the occurrence and spread
of diseases and
[[Page 7179]]
parasites; and (4) to refrain from putting soil or water quality at
risk. Paragraph 205.240(b) now reads: ``(b) Producers must provide
pasture in compliance with Sec. 205.239(a)(2) and manage pasture to
comply with the requirements of: Sec. 205.237(c)(2), to annually
provide a minimum of 30 percent of a ruminant's dry matter intake
(DMI), on average, over the course of the grazing season(s); Sec.
205.238(a)(3), to minimize the occurrence and spread of diseases and
parasites; and Sec. 205.239(e) to refrain from putting soil or water
quality at risk.''
Section 205.240(c) Comprehensive pasture plan--This paragraph and
its paragraphs require producers to annually update and include a
detailed pasture plan in the organic system plan, but when there is no
change, the previous year's plan may be submitted. Required details are
specified in the paragraphs that follow the opening paragraph. We
received the following comments on (former) paragraph (b) and paragraph
(c) of Sec. 205.240:
Delete both paragraphs, as they are already required as
part of the OSP;
Edit the paragraph--comments are discussed in more detail
below;
Combine paragraphs (b) and (c) into a single paragraph (b)
with edits--comments are discussed in more detail below;
Some comments recommending deletion did so because they believe
that a comprehensive pasture plan can already be covered within a
producer's OSP, or that if this needs to be enforced, it should be
integrated into existing sections. Another comment supporting deletion
was based on a statement that this requirement far exceeds that of any
other type of producer.
Commenters recommending combining the paragraphs with edits
expressed the opinion that the proposed pasture practice standard
required extensive, detailed information from producers. They stated
that some provisions should remain ``to ensure that there is a
comprehensive pasture plan in every ruminant livestock operation's
organic system plan, describing their pasture management system.'' They
also stated that the provisions regarding haymaking should be removed
as well as those covered by pasture being classified as a crop.
A revised, combined paragraph that was proposed would read
(differences with proposed text are italicized): ``(b) A pasture plan
containing at least the following information must be included in the
producer's organic system plan, which may consist of the certifier's
farm and livestock questionnaires, and be updated annually when any
changes are made.''
We received comments that suggested deleting the sentence which
allows submitting the previous year's plan when there have been no
changes. Another comment suggested annual updates or updates when
significant changes are made.
We disagree with the recommendations to delete this section and
that a pasture plan is already covered within the scope of organic
system plans. We believe this section is necessary to provide support
for consumer expectations that animals are raised on pasture and derive
a significant portion of their feed from a pasture-fed diet, as well as
to enhance the enforceability of the requirement that ruminant animals
are pastured during the grazing season.
To minimize reporting burdens, we have retained in amended form,
the provision that the producer may resubmit the previous year pasture
plan when no changes have occurred. Under Sec. 205.400(f)(2),
producers are already required to immediately notify the certifying
agent concerning any changes that may affect the operation's compliance
with OFPA and the NOP regulations, and we are modifying Sec.
205.240(c) to remind producers and certifying agents of this
requirement. This requirement makes clear that changes that could
affect the operation's compliance must be cleared through the
operation's certifying agent. This will help protect producers from
making mid-year changes to their pasture plan which might result in
enforcement action against the operation's certification.
We disagree with comments that would allow producers to submit
revisions to pasture plans that consist of ``the certifier's farm and
livestock questionnaires.'' Since administering this program, we have
observed that questionnaires used by certifying agents often do not
require sufficient detail to allow for enforcement when necessary.
Therefore, the producer must provide the certifying agent with a
separate pasture plan document that fully addresses the requirements of
Sec. Sec. 205.240(c)(1) through (8), as specified in this action.
Alternatively, an operation's pasture plan may consist of a pasture/
rangeland plan developed in cooperation with a Federal, State, or local
conservation office, provided that such plan addresses all of the
requirements of Sec. 205.240(c). This is consistent with Sec.
205.201(b) which allows producers to substitute a plan that meets
requirements of another Federal, State, or local government regulatory
program for the organic system plan, provided the submitted plan meets
all the requirements of subpart C.
We have combined paragraphs (b) and (c) into a new paragraph (c).
To reflect the comments received, paragraph (c) now reads: ``(c) A
pasture plan must be included in the producer's organic system plan,
and be updated annually in accordance with Sec. 205.406(a). The
producer may resubmit the previous year's pasture plan when no changes
have occurred. The pasture plan may consist of a pasture/rangeland plan
developed in cooperation with a Federal, State, or local conservation
office: Provided, That, the submitted plan addresses all of the
requirements of Sec. Sec. 205.240(c)(1) through (8). When a change to
an approved pasture plan is contemplated, which may affect the
operation's compliance with the Act or the regulations in this part,
the producer shall seek the certifying agent's agreement on the change
prior to implementation. The pasture plan shall include a description
of the: * * *''
Section 205.240(c)(1) Crops in pasture and haymaking system--This
proposed paragraph required a description of the crops to be grown in
the pasture and haymaking system. In addition to those who recommended
deleting the overall comprehensive pasture plan, a few recommended
deleting this paragraph. Another comment recommended removing the
reference to the haymaking system. Some commenters recommended amending
the text to acknowledge the feed requirements of Sec. 205.237. These
commenters wrote that this language defines what needs to be in the
pasture plan and emphasized that pasture must meet all the requirements
of the livestock feed section. This recommendation was supported by
additional comments.
We agree that the feed requirements should be specifically
acknowledged and have incorporated the suggested language. We have
replaced the requirement to describe the pasture crops and haymaking
system with the requirement to describe the type of pasture. The
organic system plan already covers descriptions of pasture plantings
and haymaking and, therefore, it is not necessary to incorporate those
specific requirements here.
Section 205.240(c)(2) Cultural practices--This proposed paragraph
required a description of the cultural practices about crops, to ensure
pasture is available to graze, and to provide all ruminants with a
minimum of 30 percent, on average, of their DMI from grazing throughout
the grazing season. In addition to those who recommended
[[Page 7180]]
the deletion of this paragraph, some expressed opposition to the
paragraph because of the 30 percent DMI requirement. While many
commenters expressed support for the 30 percent DMI requirement, one
comment with numerous signatures expressed support for all of Sec.
205.240(c)(2) as did numerous other commenters. In addition to the
supporters of the paragraph, others recommended edits. One of the
commenters recommended that Sec. 205.240(c)(2) be amended to provide
an exemption from the 30 percent DMI for beef cattle in the finishing
stage during the grazing season. Other commenters suggested that Sec.
205.240(c)(2) be redesignated as Sec. 205.240(b)(2) and edited to
include periods of time when animals may be denied access to the
outdoors and not subject to the 30 percent DMI requirement, and to
strike the language related to crops and their maturity dates. This
comment also replaced growing season with grazing season. This
recommendation was supported by additional commenters.
We accepted most of the last recommendation discussed immediately
above, with the exception of redesignating this provision as Sec.
205.240(b)(2), and modified the paragraph to cite a reference to
Sec. Sec. 205.239(c)(1) through (3), which address exemptions for
denying ruminants pasture. Paragraph 205.239(c)(4) is the exemption
which allows dairy ruminants to be off pasture for milking and is not
included because producers are expected to keep animals on pasture long
enough each day throughout the grazing season to assure that animals
derive an average of 30 percent of their DMI from pasture grazed
throughout the grazing season. As stated in this paragraph, milking
must be scheduled in a manner to ensure sufficient grazing time to
provide each animal with an average DMI from grazing of at least 30
percent throughout the grazing season. This paragraph also states that
milking frequencies or duration practices cannot be used to deny dairy
animals pasture.
We amended Sec. 205.240(c)(2) by removing the specific cultural
practices that producers would be required to utilize, and document in
the pasture plan, to meet the 30 percent DMI requirement, and including
the phrase, ``management practices''. We believe that the producers and
certifying agents can determine what cultural and management practices
will ensure sufficient pasture, and the level of detail with which
these should be described in the pasture plan. We have addressed
comments that oppose the 30 percent DMI requirement above.
Section 205.240(c)(3) Haymaking system--As proposed Sec.
205.240(c)(3) required a description of the haymaking system. Some
commenters requested deleting the paragraph, stating the haymaking
system is not necessary for a pasture plan and its description can be
found elsewhere in the operation's organic system plan. Their
recommendation was supported by additional comments.
We agree that a haymaking system is not necessary to the pasture
plan. However, an organic system plan according to Sec. 205.201(a),
must include a description of practices and producers, monitoring
practices and procedures, as well as a list of each substance used as a
production or handling input. Therefore, to be complete, the organic
system plan should address the operation's haymaking system.
Accordingly, we have deleted proposed Sec. 205.240(c)(3).
Section 205.240(c)(3) New Paragraph--Regional grazing season
identified--We received comments that suggested adding a new paragraph
to require the pasture plan include a description of the grazing
season. These commenters wrote that if the grazing season is the basis
of the pasture plan, a clear description of the grazing season expected
for the operation is an essential part of the pasture plan. Their
recommendation was supported by additional commenters. Commenters also
stated that ruminant animals are raised in a multitude of ecosystems
where the environmental factors influence the grazing season starting
and ending dates as well as whether the dates are contiguous.
We agree that the pasture plan must include a description of the
grazing season that clearly defines the duration of the grazing season
and times of the year when the operation's ruminant animals must be
feeding on pasture. We have concerns, however, that without more
specificity, some producers might try to create their own
identification of the grazing season rather than identifying the
grazing season for the region within which the operation is located, or
only graze for the minimum 120 days when the regional grazing season
would be longer. Therefore, we are accepting the recommendation and
redesignating it as a new Sec. 205.240(c)(3). But we are modifying the
language to make clear that the producer is expected to describe the
grazing season for the operation's regional location. This should be
relatively simple inasmuch as many well-developed models for regionally
appropriate grazing plans already exist that producers and certifying
agents can readily obtain to determine the grazing season to
incorporate into the pasture plan. To be in compliance with subpart E
and the certifying agent's accreditation, the certifying agent must
determine that the grazing season used in the pasture plan is
representative of the grazing season for the producer's geographical
location.
Section 205.240(c)(4) Location of pasture--This proposed paragraph
required a description of the location of pasture and haymaking fields,
including maps showing the pasture and haymaking system and giving each
field its own identity. Some commenters suggested amendments to remove
references to haymaking fields and haymaking system. This
recommendation was supported by additional commenters. Most of the
commenters suggested that the provision be rewritten to read: ``The
location of pastures, including maps giving each field its own
identity.'' This recommendation was supported by additional commenters.
One commenter suggested the same rewrite but retained the word
``fields'' rather than ``pasture.'' Another suggested the same language
as the above comment, but changed ``identity'' to ``identification.''
We agree with the suggestion to remove the references to haymaking,
for consistency with removal elsewhere in this section and because we
agree it is unnecessary in a pasture plan. We also agree with changing
``identity'' to ``identification'' since this more appropriately
conveys how pasture is readily identified. These commenters recognized
the importance of the pasture plan showing where the pastures are
located and their size which will enable the certifying agent to assess
the livestock carrying capacity of the pasture. We have accepted the
suggested rewrite with two changes. We are changing the word ``field''
to ``pasture'' and inserting the words ``and size.''
Section 205.240(c)(6) Fencing--This proposed paragraph required a
description of the location and type of fences and the location and
source of shade and water. We received the following comments
specifically addressing this paragraph:
Insert language that excludes temporary fences from this
requirement, because in some grazing systems temporary fences are
frequently moved;
Edit the paragraph to acknowledge temporary fencing, and
the location and source of shade;
Keep the proposed language but add language that ties the
paragraph to livestock living conditions;
[[Page 7181]]
Keep the proposed language, tie the paragraph to livestock
living conditions, and acknowledge that fencing may be impractical on
some lands, by making the paragraph subject to the OSP as it relates to
beef cattle grazing on lands such as BLM, National Forest and ranch
meadows and grasslands where fencing is impractical and not
economically feasible.
Because producers will describe the grazing methods used within the
pasture system as a result of changes to Sec. 205.240(c)(5), we agree
with excluding temporary fences from this requirement. We also agree
with requiring a description of the location and sources of shade to
ensure compliance with Sec. 205.239(a)(1). We believe these amendments
make the other suggested changes unnecessary.
Section 205.240(c)(7) Soil fertility--This paragraph required a
description of the soil fertility, seeding, and crop rotation systems.
We received comments specifically addressing this paragraph. One
questioned its applicability to rangeland; another suggested deleting
the paragraph. A few recommended adding ``as necessary and as described
in the OSP'' at the end of the paragraph. The other comments
recommended retaining the paragraph as written, and their
recommendation was supported by additional commenters. However, in the
earlier discussion of Sec. 205.240(a) we amended paragraph (a) to
eliminate the crop rotation requirement because pasture/rangeland is
not typically subjected to crop rotation.
To prevent duplication of effort in the crop rotation reporting
requirements, we removed the requirement for crop rotation system
within the pasture plan.
Section 205.240(c)(8) Pest, weed, disease control--This proposed
paragraph required a description of the pest, weed, and disease control
practices. Some commenters specifically addressed this paragraph. One
suggested no change, while others recommended adding ``as necessary and
as described in the OSP'' to the end of the paragraph. The remaining
commenters who specifically addressed the paragraph, recommended
deleting this paragraph because these practices should be addressed
elsewhere in the organic system plan. This recommendation was supported
by additional commenters.
Because we are requiring producers to manage pasture as a crop we
expect them to address their pest, weed, and disease practices. But we
agree that producers are already required to describe these practices
for all crops, including pasture, elsewhere in their organic system
plan. To prevent duplication of effort in the pest, weed, and disease
reporting requirements, we have deleted proposed Sec. 205.240(c)(8).
Section 205.240(c)(9) Erosion control--This paragraph required a
description of the erosion control and protection of natural wetlands,
riparian areas, and soil and water quality practices. We received
comments specifically addressing this paragraph:
No change--keep the paragraph as written;
Add ``as necessary and as described in the OSP'' to the
end of the paragraph;
We received a comment that supported the paragraph and
elaborated on the environmental and soil sustainability requirements;
Remove the paragraph, because these practices should be
addressed elsewhere in the organic system plan.
We disagree that the requirements in the proposed paragraph are
addressed elsewhere in the organic system plan. Section 205.203(a)
requires the producer to select and implement tillage and cultivation
practices that minimize soil erosion. However, pastures are not
typically tilled or cultivated. Section 205.205(d) requires the
producer's crop rotation practices to provide erosion control. However,
pastures are not typically subjected to crop rotation. Thus, it might
be argued that the provision does not apply to pasture. In
administering this program, we have observed acreage certified as
pasture that did not qualify as pasture and managed in a way that did
not control for erosion and did not protect soil and water quality.
Therefore we are retaining the erosion control practices provision.
This will clarify for producers, inspectors, and certifying agents that
producers must provide for erosion control in the management of their
pastures.
The commenter addressing the environmental and soil sustainability
requirements of the proposed rule wrote ``that such regulations are in
compliance with the original intent of the organic standard and OFPA to
be environmentally sustainable and conscious.'' We agree. Commenting on
the environmental and soil sustainability provisions of the pasture
plan, this commenter stated ``This requirement dovetails with and
strengthens the existing regulations mandating that organic operations
conserve biodiversity.'' In referencing the existing regulations, the
commenter was referring to the final rule preamble language addressing
conservation of biodiversity (65 FR 80563 Thursday, December 21, 2000)
and the definition of ``organic production'' (65 FR 80640 Thursday,
December 21, 2000). This final paragraph requires the producer to
describe the operation's pasture management practices for the
protection of natural wetlands, riparian areas, and soil and water
quality. This requirement is consistent with the definition of organic
production and the intent of the standards that producers be good
stewards of the environment.
We are retaining the protection of natural wetlands and riparian
areas practices provision. This will clarify for producers, inspectors,
and certifying agents that producers must provide protection of natural
wetlands and riparian areas in the management of their pastures.
We have included in Sec. 205.239 the requirement that organic
livestock producers manage outdoor access areas, including pastures, in
a manner that does not put soil or water quality at risk. We expect
producers to address their soil and water quality protection practices
in their organic system plan. To prevent duplication in reporting
requirements, we have removed the reference to soil and water quality
in this paragraph.
Section 205.240(c)(10) Sustainability practices--This proposed
paragraph required a description of the pasture and soil sustainability
practices. We received the following comments:
Make no change;
Add ``as necessary and as described in the OSP'' to the
end of the paragraph;
Remove the paragraph because the meaning is unclear.
We removed the proposed paragraph. We now view this requirement as
unnecessary based on the requirement that pasture be managed as a crop
in compliance with the applicable crop production standards and that
the pasture plan requires a description of the grazing methods used,
soil fertility and seeding systems, and erosion control practices.
Taken together these requirements plus the definition of pasture should
ensure that the pastures and their soils are sustainably managed.
Section 205.240(c)(11) Restoration of pasture--This proposed
paragraph required a description of the restoration of pasture
practices. We received comments which specifically addressed this
paragraph. Many comments agreed that restoration should be required
only when necessary, but added the requirement be described in the OSP
as well. The remaining comments which specifically addressed the
paragraph recommended removal because the requirement should be
addressed elsewhere in the organic system plan.
To prevent duplication in reporting requirements, we removed the
proposed paragraph. Producers are required to
[[Page 7182]]
include a description of the grazing methods used, soil fertility and
seeding systems, and erosion control practices in the pasture plan.
Taken together these requirements plus the definition of pasture should
ensure that the pastures and their soils are sustainably managed. A
detailed description of these practices also would provide information
on the restoration of pastures as necessary.
Section 205.240(d) Sacrificial pasture--This proposed paragraph
required producers to set aside a portion of their pasture as
sacrificial pasture and to describe that pasture within their pasture
plan. We received many comments on this paragraph:
The majority of comments supported the use of sacrificial
pastures but requested that their use be encouraged rather than
mandatory;
We received comments that supported as written;
Expand the paragraph to include outdoor access in the non-
grazing season;
Include an allowance for the temporary housing of young
stock as predator control;
Amend the paragraph to tie the use of sacrificial pasture
to Natural Resources Conservation Service (NRCS) approval and making it
mandatory when NRCS finds the use acceptable;
Many comments simply expressed concerns based on soil,
weather, and topographical conditions, or water quality implications;
We received several comments simply opposing the
requirement altogether.
Commenters wrote that not all operations have land that can meet
the requirement for a sacrificial pasture. One of the commenters
suggested that producers unable to include a sacrificial pasture in
their comprehensive pasture plan be required to provide a brief
description citing the reasons and including details on how they will
ensure that animals receive more than 120 days on pasture and 30
percent dry matter intake from pasture. Some commenters recommended
that the provision be amended to read: ``The pasture system may include
a sacrificial pasture, for grazing, to protect the other pastures from
excessive damage during periods when saturated soil conditions render
the pasture(s) too wet for animals to graze; and for outdoor access in
the non-grazing season.'' [Emphasis added] Opposition to the required
use of sacrificial pastures was based on the lack of suitable land and
concern for pasture damage, animal health and safety, and the potential
impacts on soil and water quality.
Our purpose in proposing this requirement in this action is related
to our observation in administering this program that minimal amounts
of rainfall have been used to deny access to pasture based on claims
that these wet conditions are detrimental to the pasture and the health
and well being of the animals. Further, we have observed approval for
producers to include, in their organic system plan, a blanket denial of
access to pasture for any or all rain events. As we remind producers
and agents in this final action on the definition of inclement weather,
not all rain events are of a nature necessitating that animals be kept
off pasture. Certifying agents must not approve an organic system plan
that includes a blanket denial of access to pasture due to rain. As two
soil and crop scientist commenters pointed out, ``Many soils, even when
saturated, are not subject to `excessive damage' from grazing livestock
due to soil texture (sand) and good ground cover.'' Certifying agents
must be diligent in assuring that producers have adequate justification
for denying ruminant animals access to pasture due to a rain event and
that such justification is documented within the organic system plan.
We acknowledge that not all soil structure and topography is
compatible with the use of a sacrificial pasture concept. We further
acknowledge that their required use, in some locations, could violate
regional water quality regulations. Rather than expand this paragraph
to include outdoor access in the non-grazing season, as some commenters
suggested, this final rule allows for yards, feeding pads and feedlots
to serve this purpose. Most of the commenters have sought retention of
the sacrificial pasture provision, but only as an option available to
producers. We agree that producers should determine whether a
sacrificial pasture is suitable to the conditions of their operation.
We deleted the mandatory sacrificial pasture requirement, but this does
not preclude a producer from using this feature. However, it is
unnecessary to provide for the optional use of sacrificial pastures in
this regulation, therefore we have removed the definition of
sacrificial pasture and Sec. 205.240(d) as discussed above.
Pasture Practice Standard--Changes Not Made
Section 205.240(c)(5) Grazing methods--This proposed paragraph
required a description of the types of grazing methods to be used in
the pasture system. Commenters who specifically addressed this
paragraph all supported retention as written.
We made no changes to this Sec. 205.240(c)(5) because grazing
methods are fundamental in demonstrating how a producer intends to meet
the requirements of this final rule. This paragraph is finalized as
proposed.
Temporary Variances (Sec. 205.290)
Temporary Variances--Changes Requested But Not Made
Under the final NOP regulation, published December 21, 2000 (65 FR
80548), Sec. 205.290(a) authorized temporary variances from the
requirements in Sec. Sec. 205.236 through 205.239 related to the
livestock practice standard. In the proposed rule, we proposed amending
Sec. 205.290(a) to include proposed Sec. 205.240.
We received some comments on the proposed amendment to Sec.
205.290(a); most supported as proposed, 1 commenter opposed because
they opposed publication of Sec. 205.240. This action retains Sec.
205.240 in amended form as explained in the beginning of the above
discussion on the pasture practice standard. Accordingly, we have
amended Sec. 205.290(a) by changing the provision to include Sec.
205.240.
OMB Control Number (Sec. 205.690)
OMB Control Number--Changes Based on Comments
Section 205.690 lists the Office of Management and Budget (OMB)
control number assigned to the information collection requirements in
this part by the OMB pursuant to the Paperwork Reduction Act of 1995,
44 U.S.C. Chapter 35, as 0581-0181. This number was listed incorrectly
in the final regulations published December 21, 2000 (65 FR 80548). The
correct number is 0581-0191.
We received at least 2 comments on the proposed correction to Sec.
205.290(a); both supported the correction. Accordingly, this action
amends Sec. 205.690 to correct the OMB control number. Section 205.690
reads: ``The control number assigned to the information collection
requirements in this part by Office of Management and Budget pursuant
to the Paperwork Reduction Act of 1995, 44 U.S.C. Chapter 35, is OMB
number 0581-0191.''
A. Executive Order 12988
Executive Order 12988 instructs each executive agency to adhere to
certain requirements in the development of new and revised regulations
in order to avoid unduly burdening the court system. This final rule is
not intended to have a retroactive effect.
[[Page 7183]]
States and local jurisdictions are preempted under the OFPA from
creating programs of accreditation for private persons or State
officials who want to become certifying agents of organic farms or
handling operations. A governing State official would have to apply to
USDA to be accredited as a certifying agent, as described in paragraph
2115(b) of the OFPA (7 U.S.C. 6514(b)). States are also preempted under
Sec. Sec. 2104 through 2108 of the OFPA (7 U.S.C. 6503 through 6507)
from creating certification programs to certify organic farms or
handling operations unless the State programs have been submitted to,
and approved by, the Secretary as meeting the requirements of the OFPA.
Pursuant to paragraph 2108(b)(2) of the OFPA (7 U.S.C. 6507(b)(2)),
a State organic certification program may contain additional
requirements for the production and handling of organically produced
agricultural products that are produced in the State and for the
certification of organic farm and handling operations located within
the State under certain circumstances. Such additional requirements
must: (a) Further the purposes of the OFPA, (b) not be inconsistent
with the OFPA, (c) not be discriminatory toward agricultural
commodities organically produced in other States, and (d) not be
effective until approved by the Secretary.
Pursuant to paragraph 2120(f) of the OFPA (7 U.S.C. 6519(f)), this
final rule would not alter the authority of the Secretary under the
Federal Meat Inspection Act (21 U.S.C. 601 et seq.), the Poultry
Products Inspections Act (21 U.S.C. 451 et seq.), or the Egg Products
Inspection Act (21 U.S.C. 1031 et seq.), concerning meat, poultry, and
egg products, nor any of the authorities of the Secretary of Health and
Human Services under the Federal Food, Drug and Cosmetic Act (21 U.S.C.
301 et seq.), nor the authority of the Administrator of the
Environmental Protection Agency (EPA) under the Federal Insecticide,
Fungicide and Rodenticide Act (7 U.S.C. 136 et seq.).
Section 2121 of the OFPA (7 U.S.C. 6520) provides for the Secretary
to establish an expedited administrative appeals procedure under which
persons may appeal an action of the Secretary, the applicable governing
State official, or a certifying agent under this title that adversely
affects such person or is inconsistent with the organic certification
program established under this title. The OFPA also provides that the
U.S. District Court for the district in which a person is located has
jurisdiction to review the Secretary's decision.
B. Executive Order 12866
This action has been determined significant for purposes of
Executive Order 12866, and therefore, has been reviewed by the Office
of Management and Budget. Executive Order 12866 requires the agency to
consider alternatives to this rulemaking and the benefits and costs of
this rule.
Need for the Rule
AMS has determined that current regulations regarding access to
pasture and the contribution of grazing to the diet of organically
raised ruminant livestock lack sufficient specificity and clarity to
enable AMS to efficiently administer the Program. The current
provisions in the regulations regarding access to pasture and
conditions warranting temporary confinement are too general. This has
resulted in significant variations in practice.
For example, ``Stage of production,'' as a limited exception for
temporary confinement, was included in the NOP final rule, but without
specifying the circumstances under which the exception would be
warranted. The final rule was promulgated with the clear expectation of
future NOP and NOSB collaboration to provide specificity regarding the
above provisions. However, the final rule was also promulgated with the
expectation that a pasture-based system would play a prominent role in
feeding ruminant livestock.
In February 2005, the NOSB reengaged in the discussion that began
prior to the publication of the NOP final rule, concerning the pasture
requirements and delivered a recommendation for greater specificity of
the pasturing requirements. The NOSB process for the development of
recommendations consists of: (1) Identification of a need by members of
the public, the NOSB, or the NOP; (2) development of a draft NOSB
recommendation; (3) public meeting notice published by the NOP on its
Web site and in the Federal Register; (4) solicitation of public
comments on the recommendation through regulations.gov and at the
NOSB's public meetings; (5) finalization of the recommendation; (6)
NOSB approval of the recommendation; and (7) NOSB referral to the
Secretary for the Secretary's consideration and any appropriate action
(e.g., rulemaking, policy development, guidance).
In 2005, the NOSB referred a recommendation to the Secretary that
consisted of proposed regulatory changes and guidance on the
interpretation of ``access to pasture.'' The regulatory changes
contained 2 components: (i) Replace ``access to pasture'' with
``ruminant animals grazing pasture during the growing season;'' and,
(ii) permit exceptions to the pasturing requirement for birthing, dairy
animals up to 6 months of age, and beef animals during the final
finishing stage--not to exceed 120 days with the provision that
lactation of dairy animals is not a stage of life that may be used to
deny pasture for grazing.
The NOSB also asked NOP to issue guidance stating that producers
should develop organic system plans with the goal of providing not less
than 30 percent dry matter intake (DMI) from grazed feed during the
growing season and not less than 120 days. It further clarified the
existing provisions for temporary confinement and noted the regional
Natural Resources Conservation Service (NRCS) Conservation Practice
Standards for Prescribed Grazing (Code 528) as the tool for determining
appropriate pasture conditions.
The 30 percent DMI from grazing figure was recommended to the NOSB
by dairy producers through public testimony at NOSB meetings. The
choice of 30 percent was based on producer collaboration on the minimum
amount of grazing that is necessary for ruminants to obtain feed value
from the grazing of pasture.
When the NOSB recommendation was finalized in 2005, AMS had
received 5 complaints alleging violations of pasture provisions on
certified organic operations. In part, these resulted from OSPs dealing
with livestock management that reflected varying application of
existing regulations and interpretations of requirements across
accredited certifying agents (ACAs). ``Temporary'' confinement
exceptions, for example, have been granted for lactation and brief
periods of moderate rainfall which do not warrant confinement. AMS,
therefore, initiated the rulemaking process for comprehensive
regulatory changes to ensure that compliance with pasture provisions
would be readily discernable.
On April 13, 2006, NOP published an Advanced Notice of Proposed
Rulemaking (ANPR) (71 FR 19131) seeking input on the role of pasture in
the NOP regulations and what parts of the NOP regulations should be
amended to address the role of pasture in organic livestock management.
Over 80,500 comments, nearly all from consumers, were received on the
ANPR. Support for strict standards and greater detail on the role of
pasture in organic livestock
[[Page 7184]]
production was nearly unanimous with consumers requesting regulations
that would clearly establish grazing as a primary source of
nourishment. Organic consumers have clearly stated in comments that
they expect organic ruminants to graze pasture and receive not less
than 30 percent of their DMI needs from grazing.
On October 24, 2008, the NOP published a Proposed Rule on Access to
Pasture (Livestock) (PR) (73 FR 63584). The PR proposed basic
parameters for pasturing ruminants including that producers manage
pasture as a crop, provide year-round access to pasture for ruminants,
ensure an average of 30 percent DMI from pasture for all ruminants over
the growing season, 120-days at minimum, and incorporate pasture
practices into the OSP. The PR further stipulated a sacrificial pasture
to maximize the amount of time livestock are outdoors and grazing
pasture, and the fencing of all streams and other bodies of water to
protect water quality. In the PR, the NOP sought comments on the impact
of this standard, including the effects upon production and consumer
prices, feed supplies and costs, the extent to which producers would
have to change practices to comply, and whether the proposed
information collection would be sufficient to verify compliance with
the new provisions.
Over 26,000 written comments were submitted in response to the
proposed rule. In addition, 121 persons delivered oral comments during
5 public listening sessions. Comments were received from producers,
retailers, handlers, certifying agents, consumers, trade associations,
organic associations, animal welfare organizations, consumer groups,
state and local government entities, and various industry groups. More
than 20,000 commenters commended efforts to add greater specificity for
an enforceable standard and expressed support for the metrics as
attainable and/or consistent with market expectations for organic
production. These commenters endorsed that ruminant animals intake not
less than 30 percent DMI from grazing pasture during grazing rather
than growing season, a period which must be 120 days at minimum.
The provisions which generated the strongest objection were
sacrificial pasture and fencing of water bodies. Comments from
producers and state and local regulatory agencies, warned that
installation and maintenance costs would be exorbitant, and that in
certain agro-systems these features would ultimately be detrimental to
soil and water quality.
Despite extensive public discussions about access to pasture,
practice disparities within the livestock sector remain. At the time of
publication of this rule, AMS has received a total of 14 complaints
requesting enforcement actions for alleged violations of the pasture
provisions of the NOP livestock standards. There is discontent that
operations without the land base to afford grazing pasture for the
entire herd throughout period of pasture growth exceed temporary
confinement exceptions. The NOP is using information provided by
commenters to the proposed rule and public comments at NOSB meetings,
and the experience of administering the NOP since 2002, to make
clarifications to the NOP standards regarding pasture provisions.
Absent greater specificity in the regulations, we expect the
inconsistent application of pasturing practices to continue. While we
recognize that the majority of organic producers adhere to practices
consistent with the intent of the regulations, they face a disadvantage
when consumers perceive dilution of organic standards due to the
publicity given to operations that skirt the margins of the
regulations.
Regulatory Objective
The purpose in amending the NOP regulations is to make clear what
access to pasture and grazing mean under the NOP. A stated purpose of
the OFPA (7 U.S.C. 6501) is to assure consumers that organically
produced products meet a consistent and uniform standard. This action
is being taken to facilitate and improve compliance and enforcement and
satisfy consumer expectations that ruminant livestock animals are
grazing pastures and that pastures are managed to support grazing
throughout the grazing season. Sufficient specificity and clarity will
bring uniformity in application of the livestock regulations and enable
certifying agents and producers to assess compliance. The amendments
set minimal objectives which align with consumer expectations and
producer perspectives. Producers can select measures suitable to the
conditions of their operation, regardless of size or location, to meet
and exceed the requirements.
Alternatives Considered
Alternatives to this rulemaking are to: (1) Make no changes to the
existing regulations; (2) adopt a stocking rate of 3 ruminants per
acre; or (3) adopt a minimum pasturing period, such as 120 days as
recommended by the NOSB and supported by many public comments.
Alternative one is make no changes to the existing regulations.
This option would result in continued dissatisfaction and confusion
among consumers, producers, and certifying agents in the organic
community and would not resolve the inconsistent application of pasture
practices. This option would also continue to pose difficulty in
enforcement of the existing regulations by certifying agents who are
seeking greater regulatory certainty in these pasture provisions. This
rulemaking was requested by consumers, producers, and certifying agents
to provide uniformity in application of livestock regulations by
requiring that all organic ruminant livestock graze pasture throughout
the grazing season. Support for enforceable standards with greater
clarity for the role of pasture in organic livestock production
strongly outweighed opposing views.
Some commenters stated that the amendments, or portions of, are too
prescriptive and that the current regulations have sufficient detail
for compliance and enforcement. Some advised introducing specifications
via guidance. However, guidance is not an effective resolution because
it leaves certifiers without a firm basis to defend legitimate adverse
certification decisions. The number of complaints calling for
enforcement actions resulting from the current inconsistent application
of the pasture provisions among the ACAs is evidence of the need for
regulations to facilitate enforcement. We believe that the public
rulemaking process is the proper means to add the expected specificity
to the regulations. The current livestock provisions need additional
specificity to assist ACAs with assuring the consistent standard
purpose of the OFPA.
A second alternative is to adopt a 3-ruminants-per-acre stocking
rate measure as suggested by some commenters. Commenters suggested
regulatory language that would set pasture stocking rates of no more
than and preferably less than, three ruminants per acre, in order to
meet combined feed intake and ecological goals that would be easily
verifiable. Some commenters suggested a set ratio for animal units/
acre, and some suggested that the ratio on an individual operation be
determined by the operation and certifying agent.
Neither stocking rate nor animal units/acre would achieve the goal
of ensuring that ruminants graze pasture at a level sufficient to
provide an average of not less than 30 percent of each animal's daily
dry matter needs during the growing season. Nor would it assure that
ruminants graze pasture throughout the growing season. These comments
do
[[Page 7185]]
not appear to consider what would be the appropriate stocking rate for
the diverse species of ruminants (e.g., buffalo, bison, cattle, goats,
or sheep).
The provisions of this rule inherently require that each operation
maintain an appropriate stocking rate for equilibrium between pasture
quantity, quality and grazing animals. Due to the broad range of
pasture types and grazing strategies available to producers, stocking
rates will vary from pasture to pasture and within pastures and must be
determined in the context of each operation. A mandatory nationwide
stocking rate has significant drawbacks. Prescribing 3 ruminants per
acre stocking rate, or any set stocking rate, will result in
overgrazing of poor quality pastures, erosion and nutrient runoff. If
pasture and grazing management is poor, ruminants will not obtain any
significant amount of feed intake from pasture. Further, a stocking
rate would be detrimental to operations where pastures are managed to
support a higher grazing density without adverse ecological
consequences.
The producer, in cooperation with the ACA, has the discretion to
determine the stocking rate to conform to the carrying capacity of the
pasture. The requirements to manage pasture as a crop in compliance
Sec. Sec. 205.202, 205.203(d) and (e), 205.204, and 205.206(b) through
(f), will prevent operations from exceeding carrying capacity.
Further, the NOP standard is a global standard, and producers can
apply for certification to this standard in any country for which they
may be eligible to comply and achieve certification. Even if we could
set an ideal stocking rate suitable for terrain in the United States,
such rate would unlikely be suitable on a global scale.
A third alternative is to adopt the 120 day minimum pasturing
period as recommended by the NOSB. This recommendation was the
culmination of NOSB discussion on access to pasture, which began prior
to the publication of the NOP final rule and was developed with public
input. The NOSB recommendation also advised that each OSP maximize
pasture, setting a target of not less than 30 percent DMI from grazed
feed on an average daily basis during the pasturing period. The choice
of 120 days was based on producer knowledge of the minimum period when
pasture is actively growing and suitable for grazing. The 30 percent
DMI was based upon the metric by which a dairy operation would qualify
as a grazing system in several traditional dairy production areas in
the United States.
The proposed rule expanded the NOSB recommendation by inserting the
requirement for year-round access to pasture. Due to the number of
comments that convincingly explained how this could jeopardize animal
welfare and threaten soil and water quality, we have withdrawn that
requirement. This final rule aligns closely to the NOSB recommendation
in terms of the amount of time on pasture and minimum DMI, but is more
thorough in delineating the exceptions to those provisions.
The NOSB recommendation also attempted to identify under what
conditions temporary confinement would be permitted. This final rule
stipulates all of the circumstances that would permit confinement or
shelter. These narrow exceptions consider, foremost, the health and
welfare of the animals as well as the production needs that are unique
to certain types of ruminants. The specifications permit ACA and
producer discretion, but will prevent abuse of exceptions especially
for inclement weather and stage of life.
This final rule incorporates the NOSB recommended exception
authorizing temporary confinement (up to 120 days) for the finish
feeding of organic slaughter stock. However, we added an additional
requirement to that exception to prohibit confinement without access to
pasture during the finishing period. Without such an additional
criterion, the finishing period for organic slaughter stock would
permit practices that consumers have adamantly opposed. We acknowledge
that finish feeding necessitates the use of a yard, feeding pad, or
feedlots to provide the finish feed ration, but are also aware that the
term feedlot may be thought of in a pejorative sense. Therefore, we
have included an additional criterion to enable these features to be
used in a manner that is consistent with organic production.
Baseline
The 2007 Census of Agriculture (Census) provides a glimpse into
official data on the U.S. organic sector, which is to be followed up in
2010 with more detailed reports. In addition, we have data provided by
a 2005 Agricultural Research Management (ARM) survey of ACAs conducted
by the Economic Research Service (ERS), specifically related to the
organic dairy sectors. We also have some data reported to the NOP from
certifying agents, as ACAs must annually report certain information
concerning the operations they certified in the previous year, but the
database created from this information is not yet fully queriable
beyond its ability to tell us the total number of certified operations.
According to the Census, in 2007, there were approximately 2.6
million acres in organic production on over 20,400 farms. Of this
total, approximately 1.3 million acres were used for crop production
and the rest was either in pasture or being converted to pasture. The
total number of farms raising pasture or converting land to certified
pasture was reported at 19,601 out of the 20,400 farms--clearly, most
farms are engaged in using land for both crops and pasture according to
the Census. Farms reporting organic crop production totaled 16,778,
which aligns closely with numbers reported by ACAs to NOP for annually
certified operations.
Also according to the Census, farms reporting production of organic
livestock and poultry totaled just under 2,500 and 90 percent of those
had sales below $50,000; there were around 250 farms with sales above
$50,000. Farms reporting value-added products of organic livestock and
poultry totaled nearly 3,200 in 2007 and almost 40 percent
(approximately 1,264) of these farms reported sales above $50,000 from
livestock and poultry value-added product sales. According to ERS,
however, dairy farmers comprised approximately half of the livestock
and poultry farmers with value-added sales--at 1,617 of these farms.\2\
The Census did not break out the total livestock and poultry farms
further, so we have no easy way of knowing exactly how many of these
farms are engaged solely in beef ruminant slaughter production, poultry
production, or both. Therefore, we cannot draw a detailed baseline
about ruminant slaughter producers because of a lack of data on farm
numbers and their distribution. Nor do we know how many dairy farmers
there are who sell milk only to a processor, with no on-farm value-
added sales production.
---------------------------------------------------------------------------
\2\ Census report specially tabulated for research conducted by
ERS, November 2009. Value-added product sales include the production
and sale of meats, milk, cheeses, etc. and sold directly by
producers to consumers, retailers, restaurateurs, CSAs, or some
other final buyers. McBride, William D., and Catherine Greene.
Characteristics, Costs, and Issues for Organic Dairy Farming, USDA,
Economic Research Service (ERS), ERR-82, (November 2009).
---------------------------------------------------------------------------
Data from the 2005 ARM survey also shows that there were 36,113
organic beef cows, 87,082 organic dairy cows, 58,822 unclassified cows
and young stock, and 4,471 sheep and lambs. Not broken out in this data
is the number of organic goats, buffalo, and bison which were lumped
with other animals.
[[Page 7186]]
The ARM survey reported that 86 percent of organic dairies and 62
percent of the organic milk cows are located in the Northeast and Upper
Midwest. Seven percent of organic dairies and organic milk cows are
found in the Corn Belt. By contrast, 7 percent of organic dairies were
located in the West, but these operations held a third of the organic
milk cows. Nationally the average size of an organic dairy is 82 cows
based on the ARM survey, with an average in the Northeast of 53 cows,
64 in the Upper Midwest, and 381 in the West.
The ARM Survey also reported that organic dairies averaged about
13,600 pounds of milk per cow or a daily average of 45 pounds of milk
per cow. Using a pay-price of $22 per hundredweight (cwt), based on the
ARM Survey, each cow would generate approximately $2,992. Based on the
Small Business Administration (SBA) definition of what constitutes a
small agricultural producer (annual receipts up to $750,000), a small
dairy is one with fewer than 251 cows. Therefore, on average, all
organic dairy farms are small producers, but based on regional
distributions of operations from the ARM survey, approximately 93
percent of all organic dairies--located in the Northeast, Upper
Midwest, and Corn Belt, are small producers. On average, organic dairy
producers in the West do not fit into this small producer category.
This likely reflects costs and land available to all operations--there
is more land available at lower costs in the West, hence operations
tend to be larger than in the East.
In the ARM survey, producers were asked to define a pasture-based
feeding program. They responded that a pasture-based feeding program
provides at least half of the forage fed to milk cows during the
grazing months, and they reported an average grazing period for 6.5
months. The survey also reported that more than 60 percent of producers
provided their animals with pasture that provided more than 50 percent
of forage needs throughout the grazing season; almost 90 percent of
operators provided at least 25 percent of animals' pasture needs
through forage. But this also means that potentially, approximately 10
percent of operators may need to make adjustments--to increase the
amount of time animals spend on pasture to meet the 30 percent DMI
during a grazing season of at least 120 days required by this final
action.
Benefits to the Final Rule
This final rule brings uniformity in application to the livestock
regulations; especially as they relate to the pasturing of ruminants.
This uniformity will create equitable, consistent performance standards
for all ruminant livestock producers. Producers who currently operate
based on grazing will perceive a benefit because these producers claim
an economic disadvantage in competing with livestock operations that do
not provide pasture. This final rule would also bring uniformity in
application of the livestock regulations. This uniformity in
application will allow the ACAs and AMS to administer the livestock
regulations in a way that reflects consumer preferences regarding the
production of organic livestock and their products. An additional
benefit is that with uniform application of the NOP livestock
regulations there should be a near elimination of violations of the
pasture regulations. This will eliminate the filing of complaints
regarding the pasturing of ruminants.
Commenters have clearly stated that they expect organic ruminants
to graze pasture and receive not less than 30 percent of their dry
matter needs from grazing averaged over the grazing season. This final
rulemaking is intended to reflect consumer expectations and producer
perspectives. This action makes clear what access to pasture means
under the NOP. We note that organic livestock and dairy producers have
long been required to provide their livestock with access to pasture
for grazing. This final rule is the result of a long discussion in
implementing that requirement. This action should not take organic
producers unawares and includes a 16-month implementation period.
This action will ensure that NOP livestock production regulations
have sufficient specificity and clarity to enable AMS and ACAs to
efficiently administer the NOP and to facilitate and improve compliance
and enforcement. This specificity and clarity is expected to assure
that ACAs and producers know what constitutes compliance and will
satisfy consumer expectations that ruminant livestock animals graze
pastures during the grazing season. This rule also adds 2 new
regulatory provisions, which many ruminant livestock producers already
comply with. New regulatory provisions include: (1) The requirement
that pastures be managed for grazing throughout the grazing season per
Sec. 205.237(c)(2), (the pasture system must provide all ruminants
under the OSP with an average of not less than 30 percent of their DMI
from grazing throughout the grazing season); and (2) the requirement
that for the grazing season, producers provide not more than an average
of 70 percent of a ruminant's DMI from their total feed ration minus
grazed vegetation rooted in pasture or residual forage per Sec.
205.237(c)(1). These 2 new regulatory provisions will ensure that
ruminants spend more time on pasture and that they receive a
significant portion of their daily feed intake, during the grazing
season, from grazing vegetation rooted in pasture or residual forage.
Inconsistency in the application of the livestock regulations by
producers and ACAs has resulted in the filing of consumer complaints
under the NOP complaint procedures. This action provides more
information which will contribute to producer and certifying agent
understanding which will in turn eliminate the current inconsistent
application of livestock regulations under the NOP. Further, since the
NOP regulations were implemented in October 2002, we have found that
producers need to improve their description of the practices and
procedures they employ to comply with the livestock regulations in
general and the pasture requirements in particular. Accordingly, this
final rule provides greater detail about acceptable and required
practices related to organic livestock and pasture management that will
result in more thorough organic system plans (OSPs). The OSP commits
the producer to a sequence of practices and procedures resulting in an
operation that complies with every applicable provision in the
regulations.
By eliminating the current inconsistent application of livestock
regulations under the NOP and improving OSPs, consumers will have the
assurance that the organic label is applied according to clear,
consistently implemented, standards. These standards will provide for
the grazing of ruminants on pasture throughout the grazing season such
that ruminants obtain feed value from the grazing of pasture and
residual forage. This will in turn satisfy consumer expectations that
ruminant livestock animals graze pastures during the grazing season.
Eliminating the current inconsistent application of livestock
regulations is expected to greatly reduce or end the filing of
complaints which will, in turn, end the generation of negative press
which has damaged the image of organic milk and milk products. This is
anticipated to lead to an improved image for organic milk and milk
products which should increase consumer confidence and result in
increased markets for organic livestock products.
[[Page 7187]]
Costs of Final Rule
This final rule will increase the cost of production for producers
who currently do not pasture their ruminant animals and those producers
who do not manage their pastures at a sufficient level to provide at
least 30 percent DMI. New regulatory provisions include: (1) The
requirement that pastures be managed for grazing throughout the grazing
season per Sec. 205.237(c)(2), (the pasture system must provide all
ruminants under the OSP with an average of not less than 30 percent of
their DMI from grazing throughout the grazing season); and (2) the
requirement that for the grazing season, producers provide not more
than an average of 70 percent of a ruminant's DMI from their total feed
ration minus grazed vegetation rooted in pasture or residual forage per
Sec. 205.237(c)(1).
The costs associated with complying with this rule would vary based
on the livestock producer's current practices and the degree to which
they conform to the amended livestock regulations. Organic dairy
operations that confine cows and rely upon high energy feeds, but do
not have adequate land base to pasture their livestock in accordance
with this rule, are expected to experience increased production costs
to come into compliance with these requirements. Likewise, organic
finish feeding operations which continuously confine the animals,
maintain yards/feeding pads/feedlots which are not accessible to
pasture, and have a finish feeding period that typically exceeds 120
days would be expected to experience a rise in production costs to come
into compliance with this rule. Ruminant slaughter producers will need
to accommodate finish feeding in ways that still provide animals with
access to pasture. This may require adjustments on their part as they
adapt their operations to provide grain outside of a confined feeding
operation in order to meet the requirements of this regulation.
However, we do not expect that many organic operations will incur
significant costs in implementing this final rule. A report by USDA's
Economic Research Service (ERS) finds: (1) More than 60 percent of
organic milk producers reported that at least half of their total
forage ration came from pasture during the grazing months (an average
of 6.5 months per year); and (2) nearly 90 percent of organic dairies
sourced at least 25 percent of their total forage ration from
pasture.\3\ Therefore, we expect that a large majority of organic dairy
producers will be able to comply with this regulation without
modification to their operation, especially as the more costly
requirements in the proposed rule--fencing of water bodies and
sacrificial pasture--have been eliminated. Moreover, according to the
Federation of Organic Dairy Farmers (FOOD Farmers) most ruminant
livestock producers pasture their animals and many maximize the use of
pasture. FOOD Farmers is a national dairy producer organization
representing over 1,200 of the approximately 1,800 U.S. organic dairy
producers. A comment submitted by an ACA included the results of a
survey which the ACA distributed to its certified livestock--
predominantly dairy producers. Of the 161 survey respondents, 96
percent indicated they currently comply or would be able to comply with
the requirements for 30 percent dry matter intake from grazing during
the grazing season of 120 days minimum. Therefore, while some ruminant
livestock producers have not been providing pasture, or have
insufficient pasture to support the size of their herd, and may need to
obtain pasture to comply with the new regulatory provisions, we
estimate that the number of producers who may need to obtain pasture to
comply with the new regulatory provisions is well under 100. This
estimate is based on our understanding that almost all of the estimated
1,800 ruminant livestock producers are currently providing at least
some pasture and that only a few currently lack sufficient pasture to
graze all of their animals enough to achieve the 30 percent DMI level.
---------------------------------------------------------------------------
\3\ McBride, William D., and Catherine Greene. Characteristics,
Costs, and Issues for Organic Dairy Farming, USDA, Economic Research
Service (ERS), ERR-82, November (November 2009).
---------------------------------------------------------------------------
Ruminant livestock operations currently pasturing their animals may
see minimal increased costs, if any. Some who already pasture their
animals may need to improve the quality of their pastures to provide
sufficient vegetation for grazing throughout the grazing season to meet
the average 30 percent DMI level. The potential costs include land and
seed for pasture. Costs associated with providing sufficient vegetation
for grazing throughout the grazing season would include the time
(labor) spent seeding the pastures, fuel for equipment used in seeding,
and the cost of seed.
Costs of pasture vary depending on location. USDA's Agricultural
Statistics, 2008, show 2007 pasture land values per acre ranging from
$12,100 (NJ), $2,820 (CA), $2,180 (WI), $1,370 (TX), $800 (CO), to $300
(ND). Costs would likely be higher for certified organic pasture.
USDA's Agricultural Statistics, 2008, show 2007 pasture land cash rents
per acre ranging from $40 (WI), $14 (CA), $8.30 (TX), $5.50 (CO) to $2
(NM). Again, costs would likely be higher for certified organic
pasture. Per acre rental rates would also vary based on pasture quality
factors. The higher the pasture quality, the more the producer may pay
per acre, but the fewer the acres needed to comply with the
regulations. On the other hand, some producers may not require more
pasture at all, but instead may shift to using intensive rotational
grazing, which is becoming the standard for grazing today. Under
intensive grazing, producers use the same or fewer acres of land to
graze the same or greater numbers of animals.
Geographical location, current year growing conditions, and pasture
conditions will influence the need for seeding. Productive well managed
perennial grass pastures would likely not require annual seeding. Poor
producing and poorly managed perennial grass pastures would require
annual seeding. It is anticipated that some producers will need to
annually plant annual crops for grazing to provide sufficient
vegetation for grazing throughout the grazing season. This would be
especially true for those periods during the grazing season when
perennial grass pastures are dormant.
Seed costs will vary depending on what is to be grown and how many
acres are to be grown. As an example, if organic fescue is to be grown,
the seed will cost approximately $120-130 per acre at 2009 prices.\4\
If organic festulolium is to be grown the seed will cost approximately
$73 per acre at 2009 prices.\5\ Certified organic orchardgrass would
cost approximately $65 per acre at 2009 prices.\6\ Certified organic
ryegrass would cost approximately $76-$85 per acre at 2009 prices.\7\
Such costs may be offset by the benefits of using improved pasture,
which include a lower cost of purchased feed (grains and forages) per
hundredweight of milk or
[[Page 7188]]
meat produced, reduced forage harvest costs, and reduced veterinary
costs.\8\
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\4\ The seed prices were obtained from 2 commercial seed
suppliers because USDA does not track prices of organic seeds. Based
upon an application rate for organic Laura Meadow fescue of 25 lbs/
acre and seed price of $240-$260/50 lbs. (as priced by Albert Lea
Seed House and Welter Seed and Honey Company).
\5\ This is based on an application rate for organic spring
green festulolium of 25 lbs/acre and seed price of $145/50 lbs.
(Albert Lea Seed House and Welter Seed and Honey Company).
\6\ Based upon an application rate for organic Niva orchardgrass
of 10 lbs/acre and seed price of $325/50 lbs. (Welter Seed and Honey
Company).
\7\ Based upon an application rate for organic Calibra perennial
ryegrass of 25 lbs/acre and seed price of $152-$170/50 lbs. (Welter
Seed and Honey Company and Albert Lea Seed House).
\8\ For an example of data on reduced veterinary costs see page
76 of Knoblauch, Wayne A., Putnam, Linda D., and Karszes, Jason.
Dairy Farm Management Business Summary New York State 2004. Ithaca,
New York: Cornell University, November, 2005.
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At the retail level, there may be increased consumer prices. For
organic slaughter stock producers, an increase in costs might result in
a greater volume of slaughter animals, at least in the short term,
entering the market driving down prices. Longer term these increased
costs could result in increased consumer prices unless the increased
costs are offset by reductions in other costs of production. Other
costs of production that could be expected to go down are costs
associated with producer harvest and purchase of feed and the cost of
herd health.
Dairy producers not currently pasturing their animals and those not
managing their pastures at a level sufficient to provide at least 30
percent DMI are also expected to experience increased costs. This
increased cost could, at least in the short term, lead to a reduced
organic milk supply. Increased costs combined with a reduced milk
supply might be followed by an increased pay-price to producers. Milk
and milk product processors would be motivated to increase the pay-
price so as to both maintain existing supplies and to encourage
expanded supplies. With increased consumer prices accompanied by
increased pay-price to producers, some organic producers would be
expected to expand production and additional conventional producers
would be expected to transition to organic production. An increased
pay-price to producers would surely result in increased consumer
prices. Longer term increased costs should be offset, at least in part,
by reductions in other costs of production.
Some producers may see an overall reduction in production costs as
a result of this rule. Operations which have an adequate land base, but
are not optimizing the use of pasture may experience reduced feed
costs. According to an ERS report, ``Average feed costs per cow
declined as pasture use for dairy forage increased.'' As measured in
that publication, organic dairies that relied on pasture for 25-49
percent of for forage fed had feed costs of $500 less per cow than
organic dairies that relied on pasture for 0-24 percent forage fed.\9\
In addition, for feed from grazing (according to the 2005 ARM Survey),
costs per hundredweight of milk sold were eight times less expensive
than home-grown harvested feed and ten times cheaper than purchased
feed on organic farms.\10\ The cost savings from the substitution of
pasturing for purchased feed will fluctuate with the price of feed.
When the proposed rule was issued in December 2008, organic producers
were experiencing tight feed supplies and high costs. According to AMS'
National Organic Grain and Feedstuffs Report for October 22, 2009, the
price of organic yellow feed corn was $5.15-$6.85/bushel, in comparison
to $10.14 in October 2008. The price of organic feed grade soybeans was
$17.00-$19.00/bushel compared to $21.92/bushel one year prior. Other
costs of production that could be expected to go down are costs
associated with producer harvest (if perennial forage crops are
established) and purchase of feed and the cost of herd health.
---------------------------------------------------------------------------
\9\ McBride, William D., and Catherine Greene. Characteristics,
Costs, and Issues for Organic Dairy Farming, USDA, Economic Research
Service (ERS), ERR-82, (November 2009).
\10\ McBride, William D., and Catherine Greene, ``A Comparison
of Conventional and Organic Milk Production Systems in the U.S.,''
Selected Paper prepared for presentation at the AAEA, Portland,
Oregon, 2007.
---------------------------------------------------------------------------
Livestock producers can participate in various Federal, State, and
Local conservation programs that may assist producers with the costs of
complying with portions of this rule. For example, certified organic
producers and producers transitioning to organic production may be
eligible to apply for financial and technical assistance through the
Environmental Quality Incentive Program's National Initiative to
support organic and transition to organic production systems. EQIP is
administered by the NRCS.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.)
requires agencies to consider the economic impact of each rule on small
entities and evaluate alternatives that would accomplish the objectives
of the rule without unduly burdening small entities or erecting
barriers that would restrict their ability to compete in the market.
The purpose is to fit regulatory actions to the scale of businesses
subject to the action. Section 605 of the RFA allows an agency to
certify a rule, in lieu of preparing an analysis, if the rulemaking is
not expected to have a significant economic impact on a substantial
number of small entities.
Pursuant to the requirements set forth in the RFA, AMS performed an
economic impact analysis on small entities in the final rule published
in the Federal Register on December 21, 2000 (65 FR 80548). AMS has
also considered the economic impact of this action on small entities.
Small entities include producers and agricultural service firms, such
as handlers and ACAs. AMS has determined that this rule will not have a
significant economic impact on a substantial number of small entities.
AMS notes that several requirements to complete the RFA overlap
with the Regulatory Impact Analysis (RIA) and the Paperwork Reduction
Act (PRA). For example, the RFA requires an analysis of a final rule's
costs to small entities. The RIA provides an analysis of the benefits
and cost of a final rule. Further, the RFA requires a description of
the projected reporting and recordkeeping requirements of a final rule.
The PRA provides an estimate of the reporting and recordkeeping
(information collection) requirements of a final rule. In order to
avoid duplication, we combined some analyses as allowed in section
605(a) of the Act. The RIA in the Access to Pasture final rule provides
summary information on the size of the domestic organic crop and
livestock sector especially as it applies to ruminant producers who are
the entities affected by this rulemaking action. It also provides
information on potential costs to livestock producers who elect to
produce organically. The RIA and PRA should be referred to for more
detail.
Small agricultural service firms, which include handlers and ACAs,
have been defined by the Small Business Administration (SBA) (13 CFR
121.201) as those having annual receipts of less than $7,000,000.
The U.S. organic industry at the end of 2001 included nearly 6,949
certified organic crop and livestock operations. These operations
reported certified acreage totaling just over 2 million acres of
organic farm production of which approximately 790 thousand acres were
pasture and rangeland. Data on the numbers of certified organic
handling operations (any operation that transforms raw product into
processed products using organic ingredients) were not available at the
time of survey in 2001; but they were estimated to be in the thousands.
U.S. sales of organic food and beverages have grown from $1 billion in
1990, to an estimated $12.2 billion in 2004 and $13.8 billion in 2005
and nearly $17 billion in 2006. The organic industry is viewed as the
fastest growing sector of agriculture, representing almost 3 percent of
overall food and beverage sales. Since 1990, organic retail sales have
historically demonstrated a growth rate between 20 to 24 percent each
year, including a 22 percent increase in 2006.
In addition, USDA has 100 ACAs who provide certification services
to
[[Page 7189]]
producers and handlers. A complete list of names and addresses of ACAs
may be found on the AMS NOP Web site, at http://www.ams.usda.gov/nop.
ACAs are required to monitor the operations which they certify for
compliance with the NOP rule, and may incur costs for educating and
training staff to enforce this final rule. We expect these costs to be
minimal as certifying agents are already enforcing the NOP livestock
provisions and should have the expertise to apply the more specific
provisions of this rule. Small agricultural producers are defined by
the Small Business Administration (SBA) (13 CFR 121.201) as those
having annual receipts of less than $750,000. AMS estimates that most
of these entities would be considered small entities under the criteria
established by the SBA. AMS believes that the impact of this rule, if
any, on small agricultural service firms will be minor. Further, this
final rule is not expected to have an impact on a substantial number of
small agricultural producers.
The 2007 Census of Agriculture (Census) provides a glimpse into
official data on the U.S. organic sector, which is to be followed up in
2010 with more detailed reports. In addition, we have data provided by
a 2005 Agricultural Research Management (ARM) survey of ACAs conducted
by the Economic Research Service (ERS), specifically related to the
organic dairy sectors. We also have data reported to the NOP from
certifying agents, as ACAs must report annually certain information
concerning the operations they certified in the previous year, but the
database created from this information is not yet fully queriable
beyond its ability to tell us the total number of certified operations.
According to the Census, in 2007, there were approximately 2.6
million acres in organic production on over 20,400 farms. Of this
total, approximately 1.3 million acres were used for organic crop
production and the rest was either in certified organic pasture or
being converted to pasture. The total number of farms raising pasture
or converting land to certified pasture was reported at 19,601 out of
the 20,400 farms--clearly, most farms are engaged in using land for
both organic crops and pasture according to the Census. Farms reporting
organic crop production totaled 16,778--which aligns more closely with
numbers reported by ACAs to NOP for annually certified operations.
Also according to the Census, farms reporting production of organic
livestock and poultry totaled just under 2,500 and 90 percent of those
had sales below $50,000; there were around 250 farms with sales above
$50,000. Farms reporting value-added products of organic livestock and
poultry totaled nearly 3,200 in 2007 and almost 40 percent of these
farms (approximately 1,264) reported sales above $50,000 from livestock
and poultry value-added product sales. According to ERS, however, dairy
farmers comprised approximately half of the livestock and poultry
farmers with value-added sales--at 1,617 of these farms.\11\ The Census
did not break out the total livestock and poultry farms further, so we
have no easy way of knowing exactly how many of these farms are engaged
solely in beef ruminant slaughter production, poultry production, or
both. Therefore, we cannot draw a detailed baseline about ruminant
slaughter producers because of a lack of data on farm numbers and their
distribution. Nor do we know how many dairy farmers there are who sell
milk only to a processor, with no on-farm value-added sales production.
---------------------------------------------------------------------------
\11\ Census report specially tabulated for research conducted by
ERS, November 2009. Value-added product sales include the production
and sale of meats, milk, cheeses, etc. and sold direct by producers
to consumers, retailers, restaurateurs, CSAs, or some other final
buyers.
---------------------------------------------------------------------------
Data from the 2005 ARM survey also shows that there were 36,113
organic beef cows, 87,082 organic dairy cows, 58,822 unclassified cows
and young stock, and 4,471 sheep and lambs. Not broken out in this data
is the number of organic goats, buffalo, and bison which were lumped
with other animals.
The ARM survey reported that 86 percent of organic dairies and 62
percent of the organic milk cows are located in the Northeast and Upper
Midwest. Seven percent of organic dairies and organic milk cows are
found in the Corn Belt. By contrast, 7 percent of organic dairies were
located in the West, but these operations held a third of the organic
milk cows. Nationally the average size of an organic dairy is 82 cows
based on the ARM survey, with an average in the Northeast of 53 cows,
64 in the Upper Midwest, and 381 in the West.
The ARM Survey also reported that organic dairies averaged about
13,600 pounds of milk per cow or a daily average of 45 pounds of milk
per cow. Using a pay-price of $22 per hundredweight (cwt), based on the
ARM Survey, each cow would generate approximately $2,992. Based on the
Small Business Administration (SBA) definition of what constitutes a
small agricultural producer (annual receipts up to $750,000), a small
dairy is one with fewer than 251 cows. Therefore, on average, all
organic dairy farms are small producers, but based on regional
distributions of operations from the ARM survey, approximately 93
percent of all organic dairies--located in the Northeast, Upper
Midwest, and Corn Belt, are small producers. On average, organic dairy
producers in the West do not fit into this small producer category.
This likely reflects costs and land available to all operations--there
is more land available at lower costs in the West, hence operations
tend to be larger than in the East.
In the ARM survey, producers were asked to define a pasture-based
feeding program. They responded that a pasture-based feeding program
provides at least half of the forage fed to milk cows during the
grazing months, and they reported an average grazing period of 6.5
months. The survey also reported that more than 60 percent of producers
provided their animals with pasture that provided more than 50 percent
of forage needs throughout the grazing season; almost 90 percent of
operators provided at least 25 percent of animals' pasture needs
through forage. In addition, according to the Federation of Organic
Dairy Farmers (FOOD Farmers), most ruminant livestock producers pasture
their animals and many maximize the use of pasture.
But this also means that potentially, approximately 10 percent of
operators may need to make adjustments--to increase the amount of time
animals spend on pasture to meet the 30 percent DMI during a grazing
season of at least 120 days required by this final action.
This final rule brings uniformity in application to the livestock
regulations; especially as they relate to the pasturing of ruminants.
This uniformity will create equitable, consistent, performance
standards for all ruminant livestock producers. Producers who currently
operate based on grazing will perceive a benefit because these
producers claim an economic disadvantage in competing with livestock
operations that do not provide pasture. This final rule would also
bring uniformity in application of the livestock regulations. This
uniformity in application will allow the ACAs and AMS to administer the
livestock regulations in a way that reflects consumer preferences
regarding the production of organic livestock and their products.
Commenters have clearly stated that they expect organic ruminants to
graze pasture and receive not less than 30 percent of their dry matter
needs from grazing averaged over the entire grazing season. This final
rulemaking is intended to reflect consumer expectations and producer
perspectives. This action makes clear
[[Page 7190]]
what access to pasture means under the NOP. We note that organic
livestock and dairy producers have long been required to provide their
livestock with access to pasture for grazing. This final rule is the
result of a long discussion in implementing that requirement. This
action should not take organic producers unaware especially due to the
extended implementation period.
This action will ensure that NOP livestock production regulations
have sufficient specificity and clarity to enable AMS and ACAs to
efficiently administer the NOP and to facilitate and improve compliance
and enforcement. This specificity and clarity is expected to assure
that ACAs and producers know what constitutes compliance and will
satisfy consumer expectations that ruminant livestock animals graze
pastures during the grazing season. This proposed rule also adds 2 new
regulatory provisions, which many ruminant livestock producers already
comply with. New regulatory provisions include: (1) The requirement
that pastures be managed for grazing throughout the grazing season per
Sec. 205.237(c)(2), (the pasture system must provide all ruminants
under the OSP with an average of not less than 30 percent of their DMI
from grazing throughout the grazing season); and (2) the requirement
that for the grazing season, producers provide not more than an average
of 70 percent of a ruminant's DMI from their total feed ration minus
grazed vegetation rooted in pasture or residual forage per Sec.
205.237(c)(1). These 2 new regulatory provisions will ensure that
ruminants spend more time on pasture and that they receive a
significant portion of their daily feed intake, during the grazing
season, from grazing vegetation rooted in pasture or residual forage.
Inconsistency in the application of the livestock regulations by
producers and ACAs has resulted in the filing of consumer complaints
under the NOP complaint procedures. This action provides more
information which will contribute to producer and certifying agent
understanding which will in turn eliminate the current inconsistent
application of livestock regulations under the NOP. Further, since the
NOP regulations were implemented in October 2002, we have found that
producers need to improve their description of the practices and
procedures they employ to comply with the livestock regulations in
general and the pasture requirements in particular. Accordingly, this
final rule provides greater detail about acceptable and required
practices related to organic livestock and pasture management that will
result in more thorough organic system plans (OSPs). The OSP commits
the producer to a sequence of practices and procedures resulting in an
operation that complies with every applicable provision in the
regulations.
By eliminating the current inconsistent application of livestock
regulations under the NOP and improving OSPs, consumers will have the
assurance that the organic label is applied according to clear,
consistently applied, standards. These standards will provide for the
grazing of ruminants on pasture throughout the grazing season such that
ruminants obtain feed value from the grazing of pasture and residual
forage. This will in turn satisfy consumer expectations that ruminant
livestock animals graze pastures during the grazing season. Eliminating
the current inconsistent application of livestock regulations is
expected to end the filing of complaints which will, in turn, end the
generation of negative press which has damaged the image of organic
milk and milk products.
Costs associated with providing sufficient vegetation for grazing
throughout the grazing season would include the time (labor) spent
seeding the pastures, fuel for equipment used in seeding, and the cost
of seed. Seed costs will vary depending on what is to be grown and how
many acres are to be grown. Examples of 2009 certified organic seed
prices, per acre, include approximately $120-130 for fescue, $73 for
festolium, $65 for orchardgrass, and $76-85 for ryegrass.
Costs of pasture vary depending on location. USDA's Agricultural
Statistics, 2008, show 2007 pasture land values per acre ranging from
$12,100 (NJ), $2,820 (CA), $2,180 (WI), $1,370 (TX), $800 (CO), to $300
(ND). Costs would likely be higher for certified organic pasture.
USDA's Agricultural Statistics, 2008, show 2007 pasture land cash rents
per acre ranging from $40 (WI), $14 (CA), $8.30 (TX), $5.50 (CO) to $2
(NM). Again, costs would likely be higher for certified organic
pasture. Per acre rental rates would also vary based on pasture quality
factors. The higher the pasture quality, the more the producer may pay
per acre, but the fewer the acres needed to comply with the
regulations. On the other hand, producers may not require more pasture
at all, but instead may shift to using intensive rotational grazing,
which is becoming the standard for grazing today. Under intensive
grazing, producers use the same or fewer acres of land to graze the
same or greater numbers of animals. Costs associated with providing
pasture should only increase for those producers who currently do not
pasture their animals at all (e.g., producers not in compliance with
the current regulations) and those producers who do not manage their
pastures at a sufficient level to provide at least 30 percent DMI.
For those producers who do not provide sufficient pasture for their
animals, the costs associated with providing sufficient pasture will
vary not just on the location and quality, but also on the size of the
herd. Large operations that do not provide adequate pasture may require
large amounts of additional pasture, whereas small operations may
require small amounts of additional pasture. According to the 2005 ARM
survey, geographic areas with higher land costs (such as the Northeast)
have smaller livestock operations and areas with lower land costs (such
as in the West) have larger livestock operations. Based on this data,
those producers who do not have adequate pasture and are located in
areas with high land costs will likely require smaller amounts of
pasture compared to those producers who do not have adequate pasture
and are located in areas with low land costs.
AMS believes that the costs incurred by producers in complying with
this final action would be offset by a stronger marketplace for organic
livestock products including dairy products. Implementation of this
final rule will ensure that consumer expectations are met, and improve
the image of organic milk and other organic livestock products, both of
which in turn will lead to a robust market for these organic products.
AMS believes that, over the long run, the economic impact on producers
of not implementing this final rule would be greater than the economic
impact of this final rule.
D. Paperwork Reduction Act (Including the Information Collection
Burden)
In accordance with Office of Management and Budget (OMB)
regulations (5 CFR Part 1320) that implement the Paperwork Reduction
Act (44 U.S.C. 3501-3520) (PRA), the current information collection
requirements associated with the NOP have been previously approved by
OMB and assigned OMB control number 0581-0191. A new information
collection package is being submitted to OMB for approval of 9,200
hours in total burden hours to cover this new collection and
recordkeeping burden of paragraph 205.237(d) of this final rule. Upon
OMB's approval of this new information collection, we will merge this
collection into currently approved
[[Page 7191]]
OMB Control Number 0581-0191. The total burden hours to cover this new
collection and recordkeeping burden of Sec. 205.237(d), is 9,200
hours. In accordance with 5 CFR Part 1320, we have included below a
description of the collection and recordkeeping requirements and an
estimate of the annual burden on organic ruminant producers who would
be required to maintain information under this final rule. Authority
for this action is the Organic Foods Production Act of 1990, as
amended.
Title: National Organic Program.
OMB Control Number: 0581-0252.
Expiration Date of Approval: 3 years from OMB date of approval.
Type of Request: New collection.
Abstract: The information collection and recordkeeping necessitated
by new Sec. 205.237(d) is essential for verification that ruminants
obtain not less than 30 percent of dry matter intake from grazing
pasture, averaged over the grazing season, 120 days minimum (dry matter
grazed includes only residual forage and vegetation rooted in pasture).
This action requires that producers document: a description of the
total feed ration for each type and class of animal, including pasture,
feed supplements and additives; the amount of each type of feed fed;
and, the method for calculating dry matter demand and dry matter
intake.
The proposed rule specified mandatory formulas to calculate daily
dry matter demand and daily dry matter intake for each class of animal.
It also stipulated that producers perform and record these calculations
monthly. Some commenters who supported the requirement that ruminants
receive no more than 70 percent of dry matter intake from dry matter
fed, conveyed that stipulating formulas was overly prescriptive.
Commenters also asserted that the fixed variable of 3 percent body
weight within the dry matter demand formula was not universally
suitable to accurately estimate the nutritional needs of all animals.
Alternatively, we received proposals that producers document the total
daily feed rations for each class of animal, any changes to those
rations, and select a method for calculating dry matter demand and dry
matter intake with the consent or assistance of the certifying agent.
We accepted the proposal that producers and certifying agents
should determine what method(s) are suitable to use for calculating dry
matter demand and dry matter intake in the context of the certified
operation. This action is consistent with commenters proposals for
minimizing the information collection burden. Recordkeeping is a core
pillar of the organic program and an important tool for producers to
demonstrate, and certifying agents to verify, compliance with the
regulations. We believe that the discretion granted to the producers
and certifying agents, in lieu of prescribed formulas and frequency of
calculations, will minimize additional recordkeeping burden and
preserve a reliable means to verify compliance with the livestock feed
provisions.
According to FOOD Farmers (a dairy farmer organization representing
over 1,200 of the approximately 1,800 U.S. organic dairy farmers),
accredited certifying agents and organic ruminant producers currently
determine the daily DMI need of their animals and establish feed
rations (which identify the percentage of dry matter for each
ingredient) as a part of their good business and livestock management
practices. Moreover, most of these organic ruminant producers already
document and maintain feed ration records. We concur that many organic
livestock producers already record the data that will enable dry matter
intake calculations.
For those operations that do not currently calculate dry matter
demand or dry matter intake, there are numerous resources on the
various calculation methods. Certifying agents may also direct
producers to resources that will enable compliance with this
information collection requirement. As producers become accustomed to
additional recordkeeping requirements, we expect this information
collection burden to decrease in subsequent years.
Based on the number of certified operations reported by certifying
agents in comments to the proposed rule, AMS estimates that there are
approximately 1,800 certified dairy operations and 500 other ruminant
livestock operations in the U.S. that will be subject to the provisions
of Sec. 205.237(d). This final rule requires that ruminant producers
document: (1) Total feed ration for each type and class of animal,
describing all feed produced on-farm, all feed purchased from off-farm
sources, the percentage of each type of feed in the total ration, and a
list of all feed supplements and additives; (2) amount of each type of
feed actually fed to each type and class of animal; (3) changes made to
all rations throughout the year; and, (4) the method for calculating
dry matter demand and dry matter intake. To minimize disruption to the
normal business practices of the affected producers, producers will be
permitted to develop their own format for documenting the requirements
of Sec. 205.237(d).
The PRA also requires AMS to measure the recordkeeping burden.
Under the NOP (Sec. 205.103) each producer is required to maintain and
make available upon request, for 5 years, such records as are necessary
to verify compliance with the NOP. These records will enable producers
to provide the best evidence of compliance with the requirement that
for the grazing season, producers of organic ruminants provide not more
than an average of 70 percent of a ruminant's dry matter demand from
dry matter fed. The recordkeeping burden includes the amount of time
needed to store and maintain records. AMS estimates that, since most
organic ruminant producers already document and maintain feed ration
records additional annual costs will be nominal.
This information collection is only used by the organic ruminant
producer; authorized representatives of USDA, including AMS, NOP staff;
and USDA accredited certifying agents. Organic ruminant producers and
USDA accredited certifying agents are the primary users of the
information and AMS is the secondary user.
Information Collection Burden
Estimate of Burden: Public reporting burden for collection of
information is estimated to be 3 hours per year. Several commenters
asserted that the estimated information collection burden in the
proposed rule was too low. That assertion, however, was mostly
attributed to requirements which have been omitted from this final
rule, particularly, calculating dry matter intake and dry matter fed
for each type and class of animal on a monthly basis in accordance with
specified formulas. We have not changed the estimated reporting burden,
based upon the premise that producers, having the discretion to
determine the method and frequency of dry matter calculations, will
choose an efficient and readily adaptable means.
AMS estimates that the provisions in this final rule that require
producers to document information on feed rations, feed intake and
pasture management requirements will cost each affected producer $55.65
annually. This estimate is based on an estimated 3 labor hours per year
at $18.55 per hour for a total salary component cost of $55.65 per
year. The source of the hourly rate is the National Compensation
Survey: Occupational Wages in the United States, June 2006, published
by the Bureau of Labor Statistics. The rate is the mean hourly wage for
first line supervisors/managers of farming, fishing and forestry
workers. This
[[Page 7192]]
classification was selected because the individual(s) responsible for
the compliance of a certified operation must have the skills to manage
the operation.
Respondents: Organic ruminant producers.
Estimated Number of Respondents: 2,300.
Estimated Total Annual Burden per Respondent: 3 hours.
Estimated Total Annual Burden on Respondents: 9,200 hours.
Total Cost: $170,660.
Recordkeeping Burden
Estimate of Burden: Public recordkeeping burden is estimated to be
1.0 hour per year per respondent at $18.55 per hour for a total salary
component cost of $18.55 per year.
Respondents: Organic ruminant producers.
Estimated Number of Respondents: 2,300.
Estimated Number of Responses per Respondent: 1 (per year).
Estimated Total Annual Burden on Respondents: 2,300 hours.
Total Cost: $42,665.
AMS is committed to compliance with the Government Paperwork
Elimination Act (GPEA), which requires Government agencies in general
to provide the public the option of submitting information or
transacting business electronically to the maximum extent possible.
E. Civil Rights Impact Analysis
AMS has reviewed this final rule in accordance with the Department
Regulation 4300-4, Civil Rights Impact Analysis (CRIA), to address any
major civil rights impacts the rule might have on minorities, women,
and persons with disabilities. After a careful review of the rule's
intent and provisions, AMS has determined that this rule would only
impact the organic practices of livestock producers and that this rule
has no potential for affecting livestock producers in protected groups
differently than the general population of livestock producers. This
rulemaking was initiated by the organic community and by small
livestock producers in particular.
Protected individuals have the same opportunity to participate in
the NOP as non-protected individuals. The NOP regulations prohibit
discrimination by certifying agents, specifically, Sec. 205.501(d)
provides that ``No private or governmental entity accredited as a
certifying agent under this subpart shall exclude from participation in
or deny the benefits of the NOP to any person due to discrimination
because of race, color, national origin, gender, religion, age,
disability, political beliefs, sexual orientation, or marital or family
status.'' Paragraph 205.501(a)(2) requires ``certifying agents to
demonstrate the ability to fully comply with the requirements for
accreditation set forth in this subpart'' including the prohibition on
discrimination. The granting of accreditation to certifying agents
under Sec. 205.506 requires the review of information submitted by the
certifying agent and an on-site review of the certifying agent's
operation. Further, if certification is denied, Sec. 205.405(d)
requires that the certifying agent notify the applicant of their right
to file an appeal to the AMS Administrator in accordance with Sec.
205.681. These regulations provide protections against discrimination,
thereby permitting all livestock producers, regardless of race, color,
national origin, gender, religion, age, disability, political beliefs,
sexual orientation, or marital or family status, who voluntarily choose
to adhere to the proposed rule and qualify, to be certified as meeting
NOP requirements by an accredited certifying agent. This final rule in
no way changes any of these protections against discrimination.
List of Subjects in 7 CFR Part 205
Administrative practice and procedure, Agriculture, Animals,
Archives and records, Imports, Labeling, Organically produced products,
Plants, Reporting and recordkeeping requirements, Seals and insignia,
Soil conservation.
0
For the reasons set forth in the preamble, 7 CFR Part 205 is amended as
follows:
PART 205--NATIONAL ORGANIC PROGRAM
0
1. The authority citation for 7 CFR Part 205 continues to read:
Authority: 7 U.S.C. 6501-6522.
0
2. Section 205.2 is amended by revising the definitions of ``crop'' and
``livestock'' and adding 15 new terms in alphabetical order to read as
follows:
Sec. 205.2 Terms defined.
* * * * *
Class of animal. A group of livestock that shares a similar stage
of life or production. The classes of animals are those that are
commonly listed on feed labels.
* * * * *
Crop. Pastures, cover crops, green manure crops, catch crops, or
any plant or part of a plant intended to be marketed as an agricultural
product, fed to livestock, or used in the field to manage nutrients and
soil fertility.
* * * * *
Dry lot. A fenced area that may be covered with concrete, but that
has little or no vegetative cover.
Dry matter. The amount of a feedstuff remaining after all the free
moisture is evaporated out.
Dry matter demand. The expected dry matter intake for a class of
animal.
Dry matter intake. Total pounds of all feed, devoid of all
moisture, consumed by a class of animals over a given period of time.
* * * * *
Feedlot. A dry lot for the controlled feeding of livestock.
* * * * *
Graze. (1) The consumption of standing or residual forage by
livestock.
(2) To put livestock to feed on standing or residual forage.
Grazing. To graze.
Grazing season. The period of time when pasture is available for
grazing, due to natural precipitation or irrigation. Grazing season
dates may vary because of mid-summer heat/humidity, significant
precipitation events, floods, hurricanes, droughts or winter weather
events. Grazing season may be extended by the grazing of residual
forage as agreed in the operation's organic system plan. Due to
weather, season, or climate, the grazing season may or may not be
continuous. Grazing season may range from 120 days to 365 days, but not
less than 120 days per year.
* * * * *
Inclement weather. Weather that is violent, or characterized by
temperatures (high or low), or characterized by excessive precipitation
that can cause physical harm to a given species of livestock.
Production yields or growth rates of livestock lower than the maximum
achievable do not qualify as physical harm.
* * * * *
Livestock. Any cattle, sheep, goats, swine, poultry, or equine
animals used for food or in the production of food, fiber, feed, or
other agricultural-based consumer products; wild or domesticated game;
or other nonplant life, except such term shall not include aquatic
animals for the production of food, fiber, feed, or other agricultural-
based consumer products.
* * * * *
Residual forage. Forage cut and left to lie, or windrowed and left
to lie, in place in the pasture.
* * * * *
Shelter. Structures such as barns, sheds, or windbreaks; or natural
areas
[[Page 7193]]
such as woods, tree lines, large hedge rows, or geographic land
features, that are designed or selected to provide physical protection
or housing to all animals.
* * * * *
Stage of life. A discrete time period in an animal's life which
requires specific management practices different than during other
periods (e.g., poultry during feathering). Breeding, freshening,
lactation and other recurring events are not a stage of life.
* * * * *
Temporary and Temporarily. Occurring for a limited time only (e.g.,
overnight, throughout a storm, during a period of illness, the period
of time specified by the Administrator when granting a temporary
variance), not permanent or lasting.
* * * * *
Yards/Feeding pad. An area for feeding, exercising, and outdoor
access for livestock during the non-grazing season and a high traffic
area where animals may receive supplemental feeding during the grazing
season.
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3. Section 205.102 is amended by revising paragraph (a) to read as
follows:
Sec. 205.102 Use of the term, ``organic.''
* * * * *
(a) Produced in accordance with the requirements specified in Sec.
205.101 or Sec. Sec. 205.202 through 205.207 or Sec. Sec. 205.236
through 205.240 and all other applicable requirements of part 205; and
* * * * *
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4. Section 205.237 is amended as follows:
0
A. Revising paragraphs (a), (b)(5), and (b)(6);
0
B. Adding new paragraphs (b)(7), (b)(8), (c) and (d) to read as
follows:
Sec. 205.237 Livestock feed.
(a) The producer of an organic livestock operation must provide
livestock with a total feed ration composed of agricultural products,
including pasture and forage, that are organically produced and handled
by operations certified to the NOP, except as provided in Sec.
205.236(a)(2)(i), except, that, synthetic substances allowed under
Sec. 205.603 and nonsynthetic substances not prohibited under Sec.
205.604 may be used as feed additives and feed supplements, Provided,
That, all agricultural ingredients included in the ingredients list,
for such additives and supplements, shall have been produced and
handled organically.
(b) * * *
(5) Feed mammalian or poultry slaughter by-products to mammals or
poultry;
(6) Use feed, feed additives, and feed supplements in violation of
the Federal Food, Drug, and Cosmetic Act;
(7) Provide feed or forage to which any antibiotic including
ionophores has been added; or
(8) Prevent, withhold, restrain, or otherwise restrict ruminant
animals from actively obtaining feed grazed from pasture during the
grazing season, except for conditions as described under Sec.
205.239(b) and (c).
(c) During the grazing season, producers shall:
(1) Provide not more than an average of 70 percent of a ruminant's
dry matter demand from dry matter fed (dry matter fed does not include
dry matter grazed from residual forage or vegetation rooted in
pasture). This shall be calculated as an average over the entire
grazing season for each type and class of animal. Ruminant animals must
be grazed throughout the entire grazing season for the geographical
region, which shall be not less than 120 days per calendar year. Due to
weather, season, and/or climate, the grazing season may or may not be
continuous.
(2) Provide pasture of a sufficient quality and quantity to graze
throughout the grazing season and to provide all ruminants under the
organic system plan with an average of not less than 30 percent of
their dry matter intake from grazing throughout the grazing season:
Except, That,
(i) Ruminant animals denied pasture in accordance with Sec.
205.239(b)(1) through (8), and Sec. 205.239(c)(1) through (3), shall
be provided with an average of not less than 30 percent of their dry
matter intake from grazing throughout the periods that they are on
pasture during the grazing season;
(ii) Breeding bulls shall be exempt from the 30 percent dry matter
intake from grazing requirement of this section and management on
pasture requirement of Sec. 205.239(c)(2); Provided, That, any animal
maintained under this exemption shall not be sold, labeled, used, or
represented as organic slaughter stock.
(d) Ruminant livestock producers shall:
(1) Describe the total feed ration for each type and class of
animal. The description must include:
(i) All feed produced on-farm;
(ii) All feed purchased from off-farm sources;
(iii) The percentage of each feed type, including pasture, in the
total ration; and
(iv) A list of all feed supplements and additives.
(2) Document the amount of each type of feed actually fed to each
type and class of animal.
(3) Document changes that are made to all rations throughout the
year in response to seasonal grazing changes.
(4) Provide the method for calculating dry matter demand and dry
matter intake.
0
5. Section 205.239 is amended as follows:
0
A. Revising paragraph (a), introductory text, and paragraphs (a)(1)
through (3);
0
B. Revising paragraph (b), introductory text, and paragraphs (b)(2)
through (b)(4);
0
C. Redesignating paragraph (c) as (e);
0
D. Revising newly designated paragraph (e); and
0
E. Adding new paragraphs (a)(5), (b)(5) through (b)(8), (c), and (d) to
read as follows:
Sec. 205.239 Livestock living conditions.
(a) The producer of an organic livestock operation must establish
and maintain year-round livestock living conditions which accommodate
the health and natural behavior of animals, including:
(1) Year-round access for all animals to the outdoors, shade,
shelter, exercise areas, fresh air, clean water for drinking, and
direct sunlight, suitable to the species, its stage of life, the
climate, and the environment: Except, that, animals may be temporarily
denied access to the outdoors in accordance with Sec. Sec. 205.239(b)
and (c). Yards, feeding pads, and feedlots may be used to provide
ruminants with access to the outdoors during the non-grazing season and
supplemental feeding during the grazing season. Yards, feeding pads,
and feedlots shall be large enough to allow all ruminant livestock
occupying the yard, feeding pad, or feedlot to feed simultaneously
without crowding and without competition for food. Continuous total
confinement of any animal indoors is prohibited. Continuous total
confinement of ruminants in yards, feeding pads, and feedlots is
prohibited.
(2) For all ruminants, management on pasture and daily grazing
throughout the grazing season(s) to meet the requirements of Sec.
205.237, except as provided for in paragraphs (b), (c), and (d) of this
section.
(3) Appropriate clean, dry bedding. When roughages are used as
bedding, they shall have been organically produced in accordance with
this part by an operation certified under this part, except as provided
in Sec. 205.236(a)(2)(i),
[[Page 7194]]
and, if applicable, organically handled by operations certified to the
NOP.
* * * * *
(5) The use of yards, feeding pads, feedlots and laneways that
shall be well-drained, kept in good condition (including frequent
removal of wastes), and managed to prevent runoff of wastes and
contaminated waters to adjoining or nearby surface water and across
property boundaries.
(b) The producer of an organic livestock operation may provide
temporary confinement or shelter for an animal because of:
* * * * *
(2) The animal's stage of life: Except, that lactation is not a
stage of life that would exempt ruminants from any of the mandates set
forth in this regulation;
(3) Conditions under which the health, safety, or well-being of the
animal could be jeopardized;
(4) Risk to soil or water quality;
(5) Preventive healthcare procedures or for the treatment of
illness or injury (neither the various life stages nor lactation is an
illness or injury);
(6) Sorting or shipping animals and livestock sales: Provided,
that, the animals shall be maintained under continuous organic
management, including organic feed, throughout the extent of their
allowed confinement;
(7) Breeding: Except, that, bred animals shall not be denied access
to the outdoors and, once bred, ruminants shall not be denied access to
pasture during the grazing season; or
(8) 4-H, Future Farmers of America and other youth projects, for no
more than one week prior to a fair or other demonstration, through the
event and up to 24 hours after the animals have arrived home at the
conclusion of the event. These animals must have been maintained under
continuous organic management, including organic feed, during the
extent of their allowed confinement for the event.
(c) The producer of an organic livestock operation may, in addition
to the times permitted under Sec. 205.239(b), temporarily deny a
ruminant animal pasture or outdoor access under the following
conditions:
(1) One week at the end of a lactation for dry off (for denial of
access to pasture only), three weeks prior to parturition (birthing),
parturition, and up to one week after parturition;
(2) In the case of newborn dairy cattle for up to six months, after
which they must be on pasture during the grazing season and may no
longer be individually housed: Provided, That, an animal shall not be
confined or tethered in a way that prevents the animal from lying down,
standing up, fully extending its limbs, and moving about freely;
(3) In the case of fiber bearing animals, for short periods for
shearing; and
(4) In the case of dairy animals, for short periods daily for
milking. Milking must be scheduled in a manner to ensure sufficient
grazing time to provide each animal with an average of at least 30
percent DMI from grazing throughout the grazing season. Milking
frequencies or duration practices cannot be used to deny dairy animals
pasture.
(d) Ruminant slaughter stock, typically grain finished, shall be
maintained on pasture for each day that the finishing period
corresponds with the grazing season for the geographical location:
Except, that, yards, feeding pads, or feedlots may be used to provide
finish feeding rations. During the finishing period, ruminant slaughter
stock shall be exempt from the minimum 30 percent DMI requirement from
grazing. Yards, feeding pads, or feedlots used to provide finish
feeding rations shall be large enough to allow all ruminant slaughter
stock occupying the yard, feeding pad, or feed lot to feed
simultaneously without crowding and without competition for food. The
finishing period shall not exceed one-fifth (\1/5\) of the animal's
total life or 120 days, whichever is shorter.
(e) The producer of an organic livestock operation must manage
manure in a manner that does not contribute to contamination of crops,
soil, or water by plant nutrients, heavy metals, or pathogenic
organisms and optimizes recycling of nutrients and must manage pastures
and other outdoor access areas in a manner that does not put soil or
water quality at risk.
0
6. Section 205.240 is added to subpart C to read as follows:
Sec. 205.240 Pasture practice standard.
The producer of an organic livestock operation must, for all
ruminant livestock on the operation, demonstrate through auditable
records in the organic system plan, a functioning management plan for
pasture.
(a) Pasture must be managed as a crop in full compliance with
Sec. Sec. 205.202, 205.203(d) and (e), 205.204, and 205.206(b) through
(f). Land used for the production of annual crops for ruminant grazing
must be managed in full compliance with Sec. Sec. 205.202 through
205.206. Irrigation shall be used, as needed, to promote pasture growth
when the operation has irrigation available for use on pasture.
(b) Producers must provide pasture in compliance with Sec.
205.239(a)(2) and manage pasture to comply with the requirements of:
Sec. 205.237(c)(2), to annually provide a minimum of 30 percent of a
ruminant's dry matter intake (DMI), on average, over the course of the
grazing season(s); Sec. 205.238(a)(3), to minimize the occurrence and
spread of diseases and parasites; and Sec. 205.239(e) to refrain from
putting soil or water quality at risk.
(c) A pasture plan must be included in the producer's organic
system plan, and be updated annually in accordance with Sec.
205.406(a). The producer may resubmit the previous year's pasture plan
when no change has occurred in the plan. The pasture plan may consist
of a pasture/rangeland plan developed in cooperation with a Federal,
State, or local conservation office: Provided, that, the submitted plan
addresses all of the requirements of Sec. 205.240(c)(1) through (8).
When a change to an approved pasture plan is contemplated, which may
affect the operation's compliance with the Act or the regulations in
this part, the producer shall seek the certifying agent's agreement on
the change prior to implementation. The pasture plan shall include a
description of the:
(1) Types of pasture provided to ensure that the feed requirements
of Sec. 205.237 are being met.
(2) Cultural and management practices to be used to ensure pasture
of a sufficient quality and quantity is available to graze throughout
the grazing season and to provide all ruminants under the organic
system plan, except exempted classes identified in Sec. 205.239(c)(1)
through (3), with an average of not less than 30 percent of their dry
matter intake from grazing throughout the grazing season.
(3) Grazing season for the livestock operation's regional location.
(4) Location and size of pastures, including maps giving each
pasture its own identification.
(5) The types of grazing methods to be used in the pasture system.
(6) Location and types of fences, except for temporary fences, and
the location and source of shade and the location and source of water.
(7) Soil fertility and seeding systems.
(8) Erosion control and protection of natural wetlands and riparian
areas practices.
0
7. Section 205.290 is amended by revising paragraph (a) introductory
text to read as follows:
Sec. 205.290 Temporary variances.
(a) Temporary variances from the requirements in Sec. Sec. 205.203
through 205.207, 205.236 through 205.240 and 205.270 through 205.272
may be
[[Page 7195]]
established by the Administrator for the following reasons:
* * * * *
0
8. In Sec. 205.690, the number ``0581-0181'' is removed and ``0581-
0191'' is added in its place.
Dated: February 9, 2010.
Rayne Pegg,
Administrator, Agricultural Marketing Service.
[FR Doc. 2010-3023 Filed 2-12-10; 4:15 pm]
BILLING CODE P