7154 Federal Register / Vol. 75, No. 31 / Wednesday, February 17, 2010 / Rules and Regulations 

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. 

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 

§ 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 § 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 § 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 § 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 

§ 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 


erowe on DSK5CLS3C1PROD with RULES_2
Federal Register / Vol. 75, No. 31 / Wednesday, February 17, 2010 / Rules and Regulations 7155 

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 


erowe on DSK5CLS3C1PROD with RULES_2
7156 Federal Register / Vol. 75, No. 31 / Wednesday, February 17, 2010 / Rules and Regulations 

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 (§ 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 


erowe on DSK5CLS3C1PROD with RULES_2
Federal Register / Vol. 75, No. 31 / Wednesday, February 17, 2010 / Rules and Regulations 7157 

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 § 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 °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 

§ 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 


erowe on DSK5CLS3C1PROD with RULES_2
7158 Federal Register / Vol. 75, No. 31 / Wednesday, February 17, 2010 / Rules and Regulations 

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 § 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 § 205.239(a)(1), and that feedlots are 

well maintained and do not contribute 

to waste runoff and contaminated 

waters at § 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 


erowe on DSK5CLS3C1PROD with RULES_2
Federal Register / Vol. 75, No. 31 / Wednesday, February 17, 2010 / Rules and Regulations 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 § 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 § 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 


erowe on DSK5CLS3C1PROD with RULES_2
7160 Federal Register / Vol. 75, No. 31 / Wednesday, February 17, 2010 / Rules and Regulations 

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 

§ 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 nongrazing 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 


erowe on DSK5CLS3C1PROD with RULES_2
Federal Register / Vol. 75, No. 31 / Wednesday, February 17, 2010 / Rules and Regulations 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 warmblooded, 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 agriculturalbased 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 § 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.’’ (§ 205.102) 

Use of the Term, ‘‘Organic.’’—Changes 

Requested But Not Made 

As originally published, § 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 §§ 205.236 

through 205.239. In the proposed rule, 

we proposed amending § 205.102(a) by 

changing the provision to include 

proposed § 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 § 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 § 205.201. 

This action retains the pasture 

practice standard (new § 205.240) in 

amended form. Therefore, we have 

amended § 205.102(a) by changing the 

provision to include § 205.240. 

Origin of Livestock (§ 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 § 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 (§ 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 


erowe on DSK5CLS3C1PROD with RULES_2
7162 Federal Register / Vol. 75, No. 31 / Wednesday, February 17, 2010 / Rules and Regulations 

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 

§ 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 § 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, § 205.237(a) is not applicable to 

those substances. 

The definition of ‘‘handle’’ in the 

original NOP rule in § 205.2, specifically 

excludes the transportation or delivery 

of crops. Furthermore, § 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 § 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 § 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 

§§ 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 

§§ 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 § 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 

§ 205.239(c), we have also referenced 

the exemptions provided in 

§ 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 


erowe on DSK5CLS3C1PROD with RULES_2
Federal Register / Vol. 75, No. 31 / Wednesday, February 17, 2010 / Rules and Regulations 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 

§§ 205.239(b)(1) through (8) and 

§§ 205.239(c)(1) through (3). We are 

adding a new § 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 

§§ 205.239(b)(1) through (8) and 

§§ 205.239(c)(1) through (3). That 

exception requires that ruminant 

animals who are denied pasture in 

accordance with §§ 205.239(b)(1) 

through (8) and § 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 § 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 § 205.240(c)(2), 

the text of § 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 § 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 § 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 

§ 205.237(d) as discussed below. The 

revised § 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 § 205.239(b)(1) 

through (8) and § 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 

§ 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 

§§ 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 


erowe on DSK5CLS3C1PROD with RULES_2
7164 Federal Register / Vol. 75, No. 31 / Wednesday, February 17, 2010 / Rules and Regulations 

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 § 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 § 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 

§ 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 § 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 § 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 

§§ 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 


erowe on DSK5CLS3C1PROD with RULES_2
Federal Register / Vol. 75, No. 31 / Wednesday, February 17, 2010 / Rules and Regulations 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 § 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 

§ 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 § 205.237(d). We 

did not include a reference to the OSP 

because § 205.201(a) already requires 

this information. We did not include the 

language ‘‘to certifier for approval’’ 

because § 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 § 205.237(c) 

are being met,’’ because the entire 

paragraph is intended to demonstrate 

compliance with the provisions of 

§ 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 § 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 § 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 § 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 § 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 

§§ 205.237(b)(5), (6), and (7). Regarding 

§§ 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 § 205.237(b)(5), 

which prohibits the feeding of 

mammalian or poultry slaughter byproducts 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 § 205.237(b)(5) 

are more comprehensive and, therefore, 

we are retaining that requirement. 

We received several comments about 

§ 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 § 205.239(c). One comment 

gave no reason while the other said the 

issue is already addressed in the 

changes proposed to § 205.239. We 

disagree. The proposed rule pointed out 

that § 205.237(a) provides for feed from 

pasture and §§ 205.239(a) and (c) 

provides for access to pasture and 

reasons for temporary confinement from 

pasture. Amended § 205.237(b)(8) 

reinforces these requirements, along 

with those of amended § 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) 


erowe on DSK5CLS3C1PROD with RULES_2
7166 Federal Register / Vol. 75, No. 31 / Wednesday, February 17, 2010 / Rules and Regulations 

to meet the requirements of this 

paragraph. Amended § 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 

§ 205.239(b). The exceptions per 

§ 205.239(b) are included because the 

exceptions to § 205.237(b)(8) are also 

granted for temporarily denying a 

ruminant animal pasture or outdoor 

access as provided in § 205.239(c). 

As proposed § 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 

§ 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 

§ 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; DMIbased 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 

§ 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 

§ 205.237(c) that would state, ‘‘with 

exception as defined in § 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 § 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 § 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 

§ 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) 


erowe on DSK5CLS3C1PROD with RULES_2
Federal Register / Vol. 75, No. 31 / Wednesday, February 17, 2010 / Rules and Regulations 7167 

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. 

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 § 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

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 § 205.240 to § 205.237(c), a 

recommendation based on deleting the 

pasture practice standard. We have not 

accepted this recommendation because 

we have retained § 205.240. 

Other commenters recommended a 

new § 205.237 paragraph (d) which 

would read: 

(d) The organic system plan required in 

§ 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 § 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). 


erowe on DSK5CLS3C1PROD with RULES_2
7168 Federal Register / Vol. 75, No. 31 / Wednesday, February 17, 2010 / Rules and Regulations 

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 

§ 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 § 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 

§ 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 

§ 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 

§ 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 § 205.290(a). The reasons for 

variances addressed in the commenters’ 

recommendation are covered within 

§ 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 


erowe on DSK5CLS3C1PROD with RULES_2
Federal Register / Vol. 75, No. 31 / Wednesday, February 17, 2010 / Rules and Regulations 7169 

increase both animal density and herd 

size, to promote good management 

practices. This commenter suggested an 

amended § 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 §§ 205.239(c)(6) and 

205.240(c)(2). However, this same 

commenter’s recommended language for 

§ 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 (§ 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 

§ 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 § 205.239(a). 

Section 205.239(a)(1) Description of 

year-round access (shade, shelter, 

sunlight)—This paragraph described 


erowe on DSK5CLS3C1PROD with RULES_2
7170 Federal Register / Vol. 75, No. 31 / Wednesday, February 17, 2010 / Rules and Regulations 

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 § 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 

§ 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 § 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 §§ 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 nonconfinement 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 

§ 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 

§§ 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 § 205.239(d) below. 

Finally, we received many comments 

about §§ 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 


erowe on DSK5CLS3C1PROD with RULES_2
Federal Register / Vol. 75, No. 31 / Wednesday, February 17, 2010 / Rules and Regulations 7171 

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 

§ 205.239(a)(2). Comments 

recommended changing § 205.239(a)(2) 

to read: ‘‘For all ruminants, provision of 

pasture throughout the grazing season to 

meet the requirements of § 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 

§§ 205.239(a)(2)(i) and (ii), as suggested 

by some commenters. We removed 

§ 205.239(a)(2)(i) because the issue is 

addressed in § 205.237(c)(2). See 

Livestock Feed—Changes Based on 

Comments above. We removed 

§ 205.239(a)(2)(ii) because the access to 

the outdoors provision is addressed in 

§ 205.239(a)(1). See Livestock Living 

Conditions—Changes Based on 

Comments above. 

In amending § 205.239(a)(2), we have 

combined the two recommended 

versions quoted above, except that 

reference to pasture exemptions found 

in §§ 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 § 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 § 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 nonGMO 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 nonVerDate Nov<24>2008 12:33 Feb 16, 2010 Jkt 220001 PO 00000 Frm 00019 Fmt 4701 Sfmt 4700 E:\FR\FM\17FER2.SGM 17FER2

erowe on DSK5CLS3C1PROD with RULES_2
7172 Federal Register / Vol. 75, No. 31 / Wednesday, February 17, 2010 / Rules and Regulations 

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 

§ 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 § 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 § 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 § 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 § 205.101(a)(1), may continue to 

use roughages they grow as bedding for 

the animals they raise. 

New § 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 

§§ 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 


erowe on DSK5CLS3C1PROD with RULES_2
Federal Register / Vol. 75, No. 31 / Wednesday, February 17, 2010 / Rules and Regulations 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 

§ 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 § 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, § 205.239(d)(2) 

which required yards and passageways 

to be in good condition and welldrained. Section 205.239(d)(2) in the 

proposed rule has been deleted, but the 

contents have been retained in this final 

rule § 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 nonruminants, 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 § 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 § 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 

§ 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 § 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, 

§ 205.239(c)(1) in the proposed rule, 

with a provision for preventive 

healthcare procedures into 

§ 205.239(b)(5). In this final rule, the 

above provision is solely contained in 

§ 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 


erowe on DSK5CLS3C1PROD with RULES_2
7174 Federal Register / Vol. 75, No. 31 / Wednesday, February 17, 2010 / Rules and Regulations 

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 

§ 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 

§ 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 

§ 205.239(b)’’ to the opening text of 

§ 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 preparturition, 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 

§§ 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 § 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, 


erowe on DSK5CLS3C1PROD with RULES_2
Federal Register / Vol. 75, No. 31 / Wednesday, February 17, 2010 / Rules and Regulations 7175 

previously designated as § 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 § 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 § 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 

§ 205.239(a)(3). Paragraph (d)(2) 

addressed yards and passageways and is 

covered by § 205.239(a)(5). Paragraph 

(d)(3) addressed shade, and paragraphs 

(d)(4) and (d)(5) addressed water. These 

are all covered by § 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 § 205.239(c)(2). 

New paragraph 205.239(d) Slaughter 

stock finishing on pasture—Comments 

on §§ 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 


erowe on DSK5CLS3C1PROD with RULES_2
7176 Federal Register / Vol. 75, No. 31 / Wednesday, February 17, 2010 / Rules and Regulations 

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 

§ 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 § 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 

§ 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 § 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, § 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 


erowe on DSK5CLS3C1PROD with RULES_2
Federal Register / Vol. 75, No. 31 / Wednesday, February 17, 2010 / Rules and Regulations 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 

§ 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 § 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 § 205.239(a)(1). 

Poultry shall only be temporarily denied 

access to the outdoors in accordance 

with § 205.239(b)(1). This action adds a 

definition for ‘‘temporary and 

temporarily’’ to § 205.2. 

USDA’s APHIS has published 

guidance on biosecurity and disease 

prevention and control for nonconfinement 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-confinementraised 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 

§ 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 

§ 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 § 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 

§ 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 § 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. 


erowe on DSK5CLS3C1PROD with RULES_2
7178 Federal Register / Vol. 75, No. 31 / Wednesday, February 17, 2010 / Rules and Regulations 

Section 205.239(b)(3) Confinement for 

health, safety, and well-being—We 

received comments that offered 

recommendations on § 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 

§ 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 

§ 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 qualify§ 205.239(b)(4). We 

believe this provision is already 

reinforced by § 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 (§ 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 § 205.200– 

§ 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 §§ 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, § 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 § 205.2, is 

fundamentally different. The comment 

questioned the applicability of practices 

included in §§ 205.202 through 205.206 

to native rangeland. 

We also received comments 

recommending that § 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 §§ 205.200 

and 205.201, which are redundant 

because they are already required. We 

also removed §§ 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 §§ 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 §§ 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 §§ 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 


erowe on DSK5CLS3C1PROD with RULES_2
Federal Register / Vol. 75, No. 31 / Wednesday, February 17, 2010 / Rules and Regulations 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 § 205.239(a)(2) and manage pasture 

to comply with the requirements of: 

§ 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); 

§ 205.238(a)(3), to minimize the 

occurrence and spread of diseases and 

parasites; and § 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 § 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 

§ 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 

§ 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 

§§ 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 § 205.240(c). This is 

consistent with § 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 § 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 

§§ 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 

§ 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 


erowe on DSK5CLS3C1PROD with RULES_2
7180 Federal Register / Vol. 75, No. 31 / Wednesday, February 17, 2010 / Rules and Regulations 

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 § 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 § 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 § 205.240(c)(2) be redesignated as 

§ 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 

§ 205.240(b)(2), and modified the 

paragraph to cite a reference to 

§§ 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 § 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 § 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 § 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 § 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 § 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; 


erowe on DSK5CLS3C1PROD with RULES_2
Federal Register / Vol. 75, No. 31 / Wednesday, February 17, 2010 / Rules and Regulations 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 

§ 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 

§ 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 § 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 § 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 § 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 


erowe on DSK5CLS3C1PROD with RULES_2
7182 Federal Register / Vol. 75, No. 31 / Wednesday, February 17, 2010 / Rules and Regulations 

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 

§ 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 

§ 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 (§ 205.290) 

Temporary Variances—Changes 

Requested But Not Made 

Under the final NOP regulation, 

published December 21, 2000 (65 FR 

80548), § 205.290(a) authorized 

temporary variances from the 

requirements in §§ 205.236 through 

205.239 related to the livestock practice 

standard. In the proposed rule, we 

proposed amending § 205.290(a) to 

include proposed § 205.240. 

We received some comments on the 

proposed amendment to § 205.290(a); 

most supported as proposed, 1 

commenter opposed because they 

opposed publication of § 205.240. This 

action retains § 205.240 in amended 

form as explained in the beginning of 

the above discussion on the pasture 

practice standard. Accordingly, we have 

amended § 205.290(a) by changing the 

provision to include § 205.240. 

OMB Control Number (§ 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 § 205.290(a); 

both supported the correction. 

Accordingly, this action amends 

§ 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. 


erowe on DSK5CLS3C1PROD with RULES_2
Federal Register / Vol. 75, No. 31 / Wednesday, February 17, 2010 / Rules and Regulations 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 §§ 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 


erowe on DSK5CLS3C1PROD with RULES_2
7184 Federal Register / Vol. 75, No. 31 / Wednesday, February 17, 2010 / Rules and Regulations 

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 


erowe on DSK5CLS3C1PROD with RULES_2
Federal Register / Vol. 75, No. 31 / Wednesday, February 17, 2010 / Rules and Regulations 7185 

2Census 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). 

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 §§ 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 valueadded sales production. 

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. 


erowe on DSK5CLS3C1PROD with RULES_2
7186 Federal Register / Vol. 75, No. 31 / Wednesday, February 17, 2010 / Rules and Regulations 

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 pasturebased 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 

§ 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 

§ 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. 


erowe on DSK5CLS3C1PROD with RULES_2
Federal Register / Vol. 75, No. 31 / Wednesday, February 17, 2010 / Rules and Regulations 7187 

3McBride, William D., and Catherine Greene. 

Characteristics, Costs, and Issues for Organic Dairy 

Farming, USDA, Economic Research Service (ERS), 

ERR–82, November (November 2009). 

4The 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). 

5This 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). 

6Based upon an application rate for organic Niva 

orchardgrass of 10 lbs/acre and seed price of $325/ 

50 lbs. (Welter Seed and Honey Company). 

7Based 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). 

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 § 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 § 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. 

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 


erowe on DSK5CLS3C1PROD with RULES_2
7188 Federal Register / Vol. 75, No. 31 / Wednesday, February 17, 2010 / Rules and Regulations 

8For 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. 9McBride, William D., and Catherine Greene. 

Characteristics, Costs, and Issues for Organic Dairy 

Farming, USDA, Economic Research Service (ERS), 

ERR–82, (November 2009). 

10McBride, 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. 

meat produced, reduced forage harvest 

costs, and reduced veterinary costs.8

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 payprice so as to both maintain existing 

supplies and to encourage expanded 

supplies. With increased consumer 

prices accompanied by increased payprice 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. 

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 


erowe on DSK5CLS3C1PROD with RULES_2
Federal Register / Vol. 75, No. 31 / Wednesday, February 17, 2010 / Rules and Regulations 7189 

11Census 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. 

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 valueadded sales production. 

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 pasturebased 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 


erowe on DSK5CLS3C1PROD with RULES_2
7190 Federal Register / Vol. 75, No. 31 / Wednesday, February 17, 2010 / Rules and Regulations 

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 

§ 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 

§ 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 


erowe on DSK5CLS3C1PROD with RULES_2
Federal Register / Vol. 75, No. 31 / Wednesday, February 17, 2010 / Rules and Regulations 7191 

OMB Control Number 0581–0191. The 

total burden hours to cover this new 

collection and recordkeeping burden of 

§ 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 

§ 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 § 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 

§ 205.237(d). 

The PRA also requires AMS to 

measure the recordkeeping burden. 

Under the NOP (§ 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 


erowe on DSK5CLS3C1PROD with RULES_2
7192 Federal Register / Vol. 75, No. 31 / Wednesday, February 17, 2010 / Rules and Regulations 

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, 

§ 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 § 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, § 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 § 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. 

■ For the reasons set forth in the 

preamble, 7 CFR Part 205 is amended as 

follows: 

PART 205—NATIONAL ORGANIC 

PROGRAM 

■ 1. The authority citation for 7 CFR 

Part 205 continues to read: 

Authority: 7 U.S.C. 6501–6522. 

■ 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: 

§ 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 agriculturalbased 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 


erowe on DSK5CLS3C1PROD with RULES_2
Federal Register / Vol. 75, No. 31 / Wednesday, February 17, 2010 / Rules and Regulations 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. 

■ 3. Section 205.102 is amended by 

revising paragraph (a) to read as follows: 

§ 205.102 Use of the term, ‘‘organic.’’ 

* * * * * 

(a) Produced in accordance with the 

requirements specified in § 205.101 or 

§§ 205.202 through 205.207 or 

§§ 205.236 through 205.240 and all 

other applicable requirements of part 

205; and 

* * * * * 

■ 4. Section 205.237 is amended as 

follows: 

■ A. Revising paragraphs (a), (b)(5), and 

(b)(6); 

■ B. Adding new paragraphs (b)(7), 

(b)(8), (c) and (d) to read as follows: 

§ 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 § 205.236(a)(2)(i), except, 

that, synthetic substances allowed 

under § 205.603 and nonsynthetic 

substances not prohibited under 

§ 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 

§ 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 § 205.239(b)(1) 

through (8), and § 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 § 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. 

■ 5. Section 205.239 is amended as 

follows: 

■ A. Revising paragraph (a), 

introductory text, and paragraphs (a)(1) 

through (3); 

■ B. Revising paragraph (b), 

introductory text, and paragraphs (b)(2) 

through (b)(4); 

■ C. Redesignating paragraph (c) as (e); 

■ D. Revising newly designated 

paragraph (e); and 

■ E. Adding new paragraphs (a)(5), 

(b)(5) through (b)(8), (c), and (d) to read 

as follows: 

§ 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 

§§ 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 § 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 § 205.236(a)(2)(i), 


erowe on DSK5CLS3C1PROD with RULES_2
7194 Federal Register / Vol. 75, No. 31 / Wednesday, February 17, 2010 / Rules and Regulations 

and, if applicable, organically handled 

by operations certified to the NOP. 

* * * * * 

(5) The use of yards, feeding pads, 

feedlots and laneways that shall be welldrained, 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 § 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 onefifth (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. 

■ 6. Section 205.240 is added to subpart 

C to read as follows: 

§ 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 §§ 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 §§ 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 § 205.239(a)(2) and 

manage pasture to comply with the 

requirements of: § 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); 

§ 205.238(a)(3), to minimize the 

occurrence and spread of diseases and 

parasites; and § 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 § 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 § 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 

§ 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 

§ 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. 

■ 7. Section 205.290 is amended by 

revising paragraph (a) introductory text 

to read as follows: 

§ 205.290 Temporary variances. 

(a) Temporary variances from the 

requirements in §§ 205.203 through 

205.207, 205.236 through 205.240 and 

205.270 through 205.272 may be 


erowe on DSK5CLS3C1PROD with RULES_2
Federal Register / Vol. 75, No. 31 / Wednesday, February 17, 2010 / Rules and Regulations 7195 

established by the Administrator for the 

following reasons: 

* * * * * 

■ 8. In § 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 


erowe on DSK5CLS3C1PROD with RULES_2