[Federal Register Volume 75, Number 31 (Wednesday, February 17, 2010)]
[Rules and Regulations]
[Pages 7154-7195]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-3023]



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Part II





Department of Agriculture





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Agricultural Marketing Service



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7 CFR Part 205



National Organic Program; Access to Pasture (Livestock); Final Rule

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

[[Page 7154]]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 205

[Doc. No. AMS-TM-06-0198; TM-05-14FR]
RIN 0581-AC57


National Organic Program; Access to Pasture (Livestock)

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule with request for comments.

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SUMMARY: This final rule amends livestock and related provisions of the 
NOP regulations. Under the NOP, the Agricultural Marketing Service 
(AMS) oversees national standards for the production and handling of 
organically produced agricultural products. AMS has taken this action 
to ensure that NOP livestock production regulations have sufficient 
specificity and clarity to enable AMS and accredited certifying agents 
to efficiently administer the NOP and to facilitate and improve 
compliance and enforcement. This action is also intended to satisfy 
consumer expectations that ruminant livestock animals graze on pastures 
during the grazing season. This action provides clarification and 
specificity to the livestock feed and living conditions provisions and 
establishes a pasture practice standard for ruminant animals. In doing 
so, producers are required to: provide year-round access for all 
animals to the outdoors, recognize pasture as a crop, establish a 
functioning management plan for pasture, incorporate the pasture 
management plan into their organic system plan (OSP), provide ruminants 
with pasture throughout the grazing season for their geographical 
location, and ensure ruminants derive not less than an average of 30 
percent of their dry matter intake (DMI) requirement from pasture 
grazed over the course of the grazing season. The proposed requirements 
for fencing of water bodies and providing water at all times, indoors 
and outdoors, and the requirement for a sacrificial pasture have been 
deleted in this final rule. In addition, the proposed amendment to the 
origin of livestock section has been deleted in this final rule as 
issues pertaining to that topic will be reviewed and evaluated 
separately from this action.
    This final rule requires that producers maintain ruminant slaughter 
stock on pasture for each day that the finishing period corresponds 
with the grazing season for the geographical location. However, this 
rule exempts ruminant slaughter stock from the 30 percent DMI from 
grazing requirement during the finishing period. Although we are 
issuing this as a final rule, we are requesting comments on the 
exceptions for finish feeding of ruminant slaughter stock, as discussed 
below under ``Livestock living conditions--Changes based on comments.'' 
The agency is providing an additional 60 day period to receive comments 
on provision Sec.  205.239(d).

DATES: Effective Date: This rule becomes effective June 17, 2010.
    Implementation and Compliance Dates: This rule will be fully 
implemented June 17, 2011. Operations which obtain organic 
certification by June 17, 2010 must comply with this final rule. 
Operations which are certified as of the publication date must fully 
implement the provisions of this final rule, as applicable, June 17, 
2011.
    Comment Date: We invite public comments on Sec.  205.239(d). 
Comments should be limited to the finish feeding of ruminant slaughter 
stock. To ensure consideration of your comments on that provision, 
comments must be received by April 19, 2010.

ADDRESSES: Interested persons may submit comments pertaining to the 
finish feeding provision at Sec.  205.239(d) in the final rule using 
the following procedures:
    <bullet> Internet: http://www.regulations.gov.
    <bullet> Mail: Comments may be submitted by mail to: Toni Strother, 
Agricultural Marketing Specialist, National Organic Program, USDA-AMS-
TMP-NOP, Room 2646-So., Ag Stop 0268, 1400 Independence Ave., SW., 
Washington, DC 20250-0268.
    Written comments responding to this request should be identified 
with the document number AMS-TM-06-0198; TM-05-14FR. Clearly indicate 
whether you support Sec.  205.239(d) as published in this final rule, 
in full or in part, and the reason(s) for your position. Please include 
only relevant information and data to support your position.
    It is USDA's intention to have all comments, including names and 
addresses when provided, regardless of submission procedure used, 
available for viewing on the Regulations.gov (http://www.regulations.gov) Internet site. Comments submitted in response to 
this request will also be available for viewing in person at USDA--AMS, 
National Organic Program, Room 2646-South building, 1400 Independence 
Ave., SW., Washington, DC, from 9 a.m. to 12 noon and from 1 p.m. to 4 
p.m., Monday through Friday (except official Federal holidays). Persons 
wanting to visit the USDA South building to view comments received in 
response to this final rule are requested to make an appointment in 
advance by calling (202) 720-3252.

FOR FURTHER INFORMATION CONTACT: Shannon H. Nally, Acting Director, 
Standards Division, National Organic Programs, USDA-AMS-NOP, 1400 
Independence Ave., SW., Room 2646-So., Ag Stop 0268, Washington, DC 
20250. Telephone: (202) 720-3252; Fax: (202) 205-7808.

SUPPLEMENTARY INFORMATION:

Background

    The NOP is authorized by the Organic Foods Production Act of 1990 
(OFPA), as amended, (7 U.S.C. 6501 et seq.). The Agricultural Marketing 
Service (AMS) administers the NOP. Under the NOP, AMS oversees national 
standards for the production and handling of organically produced 
agricultural products. This action is being taken by AMS to ensure that 
NOP livestock production regulations have sufficient specificity and 
clarity to enable AMS and accredited certifying agents to efficiently 
administer the NOP and to facilitate and improve compliance and 
enforcement. This action is also intended to satisfy consumer 
expectations that ruminant livestock animals graze on pastures during 
the grazing season. The Secretary of Agriculture (Secretary) appointed 
members to the NOSB for the first time in January 1992. The NOSB began 
holding formal committee meetings in May 1992 and its first full Board 
meeting in September 1992. The NOSB's initial recommendations were 
presented to the Secretary on August 1, 1994. Over the period 1994-
2005, the NOSB made six recommendations regarding access to the 
outdoors for livestock, pasture, and conditions for temporary 
confinement of animals.
    In its February 2005 recommendation the NOSB proposed amending 
Sec.  205.239(a)(2) by replacing the phrase ``access to pasture'' with 
the phrase ``ruminant animals grazing pasture during the growing 
season.'' The NOSB also proposed exceptions to the general requirement 
for pasturing: For birthing, for dairy animals up to 6 months of age 
and for beef animals during the final finishing stage--not to exceed 
120 days. Finally, the NOSB recommendation noted that lactation of 
dairy animals is not a stage of life that may be used to deny pasture 
for grazing.
    At its August 2005 meeting, the NOSB formally approved a 
recommendation to

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the Secretary requesting a pasture guidance document. The NOSB proposed 
guidance would have provided that:
    <bullet> 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.
    <bullet> 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;
    <bullet> For livestock operations with ruminant animals, the OSP 
must describe: (1) The amount of pasture provided per animal; (2) the 
average amount of time that animals are grazed on a daily basis; (3) 
the portion of the total feed requirement that will be provided from 
pasture; (4) circumstances under which animals will be temporarily 
confined; and (5) the records that are maintained to demonstrate 
compliance with pasture requirements.
    The NOSB proposed guidance also addressed temporary confinement and 
the conditions of pasture. In the NOSB proposed guidance, temporary 
confinement would be permitted only during periods of inclement weather 
such as severe weather occurring over a period of a few days during the 
grazing season; conditions under which the health, safety, or well 
being of an individual animal could be jeopardized, including to 
restore the health of an individual animal or to prevent the spread of 
disease from an infected animal to other animals; and to protect soil 
or water quality. The proposed guidance also stated that appropriate 
pasture conditions shall be determined according to the regional 
Natural Resources Conservation Service (NRCS) Conservation Practice 
Standards for Prescribed Grazing (Code 528) for the animals in the OSP.
    The 30 percent dry matter intake was presented to the NOSB by a 
diverse group of organic producers, in terms of geography and size, who 
suggested an intake level that would be attainable on productive 
pastures of farming operations in varying conditions nationwide. The 
Cornell Dairy Farm Business Summary and the University of Wisconsin 
reportedly was stated to use 30 percent of forage intake from pasture 
to delineate farms as ``grazing'' operations. While that metric is 
based on an as fed, rather than dry matter intake basis, it illustrates 
the use of a minimum threshold as a measurement of a significant intake 
from pasture.
    As recorded in the transcripts of the 2005 NOSB meetings and the 
pasture symposium in 2006, the Board had examined several alternatives 
to the 30 percent metric. The NOSB initially considered a 50 percent 
minimum dry matter intake from pasture; but reverted to the 30 percent 
dry matter intake which had been adopted as the minimum grazing 
parameter for organic ruminants at an Organic Valley Task Force meeting 
in 2001. In 2005, the NOSB also considered a 10 percent dry matter 
intake from pasture averaged over a calendar year. This alternative was 
dismissed due to concerns that 10 percent dry matter intake over a 
total calendar year was more prone to abuse than 30 percent over a 120 
day minimum growing season. Meeting participants expressed that a 
shorter, specified period of time (with a minimum dry matter intake 
parameter) would be easier to calculate, document and monitor/verify. 
The 120-day minimum for the grazing season was based upon NRCS climate 
data throughout the United States and was considered to be broadly 
applicable so as not to disadvantage or exclude producers in any one 
part of the country.
    Alternatives to establishing a minimum dry matter intake and 
minimum grazing season included stocking rates/densities, alone or in 
combination with the 30/120 metric, or field measurements (measuring 
pasture density and the grass/plant height before and after grazing to 
determine the amount of pasture consumed). Both options were dismissed 
as neither viable nor enforceable due to the difficulty in setting a 
national standard that would be broadly applicable over varying 
conditions. Stocking rates would vary significantly due to the 
variability in the forage production on equal units of land area 
nationwide and would not be a sufficient standalone measure for 
pasture. Field measurements, moreover, were deemed to be time-consuming 
and onerous for producers and would be difficult to verify.
    The NOSB had also considered requiring ``significant'' intake from 
pasture; however, the public commenters at the NOSB meeting expressed 
concern that this descriptive rather than quantitative requirement 
would not be verifiable or enforceable. The NOSB initially intended to 
recommend the 30/120 metrics only as guidance, but public comments 
showed strong backing for a regulatory change.
    On April 13, 2006, NOP published an Advanced Notice of Proposed 
Rulemaking (ANPR) (71 FR 19131) seeking input on:
    (1) Whether the current role of pasture in the NOP regulations is 
adequate for dairy livestock under principles of organic livestock 
management and production;
    (2) If the current role of pasture as it is described in the NOP 
regulations is not adequate, what factors should be considered to 
change the role of pasture within the NOP regulations; and,
    (3) What parts of the NOP regulations should be amended to address 
the role of pasture in organic livestock management.
    We received over 80,500 comments in response to this ANPR. Support 
for strict standards and greater detail on the role of pasture in 
organic livestock production was nearly unanimous with just 28 of the 
over 80,500 comments opposing changes to the pasture requirements.
    Some commenters expressed that the suggested 30 percent-DMI and 
120-day minimum pasture requirements have never been supported by 
scientific evidence and appear arbitrary. Some accredited certifying 
agents (ACAs) expressed the concern that quantifiable minimums may 
present problems with compliance and enforcement. (An ACA is any entity 
accredited by the Secretary as a certifying agent for the purpose of 
certifying a production or handling operation as a certified production 
or handling operation.) However, consumers and other commenters, 
including small entities, expressed a clear expectation that organic 
ruminants graze pastures for the purpose of obtaining nutritional value 
as well as to accommodate their health and natural behavior. Commenters 
supported the adoption or incorporation of quantifiable, numeric 
measures into the regulations for the minimum amount of feed, measured 
as dry matter intake (DMI) (30 percent of the daily need), obtained 
from pasture and the minimum amount of time that ruminants should spend 
on pasture during a year (120 days).
    They also supported the pasturing of animals during lactation. More 
generally, we received comments that lactation is not a stage of 
production that justifies confinement and keeping animals off pasture. 
We received comments that animals should graze during months of the 
year when pasture can provide edible forage and that animals should 
receive a significant portion of their diet from grazing.
    We also received comments identifying the OSP as the appropriate 
section of the NOP regulations to enhance a measurable role for pasture 
by livestock producers. We received comments from producers who were

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concerned that regardless of the changes made, some producers would 
find a way around the regulations, because the problem is not the 
regulations themselves, but enforcement of the regulations.
    We received comments on the NOSB recommendation that beef animals 
be exempted from pasture for the final finishing stage--not to exceed 
120 days. Of the over 80,500 comments on the ANPR, the overwhelming 
majority spoke to the pasturing of dairy animals. However, even in 
these comments, there was a consistent theme of opposition to confining 
animals and feedlot feeding.
    For an expanded version of the preceding background information, 
please see the background statement published in the ``National Organic 
Program (NOP)--Access to Pasture (Livestock)'' proposed rule (73 FR 
63584).
    On October 24, 2008, NOP published a proposed rule intended to 
clarify and bring uniformity in application to the livestock 
regulations; especially as they relate to the pasturing of ruminants. 
Equitable, consistent, performance standards for all ruminant livestock 
producers was a goal of the proposed amendments. It was also the goal 
that the amendments would result in livestock regulations of sufficient 
specificity and clarity to enable AMS and ACAs to efficiently 
administer the NOP and to facilitate and improve compliance and 
enforcement.
    Five listening sessions were held after the proposed rule was 
published during the comment period. The listening sessions were open 
to the public and held in Auburn, New York (October 28, 2008); La 
Farge, Wisconsin (December 2, 2008); Chico, California (December 4, 
2008); Amarillo, Texas (December 8, 2008); and Gap, Pennsylvania 
(December 11, 2008). Altogether a total of 121 comments were recorded 
at the listening sessions, during which a few commenters traveled to 
more than one listening session (their comments are counted twice). 
Comments at the Auburn and Gap listening sessions were also compiled 
and resubmitted by FOOD Farmers, and are acknowledged as that written 
comment throughout this final action. Comments from the Texas state 
government were resubmitted in a detailed written comment and taken 
into account throughout this final action. Transcripts of each 
listening session were posted on the NOP Web site and all oral comments 
were considered in issuing this final rule and in the discussion 
(``comments received'') below. All oral comments were also considered 
in the summary of the listening sessions below.
    A majority of commenters at the listening sessions generally 
supported the proposed rule, especially as it related to the pasturing 
of ruminants, but expressed concern regarding the following specific 
provisions that were contained in the proposed rule: The need for a 
sacrificial pasture, weekly cleaning of watering troughs, and the need 
for fencing streams and other water bodies. Most of these commenters 
supported adding a provision for a minimum of 120 days for finish 
feeding of slaughter stock; and recognizing that barnyards, dry lots 
and feedlots are useful structures for supplemental feeding of animals. 
Some commenters raised concerns about appropriate bedding materials and 
the requirement to provide hay in a rack for newborns. One commenter 
suggested (and resubmitted in written comments) that we overstepped our 
statutory authority in writing regulations for pasture for ruminant 
animals.
    Like the written comments we received, there was universal support 
to change growing season as it appeared in the proposed rule, to 
grazing season. Additionally, commenters in every region pointed out 
that local and state NRCS and regulatory authorities already require 
nutrient and runoff management. They conveyed that it is unnecessary to 
require additional and overly prescriptive regulations in the livestock 
standard that would likely place producers in violation with state and 
local regulations.
    Nearly every producer and every certifying agent raised concerns 
about the proposed definition of inclement weather and the proposed 
conditions under which animals could be confined indoors. Most 
producers and certifying agents who commented also raised concern over 
the possibility of either consumers or the local humane society 
contacting them if weather conditions are severe enough to jeopardize 
the health or safety of their animals, but the regulations would 
require that they be kept outdoors as part of the proposed requirement 
of year-round outdoor access.
    Most commenters objected to the formula proposed for computing DMI. 
Overall, commenters stated that 120 days of grazing is possible in 
every part of the United States, and most believe that producers are 
already achieving 30 percent DMI, but would prefer that we allow them 
to calculate this in ways that permit more flexibility and over a 
grazing rather than growing season.

Comments Received

    We received 26,970 written comments in response to the proposed 
rule. There were approximately 130 individual comments with the 
remaining comments consisting of three modified form letters. Comments 
were received from producers, retailers, handlers, certifying agents, 
consumers, trade associations, organic associations, animal welfare 
organizations, consumer groups, state and local government entities, 
and various industry groups. A detailed discussion of the comments 
received and the NOP's response to those comments follows below.

Definitions (Sec.  205.2)

    This final rule adds 15 new terms to the NOP regulations: Class of 
Animal, Dry Lot, Dry Matter, Dry Matter Demand, Dry Matter Intake, 
Feedlot, Graze, Grazing, Grazing Season, Inclement Weather, Residual 
Forage, Shelter, Stage of Life, Temporary/Temporarily, and Yards/
Feeding Pads. These terms were either included in the proposed rule and 
supported by comments or introduced by commenters with justification. 
This final rule also revises the definitions for crop and livestock. 
This final rule eliminates 3 terms that were proposed as additions to 
the NOP regulations in the proposed rule. The following items were 
dropped in this final rule: Growing season, Killing frost and 
Sacrificial pasture.

Definitions--Changes Based on Comments

    This section differs from the proposed rule as follows:
    Class of animal--This term was not in the proposed rule. Although 
the NOP regulations contain a definition for livestock, some commenters 
petitioned for the need to include a definition for ``class of 
animal.'' The definition suggested most often was ``a group of 
livestock that shares a similar stage of life or production.'' 
Variations of a definition included: ``the segment of a herd or flock 
of livestock that shares a similar stage of life or production;'' ``as 
examples, for dairy animals--calves, young stock, lactating animals, 
dry stock; for slaughter stock--calves, young stock, stockers, 
finishing stock; for poultry--chicks, pullets, broilers, layers.'' 
Other commenters proposed a definition for a class of livestock, with 
several defining it as ``the segment of the livestock herd or flock 
that shares a similar stage of life or production including, but not 
limited to lactating animals, dry stock, yearlings, young stock, 
finished animals.''
    Most types or species of livestock animals (beef cattle, dairy 
cattle, swine, sheep, goats, chickens, turkeys, rabbits), are 
subdivided into different classes and various terms are used to 
identify the

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classes within types of animals. The examples in the previous paragraph 
are not all inclusive of the different classes among the various types 
of livestock. The classes within a type or species can be identified by 
those that need to be listed on feed labels. For example, feed labels 
for swine, would identify one or some combination of the following 
classifications depending upon the purpose of the feed: pre-starter, 
starter, grower, finisher, gilts, sows, and adult boars, lactating 
gilts and lactating sows.
    We believe these comments have merit because it is essential that 
all producers have a common understanding of animal classification. 
Feed and nutrition requirements are commonly determined based upon the 
classes of animal within the different species. The term, ``class of 
animal,'' was included to ensure that dry matter demand would be 
calculated appropriately for all animals in the herd. In accordance 
with Sec.  205.237(d) of this final rule, dry matter demand and dry 
matter intake must be documented and calculated for each type and class 
of animal. The division of a livestock herd by class of animal will 
ensure that all animals in the herd obtain at least 30 percent dry 
matter intake from pasture, consistent with their nutritional needs. 
After consideration of the comments, we included a definition for class 
of animal in the final rule. ``Class of animal'' means ``a group of 
livestock that shares a similar stage of life or production.'' To 
capture the various sets of classes within a type of livestock animal, 
we have also added a requirement that ``the classes of animals are 
those that are commonly listed on feed labels'' to the definition.
    Crop--The proposed rule would have amended the definition of 
``crop'' as defined in the original regulation by adding ``pastures, 
sod, cover crops, green manure crops and catch crops'' and ``or used in 
the field to manage nutrients and soil fertility.'' Commenters 
universally supported the revised definition of ``crop'' in the 
regulations, excepting the inclusion of ``sod'' in the definition. 
Commenters opposed the addition of sod for a number of reasons, 
advising:
    <bullet> It would result in certification of organic sod for lawns;
    <bullet> Sod does not provide feed value;
    <bullet> The issue has not been discussed or vetted to any real 
extent in the public forum; and
    <bullet> Extending the scope of certification to sod farms may 
involve removing soil, crop, and organic matter in methods that may not 
be sustainable and for which there are no current standards or 
guidance.
    As a result of the comments received, we removed the word sod from 
the proposed revision to the definition of a crop. We note that all 
agricultural operations are eligible to seek and obtain certification 
under the NOP when they can adhere to the NOP standards to produce an 
agricultural product. We acknowledge the concerns of commenters about 
certification to sod farms, which may remove soil, crop, and organic 
matter in methods that may not be sustainable and for which there are 
no current NOP standards or guidance. It would be premature to 
recognize the viability of this unique production system before the 
development of relevant organic production standards. Absent parameters 
to ensure sustainable production which is a major tenant of the NOP, 
this would likely lead to practices that stray from the principles of 
organic production.
    Dry matter--The proposed definition of ``dry matter'' states, ``The 
amount of feedstuff remaining after all the free moisture is evaporated 
out.'' Of the comments received responding to the proposed definition 
of dry matter, most supported the definition as proposed, one requested 
it be deleted (because the commenter requested all of the regulation be 
removed), and one suggested using the definition of the Association of 
Official Analytical Chemists (AOAC). That definition reads: ``The dry 
matter (DM) of a feed contains all the nutrients except water. It is 
indirectly determined from the moisture content of the feed. After 
determining the moisture content by drying the sample at 100 [deg]C for 
24 hours, dry matter is calculated to be the difference.''
    We have not accepted the recommendations to remove the definition 
nor to amend it to be consistent with the AOAC. We have retained the 
definition as proposed. A definition of ``dry matter'' is needed 
because this term appears throughout this final rule and correct 
understanding of its exact meaning is essential to implementing the 
provisions of this rule. The AOAC definition has merit; however, we are 
not adopting that definition because it specifies one method for 
determining dry matter. There are various methods to determine the dry 
matter content of feed and we intend that each producer, in conjunction 
with the ACA, select the appropriate method.
    Dry matter demand--This term was not defined in the proposed rule. 
A number of commenters recommended adding a definition for ``dry matter 
demand'' as, ``The expected dry matter intake for a class of animal.'' 
At least 1 commenter opposed the addition of this definition because 
they had proposed removal of the related regulatory text.
    We agree with the commenters that dry matter demand should be 
defined and have accepted the commenters' recommended definition and 
included it in this action. We believe that this definition is needed 
because a common understanding of the term ``dry matter demand'' among 
ruminant livestock operations will ensure a consistent basis for 
determining the percentage of dry matter obtained from pasture or 
supplemental feed.
    Dry matter intake--This term was not defined in the proposed rule. 
A number of commenters recommended adding a definition for ``dry matter 
intake.'' Nearly all of these commenters recommended a version reading: 
``Total pounds of all feed, devoid of all moisture, consumed by a class 
of animals over a given period of time.'' Another commenter recommended 
an almost identical version. At least 1 commenter opposed the addition 
of this definition because they had proposed removal of the related 
regulatory text.
    We have accepted the recommendation to define ``dry matter intake'' 
as defined by the commenters above. We believe that this definition is 
needed because a common understanding of the term ``dry matter intake'' 
among ruminant livestock operations will ensure a consistent basis for 
determining the percentage of dry matter obtained from pasture or 
supplemental feed.
    Dry lot--In the proposed rule we defined a dry lot as ``a confined 
area that may be covered with concrete, but that has no vegetative 
cover.'' Dry lots were prohibited in the proposed rule, at Sec.  
205.239(a)(2)(ii). Comments received on this definition included: Agree 
as written; need areas for outdoor access when animals cannot be put on 
pasture; delete definition; and edit. Two similar edited versions of 
the definition were received. The version recommended by many 
commenters, which we accepted, replaced the word ``confined'' with the 
word ``fenced'' and modified vegetative cover as ``little or no.'' The 
commenters opposing the proposed definition of ``dry lot'' or 
recommending deletion of that definition generally did so on the basis 
of opposing the prohibition on dry lots. The comments asserted that 
``dry lot'' is commonly used in certain regions to describe outdoor 
access areas. Commenters that recommended revising the definition to 
include ``little or no vegetative cover'' were concerned that areas of 
sparse vegetation could qualify as pasture. Other commenters

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recommended revising the definition to clearly characterize dry lots as 
areas for continuous total confinement.
    The prohibition on dry lots in the proposed rule has been stricken 
from this final rule due to comments received asserting that ``dry 
lot'' is a term which, in some regions of the U.S., describes a feature 
that can be compatible with organic livestock production. Accordingly, 
the definition of ``dry lot'' has been amended to clarify the 
characteristics by which a dry lot would be acceptable for organic 
ruminant livestock. We have accepted the commenter's suggestion to 
modify vegetation with ``little or no'' in order to prevent the 
incorrect usage of dry lots that have some vegetation, as pasture. The 
definition of ``dry lot'' reads: ``A fenced area that may be covered 
with concrete, but that has little or no vegetative cover.''
    Feedlot--In the proposed rule we defined ``feedlot'' as ``a 
confined area for the controlled feeding of ruminants.'' Feedlots were 
prohibited in the proposed rule, at Sec.  205.239(a)(2)(ii). Commenters 
presented the following concerns with the proposed definition of 
``feedlot'': under the definition, pasture could be considered a 
feedlot; the definition could encompass, and, therefore, prohibit too 
many types of outdoor access areas that producers need for periods of 
recognized exemption from pasture access. To address those concerns, 
some commenters recommended editing or deleting the definition for 
``feedlot.'' Three similar edited versions of the definition were 
received. The first version recommended by commenters replaced the 
words ``confined area'' with the words ``dry lot'' and replaced the 
word ``ruminants'' with the word ``livestock.'' The second version 
recommended by a commenter replaced the word ``ruminants'' with the 
word ``livestock.'' The third version recommended by other commenters 
replaced the words ``confined area'' with the words ``dry lot.'' The 
suggested revisions to replace ``confined area'' with ``dry lot'' were 
premised upon the removal of the words ``confined area'' from the 
definition of ``dry lot.'' Since feedlots are defined as a type of dry 
lot, the removal is consistent with the definition of dry lot. In 
addition, commenters wanted the definition to reflect that other non-
ruminant livestock may also be fed in feedlots.
    We have accepted the first version, which incorporates the 
suggestions of the second and third versions. The prohibition on 
feedlots in the proposed rule has been stricken from this final rule 
due to comments received asserting that feedlots can be compatible with 
organic livestock production. Accordingly, the definition of 
``feedlot'' has been amended to clarify the characteristics by which a 
``feedlot'' would be acceptable for organic ruminant livestock. This 
final rule contains requirements for the size of a feedlot relative to 
the number of animals at Sec.  205.239(a)(1), and that feedlots are 
well maintained and do not contribute to waste runoff and contaminated 
waters at Sec.  205.239(a)(5). We believe that the definition of 
``feedlot'' describes an acceptable area for providing outdoor access 
when pasture is not available and a location for supplemental feeding. 
The definition of ``feedlot'' reads: ``A dry lot for the controlled 
feeding of livestock.''
    Graze--In the proposed rule, we defined ``graze'' as ``(1) The 
consumption of standing forage by livestock. (2) To put livestock to 
feed on standing forage.'' We received comments suggesting changes to 
both parts of the proposed definition of ``graze,'' to include a 
reference to residual forage. These commenters advocated allowing 
management practices which maximize pasture productivity and extend the 
grazing season. Methods that were mentioned include clipping pastures, 
stockpiling forage (the pasture is not grazed during the growing season 
in order to provide winter grazing), and cutting pastures, with cut 
pastures being windrowed. Some comments also suggested a definition of 
``residual forage'' as ``standing forage or forage cut and left to lie 
in place in the pasture.''
    We believe these comments have merit. Accordingly, we added the 
words ``or residual forage'' to both parts of the definition of graze 
in this final rule. Residual forage is a new term defined in this final 
rule as discussed below. It is not necessary to include management 
practices which maximize pasture productivity and extend the grazing 
season in the definition. The definition for ``grazing'' accommodates 
those practices in which livestock are outside grazing on pasture, 
which may have fresh or stockpiled forage or forage that has been cut 
and windrowed.
    Growing season--Commenters universally opposed the proposed 
definition of ``growing season'' and suggested that it be replaced with 
a definition for ``grazing season.'' Many commenters asked that every 
occurrence of the term ``growing season'' be replaced with the term 
``grazing season.'' We received one comment that suggested that the 
definition of ``growing season'' be changed to ``period of the year 
during which growing conditions for indigenous vegetation and 
cultivated crops are most favorable. Growing season is affected by 
elevation above sea level, distance from the equator, average regional 
temperatures, length of maintained temperatures, frosts, wind 
conditions and other weather patterns.'' This commenter also suggested 
a definition for ``grazing season.''
    Comments received about grazing season as a better description for 
defining periods for pasture availability made the following points:
    <bullet> A more practical approach to defining the time of year 
when pasture forages are of a substantive quality and quantity for 
grazing purposes;
    <bullet> The vast differences in climatic conditions across 
livestock production areas precludes defining growing season by last 
and first frosts;
    <bullet> 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;
    <bullet> The proposed growing season definition did not account for 
periods of intense rain and heat- and dry-induced dormancy periods; and
    <bullet> Such conditions, i.e., periods of intense rain and heat- 
and dry-induced dormancy periods, would make pastures unsuitable for 
grazing due to the potential for damage to the pasture stands as well 
as soil and water quality.
    For the reasons above, commenters have conveyed that pastures which 
may not offer sufficient grazing during the growing season as defined 
in the proposed rule, could sustain grazing outside of the growing 
season. Therefore, we are adding a definition for ``grazing season'' 
and removing the proposed definition of ``growing season.'' 
Furthermore, in each place that the term ``growing season'' appears, we 
replaced this with the term ``grazing season.'' Based on the comments 
we received about the attributes and availability of pasture and 
grazing, we are amending and accepting the definition of grazing season 
as suggested by commenters: ``The period of time when pasture is 
available for grazing, due to natural precipitation or irrigation. 
Grazing season dates may vary because of mid-summer heat/humidity, 
significant precipitation events, floods, hurricanes, droughts or 
winter weather events. Grazing season may be extended by the grazing of 
residual pasture as agreed in the operation's organic system plan. Due 
to weather, season, and/or climate, the grazing season may or may not 
be continuous. Grazing season may range from 120 days to 365 days.'' We 
have amended the above definition of grazing season by replacing the 
term ``residual pasture'' with ``residual forage,'' because

[[Page 7159]]

the latter term more closely represents what is actually being grazed. 
We have also added the words, ``per year'' at the end of the definition 
to clarify that each grazing season occurs within or up to a one year 
period. The one year period does not have to be January through 
December, but must be within a 365 day period.
    Inclement Weather--In the proposed rule, ``inclement weather'' was 
defined as, ``Weather which is violent, or characterized by 
temperatures (high or low), that can kill or cause permanent physical 
harm to a given species of livestock.'' We received many comments 
suggesting changes to the definition of inclement weather, including 
one to remove the definition completely. All of the suggested changes 
were consistent that the definition should be expanded to include 
weather conditions beyond those that can kill or cause permanent 
physical harm to animals. According to the comments, as proposed, the 
definition is so narrowly written that producers could be prevented 
from using humane management practices if animals suffer extreme 
discomfort, stress, or non-permanent physical harm. Most of the 
comments suggested amending the definition by replacing ``kill or cause 
permanent physical harm'' with ``cause physical harm.'' Others 
suggested ``kill or cause physical harm,'' ``kill or cause severe or 
permanent harm,'' or ``pose safety or humane comfort risk.'' We also 
received one comment asserting that these regulations be based on 
scientific measures.
    We agree that nothing in these regulations should prevent humane 
treatment of livestock. Therefore, we removed the words ``kill'' and 
``permanent'' from the definition and added that inclement weather may 
also be characterized by ``excessive precipitation.'' We added a new 
sentence at the end of the definition to make clear that production 
yields or growth rates of livestock lower than the maximum achievable 
do not qualify as physical harm.
    Certifying agents, however, should not allow producers to abuse an 
allowance for denying pasture to ruminants during periods of inclement 
weather. For example, a rain event on its own is not justification to 
deny access to pasture for ruminants. A rain event must render the 
pasture too wet for grazing without causing damage to the pasture 
beyond normal wear and tear from grazing. As for extreme temperatures 
and humidity, the critical factor in denying pasture to ruminants is 
the health and safety of the animals--not the yield impact of 
temperature and/or humidity on growth rate or output (milk yields, for 
example). Further, under Sec.  205.238(a), a producer must establish 
and maintain preventive livestock health care practices, including the 
selection of species and types of livestock with regard to suitability 
for site specific conditions. Thus, if the location is consistently too 
rainy or the temperature and humidity are too high or low to safely 
graze animals throughout a 120-day minimum grazing season and still 
comply with all applicable parts of this regulation, the animal cannot 
be raised in such location for organic production. The NOP standards 
must adhere to all applicable Federal health and safety laws which in 
turn may be evidenced by appropriate metrics. The NOP regulations 
provide for certification of an operation based on a set of sustainable 
practices in order to meet a marketing claim intended to satisfy 
consumer expectations. In the case of organic ruminant animals, 
consumers expect that these animals graze on pasture and derive a 
significant portion of their nutrition while grazing on pasture. 
Participation in the NOP is voluntary, but in order to enter the 
marketplace for organic products, compliance with these regulations as 
organic is mandatory in order to sell, market, or label products that 
will meet consumer expectations.
    Killing frost--The proposed rule contained a definition of 
``killing frost'' in order to determine the beginning and end of the 
growing season. Commenters who suggested removing the definition of 
growing season also recommended removing the proposed definition for 
killing frost. Their rationale was that removing the definition for 
growing season makes the definition of killing frost unnecessary.
    We agree that removing the definition for growing season makes the 
definition of killing frost unnecessary. We deleted the definition of 
killing frost.
    Livestock--In the proposed rule, ``livestock'' was defined as, 
``Any bee, cattle, sheep, goats, swine, poultry, equine animals used 
for food or in the production of food, fiber, feed, or other 
agricultural-based consumer products; fish used for food; wild or 
domesticated game; or other nonplant life.'' The proposed rule amended 
the original definition of ``livestock'' by adding the words ``bee,'' 
and ``fish used for food.'' The original regulation specifically 
excluded bees and aquatic animals from the definition of ``livestock.'' 
However, the Organic Foods Production Act (OFPA) defines livestock to 
include ``fish used for food'' and ``other nonplant life.'' We proposed 
amending the definition of livestock in the proposed rule, to align the 
definition of the regulations more closely with the definition in the 
statute.
    Of the numerous comments received on the definition of livestock, 
all but a few called for the removal of ``fish used for food.'' These 
comments recommended removal because the NOP has not undertaken 
rulemaking to add aquatic species to the standards.
    We do not currently allow the organic certification of aquatic 
species. Therefore, we removed ``fish used for food'' from the 
definition of livestock and retained the language that excludes aquatic 
animals for the production of food, fiber, feed, or other agricultural 
based consumer products. Comments received on bees are discussed below 
in ``Changes Not Made.''
    Residual forage--This term was not defined in the proposed rule. 
Several commenters proposed adding a definition of ``residual forage'' 
as, ``Standing forage or forage cut and left to lie in place in the 
pasture.'' We believe that the commenters' proposed definition for 
residual forage could be interpreted to prohibit windrowing cut forage 
that is left in pastures. We also believe, in light of the definition 
of ``graze,'' which includes reference to standing forage and residual 
forage, that standing forage should not be included in the definition 
of residual forage. We added a definition of ``residual forage'' in 
this final rule, based on the comments received that suggest management 
practices to maximize pasture productivity and extend the grazing 
season. To make it clear that windrowing cut forage is acceptable, we 
removed the words ``standing forage'' from the definition of residual 
forage. In this final rule, ``residual forage'' has also been added to 
Sec.  205.237(c)(1), to clarify that both residual forage and 
vegetation rooted in pasture should not be counted as dry matter fed.
    Sacrificial pasture--The proposed rule contained a definition of 
``sacrificial pasture,'' which described the purpose and 
characteristics of this feature. This term was defined because the 
proposed ruled contained a requirement that each ruminant livestock 
operation maintain a sacrificial pasture for grazing when saturated 
soil prevented grazing of other pastures. Due to the near universal 
opposition expressed by commenters, we have removed the mandatory 
requirement for sacrificial pasture and hence the definition is 
unnecessary. Further discussion regarding the deletion of the 
sacrificial pasture requirement is addressed below in the Pasture 
Practice Standard section.
    Shelter--We did not propose a definition for shelter in the 
proposed

[[Page 7160]]

rule. However, we received comments, including from FOOD Farmers, whose 
comments are supported by its members, suggesting adding a definition 
for shelter to clarify the intention of Sec.  205.239(a)(1), which 
addresses livestock living conditions. Three similar versions of a 
definition for shelter were received. Specifically, these comments 
define a shelter that can be used temporarily during the grazing season 
and for longer periods of time outside of the grazing season. Suggested 
definitions read (different text in the second and third definitions is 
italicized):

    (1) ``Structures such as barns, sheds, or windbreaks, or natural 
areas such as woods, tree lines, or geographic land features that 
provide physical protection and/or housing to animals;''
    (2) ``Structures such as barns, sheds, or windbreaks, or natural 
areas such as woods, tree lines, large hedge rows, or geographic 
land features that provide physical protection and/or housing to 
animals;''
    (3) ``Structures such as barns, sheds, or windbreaks, or natural 
areas such as woods, tree lines, or geographic land features that 
are designed or selected to provide physical protection to all 
animals in a herd or flock simultaneously.''

    We agree with defining the term ``shelter'' to clarify its meaning 
as used in livestock living conditions. We have used the first version 
suggested, but added ``large hedge rows'' and ``simultaneously'' to 
address unique contributions from the other two versions.
    Stage of life--The proposed rule did not contain a definition for 
stage of life, although we received comments requesting a definition. 
Very similar variations were submitted and supported by some of the 
commenters. Common to all of the suggested definitions were the words, 
``a discrete time period in an animal's life which requires specific 
management practices different than during other periods.'' The types 
of comments we received are shown below:
    <bullet> Lactation, breeding and other recurring events are not a 
stage of life;
    <bullet> Calves and chicks were cited as examples of stage of life; 
this is also true for calves, piglets and chicks;
    <bullet> 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.
    <bullet> The definition is needed to ensure that the exception 
allowing temporary confinement due to stage of life in not abused;
    <bullet> 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;
    <bullet> 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:
    <bullet> ``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.''
    <bullet> ``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.''
    <bullet> ``An enriched area for eating and food searching, 
exercising and outdoor access for livestock during the non-grazing 
season and a high traffic area where animals may receive supplemental 
feeding during the grazing season.''
    We agree that the regulations need to provide for yards/feeding 
pads and comments we received provided sound justification for the 
introduction of a definition of yards/feeding pads--particularly in 
light of removing the provision for sacrificial pasture in this final 
rule. Yards/feeding pads are integral to grazing systems as they can 
serve as an area where lactating animals are gathered and dispersed 
between pastures and the milking facility. These areas minimize damage 
to fields that can occur during wet conditions and high impact 
activities such as feeding. We have incorporated the first definition 
recommended by commenters above because this clearly conveys the 
purpose of these features and the limited activities they support. We 
omitted the word, ``improved'' from the commenters definition because 
its meaning is unclear. The provisions in this final rule for yards/
feeding pads are discussed below under livestock living conditions.

Definitions--Changes Requested But Not Made

    This section retains from the proposed rule, regulations on which 
we received comments as follows:
    Livestock--A commenter suggested removing ``fiber, feed, or other 
agricultural based consumer products.'' This would leave the definition 
exactly as stated in the OFPA. The language ``fiber, feed, or other 
agricultural based consumer products'' was approved through notice and 
comment rulemaking and has been in effect since December 21, 2000. This 
is the only request that we have received to remove this language since 
promulgation in 2000. As the commenter gave no justification for the 
recommended change and as there was no additional support for that 
change, we have not adopted the commenter's suggestion.
    Livestock and bees--We received a comment to change ``bee'' to 
``beehive'' and another to change ``bee'' to ``bee colony.'' However, 
we received many comments, which called for removing ``bee'' from the 
livestock definition, five never mentioned bees, and some asked for 
additional rulemaking relative to apiculture. A very detailed comment

[[Page 7161]]

described the differences between bees, livestock, and other animals--
    <bullet> Including bees in the definition of livestock ignores 
basic bee life cycle and behavior;
    <bullet> Honey bees are not raised as food, nor are they raised in 
order to use their skins, fur or other body part;
    <bullet> Honey is not a product of the bee's body like milk, but is 
a harvested plant product processed by honey bees;
    <bullet> Finally, the comment identified the differences between 
honey bees and the other animals (e.g., they are not warm-blooded, not 
raised as individuals, not domesticated, their movement is 
uncontrollable, foraging does not damage a plant or reduce its 
viability, it is difficult for beekeepers to feed bees a balanced and 
nutritional artificial diet, and beekeepers cannot administer to the 
bee's health in a manner similar to the other animals in the livestock 
definition).
    A second comment acknowledged that the definition in OFPA lists 
``other nonplant life,'' but stated that it ``is incorrect to make 
insects subject to the same regulations as, e.g., ruminants.'' This 
commenter believes that it is necessary to exclude bees from any 
regulation that does not consider their unique characteristics. The 
commenter also expressed concern that listing bees in the definition of 
livestock under the NOP would influence the construction and 
interpretation of federal, state, and local regulations and have 
adverse ramifications beyond the scope of the NOP. The commenter was 
especially concerned that including bees in the definition of livestock 
would restrict beekeeping within jurisdictions that prohibit or 
severely restrict livestock production within their borders.
    Both of these commenters, and some of the others failed to address 
the fact that the certification of apiaries for the organic production 
of honey and other products of the hive under the NOP is currently 
allowed.
    Bees are members of the animal kingdom and are managed for 
pollination and the products of the hive (e.g., honey, pollen, 
propolis, bee venom, beeswax, and royal jelly). We note that the 
Canadian Organic Production Systems--General Principles and Management 
Standards include bees in their definition of livestock. While the EU 
Council Regulation No. 834/2007 (replaced EEC No 2092/91) does not 
define livestock, it does define livestock production as ``the 
production of domestic or domesticated terrestrial animals (including 
insects).'' OFPA includes the phrase ``other nonplant life,'' which 
includes bees. The wording ``other nonplant life'' is also included in 
the NOP definition of livestock. Adding ``bee'' to the definition of 
livestock would be consistent with the standards of two major trading 
partners. Adding ``bee'' to the definition of livestock would help to 
clarify that apiaries may be certified under the NOP. As proposed, we 
are removing the exclusion of bees for the production of food, fiber, 
feed, or other agricultural-based consumer products. This action, 
however, removes the proposed addition of ``bee'' from the definition 
of livestock as unnecessary due to the presence of the phrase ``other 
nonplant life'' and removal of the exception of bees. Removing the 
exclusion of bees as proposed in the proposed rule eliminates a 
contradiction to existing policy and the current practice of allowing 
the certification of apiaries under the NOP.
    Temporary/Temporarily--A commenter suggested removing the 
definition of ``temporary and temporarily,'' but gave no reason for 
doing so. A second commenter recommended removing ``the period of time 
specified by the Administrator when granting a temporary variance'' but 
also gave no reason. Other commenters supported adding the definition. 
One commenter wrote that overnight ``should not, unto itself, be an 
allowed reason not to provide access to the outdoors or access to 
pasture.''
    We agree with the comment that nighttime should not in and of 
itself be reason to deny access and note that the overnight confinement 
must be associated with one of the conditions listed in Sec.  
205.239(b), as grounds to deny access to the outdoors. Further, 
justification for confinement should be addressed and documented in the 
operation's organic system plan. However, we do not agree with removing 
the definition, as suggested by some of the comments. We have retained 
the proposed definition of ``temporary and temporarily'' to prevent 
operations from exceeding a permissible period of confinement.

Use of the Term, ``Organic.'' (Sec.  205.102)

Use of the Term, ``Organic.''--Changes Requested But Not Made
    As originally published, Sec.  205.102(a) required that any 
agricultural product that is sold, labeled, or represented as ``100 
percent organic,'' ``organic,'' or ``made with organic,'' must be 
produced in accordance with livestock Sec. Sec.  205.236 through 
205.239. In the proposed rule, we proposed amending Sec.  205.102(a) by 
changing the provision to include proposed Sec.  205.240.
    We received a few comments on the proposed amendment to this 
paragraph, some of which supported as proposed, and others opposed 
because they opposed publication of Sec.  205.240. One opposed because 
the commenter suggested covering the proposed pasture practice standard 
within the organic system plan (OSP), as described by applicable 
paragraphs of Sec.  205.201.
    This action retains the pasture practice standard (new Sec.  
205.240) in amended form. Therefore, we have amended Sec.  205.102(a) 
by changing the provision to include Sec.  205.240.

Origin of Livestock (Sec.  205.236)

Origin of Livestock--Changes Based on Comments
    Origin of livestock--The proposed rule included language intended 
to clarify that the two tracks for replacement dairy animals remained 
in effect following the final rulemaking that was published June 7, 
2006, (71 FR 32803). Thousands of commenters opposed this action. With 
few exceptions, the commenters strongly urged that we work diligently 
and quickly to issue a proposed origin of livestock rulemaking that 
would eliminate the two track system for dairy replacement and require 
that once an operation has been certified for organic production, all 
dairy animals born or brought onto the operation shall be under organic 
management from the last third of gestation.
    We agree that this topic should be the subject of a separate 
rulemaking and, accordingly, have deleted the proposed change to Sec.  
205.236(a)(2)(iii). The section remains as published June 7, 2006, (71 
FR 32803). Issues pertaining to this topic will be reviewed and 
evaluated separately from this action.

Livestock Feed (Sec.  205.237)

Livestock Feed--Changes Based on Comments
    This section differs from the proposed rule as follows:
    Section 205.237(a) Organic livestock ration--This paragraph 
clarifies that producers must provide an agricultural ration for 
livestock composed of agricultural products handled organically, 
without exception. To make this clear, we added language stating that 
any agricultural ingredients contained in feed additives and 
supplements must be handled organically. We received several comments 
on that clarification expressing the following positions:
    <bullet> Disagree, because the clarification has been provided in 
NOP guidance, and the impact of the clarification needs

[[Page 7162]]

further examination. A commenter explained that vitamins and minerals, 
as supplied by the manufacturer, may contain very small amounts of 
nonorganic agricultural carriers and this clarification would add an 
obstacle to the annotation in the NOP regulation which solely requires 
that nutrient vitamins and minerals are FDA approved;
    <bullet> 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;
    <bullet> Agree, but questions remain about the applicability. Does 
the requirement apply to ingredients in an ingredient listing on a 
package of supplements or feed additives? Or alternatively, does the 
requirement apply to the agricultural component of an item in Sec.  
205.603, or the substrate used to produce a nonsynthetic (natural) 
ingredient?
    <bullet> One commenter took issue with the phrase ``by operations 
certified to the NOP'' in this paragraph. The commenter stated that 
each day, organic feeds are transported by haulers not certified to the 
NOP. The commenter went on to acknowledge that proper procedures must 
be followed to prevent contamination but stressed that this can be done 
without certification and this requirement could result in an increase 
in transportation costs of feed products.
    Section 205.237 already requires producers to provide a total feed 
ration composed of agricultural products that are organically produced 
and handled. However, some additive and supplement handlers have used 
nonorganic agricultural ingredients in products for which they have 
sought and received certification, by claiming that the nonorganic 
agricultural ingredients were supplements or used as carriers. One 
example involved a supplement product, for which an organic label was 
sought, and whose primary ingredient was conventionally produced 
molasses. The amended language clarifies the existing requirement that 
organic livestock must be provided with a total feed ration composed of 
organically produced and handled agricultural products.
    We agree that further clarification of the organic livestock ration 
is needed. We have clarified the provision at the end of Sec.  
205.237(a) to refer to ingredients included in the ingredients list. 
Section 205.603 identifies synthetic substances that are allowed for 
use in organic livestock production. Because these substances are not 
agricultural products which could be certified organic, Sec.  
205.237(a) is not applicable to those substances.
    The definition of ``handle'' in the original NOP rule in Sec.  
205.2, specifically excludes the transportation or delivery of crops. 
Furthermore, Sec.  205.100(a) defines handling operations that must 
obtain certification in order to sell, label, or represent agricultural 
products as organic. Haulers are excluded from the definition of 
handling operations under Sec.  205.100(a) and are not required to be 
certified to transport agricultural products that are intended to be 
sold, labeled, or represented as ``100 percent organic,'' ``organic,'' 
or ``made with organic (specified ingredients of food group(s)).'' 
Therefore, to address the confusion raised by the comment, we are 
clarifying that haulers are not required to be certified for 
transporting and delivering feed.
    Section 205.237(b)(7) Antibiotics prohibited in feed--The purpose 
of this proposed paragraph is to reinforce the prohibition on the use 
of antibiotics currently found in Sec.  205.238(c)(1), which states 
that producers must not sell, label, or represent as organic any animal 
or edible product derived from any animal treated with antibiotics. We 
received the following comments:
    <bullet> The provision is already covered by Sec. Sec.  205.237(a) 
and 205.238(c)(1) and could be deleted;
    <bullet> 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;''
    <bullet> Replace the words ``to which anyone, at anytime, has 
added'' with ``which contains.'' The commenters' suggested language 
would read: ``Provide feed or forage which contains an antibiotic.''
    We have not accepted the recommendations. Instead, we have decided 
to further clarify the prohibition on the use of antibiotics by adding 
``including ionophores'' to the end of the provision. In administering 
this program we have found antibiotics in certified organic livestock 
feed. Ionophores are antibiotics used for increasing feed efficiency or 
rate of gain. By clarifying this provision we reinforce the prohibition 
on the use of all antibiotics, including ionophores. Whether used for 
therapeutic or subtherapeutic reasons or to increase feed efficiency or 
rate of gain, all antibiotics are prohibited. This provision restates 
this requirement--organic livestock feed to which antibiotics have been 
added is prohibited. It is the producer's responsibility, to obtain 
assurances from feed suppliers that the feed products supplied are free 
of antibiotics, including ionophores.
    Section 205.237(b)(8) No restriction from obtaining feed grazed 
from pasture during the growing season--We received comments requesting 
that ``growing season'' be changed to ``grazing season'' in this 
paragraph. We also received comments requesting that we amend this 
paragraph to refer to Sec. Sec.  205.239(b) and (c).
    We agree and have made the change related to grazing season 
consistently throughout this final action. We have added a new 
definition for ``grazing season'' to Sec.  205.2 and have addressed the 
change from ``growing season'' to ``grazing season'' throughout this 
final rule in that section above. In addition to referencing the 
exceptions in Sec.  205.239(c), we have also referenced the exemptions 
provided in Sec.  205.239(b), as these exceptions for temporary shelter 
and confinement also apply to ruminants.
    Section 205.237(c) Dry Matter Intake (DMI)--opening paragraph and 
paragraphs (c)(1)-(4)--The opening paragraph required producers to 
demonstrate that during the growing season, animals are provided with 
not more than 70 percent of dry matter demand from dry matter fed, not 
including vegetation rooted in pasture. The paragraphs, as proposed, 
identified documentation requirements for demonstrating compliance with 
the 70 percent dry matter demand requirement. We received comments 
specifically addressing this section, one of which carried numerous 
signatures. Nearly all of the comments requested a change in the words 
``growing season'' to ``grazing season.'' We also received amended 
versions to the opening paragraph which are summarized as follows:
    <bullet> Add the phrase ``or mowed and left in the pasture to be 
grazed,'' or ``clipped and left in place'' to the paragraph;
    <bullet> Insert ``residual forage'' into the paragraph to further 
define vegetation;
    <bullet> 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;
    <bullet> Couple the 30 percent minimum feed required from pasture, 
on average, with the not more than 70 percent DMI from dry matter fed 
required by this paragraph, and exempt certain classes of

[[Page 7163]]

animals, such as dairy stock under 12 months of age, slaughter stock 
typically grain finished, and breeding bulls and male stock;
    <bullet> Other commenters suggested language requiring that all 
ruminants over 6 months of age receive an average of 30 percent of 
their dry matter demand from pasture for the entire grazing season.
    Commenters also submitted language found in the new definition of 
grazing season, stating that the grazing season may be intermittent due 
to weather, season, or climate. In addition, we received other comments 
requesting that the 30 percent DMI from pasture requirement be an 
average over the grazing season and that ``grazing season must be no 
less than 120 days.''
    The commenters also requested the clarification that each type and 
class of animal, individually, must meet the 30 percent dry matter 
intake from grazing requirement.
    In addition to the comments above, we also received comments 
requesting that an exemption be added from pasturing and the 30 percent 
DMI from grazing requirement for breeding bulls and breeding male 
stock--with the stipulation that such animals also be prohibited from 
being sold as organic slaughter stock. Comments we received stated that 
while this exemption was initially offered because of some State and 
local regulations that make it illegal to pasture male bulls with other 
stock, the commenters requested this exemption for all breeding bulls.
    We agree that it would be beneficial to couple the 30 and 70 
percent DMI requirements together for clarity. Further, we believe that 
it would be beneficial to clarify the pasture derived DMI requirements 
for ruminant animals denied pasture in accordance with Sec. Sec.  
205.239(b)(1) through (8) and Sec. Sec.  205.239(c)(1) through (3). We 
are adding a new Sec.  205.237(c)(2), that requires producers to 
provide sufficient quality and quantity of pasture to graze throughout 
the grazing season. They shall also provide all ruminants under the 
organic system plan with a minimum of 30 percent, on average, of their 
DMI from grazing throughout the grazing season. An exception is 
provided for ruminant animals denied pasture in accordance with 
Sec. Sec.  205.239(b)(1) through (8) and Sec. Sec.  205.239(c)(1) 
through (3). That exception requires that ruminant animals who are 
denied pasture in accordance with Sec. Sec.  205.239(b)(1) through (8) 
and Sec.  205.239(c)(1) through (3) shall be provided with a minimum of 
30 percent, on average, of their DMI from grazing for the remaining 
time that they are on pasture during the grazing season. Section 
205.239(c)(4) is not included because producers are expected to keep 
animals on pasture long enough each day throughout the grazing season 
to assure that their animals derive an average of 30 percent of their 
DMI from pasture grazed throughout the grazing season. Further, as 
stated in that paragraph, milking must be scheduled in a manner to 
ensure sufficient grazing time to provide each animal with an average 
DMI from grazing of at least 30 percent throughout the grazing season. 
The paragraph also provides that milking frequencies or duration 
practices cannot be used to deny dairy animals pasture.
    We are replacing the words ``growing season'' with ``grazing 
season'' throughout the regulation as discussed above. However, the 
commenters suggested wording that ``grazing season must be no less than 
120 days,'' would also permit producers to pasture animals for only the 
minimum of 120 days per year, even when the grazing season for the 
geographical region exceeds 120 days. Therefore, we are not accepting 
this wording. This final rule requires producers to graze ruminants 
throughout the entire grazing season for the geographical region, but 
this period shall be no less than 120 days per calendar year. We are 
accepting the comment that due to weather, season and climate, the 
grazing season may not be continuous in order to provide further 
clarification. The proposed rule at Sec.  205.240(c)(2) used the words 
``an average of 30 percent of their DMI from grazing throughout the 
growing season.'' To be consistent with Sec.  205.240(c)(2), the text 
of Sec.  205.237(c) has been revised accordingly to address the 70 
percent requirement as an average and the word ``growing'' has been 
changed to ``grazing.'' We have also inserted a sentence to convey the 
requested clarification because the dry matter demand and intake will 
vary by type and class of animal.
    We agree with adding ``residual forage or'' before ``vegetation,'' 
as this will enable producers to employ management practices to extend 
the grazing season by leaving residuals in the pasture for livestock to 
eat. We also added a definition for ``residual forage'' in Sec.  205.2.
    We recognize it may be illegal in some localities to pasture 
breeding bulls. In consideration of this factor, an exception is 
provided for breeding bulls which exempts them from the pasturing and 
30 percent DMI requirements. The requested exemption will assure that 
all ruminant livestock producers can maintain mature males on their 
operation. This exception includes a provision that excludes any animal 
maintained under this exemption from being sold, labeled, or 
represented as organic slaughter stock.
    In summary, based on comments received, we deleted paragraphs (1) 
through (4) as written and revised the opening Sec.  205.237(c) to 
clearly explain the dry matter intake feed requirements and exceptions 
to those requirements. The documentation requirements that were 
contained in the paragraphs (1)-(4) have been revised and moved to new 
Sec.  205.237(d) as discussed below. The revised Sec.  205.237(c) and 
new paragraphs (1) and (2) now read: ``(c) During the grazing season, 
producers shall:
    (1) Provide not more than an average of 70 percent of a ruminant's 
dry matter demand from dry matter fed (dry matter fed does not include 
dry matter grazed from residual forage or vegetation rooted in 
pasture). This shall be calculated as an average over the entire 
grazing season for each type and class of animal. Ruminant animals must 
be grazed throughout the entire grazing season for the geographical 
region, which shall be no less than 120 days per calendar year. Due to 
weather, season, or climate, the grazing season may not be continuous;
    (2) Provide sufficient quality and quantity of pasture to graze 
throughout the grazing season and to provide all ruminants under the 
organic system plan with an average of not less than 30 percent of 
their DMI from grazing throughout the grazing season: Except, that,
    (i) Ruminant animals denied pasture in accordance with Sec.  
205.239(b)(1) through (8) and Sec.  205.239 (c)(1) through (3), shall 
be provided with an average of not less than 30 percent of their DMI 
from grazing throughout the periods that they are on pasture during the 
grazing season; and
    (ii) Breeding bulls shall be exempt from the 30 percent DMI from 
grazing requirement of this section and management on pasture 
requirement of Sec.  205.239(c)(2): Provided, That, any animal 
maintained under this exemption shall never be sold, labeled, 
represented, or used as organic slaughter stock.''
    Recommendations to exempt slaughter stock and breeding bulls and 
other male stock are addressed under Livestock Living Conditions--
Changes Based on Comments.
    Section 205.237(d) New paragraph--Dry Matter Intake--Formula 
calculation--Under the proposed Sec. Sec.  205.237(c)(1) through (4), 
producers were required to document and maintain monthly records to 
show that not more than 70 percent of a ruminant

[[Page 7164]]

livestock's dry matter intake (DMI) is derived from dry matter fed to 
ruminant livestock. A summary of the comments we received follows:
    <bullet> A document written by a university department of dairy and 
animal science was submitted explaining to producers how to evaluate 
forage quality;
    <bullet> 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;
    <bullet> 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;
    <bullet> 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;
    <bullet> 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;
    <bullet> Leave the DMI calculation as is;
    <bullet> 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;
    <bullet> Allow the producer and certifying agent to determine the 
best way to document compliance with the DMI requirements;
    <bullet> Opposition to the 3 percent of body weight figure used in 
the formula;
    <bullet> Allow the use of other DMI intake levels within the 
formula.
    We received six versions of proposed regulatory text from several 
commenters intended to provide sufficient information to allow 
certifying agents to assess compliance with the feed requirements of 
Sec.  205.237(c) without excessive or burdensome recordkeeping. Other 
commenters stressed that there are many ways to measure dry matter 
intake and demand that vary by operations and classes of livestock. 
These commenters and others proposed a new paragraph that would read:

    (d) Producers shall:
    (1) Describe the total feed ration for each type and class of 
animal;
    (2) Document changes that are made to all rations throughout the 
year in response to seasonal grazing changes;
    (3) Provide the method for calculating dry matter demand and dry 
matter intake to certifier for approval.

    A second similar version added that producers should incorporate 
this into their OSP, and at the end of the paragraph, stated that 
producers should (3) ``provide sufficient documentation to certifiers 
to verify that feeding requirements of Sec.  205.237(c) are being 
met.'' Other commenters proposed this same paragraph as the second 
version, but added in (1) that not only must total feed rations be 
documented for each type and class of animal, but also the amount of 
each type of feed fed.
    One commenter stated that the regulation should reinforce the role 
of the OSP in documenting feed rations, changes to feed rations and 
methods used to determine dry matter intake. This commenter and others 
proposed a new paragraph that would read:

    (d) Producers shall, as part of the organic system plan, 
document all feed rations for all species and classes of animals. 
For ruminants, documentation shall be maintained of changes that are 
made to all rations throughout the year in response to seasonal 
grazing changes such that records can verify the feeding 
requirements of Sec.  205.237(c).

    A commenter suggested adding to the end of this version language 
that would provide for a 150 day finishing period where access to 
pasture will not be practical or possible to maintain.
    A certifying agent submitted a detailed comment about accurately 
assessing the production techniques of organic operations and the need 
for producers to supply certifying agents (ACAs) with anticipated feed 
rations, which the agent does not believe is consistently provided or 
collected by ACAs. According to this agent, information that must be 
verified includes feed sources (both on-farm and purchased feed), types 
of feed quantities required (percentage of each in the total ration), 
feed supplements and additives, and amount actually fed to the animals. 
With this information, ACAs can determine compliance by evaluating 
purchase records, grazing records, existing inventory and herd lists at 
inspection and review. Agents would have a clear indication whether 
producers are providing a significant amount of animals' dietary needs 
through pasture, and be able to verify accuracy of rations by 
inspection. This commenter and others proposed a new paragraph that 
would read:

    (c) Producers shall:
    (1) Describe the total feed ration for each species and class of 
animal. The description must include:
    (i) All feed produced on-farm;
    (ii) All feed purchased from off-farm sources;
    (iii) The percentage of each feed type, including pasture, in 
the total ration; and
    (iv) A list of all feed supplements and additives.
    (2) Document the amount of each type of feed actually fed to 
each species and class of animal.''

    This commenter also stated that the 30 and 70 percent metrics would 
be unnecessary with the following wording included in the final rule: 
(1) The definition of grazing season; (2) requiring daily grazing 
during the grazing season; (3) specific requirements for temporarily 
denying a ruminant animal access to pasture; and (4) evidence at 
inspection of a grazing system including gates, laneways, paddocks, and 
a watering system, incorporated into the OSP. All of these provisions 
would enable certifying agents to determine compliance with a pasture-
based rule.
    We agree that different types and classes of ruminant animals have 
different DMI requirements, and that producers should have the 
flexibility to select the appropriate level for each class of animal. 
Therefore, we have removed proposed Sec.  205.237(c)(1) through (4) 
and, as noted above in the discussion, DMI--opening paragraph and 
paragraphs (c)(1)-(4), replaced them with revised paragraphs (1) and 
(2). We have also added a new Sec.  205.237(d) which describes the 
documentation requirements for feed rations and feed fed. The NOP will 
provide tools to assist producers and certifying agents in calculating 
dry matter demand and dry matter intake. These optional resources will 
be available on the NOP Web site.
    We expect these requirements will add minimal additional paperwork 
to that which is already required for organic certification, as some 
commenters have indicated that many certified organic ruminant 
producers already maintain these records. This completes our revisions 
to Sec. Sec.  205.237(c)(1) though (4).
    We agree that defining grazing season, requiring grazing during the 
grazing season, specifying requirements for temporarily denying a 
ruminant animal

[[Page 7165]]

access to pasture, and looking for evidence of a grazing system to 
include gates, laneways, paddocks, and a watering system should all be 
part of a thorough inspection, but by themselves these measures do not 
assure compliance with a pasture based rule. We do not agree that these 
would render the 30 and 70 percent metrics unnecessary. Many commenters 
strongly support requiring that ruminants graze pasture throughout the 
grazing season and that a substantial portion of their diet come from 
grazing. Over half of those supportive comments specifically supported 
a minimum percentage DMI from pasture. Adding a DMI from pasture 
requirement completes the components necessary to assure that organic 
ruminant livestock producers operate within a pasture based system. We 
are retaining the 30 and 70 percent metrics.
    We also support additional regulatory text that will enable 
certifying agents to assess compliance with the feed requirements of 
Sec.  205.237(c) without excessive or burdensome recordkeeping for the 
producer. We agree that it is important that livestock producers supply 
their anticipated feed rations so that the certifying agent can 
accurately assess the production techniques of the operation. Further, 
we concur that the certifying agent needs to verify feed sources, feed 
requirements in rations, all feed supplements and additives, and 
amounts actually fed to animals. Without this information, an ACA 
cannot accurately determine compliance with the feed requirements of 
Sec.  205.237(c). In fact, to be in compliance with the terms of their 
accreditation, certifying agents should already be requiring this 
information in the operation's OSP. ACAs should also review and 
evaluate purchase records, grazing records, existing feed inventory, 
and herd lists before granting certification and at least annually 
thereafter.
    Various suggested phrases were not incorporated into new Sec.  
205.237(d). We did not include a reference to the OSP because Sec.  
205.201(a) already requires this information. We did not include the 
language ``to certifier for approval'' because Sec.  205.201(a) compels 
the producer to concur with the certifying agent and the proposed 
language is unnecessary. We did not include a recommendation to 
``provide sufficient documentation to certifiers to verify that the 
feeding requirements of Sec.  205.237(c) are being met,'' because the 
entire paragraph is intended to demonstrate compliance with the 
provisions of Sec.  205.237. Finally, we did not incorporate language 
related to a 150-day finishing period in this section; this is 
addressed under Livestock Living Conditions--Changes Based on Comments 
for the discussion on slaughter stock finishing period.

Livestock Feed--Changes Requested But Not Made

    Section 205.237(a) Organic livestock ration--Several commenters 
directly addressed one or more issues among the proposed changes to 
this paragraph. One commenter stated that the proposed revisions should 
be removed because they are not directly linked to the issue of 
pasture. In amending paragraph (a) to make clear that the total feed 
ration must be composed of agricultural products organically produced 
by operations certified to the NOP, a commenter stated that the 
paragraph should be amended to permit exempt producers under Sec.  
205.101(a)(1) to provide such feed, forage, and pasture. This position 
was not supported by other commenters who stated that the provision 
clarified existing requirements and should be included in the final 
rule. One commenter in particular, whose comments were endorsed by over 
700 commenters, specifically opposed the use of uncertified feed by 
certified livestock operations, saying that ``inclusion of this 
provision will guarantee to the consumer that all feed consumed by 
organically certified livestock is certified by a NOP accredited third 
party, thus ensuring the integrity of the organic seal and the future 
value-added income to small operations.''
    The commenter advocating for feed sources from exempt farmers 
expressed the opinion that requiring all feed sources to be certified 
is inconsistent with Sec.  205.101(a)(1). The commenter cites the 
regulation that prohibits the use of ingredients identified as organic 
in processed products and argued that ``feed fed to animals who produce 
edible products * * * is clearly not an `ingredient identified as 
organic' (for example, milk cartons are not labeled `Ingredients: 
organic hay').'' We disagree. We have long held that livestock 
producers must feed animals certified organic feed products. This 
position is supported by Sec.  2110(c)(1) of the OFPA, which requires 
producers to feed livestock organically produced feed that meets the 
requirements of this title. We also disagree with the assertion that 
this is inconsistent with Sec.  205.101(a)(1). To the contrary, we 
believe this position is consistent and analogous to prohibiting the 
sale of uncertified products to food manufacturers for organic 
identification and be used in multi-ingredient products. The same 
problems with the use of products sourced from uncertified operations 
by food manufacturers exist for the use by livestock operations. 
Accordingly, we have retained the clarification that livestock must be 
provided with a total feed ration composed of organically produced and 
handled agricultural products, including pasture and forage, by 
operations certified to the NOP. Exempt producers who want to sell to 
certified operations may apply for certification under the NOP. In 
anticipation the impact of this provision on exempt livestock 
producers, these producers may continue to feed the crops they grow to 
the animals they raise.
    Sections 205.237(b)(5)-(8) A commenter also recommended deleting 
Sec. Sec.  205.237(b)(5), (6), and (7). Regarding Sec. Sec.  
205.237(b)(5) and (6), we proposed only minor word changes at the end 
of paragraphs (b)(5) and (6) in order to amend the remaining paragraphs 
(b)(7) and (8). As we explained in the proposed rule, because of 
comments, complaints, and noncompliances, we were proposing various 
amendments to the livestock provisions of the NOP. A commenter stated 
that Sec.  205.237(b)(5), which prohibits the feeding of mammalian or 
poultry slaughter by-products to mammals or poultry, is unnecessary 
because this is already prohibited under Federal regulations. The 
commenter's assertion is not correct. The FDA regulations prohibit 
certain animal proteins in ruminant feed and certain cattle origin 
materials from the food and feed of all animals (21 CFR 589). The 
prohibitions in Sec.  205.237(b)(5) are more comprehensive and, 
therefore, we are retaining that requirement.
    We received several comments about Sec.  205.237(b)(8). Commenters 
suggested deleting the paragraph, which as proposed, prohibits 
producers from preventing ruminant animals from obtaining feed grazed 
during the growing season, except for conditions specified in Sec.  
205.239(c). One comment gave no reason while the other said the issue 
is already addressed in the changes proposed to Sec.  205.239. We 
disagree. The proposed rule pointed out that Sec.  205.237(a) provides 
for feed from pasture and Sec. Sec.  205.239(a) and (c) provides for 
access to pasture and reasons for temporary confinement from pasture. 
Amended Sec.  205.237(b)(8) reinforces these requirements, along with 
those of amended Sec.  205.239(a)(2), which requires producers to 
provide continuous year-round living conditions which accommodate the 
health and natural behavior of ruminants including management on 
pasture and daily grazing throughout the grazing season(s)

[[Page 7166]]

to meet the requirements of this paragraph. Amended Sec.  205.237(b)(8) 
also includes an exception to this requirement for the 8 conditions 
under which a producer may temporarily provide shelter or confinement, 
listed in Sec.  205.239(b). The exceptions per Sec.  205.239(b) are 
included because the exceptions to Sec.  205.237(b)(8) are also granted 
for temporarily denying a ruminant animal pasture or outdoor access as 
provided in Sec.  205.239(c).
    As proposed Sec.  205.237(b)(8) prohibits livestock producers from 
preventing, withholding, restraining, or otherwise restricting ruminant 
animals from actively obtaining feed grazed from pasture during the 
growing season, except for conditions as described under Sec.  
205.239(c). Some commenters requested the words ``withhold, restrain, 
or otherwise restrict'' be removed on the grounds that they are 
``duplicative'' of the word ``prevent.'' We have not accepted this 
recommendation. The wording is intentional and conveys that, except for 
situations addressed in Sec.  205.239(c), producers shall not keep 
ruminant animals from pasture during the grazing season. A few 
commenters requested the words ``actively obtaining feed grazed from'' 
be replaced with ``accessing.'' We have not accepted this 
recommendation. The purpose of pasturing ruminants is not to merely 
provide them with access to the outdoors. The NOP regulations require 
producers to manage pasture as a crop and to place ruminant animals on 
pasture in order to provide animals with a minimum of 30 percent of DMI 
from grazing pasture throughout the grazing season. One commenter 
recommended that the words ``actively obtaining feed grazed from'' be 
replaced with ``accessing and grazing.'' We have also not accepted this 
recommendation because we believe the words ``actively obtaining feed 
grazed from'' better convey the intent of these regulations that 
ruminant animals must obtain feed grazed from pasture.
    Some commenters recommended that the following statement be added 
to the paragraph in 205.237(b)(8): ``The grazing season(s) must not be 
less than 120 days per year total. Due to weather, season, or climate, 
the grazing season(s) may or may not be continuous.'' We have addressed 
this issue in livestock living conditions below and in the definition 
of grazing season, above.
    General opposition to DMI metrics--A number of commenters expressed 
opposition to the 30 and 70 percent metrics. Reasons included: the 120 
days grazing will be complicated enough without 30 percent or 70 
percent; DMI-based feed reporting system is inappropriate; does not 
consider an average 1,400 pound lactating Holstein; method of 
estimating DMI is flawed; recordkeeping will be burdensome, promotes 
creative ration reporting; is overly prescriptive; is unnecessary; 30 
percent DMI is arbitrary; has no scientific support; opposed to the 
inclusion of DMI metrics; DMI measurements only works well in rations 
that are intensively managed where all inputs can be measured (weighed) 
such as in feedlots; and it is impossible to document the dry matter 
intake of livestock on pasture.
    Commenters suggested amending Sec.  205.237(c), to substitute 
animal units per acre for the 70 percent DMI requirement fed during 
periods of low rainfall. The commenters suggested adding a statement at 
the end of Sec.  205.237(c) that would state, ``with exception as 
defined in Sec.  205.238(c)(2)'' at the end. The commenters went on to 
propose an exception: ``Exception, In cases where the local growing 
season is not supported by a nominal rainfall average within <plus-
minus> 10 percent of the 50 year rainfall average, the 70 percent dry 
matter fed can be substituted with a maximum stocking rate not to 
exceed 3 animal units per acre maximizing the DMI grazed in previous 
growing seasons. DMI to be reported as defined in Sec.  205.238 
(c)(1).'' We disagree and have not accepted the recommendation. The 
broad range of pasture types and grazing strategies available to 
producers makes a prescribed maximum stocking rate for pasture 
arbitrary and often contrary to good management practices. A mandated 
stocking rate could interfere with a producer's ability to balance 
forage supply with ruminant demand. The producer must provide ruminants 
with 30 percent DMI from grazing averaged over the grazing season and 
may otherwise determine the stocking rate appropriate for each pasture 
within the operation. Temporary variances due to damage caused by 
drought are discussed below.
    A commenter suggested that the first sentence to Sec.  205.237(c) 
be amended to read: ``During the grazing season, producers shall 
provide ruminant livestock with a ration that includes grazed pasture 
crops.'' One commenter suggested that the first sentence be amended to 
read: ``During the grazing season, producers shall provide pasture, 
which includes both rooted vegetation and/or residual forage.'' This 
commenter also suggested a new second sentence providing that, ``The 
grazing season must be not less than 240 days per year.'' These 
suggestions would eliminate the requirement that producers shall 
provide not more than 70 percent dry matter demand from dry matter fed 
during the growing season. We do not support that action because the 
majority of consumers and producers who have commented on this rule 
support the 70 percent maximum from dry matter fed during the grazing 
season. A numerical threshold for pasture intake from grazing is needed 
to achieve a certain consistency in both the pasturing practices of 
organic livestock producers and enforcement among the certifying 
agents. A requirement that specifies the minimum length of the grazing 
season will not, alone, meet this purpose. Therefore we are not 
adopting either of the commenters' proposals. Another suggested 
rewriting paragraph (c) to include the NOSB language adopted in August 
2005, including language specifying that organic producers establish 
pasture conditions in accordance with the regional NRCS Conservation 
Practice Standards for Prescribed Grazing. While we encourage producers 
to work with their local Cooperative Extension or NRCS to develop a 
pasture management plan, the dry matter intake from pasture is 
necessary to demonstrate the sufficiency of the pasture plan. The 
requirements for the pasture plan are discussed below in the Pasture 
Practice Standard. Another suggested deleting all of paragraph (c) but 
the first sentence, which would eliminate the feed ration and feed fed 
documentation requirements. A commenter suggested replacing the 
proposed paragraph (c) text with: ``(c) Grazing season must be 
described in the operation's organic system plan and be approved by the 
certifier as being representative of the typical grazing season 
duration for the particular area. Certifiers, in reviewing the organic 
system plan, shall confirm that adequate fields are set aside for 
pasture to provide grazing for ruminants for the entire grazing season, 
not just for the 120-day minimum.'' The requirement to describe the 
grazing season has been incorporated into the pasture practice 
standard, below, and Sec.  205.237(c)(2) requires producers to provide 
pasture of sufficient quality and quantity throughout the grazing 
season to meet the 30 percent dry matter intake from grazing throughout 
the grazing season. Certifying agents are required to assess that 
operations are complying with all requirements of this final rule.
    We received one comment from a state asserting that the increased 
costs of acquiring 6 acres per ruminant animal needed to supply its 
16,121 organic cattle with the feeding requirement as described in the 
proposed rulemaking (30 percent DMI for the growing season)

[[Page 7167]]

would cost the state just under $212 million and lead to a loss of 
employment of 5,000 jobs, a loss of $230 million in personal income and 
$380 million in output to the state economy. We are not persuaded that 
the purchase of land alone leads to a loss of employment. The state 
provided no theoretical macroeconomic support that demonstrates that 
when farmers acquire more land, jobs are lost in the economy. 
Therefore, the remaining relationships are also questionable. For this 
to be a valid assertion, a recent Census of Agriculture finding of a 
growth in the number of small farms would be a negative impact for the 
U.S. economy. The states' producers have alternatives, moreover. We 
amended this final rule to require grazing during the grazing season, 
for a minimum of 120 days. We also provided ruminant slaughter 
producers with an exemption to finish feed cattle, provided they meet 
the provisions of Sec.  205.239. Producers may also use intensive, 
rather than extensive, grazing systems--allowing them to use less 
acreage more intensively. We received other studies challenging the 
states' assertion, in fact, that land must be purchased at all (unless 
producers have no land to start). These studies discuss a prevalent 
misconception that grazing systems require more acres for the same 
amount of output.\1\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    We received a comment asserting that there was not sufficient land 
available for pasture-based systems, especially in western States. We 
did not receive data affirming this. The data available to us from the 
ARM Survey and ERS indicates otherwise. In Texas, 328,477 acres are 
certified pasture, for 16,121 certified ruminant dairy and beef 
animals. This provides a ratio of 20 acres per animal. Similarly, in 
the states of California, Washington, Montana, Colorado, and Idaho, 
there is certified pasture and rangeland to provide 17, 8, 76, 23, and 
11 acres per animal, respectively. Likewise, data supplied by the 
Census supports adequate acreage for pasturing ruminant stock. 
According to 2007 Census reported acreage, 1.6 million acres are 
available for pasture--13 acres for each dairy and ruminant slaughter 
stock animal in the United States, based on total numbers of certified 
organic ruminant animals in the ARM survey.
    Some commenters recommended moving the opening paragraph of 
proposed Sec.  205.240 to Sec.  205.237(c), a recommendation based on 
deleting the pasture practice standard. We have not accepted this 
recommendation because we have retained Sec.  205.240.
    Other commenters recommended a new Sec.  205.237 paragraph (d) 
which would read:

    (d) The organic system plan required in Sec.  205.201 must 
include a description of pasture management, including: frequency 
and duration of grazing, planting, watering, harvesting, shade and 
water sources, and other attributes as applicable.

    This recommendation was also based on deleting the pasture 
standard, which we have not accepted because we have retained Sec.  
205.240, including the combining of paragraphs (b) and (c) as an 
amended paragraph (c).
    The pasture practice standard requires pasture to be managed as a 
crop. Therefore, producers must understand pasture productivity and 
yield. The producer must know when, where, and how long to graze each 
pasture. To do this, a producer must be able to determine the pasture 
forage supply available for grazing. We believe that most producers 
know how to determine their pasture forage supply and if they do not, 
they can readily avail themselves of the information to do so. 
Producers know what they provide in the form of supplemental feeds and 
therefore can determine the DMI value of those supplemental feeds. A 
ruminant provided with up to 70 percent of its DMI needs through 
supplemental feeding will eat to its fill when provided enough time on 
a pasture ready for grazing.
    This final action retains the requirement that producers shall 
provide not more than an average of 70 percent of a ruminant's dry 
matter demand from dry matter fed (dry matter fed does not include dry 
matter grazed from residual forage or vegetation rooted in pasture) for 
the reasons discussed above.
    DMI will adversely affect animal welfare--We received several 
comments suggesting that the DMI requirements could adversely affect 
animal welfare during the growing season, related to quality of pasture 
or because producers might underfeed animals. Of the comments received:
    <bullet> Some challenged the 3 percent body weight feeding 
provision in the formula to document the daily dry matter demand for 
each class of animal;
    <bullet> One said that the DMI formula is inhumane for a large 
lactating Holstein cow;
    <bullet> 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;
    <bullet> 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;
    <bullet> 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;
    <bullet> 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;
    <bullet> 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;
    <bullet> One wrote that mandating 30 percent of DMI be derived from 
grazing pasture, regardless of stage of production, will compromise the 
health and well being of the animals and went on to state that dairy 
cows suffer from a 30 percent decrease in DMI during the peripartum 
period. To support the assertion, the commenter offered an article from 
the 1999 Journal of Dairy Science (82:2259-2273).

[[Page 7168]]

    We did not find this article supportive of the commenter's 
argument. This article addresses the biology of dairy cows during the 
transition period between late pregnancy and early lactation. The 
author defines the transition period (also known as the periparturient 
period) as the last 3 weeks before parturition (birthing) to 3 weeks 
after parturition and states that this time is when most infectious 
diseases and metabolic disorders occur. The author argues that a better 
understanding of the biology, nutrition, and management of cows during 
the transition period can offer the largest gains in productivity and 
profitability during the next decade.
    We removed the formula which contained the fixed variable for 3 
percent body weight in order to determine dry matter demand in the 
Sec.  205.237(c)(2) and allow the producer and ACA to determine the 
acceptable method for determining dry matter demand. This change is 
discussed above in Dry Matter Intake--Formula Calculation. The pasture 
practice standard in this final action requires the producer to 
establish and maintain pastures that will provide the required minimum 
of at least 30 percent grazed DMI and describe how pastures are managed 
to meet that provision. Producers are required to document the 
percentage of the feed ration from pasture, any changes to the feed 
ration, and the amount of feed fed. Coupled with the requirements of 
Sec.  205.238(a)(2), the pasture standard provides the protections 
necessary to assure that the producer does not underfeed animals. 
Section 205.238(a)(2) requires a producer to provide a feed ration 
sufficient to meet the animal's nutritional requirements. If there is 
insufficient pasture to meet the 30 percent DMI from grazing 
requirement, the producer must improve the quality and productivity of 
the existing pastures, secure additional pasture acreage, or reduce the 
number of ruminant animals maintained.
    Irrigation--We received several comments addressing irrigation and 
how irrigation may affect the length of grazing season and time that 
animals might spend on pasture. Some commenters recommended that Sec.  
205.237(c) be amended by adding a new paragraph which would read: ``(2) 
Grazing season must be described in the operation's organic system plan 
and be approved by the certifier as being representative of the typical 
grazing season duration for the particular area. Certifiers, in 
reviewing the organic system plan, shall confirm that adequate fields 
are set aside for pasture to provide grazing for ruminants for the 
entire grazing season, showing intent to maximize grazing beyond the 
120 day minimum. Irrigation must be used as needed to promote pasture 
growth when an operation has it available for use on crops.'' 
Additional commenters addressed this recommendation. Some only 
recommended including the first sentence, one suggested changing the 
grazing period to 240 days, and several wanted the second sentence to 
read: ``Certifiers, in reviewing the organic system plan, shall confirm 
that adequate fields are set aside for pasture to provide grazing for 
ruminants for the entire grazing season, not just for the 120 day 
minimum.'' Others did not include the recommended irrigation provision 
in their recommended versions. The remaining supported the 
recommendation as written.
    Paragraph 205.240(c) requires a pasture plan to be included in the 
producer's organic system plan. The regulation also requires that a 
pasture plan must include a description of the grazing season for the 
livestock operation's regional location; a description of the cultural 
and management practices to ensure sufficient quality and quantity 
pasture is available to graze throughout the grazing season, in order 
to provide all ruminants with a minimum of 30 percent, on average, of 
their DMI from grazing throughout the grazing season.
    Subpart E, Certification, requires a certifying agent to review an 
application for certification; the organic system plan for compliance 
with these regulations; conduct an on-site inspection to verify 
compliance with the regulations and that the operation is following its 
OSP; and to review the on-site inspection report. All of this must be 
done before granting initial or continuing certification. Accordingly, 
to be in compliance with these regulations, the certifying agent must 
determine that the grazing season used in the pasture plan is 
representative of the grazing season for the producer's geographical 
location and whether there is sufficient pasture to meet the grazing 
requirements of these regulations. When an agent finds that a 
producer's organic system plan, accompanying pasture plan, or actual 
practices fail to comply with the regulations certification must be 
denied for new applicants or a noncompliance must be issued for a 
certified operation, according to these regulations. Irrigation is 
addressed in amended form below in Sec.  205.240(a). The balance of the 
commenters' recommended paragraph (2) is unnecessary and has not been 
included in this action.
    Temporary Variances--Some commenters recommended amending Sec.  
205.237(c) to add a new paragraph that would read: ``(3) In areas where 
irrigation is not available, certifiers may grant a temporary variance 
from the 120 days/30 percent DMI regulation, due to damage caused by a 
typical drought, flooding, excessive rainfall, or fire, that is 
experienced during the normal grazing season. Variances are good for a 
single farm and a producer will only be granted a total of three over a 
ten year period.'' Several commenters also addressed this 
recommendation. One objected; a few suggested replacing the last 
sentence with ``Variances are good for a single grazing system.'' One 
stated that provisions relaxing grazing requirements in drought 
conditions cannot be implemented in a way that exempts livestock 
operations that have access to irrigation water, or where irrigation is 
generally required for crop production in the region. This commenter 
went on to say that locating a livestock facility where irrigation 
water is unavailable, or water rights are not sustainable, should not 
be a reason for failure to comply with this action as amended. We 
agree. Ruminant livestock operations may only receive certification 
when they can comply with all of the NOP standards, including the 
requirement that ruminant livestock receive at least 30 percent of 
their DMI from grazing throughout the grazing season.
    We have not accepted either form of this recommendation which would 
grant certifying agents the authority to issue temporary variances. 
Section 205.290 grants sole authority for the issuance of all temporary 
variances to the administrator. Section 205.290(b) provides that a 
State organic program's governing State official or certifying agent 
may recommend in writing to the administrator that a temporary variance 
from a standard set forth in subpart C of the NOP regulations for 
organic production or handling operations be established provided such 
variance is based on one or more of the reasons listed in Sec.  
205.290(a). The reasons for variances addressed in the commenters' 
recommendation are covered within Sec.  205.290(a)(2).
    Stocking rates--Some comments supported animal units per acre over 
minimum pasture intake requirements. One said that animal units per 
acre would be simpler and easier to enforce. Another suggested 
increasing the minimum days on pasture while limiting animal units per 
acre. One offered the combination of managing pasture as a crop, animal 
units per acre, and allowing additional pasture to

[[Page 7169]]

increase both animal density and herd size, to promote good management 
practices. This commenter suggested an amended Sec.  205.237(c) to 
read:

    (c) During the grazing season, producers shall provide access to 
pasture for the lactating animals in the herd as an animal unit per 
acre density not to exceed 3.0 for all pasture acres accessible to 
the lactating herd and used as pasture by the lactating herd during 
the grazing season. For all livestock in the herd over 6 months of 
age, the animal units per acre density shall not exceed 4.0 animal 
units per acre for all pasture acres under active management control 
of the certified operation, Except, that producers shall be allowed, 
through cooperation with their certifier and shown in a detailed 
process through their OSP, that when the proportion of dry matter 
intake consumed as pasture by the animals in the herd for either 
group described above to be in excess of 30 percent of the total dry 
matter intake consumed by the animals during the grazing season, 
then animal units per acres densities for the herd may be increased 
as long as the producer can show that not less than 30 percent of 
the total dry matter consumed by the animals (in the respective 
group) on average over the course of the grazing season is coming 
from pasture.

    This commenter also suggested that the term ``accessible'' may need 
to be defined or clarified. The commenter suggested that the pasture 
must be contiguous, and possibly limited in distance to no more than a 
given mileage (e.g., \1/2\, 1, or 2 miles) between the milking facility 
and the pasture gate. The commenter stated that using animal-units per 
acre allows for the variation in impact on the pasture between Holstein 
and Jerseys, between dairy and beef management systems, as well as 
between cows and goats. In addition, the commenter opined that the 
alternative proposal also offers operations that can handle a carrying 
capacity of greater than 3 (and 4) animal units per acre to qualify for 
those higher densities by working cooperatively with their certifying 
agent and documenting the details of their production system in their 
OSP.
    Additional comments addressed the issue of animal units. One 
criticized the 30 percent DMI from pasture requirement because it does 
not consider any other pasture based management approach, such as 
limiting animal units per acre. Another suggested an alternative that 
the commenter believed might release most organic dairy and beef 
operations from calculating DMI from grazing pasture. This commenter 
said that when an operation has less than 2 acres per 1,000 lb. animal 
to devote exclusively to grazing, DMI calculations must be provided as 
part of the farm's organic system pasture plan. We have determined that 
2 acres per 1,000 lb. animal will not work because stocking rates 
depend upon the carrying capacity of the pasture which in turn depends 
upon several factors including, soil productivity, rainfall, 
topography, moisture and management. These factors are regional and 
site-specific, and therefore this final rule does not set a stocking 
rate. In some geographical locations, producers could have more than 2 
acres per 1,000 lb. animal but will not be able to provide the minimum 
30 percent DMI averaged over the grazing season. For example, one 
commenter, opposing the 30 percent requirement, did so because it would 
require 6 acres of dry pasture to support one dairy cow in the West 
Texas region. (There is also the potential that an operation could have 
acreage available for grazing but because of its proximity to the milk 
parlor, it would not be grazed and not be used to fulfill the DMI 
requirement.) Accordingly, if we were to adopt the 2 acres per 1,000 
lb. animal suggestion, many animals would fall far short of receiving 
the minimum 30 percent DMI averaged over the grazing season.
    The commenter who submitted the recommended animal units regulatory 
text argued against requiring that the producers provide their animals 
with a minimum of 30 percent DMI from grazing. This commenter also 
recommended removing the 30 percent language from Sec. Sec.  
205.239(c)(6) and 205.240(c)(2). However, this same commenter's 
recommended language for Sec.  205.237(c) includes the 30 percent DMI 
from pasture requirement. Specifically, the commenter wants to 
establish an upper limit on animal units per acre, but to allow that 
upper limit to be exceeded when the producer can show that animals 
receive a DMI from grazing in excess of 30 percent. Thus, the 
commenters' proposed language conveys the message that producers should 
strive to keep their grazing DMI at a level not to exceed 30 percent. 
This is not the intent of this regulatory language. Producers must 
provide at least 30 percent of their animals' DMI needs from grazing 
pasture. The 30 percent is not a goal, nor is this language conditional 
on animal units per acre or vice versa. It is a minimum level, below 
which the producer must not fall in order to avoid noncompliance with 
this part. Producers should strive for a more than 30 percent DMI 
averaged over the grazing season and should take full advantage of high 
yield periods to keep their DMI from grazing as high as possible.
    Many commenters strongly supported requiring that ruminants graze 
pasture throughout the grazing season and that a substantial portion of 
their diet come from grazing. A significant number of commenters 
specifically stated their support for a minimum 30 percent DMI from 
pasture.
    We continue to disagree with the concept of animal units per acre, 
and have not adopted an animal-unit approach as suggested because there 
is not a single stocking rate which would be appropriate for all 
organic operations. This also explains why we did not define an animal 
unit as suggested by one commenter. In addition, we did not prescribe a 
maximum distance between milking parlor and pasture gate because this 
should be determined by the producer in regard to the site specific 
conditions of the operation. We have, however, retained the requirement 
that producers provide their ruminant animals with a minimum 30 percent 
DMI from pasture.

Livestock Living Conditions (Sec.  205.239)

Livestock Living Conditions--Changes Based on Comments
    Section 205.239(a) Year-round living conditions to accommodate 
behavior--The opening paragraph of the proposed Sec.  205.239(a) 
differed from the original regulation by requiring producers to 
establish and maintain year-round living conditions to accommodate the 
natural behavior of animals. In addition, the proposed opening 
paragraph further specified that producers must not in any way restrain 
or restrict animals from being outdoors, except for the exemptions 
provided.
    We received comments on this paragraph, and nearly all objected to 
the expansion of the paragraph beyond the language in the original 
regulation. We agree, and have deleted the second sentence in the 
proposed paragraph in recognition that operations which otherwise could 
comply with this regulation might not keep livestock outdoors on a 
continual basis throughout day and night. Furthermore, this would 
appear contradictory to the provisions in the final rule which contain 
exceptions for temporarily denying access to the outdoors. We are 
retaining the addition of the requirement that producers must now 
establish year-round conditions, however, despite two comments that 
this should be deleted. We believe this is an important clarification 
and have retained it in this action. Aside from adding ``year-round'' 
this action retains the original text of Sec.  205.239(a).
    Section 205.239(a)(1) Description of year-round access (shade, 
shelter, sunlight)--This paragraph described

[[Page 7170]]

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:
    <bullet> Make no changes to the current regulation;
    <bullet> Consumers expect access to outdoors and opportunity to 
graze pasture;
    <bullet> Daily outdoor access should only be required when 
conditions permit;
    <bullet> Important to avoid encouraging exposure of animals 
unnecessarily to adverse conditions;
    <bullet> Year-round outdoor access is problematic;
    <bullet> Oppose outdoor access for poultry;
    <bullet> Add ``nesting, play, exploration and development and 
maintaining a stable, positive social hierarchy'';
    <bullet> Support year-round access to outdoors if pasture is 
unavailable due to weather conditions;
    <bullet> Delete this paragraph.
    We also received amended versions to the paragraph submitted by 
commenters. Most of the comments seeking changes to the paragraph 
included an exception clause as proposed under Sec.  205.239(b), which 
would grant conditions to temporarily deny access to the outdoors. We 
also received comments advocating that continuous, total confinement 
should be prohibited. Some of these comments recommended adding that 
continuous, total confinement in dry lots and feedlots is prohibited. 
Reasons given included that the general practice of total confinement 
is prohibited, but some well managed organic operations currently 
provide feed to their livestock in what is referred to as ``feedlots'' 
during the grazing season or during the non-grazing season.
    One comment advocated that well managed yards and feeding pads for 
ruminant operations could be used for supplemental feeding. This 
comment was received from many other commenters about the proposed 
Sec.  205.239(a)(2). In addition, support was provided for size 
specifications for the stocking density of yards, feeding pads, and 
feed lots, including 250 square feet per animal, 500 square feet per 
animal, or space per animal large enough to allow all animals to eat 
simultaneously with no competition for food.
    We received comments to remove the reference to require water to be 
provided both indoors and outdoors. Some comments advocated that if 
clean water is required, there would be no further need to require, as 
proposed under Sec.  205.239(d)(4), that water be available at all 
times except under specified conditions and prevented from fouling. 
With regard to the requirement that water be provided both indoors and 
outdoors, comments stated that this requirement does not take into 
account extreme variations in operational management and physical 
layout of farm operations, nor does it factor in low wintertime 
temperatures in many areas that would make it physically and 
economically impossible to provide water outside at all times.
    We agree with the commenters' intention to prohibit continuous 
confinement, with amendment. First, we believe reference is needed that 
continuous confinement of any animal indoors is prohibited, to make it 
clear that broilers and other poultry shall not be confined indoors. 
Furthermore, reference to dry lots is unnecessary since a feedlot is a 
dry lot for controlled feeding of livestock.
    We agree that yards and feeding pads have a role in the management 
of organic ruminant livestock. However, we believe that the statement 
must also mention that feedlots, as defined in this final rule, are 
essentially equivalent to yards and feeding pads. We do not concur that 
a specified square footage per animal is needed because size will vary 
by type of ruminant occupying the yard, feeding pad, or feedlot. We do, 
however, agree that any feeding area must be large enough to allow all 
of the ruminant animals to eat simultaneously with no crowding or 
competition for food. We added a statement prohibiting continuous 
confinement but also allow for well managed yards and feeding areas, 
provided animals have the ability to feed without competition for food. 
This makes clear that continuous total confinement also applies to 
yards and feeding pads, which are synonymous with feedlots, as defined 
in this final rule and that continuous total confinement in any of 
these areas is prohibited.
    We added an exemption for temporary denial of access to the 
outdoors, with reference to the exceptions noted in Sec. Sec.  
205.239(b) and (c). These exceptions are intended for animal welfare 
concerns rather than production yields.
    In agreement with comments, we have changed the requirement that 
water be available at all times and prevented from fouling. 
Furthermore, we also agree that the requirement to provide water 
indoors and outdoors is inappropriate. In areas of high risk for a 
potential outbreak of avian influenza, USDA's Animal and Plant Health 
Inspection Service (APHIS) has published guidance on biosecurity and 
disease prevention and control for non-confinement poultry production 
operations that comply with the NOP. These procedures recommend that 
producers provide feed and water for all non-confinement-raised poultry 
in an indoor area. Accordingly, due to circumstances when restricting 
open outdoor access is warranted, we have accepted the recommendation 
to remove the reference to indoor and outdoor water and replaced this 
with the requirement that water provided must be clean. This will allow 
producers the flexibility needed to accommodate the water needs of 
their livestock while also accounting for environmental factors 
affecting the geographical location.
    Section 205.239(a)(2) Continuous year-round management on pasture 
for ruminants--Many commenters to Sec.  205.239(a)(2) supported the use 
of well managed yards, feeding pads, and feed lots in organic ruminant 
livestock production. Others advocated for the allowance of dry lots 
while some opposed the use of dry lots. We addressed these issues in 
Sec. Sec.  205.239(a)(1) above and (a)(5) below.
    Many commenters requested an exemption for the finish feeding of 
slaughter stock. This issue is addressed in new Sec.  205.239(d) below.
    Finally, we received many comments about Sec. Sec.  
205.239(a)(2)(i) and (ii)--describing the time of the grazing season 
that ruminants must be managed continuously on pasture year round. Of 
these comments, most advocated for only requiring pasture during the 
grazing season. Other comments expressed concerns regarding the adverse 
impact on soil and water quality and animal health. Another commented 
on the inability of producers to simultaneously comply with the NOP 
regulation to pasture the animals and regional water quality 
regulations that limit animal access to pasture during the rainy 
season. Some suggested that pasturing should be left to the discretion 
of the producer. One stated that pasturing year-round and providing 30 
percent DMI during the grazing season would require an increase in the 
acreage devoted to pasture. The commenter went on to say that it would 
take 6 acres of dry pasture land to support one dairy cow in the West 
Texas region and that Texas would need approximately 96,726 acres to 
provide pasture access to the state's 16,121 organic cattle herd. In

[[Page 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 Sec.  205.239(a)(2). Comments 
recommended changing Sec.  205.239(a)(2) to read: ``For all ruminants, 
provision of pasture throughout the grazing season to meet the 
requirements of Sec.  205.237, except as otherwise provided in 
paragraph (c) of this section.'' Another version read: ``(2) For all 
ruminants, management on pasture, and daily grazing during the grazing 
season(s), except as provided for in paragraphs (b) and (c) of this 
section.'' Comments recommended adding a statement similar to the 
definition of a grazing season to acknowledge that the grazing season 
must be at least 120 days, but due to weather conditions, may not be 
continuous.
    Livestock producers are not compelled to participate in the NOP. 
Producers voluntarily bring themselves within coverage of the OFPA and 
the NOP regulations promulgated thereunder. Livestock producers must be 
able to comply with the NOP regulations, however, in order to sell, 
label, or represent their products as organic and to meet consumer 
expectations.
    Ruminant production under the NOP is pasture based and has been 
since implementation. The regulations upon implementation defined 
pasture, required producers to provide a feed ration to their ruminants 
that included pasture, required producers to provide their ruminants 
with pasture, and required producers to establish pasture conditions 
that minimize the occurrence and spread of diseases and parasites. 
Violation of the NOP pasturing requirements by some certified organic 
producers does not mean that organic production standards should 
accommodate those practices.
    We disagree with the commenters who suggested that pasturing should 
be left entirely to the discretion of the producer. Since 
implementation of the NOP regulations on October 21, 2002, pasturing 
ruminants has been a requirement for certification, but has been 
implemented with considerable variation in the amount of access to 
pasture provided. Due to the demand for measureable outcomes for 
pasturing, we are reserving some discretion to producers to determine 
how to achieve these outcomes. We also disagree that feeding livestock 
organic-certified forage under confined conditions does not make them 
any less organic than those that are fed free range. One of the tenants 
of organic production is that animals are able to express their natural 
behaviors, and exercise and move freely. The routine, regular feeding 
under confined conditions does not uphold that tenant as grazing is a 
natural behavior of ruminant livestock. This position not only violates 
the regulations as they have existed since implementation but also 
contradicts the expectations of consumers. During this rulemaking, over 
26,000 commenters voiced their support for, and expectation that, 
ruminants are managed on pasture as a condition for organic status.
    We acknowledge that continuous year-round management on pasture may 
not be environmentally sound or in the best interest of ruminant 
livestock in all geographic regions due to periods of extreme heat or 
cold, or saturated soil conditions. Accordingly, we have removed the 
requirement that ruminants have continuous year-round management on 
pasture. For example, temporary confinement may be acceptable when 
animals must be removed from pasture due to rainfall during the grazing 
season in order to comply with local water regulations that are in 
place to prevent contamination of water. However, the recurrent and 
frequent use of temporary confinement for periods of rainfall during 
the grazing season for a particular geographic region, is not compliant 
with these regulations. The grazing season described in the organic 
system plan should establish a 120-day minimum grazing season in 
consideration of regional rainfall patterns and exclude periods during 
which rainfall would predictably require that animals be kept off 
pasture. We have also removed Sec. Sec.  205.239(a)(2)(i) and (ii), as 
suggested by some commenters. We removed Sec.  205.239(a)(2)(i) because 
the issue is addressed in Sec.  205.237(c)(2). See Livestock Feed--
Changes Based on Comments above. We removed Sec.  205.239(a)(2)(ii) 
because the access to the outdoors provision is addressed in Sec.  
205.239(a)(1). See Livestock Living Conditions--Changes Based on 
Comments above.
    In amending Sec.  205.239(a)(2), we have combined the two 
recommended versions quoted above, except that reference to pasture 
exemptions found in Sec. Sec.  205.237(b), (c) and new paragraph (d) is 
also added. Those recommendations were adopted because they clearly 
state the intent of this final rule in linking the pasturing of 
ruminant animals during the grazing season to meet the feed 
requirements from grazing pasture.
    Section 205.239(a)(3) Bedding must be organic--The paragraph, as 
proposed, required producers to provide bedding for ruminants that 
complies with feed requirements of the NOP regulations, if such bedding 
is crop matter typically fed to animals. This proposed paragraph 
differs from the original regulation only by describing specific types 
of crop matter, such as hay, straw, and ground cobs, and further 
specifically requires such crop matter to comply with the feed 
requirements of Sec.  205.237. In the final rule implementing the NOP, 
this paragraph has been subject to misinterpretation. The correct 
interpretation of this paragraph is the following: appropriate, clean, 
and dry bedding must be provided for animals. If, however, bedding is a 
substance that is matter typically consumed by an animal of that 
species--such as any type of feedstock, regardless of its feed value--
that bedding must comply with the feed requirements of Sec.  205.237, 
and be organically produced and handled.
    Typical comments on this paragraph included such statements as: 
support that the bedding be organically produced; all bedding 
originating from plants grown to produce feed for livestock must be 
organic with no exceptions; exempt conventional non-GMO materials when 
certified organic bedding materials are not available; agricultural 
products used for bedding should be certified organic based on 
commercial availability but nonorganic hay or other nonorganic feed 
likely to be consumed in more than a negligible quantity should never 
be allowed; hay must be organic but other agricultural materials should 
be allowed from conventional sources if no prohibited substances have 
been applied to the material; the added cost of organic bedding is too 
high; organic bedding sources are limited; there are insufficient 
supplies of organic straw; some clients have difficulty obtaining 
organic bedding in sufficient quantity; remove the specific bedding 
examples--organic straw should be deleted because straw is not 
typically fed to animals and should not have to be organic; and remove 
all of the proposed changes.
    In addition, we received comments proposing variations on the 
paragraph. Highlights of the variations include: removing the specific 
crop listings; retaining the reference to crop matter but removing the 
specific crop listings; adding a statement prohibiting the use of 
genetically modified crop matter; requiring that bedding material be 
non-

[[Page 7172]]

toxic and otherwise suitable for the species and stage of life; and 
qualifying the requirement for appropriate clean, dry bedding by adding 
``when necessary'' or ``as necessary.''
    We received comments recommending changes to the various types of 
bedding listed in the proposed Sec.  205.239(a)(3). A few felt that 
listing a few examples of bedding materials could create more confusion 
about which materials must be certified organic; one said that, as 
written, producers might believe that agricultural products not listed 
do not have to be certified or handled organically. Another recommended 
removing the specific types of bedding for the sake of clarity and not 
to limit the requirement to those crop products. One commenter stated 
that straw is not typically fed to animals and should be exempt, 
because animals provided with sufficient feed and adequate nutrition 
will not typically consume bedding straw.
    A commenter who espoused a commercial availability clause for the 
requirement that agricultural products used as bedding be certified 
organic, also stated that nonorganic hay or other nonorganic feed 
products used as bedding and likely to be consumed in more than a 
negligible quantity should never be allowed. One commenter also wrote 
that demand for organic bedding will not develop unless organic bedding 
materials are required. Other commenters acknowledged limited organic 
straw supplies in some areas but pointed to other areas where organic 
straw is sold to the conventional market due to a lack of buyers. 
Additional comments report limited organic bedding sources or supplies.
    Some commenters suggested adding ``as necessary'' to appropriate 
clean, dry bedding. One comment said the reason was to clarify that 
beef animals on the range, and other production systems where bedding 
is not necessary, do not need to be provided with bedding. Another 
stated that otherwise this requirement appears to make bedding 
mandatory as written.
    A few commenters acknowledged that the bedding requirement in the 
original regulation is widely interpreted in different ways by 
producers, inspectors, and certifying agents. This is further 
reinforced by comments from producers who use conventional bedding 
materials and a certifying agent who stated that their clients have 
trouble sourcing organic bedding materials. This same certifying agent 
expressed the belief that the use of non-organic bedding does not 
affect the integrity of the organic product. In all, several certifying 
agents and certifying agent organizations offered comments on this 
issue, including a statement that the current regulation is adequate 
and one to delay implementation of the requirement to source organic 
bedding materials for 24 months. A consumer group submitted the comment 
that if animals are using bedding materials that they may consume, such 
materials must also comply with the feed requirements, and doing so 
will help strengthen the integrity of the label.
    We disagree that the original regulation is adequate with respect 
to bedding as evidenced by the different interpretations among the 
certifying agents. Section 205.239(a)(3) requires that all livestock 
feed products used as bedding must be organic but needs clarification 
to eliminate the inconsistent application across certifying agents. We 
proposed changes to this paragraph because in the administration of 
this regulation, we have observed the use of conventional bedding 
typically consumed by the animal species. Such producers claim that 
their animals do not consume their bedding. However, the regulation 
does not say that organic bedding is required when the animals consume 
their bedding. It requires organic bedding when crop matter typically 
consumed by the animal species is used as bedding. We agree with those 
commenters who stated that all bedding originating from crops raised to 
produce feed for livestock must be organic and that conventional straw, 
corncobs, hay and other agricultural products are not allowed.
    In order to eliminate the erroneous interpretation of this 
paragraph, we have amended Sec.  205.239(a)(3) to read: ``Appropriate 
clean, dry bedding. When roughages are used as bedding, they shall have 
been organically produced in accordance with this part by an operation 
certified under this part, except as provided in Sec.  
205.236(a)(2)(i), and, if applicable, organically handled by operations 
certified to the NOP.'' This revision eliminates the need to include a 
prohibition on products of excluded methods, as requested by 
commenters, since Sec.  205.105(e) already prohibits the use of 
excluded methods. We have replaced the examples of bedding materials 
with the term, ``roughages'' to avoid any ambiguity that only the 
bedding materials listed would be subject to this requirement. We 
disagree with removing the requirement for organic straw. Straw is a 
feedstuff classified by the International Feed Identification System as 
roughage. We also disagree with a comment that animals do not eat 
bedding, as some of all edible bedding material is consumed by the 
animals whether or not it is intended to provide feed value. The fact 
that straw may be low quality roughage does not change the fact that 
straw is roughage typically consumed by ruminants. We have not endorsed 
the suggestion to allow non-organic bedding when animals consume a 
negligible quantity because of the potential for wide variation in the 
interpretation.
    We oppose a commercial availability clause for bedding materials, 
or exemptions which would have a similar effect of diluting the 
standard, such as, allowing conventional non-GMO materials when 
certified organic bedding materials are not available; allowing organic 
hay but conventionally-sourced other agricultural materials provided no 
prohibitive substances were applied; or allowing non-toxic conventional 
agricultural bedding products. We agree that an organic bedding market 
will not grow as long as producers use conventional roughages as 
bedding in lieu of organic roughages. A commercial availability clause 
or other exemptions would stifle development of the existing market for 
crops that can be used as bedding material. Furthermore, conventional 
crops are typically produced using prohibited substances under the NOP 
and, therefore, are very likely to contain residues of those prohibited 
substances.
    As written, the original regulation requires appropriate bedding; 
it does not mandate bedding always be provided. Adding the phrase ``as 
necessary'' to ``appropriate clean, dry bedding'' would inappropriately 
modify the ``clean and dry'' requirement, which is mandatory, and 
weaken the requirement.
    Consistent with the above livestock feed discussion, livestock 
producers that meet the exemption for certification under Sec.  
205.101(a)(1), may continue to use roughages they grow as bedding for 
the animals they raise.
    New Sec.  205.239(a)(5) Yards and passageways--Many comments 
supported allowances for well-managed yards, feeding pads, and feedlots 
in organic ruminant livestock production in reference to proposed rule 
Sec. Sec.  205.239(a)(2)(ii) and (d)(2). Reasons included: (1) A need 
when soil, water quality, animal health or humane treatment of 
livestock are tenuous in certain pasture conditions; (2) commonly used 
for supplemental feeding during both non-grazing and grazing seasons; 
and (3) facilitates exercise and outdoor access during the non-grazing 
season. Many comments emphasized the need for yards, feeding

[[Page 7173]]

pads, and feedlots to be clean and well managed. Comments also 
suggested amending the paragraph to address the use of yards and 
feeding pads. A few comments recommended moving the paragraph and 
amending it to read: ``Yards, feeding pads, and laneways kept in good 
condition and well-drained.''
    We received some comments in favor of ``dry lots,'' and a few in 
opposition. Reasons in favor included all those cited above; in 
addition, comments also claimed that dry lots are necessary for:
    <bullet> Vaccination and care;
    <bullet> Producing high quality products;
    <bullet> 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
    <bullet> Market conditions--their prohibition would decimate the 
organic industry as a whole because demand would exceed supply and 
drive prices to a level consumers could not afford thereby causing the 
entire industry to crumble.
    As noted above under Livestock Living Conditions, we agree that 
yards, feeding pads, and feedlots have a role in the management of 
organic ruminant livestock. Thus, we added language to Sec.  
205.239(a)(1) providing that yards, feeding pads, and feedlots may be 
used to provide ruminants with access to the outdoors during the non-
grazing season and supplemental feeding during the grazing season. We 
also agree that for livestock living conditions, yards, feeding pads, 
feedlots, and laneways must be kept in good condition and well-drained. 
Accordingly, we have added a new Sec.  205.239(a)(5) to address the 
management of yards, feeding pads, and feedlots. The new language 
provides for the use of yards, feeding pads, feedlots and laneways that 
shall be well-drained, kept in good condition, and managed to prevent 
runoff of wastes and contaminated waters to adjoining or nearby surface 
water and across property boundaries. This new paragraph expands upon 
the provision in the proposed rule, Sec.  205.239(d)(2) which required 
yards and passageways to be in good condition and well-drained. Section 
205.239(d)(2) in the proposed rule has been deleted, but the contents 
have been retained in this final rule Sec.  205.239(a)(5).
    Sections 205.239(b) and (c) Temporary denial of outdoor access or 
pasture--Under the proposed rulemaking, these two sections 
distinguished outdoor access and pasture between non-ruminants and 
ruminants, and the conditions under which each could be denied for 
these types of animals. Paragraph (b), for non-ruminants, described two 
conditions for temporary denial of outdoor access, and differs from the 
original regulation by distinguishing stage of life from stage of 
production. Paragraph (c), for ruminants, listed six conditions related 
to illness, health, birth, weather (for goats), shearing, and milking, 
under which ruminants may be temporarily denied pasture.
    We received comments requesting to combine the two paragraphs, and 
a comment that the exceptions in the paragraphs should apply more 
generally to all types of animals. While we are not combining the 
paragraphs, we have addressed the issue of applicability to all 
ruminant animals. It is not appropriate to combine these as paragraph 
(b) is applicable to livestock generally, while paragraph (c) is only 
applicable to ruminant animals. We received numerous comments on 
paragraph (b) (many of them overlapping with issues identified in 
paragraph (c) which dealt with denial of access to pasture), requesting 
that we take account of additional circumstances under which all 
animals might be temporarily confined or provided shelter. These 
comments led us to rewrite Sec.  205.239(b) accordingly. Comments 
received and the changes they led to are discussed below.
    Section 205.239(b) Temporary confinement or shelter--We received 
comments to replace the opening text of the paragraph which states 
``temporarily deny a non-ruminant animal access to the outdoors'' with 
``provide temporary confinement and shelter for an animal'' because 
this more accurately reflects the requirement of the exemptions for 
animals which may need both confinement and shelter for their welfare. 
We agree with these comments and have changed the opening wording of 
Sec.  205.239(b) to allow producers to provide confinement or shelter 
in the final rule.
    Section 205.239 (b)(2) Lactation does not justify confinement--We 
received comments recommending that ``Lactation is not a stage of life 
that would exempt ruminants from any of the mandates set forth in this 
regulation'' be added to the proposed Sec.  205.239(b)(2) to preclude 
the potential for abuse of the stage of life exemption. We agree that 
recurring confinement for the extended lactation periods would be 
inconsistent with the purpose of this rule and the expectation of 
consumers. We have included the recommended change in this action.
    Section 205.239(b)(5) Healthcare practices--preventive and 
treatment--We received comments recommending the addition of a new 
paragraph to address preventive healthcare procedures. We received 
comments which recommended amendments related to breeding and 
preventive health care practices to Sec.  205.239(c)(1), of the 
proposed rule. One comment recommended adding the words ``other 
veterinary-type health care needs'' under the provisions for preventive 
healthcare procedures and the treatment of illness or injury. Finally, 
some comments recommended changing the phrase about various life stages 
to simply state that lactation is not an illness or injury.
    As we noted in the proposed rule, some producers have claimed that 
lactation is a stage of production for which dairy animals require 
constant veterinary care or oversight, and therefore have used this to 
deny animals time on pasture or access to the outdoors. We do not 
concur. An exemption from pasture or outdoor access for that period on 
a recurring basis would result in confinement of the milking herd for 
extended periods of lactation. While lactating cattle have unique 
nutritional needs that must be carefully attended to, these animals 
should not require constant veterinary care or oversight, for lactation 
alone, that interferes with access to pasture. For this reason we are 
explicitly defining lactation as a stage of life and stating that 
neither the various life stages, nor lactation, are an illness or 
injury. We also are not changing the language to ``lactation is not an 
illness or injury'' because this does not fully address the issue. It 
was and remains our intent that neither stage of life nor lactation is 
a valid reason to deny an animal outdoor access or pasture, based on 
the need for constant veterinary care or oversight.
    We agree that preventive healthcare procedures, like the treatment 
of illness and injury, are regular management practices that may 
require temporary confinement of the animal. Therefore, we have 
accepted the recommendation to add a new paragraph to address 
preventive healthcare procedures. We have combined the provision 
permitting temporary denial of pasture for treatment of illness or 
injury, Sec.  205.239(c)(1) in the proposed rule, with a provision for 
preventive healthcare procedures into Sec.  205.239(b)(5). In this 
final rule, the above provision is solely contained in Sec.  
205.239(b)(5).
    Section 205.239(b)(6) Sorting and shipping animals--At least one 
commenter opined that the regulations need to provide for the sorting 
of ruminants. Some expressed the need for a provision addressing the 
shipping of

[[Page 7174]]

animals. Finally, one questioned whether there should be a provision 
addressing livestock sales.
    To address these concerns we have added a new paragraph (b)(6) to 
Sec.  205.239. This paragraph includes a provision that the animals 
shall be maintained on organic feed and under continuous organic 
management throughout the extent of their allowed confinement. 
Paragraph 205.239(b)(6) reads: ``Sorting or shipping animals and 
livestock sales: Provided, That, the animals shall be maintained under 
continuous organic management, including organic feed, throughout the 
extent of their allowed confinement.''
    Section 205.239(b)(7) Breeding--We received comments that 
recommended addressing breeding in a new paragraph. We also received 
comments requesting that breeding be added as a reason for denying 
access to pasture, and comments that breeding animals may be 
temporarily confined for artificial insemination. We acknowledge that 
breeding is a management task that may require temporary confinement of 
the animal.
    We have added a new paragraph (b)(7). To prevent abuse of the 
allowance for confinement for breeding, we have included a provision 
that bred animals shall not be denied access to the outdoors and, once 
bred, ruminants shall not be denied access to pasture during the 
grazing season. This precaution was taken because certain producers 
have denied bred dairy animals access to pasture.
    Section 205.239(b)(8) Youth events--At least 1 comment requested 
the addition of a paragraph addressing 4-H, Future Farmers of America 
and other youth projects. The commenter was concerned that the 
regulations would preclude youth with organic animals from 
participating is such events. USDA believes that youth should be 
encouraged to participate in these events.
    Therefore, we have added a new paragraph (b)(8) which reads: ``4-H, 
Future Farmers of America and other youth projects, for no more than 
one week prior to a fair or other demonstration, through the event and 
up to 24 hours after the animals have arrived home at the conclusion of 
the event. These animals must have been maintained under continuous 
organic management, including organic feed, during the extent of their 
allowed confinement for the event.''
    Section 205.239(c) Temporary Denial of Pasture for Ruminants--As 
noted above, this proposed paragraph outlined six conditions under 
which ruminant animals could be temporarily denied access to pasture, 
related to health conditions, shearing, and milking. We received 
comments asking to add ``or outdoor access'' to the opening text of 
this paragraph.
    This comment has merit. We have accepted the recommendation in 
acknowledgement of conditions which, in the interest of an animal's 
welfare, shelter is warranted and that there are essential animal 
husbandry practices which typically occur indoors. As discussed above, 
we have amended Sec.  205.239(b) to apply to all animals. To further 
clarify the relationship between paragraphs (b) and (c) we also added 
``in addition to the times permitted under Sec.  205.239(b)'' to the 
opening text of Sec.  205.239(c).
    Section 205.239(c)(1) Parturition (birthing)--Some commenters 
recommended changes to this previously designated paragraph (c)(2), 
including retain as written, remove, add a provision for dry off, and 
amend the one week prior to parturition provision. As proposed, the 
paragraph would allow ruminants to be denied access to pasture 
temporarily for one week prior to birthing, and up to one week after 
giving birth. The commenters which proposed changes to the one week 
prior to birthing provision submitted 5 different versions of changes 
to this section. Three versions included open time period language 
including pre-parturition, for brief periods, and for short time 
periods. Two other versions submitted stated that one week prior should 
be changed to two weeks and, in another version, to three weeks. One of 
the comments asking for a provision for dry off recommended that it be 
limited to the denial of pasture only, but not access to outdoors.
    We believe that the recommendations for adding a dry off provision 
and that it be limited to denial of pasture only have merit. We have 
also accepted the recommendation to change the one week prior to 
birthing to three weeks because we agree that three weeks are needed to 
ensure that the producer has the ability to employ proper nutrition 
science for maintaining the health and well-being of the animal after 
parturition. Three weeks also addresses varying gestation lengths for 
individual animals and accommodates births occurring earlier than or 
later than the projected birth date. We have not accepted the open time 
period language to the allowed pre parturition denial of pasture and 
access to the outdoors because they leave room for abuse of the 
exemption.
    Section 205.239(c)(2) Housing of newborn dairy cows--We received 
comments which made recommendations involving previously designated 
paragraph (c)(3). Comments included retain, remove, add ``dairy'' after 
``newborn'', add ``during the grazing season,'' change ``on pasture'' 
to ``access to pasture,'' and add a provision that a producer shall not 
confine or tether an animal in a way that prevents the animal from 
lying down, standing up, fully extending its limbs, and moving about 
freely.
    We agree with inserting the word ``dairy'' after ``newborn'' to 
clarify that the provision applies only to dairy ruminants. We also 
agree with adding ``during the grazing season'' to make the provision 
consistent with the requirement that ruminants be on pasture during the 
grazing season. We have not accepted the recommendation to change ``on 
pasture'' to ``access to pasture.'' Such a change would blur the 
requirement and create opportunity for abuse. We expect all ruminants 
to be on pasture throughout the grazing season, except as otherwise 
provided by Sec. Sec.  205.239(b) and (c). We have also accepted the 
recommendation to add a provision providing that a producer shall not 
confine or tether an animal in a way that prevents the animal from 
lying down, standing up, fully extending its limbs, and moving freely. 
This provision reinforces the requirements of Sec.  205.239(a). Finally 
we have redesignated the paragraph as (c)(2).
    Section 205.239(c)(3) Shearing--We received comments involving 
previously designated paragraph (c)(5), which provided that shearing of 
sheep could justify temporary denial of access to pasture. Comments 
included removal, retain, and amend. Two versions of changes were 
submitted. One recommended shortening the provision to ``for short 
periods for shearing.'' The other version recommended changing the 
reference to sheep to fiber bearing animals.
    We agree that sheep are not the only animals sheared. As pointed 
out, other sheared ruminants include alpacas, goats, llamas, and yaks. 
Accordingly, we have modified the reference to fiber bearing animals 
and redesignated the paragraph as (c)(3).
    Section 205.239(4) Inclement weather for goats--We received 
comments on this paragraph, most of which requested we remove the 
paragraph or combine it with the paragraph on shearing.
    We deleted the paragraph because it is redundant. Section 
205.239(b)(1) would permit temporary sheltering of goats when warranted 
by inclement weather.
    Section 205.239(c) Short periods for milking--This proposed 
paragraph,

[[Page 7175]]

previously designated as Sec.  205.239(c)(6), provided temporary denial 
of access to pasture for ruminant dairy animals for short daily periods 
of time for milking. This provision also stated that producers must 
schedule milking to ensure sufficient grazing time to provide each 
animal with an average dry matter intake from grazing of not less than 
30 percent throughout the growing season and that milking frequencies 
or duration practices cannot be used to deny dairy animals pasture.
    We received comments on this paragraph. Comments included remove, 
move the requirement that milking cannot be used to deny access to 
pasture to the paragraph (b) which deals with temporary confinement or 
shelter, and 6 amended versions. All of the amended versions retained 
the first requirement--that pasture can be denied for short periods 
daily for milking. Three versions removed the requirement that milking 
must be scheduled in a way that does not interfere with ensuring that 
the 30 percent DMI requirement is obtained. The other three versions 
retained this requirement but changed ``growing season'' to ``grazing 
season.'' Retention of the requirement that milking cannot be used to 
deny access to pasture was recommended by some of the commenters, but 
comments also offered edited versions to the sentence.
    We have retained the paragraph as originally proposed with the 
exception of changing, as done throughout this action, growing season 
to grazing season and redesignating the paragraph to (c)(4). We believe 
this wording is needed to clearly convey that milking practices shall 
not interfere with the 30 percent DMI requirement.
    Section 205.239(d) Lying area, yards, shade, water, feeding 
equipment, hay in racks for newborns--Some commenters expressed 
opinions on one or more paragraphs in Sec.  205.239(d). Comments 
included deleting all six provisions; opposition to or change paragraph 
(d)(3) so that producers only have to provide shade as appropriate; 
opposition to or change paragraph (d)(5) to remove the weekly cleaning 
requirement for watering equipment; and opposition to or change 
paragraph (d)(6) to remove the hay in a rack requirement for newborns 
beginning 7 days after birth.
    We have deleted all of Sec.  205.239(d). Each of the requirements 
is found elsewhere in the livestock practice standard with the 
exception of paragraph (d)(6), which we eliminated altogether. 
Paragraph (d)(1) addressed bedding and is covered by Sec.  
205.239(a)(3). Paragraph (d)(2) addressed yards and passageways and is 
covered by Sec.  205.239(a)(5). Paragraph (d)(3) addressed shade, and 
paragraphs (d)(4) and (d)(5) addressed water. These are all covered by 
Sec.  205.239(a)(1). Paragraph (d)(6) was removed because we agree with 
comments that the requirement was too prescriptive. However, the 
proposed requirement that dairy animals be on pasture not later than 6 
months after birth has been retained and is found in Sec.  
205.239(c)(2).
    New paragraph 205.239(d) Slaughter stock finishing on pasture--
Comments on Sec. Sec.  205.237(c) and 205.239(a) and (c) included 
recommendations for ruminant slaughter stock. Of the numerous comments 
received addressing this provision, the major issue was the addition of 
an exception to the 30 percent DMI requirement from pasture for 
ruminants during finish feeding prior to slaughter and the length of a 
finishing period on feed. The majority of the comments requested 120 
days. Others submitted 90, 150, or some combination of this range of 
days. Some comments suggested one fifth of an animal's life, not to 
exceed 120 days; a few supported a 120 day finishing period, with the 
condition that the finishing area have space adequate for all animals 
to feed simultaneously and to display no competition for food. One 
comment suggested a stocking density of at least 250 square feet per 
animal--based on the Canada organic standard of 23 square meters (247 
square feet) per animal.
    Of the comments received on slaughter stock, most urged that 
animals not be denied access to pasture during the finishing feeding 
period. Of the comments received, most also recommended that during 
this finishing period, animals be exempt from the 30 percent DMI 
requirement from pasture. In addition to the comments on provisions for 
ruminant slaughter stock, we received numerous additional comments 
opposed to the confined feeding of organic beef animals.
    The sentiment among most of the commenters is that there is no 
place in organic agriculture for the confinement feeding of animals nor 
should there be any exception for ruminant slaughter stock. This is 
precisely why the commenters who supported finished feeding requested 
that animals not be denied access to pasture during the finishing 
feeding period. One of the comments stated that consumer expectation 
that confinement is not part of organic production is not isolated to 
dairy cattle; consumers are also uncomfortable with the long-term 
confinement being used to finish beef cattle. This commenter stated 
that it is time for the NOP to make explicitly clear that feedlots are 
not acceptable in organic production.
    Some commenters expressed disagreement, and asserted that there is 
a valid place in organic agriculture for confinement feeding of 
animals. These commenters stated there should be exceptions for 
ruminant slaughter stock. One stated that the organic meat industry 
relies heavily on confinement finishing of beef animals. This 
commenter, and a few others, wrote that a complete prohibition on 
confinement finishing would have a dramatic impact, not only on the 
larger companies supplying organic meat to consumers, but also on the 
cow-calf and stocker operations that sell animals to finishers and 
organic meat producers who direct market their product. Another 
commenter stated that eliminating dry lots would put an end to the most 
efficient means of producing high quality products. A commenter claimed 
that eliminating dry lots would cause the potential market for organic 
calves to significantly contract. One commenter asserted that 
prohibiting dry lots in organic production would decimate the organic 
food industry and that demand would exceed supply, prices would 
increase significantly, consumers would stop buying organic food, and 
the organic food industry would crumble. One commenter expressed that a 
prohibition on dry lots would be overly burdensome and very costly for 
current and future organic ruminant animal producers in Texas. Another 
commenter expressed the following: (1) Production systems are in place 
that demand temporary confinement for finish feeding; (2) these 
sections of the industry cannot be adjusted to meet the regulations; 
(3) periods that animals are confined for finish feeding should be 
temporary and be best managed within the organic system plan that 
addresses animal welfare and environmental health; (4) the need for 
temporary confinement to finish animals is valid in order to satisfy 
the growing demand; (5) organic producers are currently demonstrating 
that this can be accomplished within the organic standards and 
principles; and (6) beef animals are out on pasture usually from the 
day of birth up unto finishing, offering more consistent access to 
pasture or the outdoors than dairy cattle, swine, or poultry. Finally, 
a commenter supporting dry lot finish feeding acknowledged that finish 
feeding on pasture is feasible. However, this commenter opined that it 
is not practical to require the entire industry to finish feed on 
pasture.
    One commenter wrote that while some certifying agents have allowed

[[Page 7176]]

temporary confinement of livestock for finish feeding for up to 120 
days, other agents have not because they believe it to be prohibited 
under current regulations. Finally, this commenter argued for a 
clarification for finish feeding, but not through this rulemaking 
action. Other comments mentioned widespread abuse but expressed support 
for the status quo provided the NOSB recommendation is either 
incorporated into this rule or published as guidance and strictly 
enforced. We disagree for three reasons. First, although we did not 
propose an exemption for finish feeding as part of the livestock 
practice standard, we acknowledged in the proposed rule that total 
confinement for finish feeding was an issue. Second, the statute 
requires that a consistent, uniform standard be implemented through 
regulation. Third, the fact that accredited certifying agents are 
applying two different standards regarding the finish feeding of 
slaughter stock demonstrates that we require a clear standard. Thus, 
these points are reason to revisit this issue.
    Commenters opposed to finish feeding on pasture are not in 
alignment with expectations and sentiments of organic consumer groups 
as communicated to USDA in the rulemakings related to this subject and 
the complaints submitted to NOP. We also do not concur with the 
scenarios portraying an organic beef sector that will collapse if 
confinement feeding is prohibited for slaughter animals. We believe 
organic livestock producers will be able to work within these 
standards, meet the expectations of consumers, grow the demand and 
therefore, a stronger market for organically produced meats.
    In the proposed rule we stated that we would not provide an 
exemption for finish feeding. In consideration of the comments on 
slaughter stock production, we have revised that position through the 
addition of a new Sec.  205.239(d). This paragraph provides that 
ruminant slaughter stock, typically grain finished, shall be maintained 
on pasture for each day that the finishing period corresponds with the 
grazing season for the geographical location. It also allows for the 
use of yards, feeding pads, or feedlots to provide finish feeding 
rations. These provisions are consistent with recommendations from 
commenters supporting finished feeding provided the animals are not 
denied access to pasture during the finishing feeding period. The 
paragraph also includes language exempting the animals from the not 
less than 30 percent DMI pasture requirement. We agree with the 
commenters who recommended that the finishing area have feeding space 
adequate for all animals to eat simultaneously and to display no 
competition for food. Accordingly, we have included the provision that, 
yards, feeding pads, or feedlots used to provide finish feeding rations 
must be large enough to allow all ruminant slaughter stock occupying 
the yard, feeding pad, or feedlot to feed simultaneously without 
crowding and without competition for food. This addition is consistent 
with the language in Sec.  205.239(a)(1) regarding yards, feeding pads, 
and feedlots. As noted above, most of the commenters expressed a 
preference that the finishing period not exceed 120 days. A few 
recommended the further restriction that the finishing period not 
exceed one fifth (\1/5\) of the animal's total life or 120 days, 
whichever is shorter. The 120 days was based upon the typical timeframe 
for finishing beef cattle at 18-24 months of age. Some livestock 
species, however, are slaughtered at a much younger age and the 120 
days would allow these animals an exception for access to pasture and 
the outdoors for most of their lives. Therefore, we have accepted this 
latter recommendation and included it in new Sec.  205.239(d).
    As stated in the Summary section above, we are seeking further 
comment on the requirements pertaining to the finish feeding of 
ruminant slaughter stock. Although we are issuing this as a final rule, 
we are requesting comments on the exceptions for finish feeding of 
ruminant slaughter stock. This rulemaking coupled organic livestock and 
organic dairy production because the use and management of pasture is 
integral to both types of production. We received a substantial number 
of comments concerning both the dairy component of this rule and the 
lack of provisions for finish feeding. As a result of these comments, 
the finish feeding provisions of this final rule differ from those in 
the proposed rule. Specifically, this final rule contains an exemption 
for finish feeding through the addition of a new Sec.  205.239(d). 
Although finish feeding was discussed as an issue in the proposed rule, 
the proposed rule did not provide for an exemption. Unlike the comments 
we received that pertained to the dairy components of this rule, there 
was uncertainty on the specific terms that commenters believed should 
be contained as part of an exemption to allow for the finish feeding of 
ruminant slaughter stock. We have determined, therefore, to receive 
additional comments, limited to the finish feeding provision of this 
final rule.
    Accordingly, the agency is providing an additional 60 day period to 
receive comments on the finish feeding provisions. More specifically, 
we are seeking further comments on the following:
    <bullet> 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;
    <bullet> 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;
    <bullet> The use of feedlots, as defined in this final rule, for 
the finish feeding of organic slaughter stock.
    Comments should be limited to the portions of this rule that 
pertain to the finish feeding of ruminant slaughter stock. Based upon 
comments received, the agency will determine whether any further action 
is warranted.
    Section 205.239(e) Resource management of outdoor access, including 
fencing and buffer zones--This proposed paragraph (designated as 
paragraph (f) in the proposed rulemaking) would require producers to 
manage outdoor access in ways that minimize risk to water and soil 
quality, through the use of such methods as buffer zones and fences. In 
the current regulation, Sec.  205.239(c) requires producers to manage 
manure in ways that do not contribute to contamination of soil or 
water. This paragraph reinforces the current requirement by recognizing 
that pasture and ruminants on pasture play a role in resource 
management, and requires producers to actively acknowledge this 
resource management through such mechanisms as fencing and buffer zones 
of sufficient size to address potential contamination issues.
    We received numerous comments on this proposed paragraph, with most 
suggesting replacing reference to specific management practices such as 
fences or buffer zones with ``devices that prevent animals and waste 
products from entering bodies of water.''
    The remaining comments we received are described below:
    <bullet> Delete everything after the word ``risk'' and combining 
this paragraph with existing paragraph (c), which addresses and 
protects soil and water quality;
    <bullet> Rangeland grazing is not concentrated enough to damage 
soil, vegetation, or water quality;
    <bullet> In the West most water is obtained from running streams, 
rangeland streams provide open water in winter, and with a proper 
grazing plan, streams

[[Page 7177]]

and ponds can be managed to maintain water quality;
    <bullet> Fencing rangeland waterways could limit wildlife access to 
their source of drinking water;
    <bullet> Inconsistent with the natural animal impact necessary 
along small streams to maintain a healthy stream environment and 
necessary downstream water flow;
    <bullet> Flooding washes wire and fence posts downstream;
    <bullet> Riparian areas can be grazed while minimizing potential 
negative effects to soils, water quality, and wildlife;
    <bullet> 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;
    <bullet> As written, could conflict with the state and local codes 
that govern water quality and manure management; the Natural Resources 
Conservation Service (NRCS) and State and local soil and water 
conservation programs have guidelines for protecting water quality.
    We acknowledge that the NRCS and state and local soil and water 
conservation programs have guidelines for protecting water quality 
which are specific to the ecology of the geographical location. We also 
acknowledge that as proposed, the paragraph could adversely impact 
wildlife in some areas, which would be inconsistent with the NOP 
requirements that organic producers maintain or improve the natural 
resources of the operation, which includes wildlife. Accordingly, with 
minor editing, we are accepting the recommendations to delete 
everything after the word ``risk,'' and to combine with current Sec.  
205.239(c). This will provide producers and ACAs the flexibility to 
meet this requirement in consideration of the conditions specific to 
the operation and its location. Furthermore, the elimination of this 
fencing requirement will relieve operations from incurring potentially 
high costs to install and maintain the fencing. The NRCS soil and water 
conservation programs and state and local soil and water conservation 
programs combined with new paragraph (e) requirements should be 
sufficient to protect ponds, streams, and other bodies of water on, 
passing through, and adjacent to, organic operations.

Livestock Living Conditions--Changes Requested But Not Made

    Section 205.239(a)(1) Exempt poultry from outdoor access--A 
commenter asked that Sec.  205.239(a)(1) be changed to remove the 
requirement that poultry be provided with access to the outdoors (the 
comment also recommended removing domestic poultry from the definition 
of livestock). Four reasons were given for these changes: (1) Poultry 
cannot meet their nutritional requirements from grazing and forage; (2) 
the NOP regulations prohibit feeding of animal origin ingredients but 
chickens will pick through fecal material which will in fact contain, 
among other things, sloughed intestinal cells; (3) predators are common 
in rural areas and poultry are defenseless against their attack; and 
(4) avian influenza.
    The issues of removing the requirement that poultry be provided 
with access to the outdoors and removing domestic poultry from the 
definition of livestock were not specifically presented for public 
comment in the proposed rule. We will not enact such recommendation 
without providing the many stakeholders that could be affected by this 
action, notice of the proposed change and an opportunity for comment. 
Further, we are not convinced by the commenter's arguments because we 
believe organic poultry producers are capable of providing all poultry 
with access to the outdoors as required by Sec.  205.239(a)(1). Poultry 
shall only be temporarily denied access to the outdoors in accordance 
with Sec.  205.239(b)(1). This action adds a definition for ``temporary 
and temporarily'' to Sec.  205.2.
    USDA's APHIS has published guidance on biosecurity and disease 
prevention and control for non-confinement poultry production 
operations that comply with the NOP. These procedures recognize 
restricting outside open access by maintaining outdoor enclosures 
covered with solid roofs and wire mesh or netted sides as a protective 
measures option in areas of high risk for a potential outbreak of avian 
influenza. The procedures also recognize restricting outside open 
access by maintaining outdoor enclosures covered with wire mesh or 
netting in lower risk areas. The procedures also recommend providing 
feed and water for all non-confinement-raised poultry in an indoor 
area.
    In consideration of the foregoing, we have not included the 
recommended changes in this action.
    Section 205.239(a)(4) Modification for shelter--We received 
comments that recommended amendment to Sec.  205.239(a)(4). 
Recommendations included modifying ``shelter'' by whatever is needed, 
or needed and appropriate to the species or environment. One commenter 
recommended that shelters be identified with more specificity--such as 
barns, sheds, or windbreaks, or as woods, tree lines; or that shelter 
describes geographical features appropriate to the species that provide 
physical protection to all animals simultaneously. The commenter also 
stated that shelters should be designed to allow for the instinctive 
behaviors of nesting, play, exploration, and developing and maintaining 
a stable, positive social hierarchy. Other comments said no changes 
should be made to the paragraph.
    We have not acted on this recommendation because amendment to Sec.  
205.239(a)(4) was not presented for public comment in the proposed 
rule. Because changes to this paragraph would affect shelter for all 
types of livestock, not only ruminants, any amendment to Sec.  
205.239(a)(4) would need a notice and comment rulemaking process to 
adequately consider the options and concerns of the range of 
stakeholders that could be affected.
    Section 205.239(b) (1) Confinement due to inclement weather--Some 
commenters suggested no change to Sec.  205.239(b)(1). However, more 
commenters recommended 3 versions to change this paragraph, most of 
which asked for the phrase, ``and conditions caused by inclement 
weather.'' The principal reason for this recommendation is that the 
residual effect of the weather is as great a concern as the weather 
itself. An example would be ice after a storm. While we do not disagree 
with the recommendation, we have not accepted it. This recommendation 
is not accepted because the recommended addition is adequately covered 
by Sec.  205.239(b)(3), which permits confinement and shelter 
temporarily for conditions under which the health, safety, or well 
being of the animal could be jeopardized.
    Section 205.239(b)(2) Stage of life--In the proposed rulemaking, 
this paragraph read: ``the animal's stage of life,'' and we received 
comments about this paragraph. Comments included: keep as written, 
remove, add provision for a 150 day finishing period, insert production 
in front of life, and add ``lactation is not a stage of life that would 
exempt ruminants from any of the mandates set forth in this 
regulation.'' The commenters recommended the reference to lactation to 
preclude the potential for abuse of the stage of life exemption.
    We have added a definition for stage of life which states that an 
event such as breeding, freshening, lactation and other recurring 
events is not a stage of life. Accordingly, lactation is excluded by 
definition from being considered a stage of life. Thus the 
recommendation made about lactation is unnecessary.

[[Page 7178]]

    Section 205.239(b)(3) Confinement for health, safety, and well-
being--We received comments that offered recommendations on Sec.  
205.239(b)(3). Comments included no change and amend to read 
``Conditions under which the health, safety, or well-being of the 
animals is likely to suffer.''
    The recommendation to amend Sec.  205.239(b)(3) was not an issue 
presented for public comment in the proposed rule. Further, only one 
commenter suggested a revision to this provision, while all other 
commenters recommended no change. Accordingly, we are not accepting the 
recommendation.
    Section 205.239(b)(4) Risk to soil or water quality--We received 
comments that offered recommendations on Sec.  205.239(b)(4), which 
provided for temporary confinement due to risk to soil or water 
quality. Most comments included no change, but one suggested changing 
the paragraph to state that there must be an imminent risk to soil or 
water quality and that the farmer must immediately make every effort to 
alleviate the risk to soil or water quality so that animals are not 
withheld from the outdoors any longer than necessary to protect soil or 
water quality.
    We do not concur that there is a need to further qualifySec.  
205.239(b)(4). We believe this provision is already reinforced by Sec.  
205.240(b) which requires producers to maintain pastures to provide the 
30 percent minimum dry matter intake and to refrain from putting soil 
or water quality at risk.

Pasture Practice Standard (Sec.  205.240)

Pasture Practice Standard--Changes Based on Comments
    Opening paragraph--This paragraph requires producers to have 
auditable records to document a functioning management plan (a pasture 
practice standard) for pasture to meet all applicable requirements of 
Sec.  205.200-Sec.  205.240. We received the following comments on this 
paragraph to the pasture practice standard:
    <bullet> The entire practice standard should be deleted altogether;
    <bullet> Issue the practice standard as guidance;
    <bullet> Leave the opening paragraph as written;
    <bullet> Adopt a requirement to use a NRCS pasture plan;
    <bullet> Recommend a Pasture Grazing System Plan;
    <bullet> Condense into the Organic System Plan;
    <bullet> Move the opening paragraph to 205.237(c), which deals with 
livestock feed.
    We removed the wording ``that meets all requirements of Sec. Sec.  
205.200--205.240'' because producers are already required to maintain 
an organic system plan which documents compliance with the crop and 
livestock practice standards in the current regulations. We do not 
concur with comments to delete this section as the pasture practice 
standard contains requirements that are unique to pasturing. In fact, 
we believe that the provisions of the pasture practice standard will 
help foster viable pasture-based operations and will help certifying 
agents to evaluate the operation. In regards to the use of an NRCS 
pasture plan, Sec.  205.201(b) allows producers to substitute a plan 
that meets the requirements of another Federal, State, or local 
government regulatory program, provided that the plan meets the 
requirements of subpart C. We will likewise allow producers to use an 
NRCS pasture plan that meets the requirements of this section, 205.240. 
The introductory paragraph now reads: ``The producer of an organic 
livestock operation must, for all ruminant livestock on the operation, 
demonstrate through auditable records in the organic system plan, a 
functioning management plan for pasture.''
    Section 205.240(a) Manage pasture as a crop--This paragraph 
requires producers to manage pasture as a crop in compliance with 
applicable crop practice standards. The comments we received offered 
the following suggestions:
    <bullet> Issue as guidance;
    <bullet> Support as written;
    <bullet> Delete;
    <bullet> This requirement is already covered by the application for 
certification;
    <bullet> There are concerns over the effect on rangeland, and 
another request that pasture not be subject to crop rotation;
    <bullet> This paragraph, together with the definition of crop 
provided in Sec.  205.2, is fundamentally different. The comment 
questioned the applicability of practices included in Sec. Sec.  
205.202 through 205.206 to native rangeland.
    We also received comments recommending that Sec.  205.237(c) should 
contain a new paragraph to address irrigation, which we believe is more 
appropriately addressed in the pasture practice standard. According to 
the commenters, this change should read that ``irrigation must be used 
as needed to promote pasture growth when an operation has it available 
for use on crops.'' This change was supported by commenters as written.
    We agree that not all crop practice standards apply to rangeland, 
and specific reference to rangeland is conspicuously absent from the 
NOP standards. We have amended paragraph (a) by removing references to 
Sec. Sec.  205.200 and 205.201, which are redundant because they are 
already required. We also removed Sec. Sec.  205.203(a) through (c), 
205.205, and 205.206(a), which do not apply to pasture. Those removed 
sections are also not applicable to rangeland because they require crop 
rotation and crop pest, disease and weed control practices that would 
not occur on uncultivated rangeland. We note that certifying rangeland 
for organic production of livestock has occurred, with applicable 
sections of 205.200 through 205.206 as the basis for certification and 
this final rule does not preclude such certification. Any additional 
issues that are specific to rangeland should be referred to the NOSB 
for consideration whether to recommend regulatory language more 
specific to rangeland.
    We also amended paragraph (a) to include a sentence to convey that 
land used for the production of annual crops that will be used to graze 
livestock is subject to the provisions of Sec. Sec.  205.202 through 
205.206. Finally, we added a sentence on irrigation to require its use, 
as needed and when available, to promote pasture growth.
    Section 205.240(e) (new (b)) Compliance with applicable Sec. Sec.  
of 205.236-205.239--This paragraph required pasture to comply with 
applicable livestock practice standards. We received the following 
comments on this section:
    <bullet> Accept the section as written;
    <bullet> Delete the section;
    <bullet> Include this in guidance and provide for it in the 
relevant section of the OSP;
    <bullet> Delete all but the opening paragraph of the pasture 
practice standard, which should be added to the feed section;
    <bullet> We received comments that rewrote the practice standard.
    We are retaining the provision but rather than require compliance 
with all of Sec. Sec.  205.236 through 205.239, we identified the 
applicable sections, moved the paragraph up, and redesignated it as 
paragraph (b). With this rule, pasture management is tied to compliance 
with the feed requirements for ruminants and therefore these sections 
must be linked in the regulations. This section essentially requires 
producers to do several things: (1) Provide ruminants with continuous 
year-round access to pasture; (2) manage pasture to provide a minimum 
of 30 percent of a ruminant's dry matter intake, on average, over the 
course of the grazing season(s); (3) minimize the occurrence and spread 
of diseases and

[[Page 7179]]

parasites; and (4) to refrain from putting soil or water quality at 
risk. Paragraph 205.240(b) now reads: ``(b) Producers must provide 
pasture in compliance with Sec.  205.239(a)(2) and manage pasture to 
comply with the requirements of: Sec.  205.237(c)(2), to annually 
provide a minimum of 30 percent of a ruminant's dry matter intake 
(DMI), on average, over the course of the grazing season(s); Sec.  
205.238(a)(3), to minimize the occurrence and spread of diseases and 
parasites; and Sec.  205.239(e) to refrain from putting soil or water 
quality at risk.''
    Section 205.240(c) Comprehensive pasture plan--This paragraph and 
its paragraphs require producers to annually update and include a 
detailed pasture plan in the organic system plan, but when there is no 
change, the previous year's plan may be submitted. Required details are 
specified in the paragraphs that follow the opening paragraph. We 
received the following comments on (former) paragraph (b) and paragraph 
(c) of Sec.  205.240:
    <bullet> Delete both paragraphs, as they are already required as 
part of the OSP;
    <bullet> Edit the paragraph--comments are discussed in more detail 
below;
    <bullet> Combine paragraphs (b) and (c) into a single paragraph (b) 
with edits--comments are discussed in more detail below;
    Some comments recommending deletion did so because they believe 
that a comprehensive pasture plan can already be covered within a 
producer's OSP, or that if this needs to be enforced, it should be 
integrated into existing sections. Another comment supporting deletion 
was based on a statement that this requirement far exceeds that of any 
other type of producer.
    Commenters recommending combining the paragraphs with edits 
expressed the opinion that the proposed pasture practice standard 
required extensive, detailed information from producers. They stated 
that some provisions should remain ``to ensure that there is a 
comprehensive pasture plan in every ruminant livestock operation's 
organic system plan, describing their pasture management system.'' They 
also stated that the provisions regarding haymaking should be removed 
as well as those covered by pasture being classified as a crop.
    A revised, combined paragraph that was proposed would read 
(differences with proposed text are italicized): ``(b) A pasture plan 
containing at least the following information must be included in the 
producer's organic system plan, which may consist of the certifier's 
farm and livestock questionnaires, and be updated annually when any 
changes are made.''
    We received comments that suggested deleting the sentence which 
allows submitting the previous year's plan when there have been no 
changes. Another comment suggested annual updates or updates when 
significant changes are made.
    We disagree with the recommendations to delete this section and 
that a pasture plan is already covered within the scope of organic 
system plans. We believe this section is necessary to provide support 
for consumer expectations that animals are raised on pasture and derive 
a significant portion of their feed from a pasture-fed diet, as well as 
to enhance the enforceability of the requirement that ruminant animals 
are pastured during the grazing season.
    To minimize reporting burdens, we have retained in amended form, 
the provision that the producer may resubmit the previous year pasture 
plan when no changes have occurred. Under Sec.  205.400(f)(2), 
producers are already required to immediately notify the certifying 
agent concerning any changes that may affect the operation's compliance 
with OFPA and the NOP regulations, and we are modifying Sec.  
205.240(c) to remind producers and certifying agents of this 
requirement. This requirement makes clear that changes that could 
affect the operation's compliance must be cleared through the 
operation's certifying agent. This will help protect producers from 
making mid-year changes to their pasture plan which might result in 
enforcement action against the operation's certification.
    We disagree with comments that would allow producers to submit 
revisions to pasture plans that consist of ``the certifier's farm and 
livestock questionnaires.'' Since administering this program, we have 
observed that questionnaires used by certifying agents often do not 
require sufficient detail to allow for enforcement when necessary. 
Therefore, the producer must provide the certifying agent with a 
separate pasture plan document that fully addresses the requirements of 
Sec. Sec.  205.240(c)(1) through (8), as specified in this action. 
Alternatively, an operation's pasture plan may consist of a pasture/
rangeland plan developed in cooperation with a Federal, State, or local 
conservation office, provided that such plan addresses all of the 
requirements of Sec.  205.240(c). This is consistent with Sec.  
205.201(b) which allows producers to substitute a plan that meets 
requirements of another Federal, State, or local government regulatory 
program for the organic system plan, provided the submitted plan meets 
all the requirements of subpart C.
    We have combined paragraphs (b) and (c) into a new paragraph (c). 
To reflect the comments received, paragraph (c) now reads: ``(c) A 
pasture plan must be included in the producer's organic system plan, 
and be updated annually in accordance with Sec.  205.406(a). The 
producer may resubmit the previous year's pasture plan when no changes 
have occurred. The pasture plan may consist of a pasture/rangeland plan 
developed in cooperation with a Federal, State, or local conservation 
office: Provided, That, the submitted plan addresses all of the 
requirements of Sec. Sec.  205.240(c)(1) through (8). When a change to 
an approved pasture plan is contemplated, which may affect the 
operation's compliance with the Act or the regulations in this part, 
the producer shall seek the certifying agent's agreement on the change 
prior to implementation. The pasture plan shall include a description 
of the: * * *''
    Section 205.240(c)(1) Crops in pasture and haymaking system--This 
proposed paragraph required a description of the crops to be grown in 
the pasture and haymaking system. In addition to those who recommended 
deleting the overall comprehensive pasture plan, a few recommended 
deleting this paragraph. Another comment recommended removing the 
reference to the haymaking system. Some commenters recommended amending 
the text to acknowledge the feed requirements of Sec.  205.237. These 
commenters wrote that this language defines what needs to be in the 
pasture plan and emphasized that pasture must meet all the requirements 
of the livestock feed section. This recommendation was supported by 
additional comments.
    We agree that the feed requirements should be specifically 
acknowledged and have incorporated the suggested language. We have 
replaced the requirement to describe the pasture crops and haymaking 
system with the requirement to describe the type of pasture. The 
organic system plan already covers descriptions of pasture plantings 
and haymaking and, therefore, it is not necessary to incorporate those 
specific requirements here.
    Section 205.240(c)(2) Cultural practices--This proposed paragraph 
required a description of the cultural practices about crops, to ensure 
pasture is available to graze, and to provide all ruminants with a 
minimum of 30 percent, on average, of their DMI from grazing throughout 
the grazing season. In addition to those who recommended

[[Page 7180]]

the deletion of this paragraph, some expressed opposition to the 
paragraph because of the 30 percent DMI requirement. While many 
commenters expressed support for the 30 percent DMI requirement, one 
comment with numerous signatures expressed support for all of Sec.  
205.240(c)(2) as did numerous other commenters. In addition to the 
supporters of the paragraph, others recommended edits. One of the 
commenters recommended that Sec.  205.240(c)(2) be amended to provide 
an exemption from the 30 percent DMI for beef cattle in the finishing 
stage during the grazing season. Other commenters suggested that Sec.  
205.240(c)(2) be redesignated as Sec.  205.240(b)(2) and edited to 
include periods of time when animals may be denied access to the 
outdoors and not subject to the 30 percent DMI requirement, and to 
strike the language related to crops and their maturity dates. This 
comment also replaced growing season with grazing season. This 
recommendation was supported by additional commenters.
    We accepted most of the last recommendation discussed immediately 
above, with the exception of redesignating this provision as Sec.  
205.240(b)(2), and modified the paragraph to cite a reference to 
Sec. Sec.  205.239(c)(1) through (3), which address exemptions for 
denying ruminants pasture. Paragraph 205.239(c)(4) is the exemption 
which allows dairy ruminants to be off pasture for milking and is not 
included because producers are expected to keep animals on pasture long 
enough each day throughout the grazing season to assure that animals 
derive an average of 30 percent of their DMI from pasture grazed 
throughout the grazing season. As stated in this paragraph, milking 
must be scheduled in a manner to ensure sufficient grazing time to 
provide each animal with an average DMI from grazing of at least 30 
percent throughout the grazing season. This paragraph also states that 
milking frequencies or duration practices cannot be used to deny dairy 
animals pasture.
    We amended Sec.  205.240(c)(2) by removing the specific cultural 
practices that producers would be required to utilize, and document in 
the pasture plan, to meet the 30 percent DMI requirement, and including 
the phrase, ``management practices''. We believe that the producers and 
certifying agents can determine what cultural and management practices 
will ensure sufficient pasture, and the level of detail with which 
these should be described in the pasture plan. We have addressed 
comments that oppose the 30 percent DMI requirement above.
    Section 205.240(c)(3) Haymaking system--As proposed Sec.  
205.240(c)(3) required a description of the haymaking system. Some 
commenters requested deleting the paragraph, stating the haymaking 
system is not necessary for a pasture plan and its description can be 
found elsewhere in the operation's organic system plan. Their 
recommendation was supported by additional comments.
    We agree that a haymaking system is not necessary to the pasture 
plan. However, an organic system plan according to Sec.  205.201(a), 
must include a description of practices and producers, monitoring 
practices and procedures, as well as a list of each substance used as a 
production or handling input. Therefore, to be complete, the organic 
system plan should address the operation's haymaking system. 
Accordingly, we have deleted proposed Sec.  205.240(c)(3).
    Section 205.240(c)(3) New Paragraph--Regional grazing season 
identified--We received comments that suggested adding a new paragraph 
to require the pasture plan include a description of the grazing 
season. These commenters wrote that if the grazing season is the basis 
of the pasture plan, a clear description of the grazing season expected 
for the operation is an essential part of the pasture plan. Their 
recommendation was supported by additional commenters. Commenters also 
stated that ruminant animals are raised in a multitude of ecosystems 
where the environmental factors influence the grazing season starting 
and ending dates as well as whether the dates are contiguous.
    We agree that the pasture plan must include a description of the 
grazing season that clearly defines the duration of the grazing season 
and times of the year when the operation's ruminant animals must be 
feeding on pasture. We have concerns, however, that without more 
specificity, some producers might try to create their own 
identification of the grazing season rather than identifying the 
grazing season for the region within which the operation is located, or 
only graze for the minimum 120 days when the regional grazing season 
would be longer. Therefore, we are accepting the recommendation and 
redesignating it as a new Sec.  205.240(c)(3). But we are modifying the 
language to make clear that the producer is expected to describe the 
grazing season for the operation's regional location. This should be 
relatively simple inasmuch as many well-developed models for regionally 
appropriate grazing plans already exist that producers and certifying 
agents can readily obtain to determine the grazing season to 
incorporate into the pasture plan. To be in compliance with subpart E 
and the certifying agent's accreditation, the certifying agent must 
determine that the grazing season used in the pasture plan is 
representative of the grazing season for the producer's geographical 
location.
    Section 205.240(c)(4) Location of pasture--This proposed paragraph 
required a description of the location of pasture and haymaking fields, 
including maps showing the pasture and haymaking system and giving each 
field its own identity. Some commenters suggested amendments to remove 
references to haymaking fields and haymaking system. This 
recommendation was supported by additional commenters. Most of the 
commenters suggested that the provision be rewritten to read: ``The 
location of pastures, including maps giving each field its own 
identity.'' This recommendation was supported by additional commenters. 
One commenter suggested the same rewrite but retained the word 
``fields'' rather than ``pasture.'' Another suggested the same language 
as the above comment, but changed ``identity'' to ``identification.''
    We agree with the suggestion to remove the references to haymaking, 
for consistency with removal elsewhere in this section and because we 
agree it is unnecessary in a pasture plan. We also agree with changing 
``identity'' to ``identification'' since this more appropriately 
conveys how pasture is readily identified. These commenters recognized 
the importance of the pasture plan showing where the pastures are 
located and their size which will enable the certifying agent to assess 
the livestock carrying capacity of the pasture. We have accepted the 
suggested rewrite with two changes. We are changing the word ``field'' 
to ``pasture'' and inserting the words ``and size.''
    Section 205.240(c)(6) Fencing--This proposed paragraph required a 
description of the location and type of fences and the location and 
source of shade and water. We received the following comments 
specifically addressing this paragraph:
    <bullet> Insert language that excludes temporary fences from this 
requirement, because in some grazing systems temporary fences are 
frequently moved;
    <bullet> Edit the paragraph to acknowledge temporary fencing, and 
the location and source of shade;
    <bullet> Keep the proposed language but add language that ties the 
paragraph to livestock living conditions;

[[Page 7181]]

    <bullet> Keep the proposed language, tie the paragraph to livestock 
living conditions, and acknowledge that fencing may be impractical on 
some lands, by making the paragraph subject to the OSP as it relates to 
beef cattle grazing on lands such as BLM, National Forest and ranch 
meadows and grasslands where fencing is impractical and not 
economically feasible.
    Because producers will describe the grazing methods used within the 
pasture system as a result of changes to Sec.  205.240(c)(5), we agree 
with excluding temporary fences from this requirement. We also agree 
with requiring a description of the location and sources of shade to 
ensure compliance with Sec.  205.239(a)(1). We believe these amendments 
make the other suggested changes unnecessary.
    Section 205.240(c)(7) Soil fertility--This paragraph required a 
description of the soil fertility, seeding, and crop rotation systems. 
We received comments specifically addressing this paragraph. One 
questioned its applicability to rangeland; another suggested deleting 
the paragraph. A few recommended adding ``as necessary and as described 
in the OSP'' at the end of the paragraph. The other comments 
recommended retaining the paragraph as written, and their 
recommendation was supported by additional commenters. However, in the 
earlier discussion of Sec.  205.240(a) we amended paragraph (a) to 
eliminate the crop rotation requirement because pasture/rangeland is 
not typically subjected to crop rotation.
    To prevent duplication of effort in the crop rotation reporting 
requirements, we removed the requirement for crop rotation system 
within the pasture plan.
    Section 205.240(c)(8) Pest, weed, disease control--This proposed 
paragraph required a description of the pest, weed, and disease control 
practices. Some commenters specifically addressed this paragraph. One 
suggested no change, while others recommended adding ``as necessary and 
as described in the OSP'' to the end of the paragraph. The remaining 
commenters who specifically addressed the paragraph, recommended 
deleting this paragraph because these practices should be addressed 
elsewhere in the organic system plan. This recommendation was supported 
by additional commenters.
    Because we are requiring producers to manage pasture as a crop we 
expect them to address their pest, weed, and disease practices. But we 
agree that producers are already required to describe these practices 
for all crops, including pasture, elsewhere in their organic system 
plan. To prevent duplication of effort in the pest, weed, and disease 
reporting requirements, we have deleted proposed Sec.  205.240(c)(8).
    Section 205.240(c)(9) Erosion control--This paragraph required a 
description of the erosion control and protection of natural wetlands, 
riparian areas, and soil and water quality practices. We received 
comments specifically addressing this paragraph:
    <bullet> No change--keep the paragraph as written;
    <bullet> Add ``as necessary and as described in the OSP'' to the 
end of the paragraph;
    <bullet> We received a comment that supported the paragraph and 
elaborated on the environmental and soil sustainability requirements;
    <bullet> Remove the paragraph, because these practices should be 
addressed elsewhere in the organic system plan.
    We disagree that the requirements in the proposed paragraph are 
addressed elsewhere in the organic system plan. Section 205.203(a) 
requires the producer to select and implement tillage and cultivation 
practices that minimize soil erosion. However, pastures are not 
typically tilled or cultivated. Section 205.205(d) requires the 
producer's crop rotation practices to provide erosion control. However, 
pastures are not typically subjected to crop rotation. Thus, it might 
be argued that the provision does not apply to pasture. In 
administering this program, we have observed acreage certified as 
pasture that did not qualify as pasture and managed in a way that did 
not control for erosion and did not protect soil and water quality. 
Therefore we are retaining the erosion control practices provision. 
This will clarify for producers, inspectors, and certifying agents that 
producers must provide for erosion control in the management of their 
pastures.
    The commenter addressing the environmental and soil sustainability 
requirements of the proposed rule wrote ``that such regulations are in 
compliance with the original intent of the organic standard and OFPA to 
be environmentally sustainable and conscious.'' We agree. Commenting on 
the environmental and soil sustainability provisions of the pasture 
plan, this commenter stated ``This requirement dovetails with and 
strengthens the existing regulations mandating that organic operations 
conserve biodiversity.'' In referencing the existing regulations, the 
commenter was referring to the final rule preamble language addressing 
conservation of biodiversity (65 FR 80563 Thursday, December 21, 2000) 
and the definition of ``organic production'' (65 FR 80640 Thursday, 
December 21, 2000). This final paragraph requires the producer to 
describe the operation's pasture management practices for the 
protection of natural wetlands, riparian areas, and soil and water 
quality. This requirement is consistent with the definition of organic 
production and the intent of the standards that producers be good 
stewards of the environment.
    We are retaining the protection of natural wetlands and riparian 
areas practices provision. This will clarify for producers, inspectors, 
and certifying agents that producers must provide protection of natural 
wetlands and riparian areas in the management of their pastures.
    We have included in Sec.  205.239 the requirement that organic 
livestock producers manage outdoor access areas, including pastures, in 
a manner that does not put soil or water quality at risk. We expect 
producers to address their soil and water quality protection practices 
in their organic system plan. To prevent duplication in reporting 
requirements, we have removed the reference to soil and water quality 
in this paragraph.
    Section 205.240(c)(10) Sustainability practices--This proposed 
paragraph required a description of the pasture and soil sustainability 
practices. We received the following comments:
    <bullet> Make no change;
    <bullet> Add ``as necessary and as described in the OSP'' to the 
end of the paragraph;
    <bullet> Remove the paragraph because the meaning is unclear.
    We removed the proposed paragraph. We now view this requirement as 
unnecessary based on the requirement that pasture be managed as a crop 
in compliance with the applicable crop production standards and that 
the pasture plan requires a description of the grazing methods used, 
soil fertility and seeding systems, and erosion control practices. 
Taken together these requirements plus the definition of pasture should 
ensure that the pastures and their soils are sustainably managed.
    Section 205.240(c)(11) Restoration of pasture--This proposed 
paragraph required a description of the restoration of pasture 
practices. We received comments which specifically addressed this 
paragraph. Many comments agreed that restoration should be required 
only when necessary, but added the requirement be described in the OSP 
as well. The remaining comments which specifically addressed the 
paragraph recommended removal because the requirement should be 
addressed elsewhere in the organic system plan.
    To prevent duplication in reporting requirements, we removed the 
proposed paragraph. Producers are required to

[[Page 7182]]

include a description of the grazing methods used, soil fertility and 
seeding systems, and erosion control practices in the pasture plan. 
Taken together these requirements plus the definition of pasture should 
ensure that the pastures and their soils are sustainably managed. A 
detailed description of these practices also would provide information 
on the restoration of pastures as necessary.
    Section 205.240(d) Sacrificial pasture--This proposed paragraph 
required producers to set aside a portion of their pasture as 
sacrificial pasture and to describe that pasture within their pasture 
plan. We received many comments on this paragraph:
    <bullet> The majority of comments supported the use of sacrificial 
pastures but requested that their use be encouraged rather than 
mandatory;
    <bullet> We received comments that supported as written;
    <bullet> Expand the paragraph to include outdoor access in the non-
grazing season;
    <bullet> Include an allowance for the temporary housing of young 
stock as predator control;
    <bullet> 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;
    <bullet> Many comments simply expressed concerns based on soil, 
weather, and topographical conditions, or water quality implications;
    <bullet> We received several comments simply opposing the 
requirement altogether.
    Commenters wrote that not all operations have land that can meet 
the requirement for a sacrificial pasture. One of the commenters 
suggested that producers unable to include a sacrificial pasture in 
their comprehensive pasture plan be required to provide a brief 
description citing the reasons and including details on how they will 
ensure that animals receive more than 120 days on pasture and 30 
percent dry matter intake from pasture. Some commenters recommended 
that the provision be amended to read: ``The pasture system may include 
a sacrificial pasture, for grazing, to protect the other pastures from 
excessive damage during periods when saturated soil conditions render 
the pasture(s) too wet for animals to graze; and for outdoor access in 
the non-grazing season.'' [Emphasis added] Opposition to the required 
use of sacrificial pastures was based on the lack of suitable land and 
concern for pasture damage, animal health and safety, and the potential 
impacts on soil and water quality.
    Our purpose in proposing this requirement in this action is related 
to our observation in administering this program that minimal amounts 
of rainfall have been used to deny access to pasture based on claims 
that these wet conditions are detrimental to the pasture and the health 
and well being of the animals. Further, we have observed approval for 
producers to include, in their organic system plan, a blanket denial of 
access to pasture for any or all rain events. As we remind producers 
and agents in this final action on the definition of inclement weather, 
not all rain events are of a nature necessitating that animals be kept 
off pasture. Certifying agents must not approve an organic system plan 
that includes a blanket denial of access to pasture due to rain. As two 
soil and crop scientist commenters pointed out, ``Many soils, even when 
saturated, are not subject to `excessive damage' from grazing livestock 
due to soil texture (sand) and good ground cover.'' Certifying agents 
must be diligent in assuring that producers have adequate justification 
for denying ruminant animals access to pasture due to a rain event and 
that such justification is documented within the organic system plan.
    We acknowledge that not all soil structure and topography is 
compatible with the use of a sacrificial pasture concept. We further 
acknowledge that their required use, in some locations, could violate 
regional water quality regulations. Rather than expand this paragraph 
to include outdoor access in the non-grazing season, as some commenters 
suggested, this final rule allows for yards, feeding pads and feedlots 
to serve this purpose. Most of the commenters have sought retention of 
the sacrificial pasture provision, but only as an option available to 
producers. We agree that producers should determine whether a 
sacrificial pasture is suitable to the conditions of their operation. 
We deleted the mandatory sacrificial pasture requirement, but this does 
not preclude a producer from using this feature. However, it is 
unnecessary to provide for the optional use of sacrificial pastures in 
this regulation, therefore we have removed the definition of 
sacrificial pasture and Sec.  205.240(d) as discussed above.

Pasture Practice Standard--Changes Not Made

    Section 205.240(c)(5) Grazing methods--This proposed paragraph 
required a description of the types of grazing methods to be used in 
the pasture system. Commenters who specifically addressed this 
paragraph all supported retention as written.
    We made no changes to this Sec.  205.240(c)(5) because grazing 
methods are fundamental in demonstrating how a producer intends to meet 
the requirements of this final rule. This paragraph is finalized as 
proposed.

Temporary Variances (Sec.  205.290)

Temporary Variances--Changes Requested But Not Made
    Under the final NOP regulation, published December 21, 2000 (65 FR 
80548), Sec.  205.290(a) authorized temporary variances from the 
requirements in Sec. Sec.  205.236 through 205.239 related to the 
livestock practice standard. In the proposed rule, we proposed amending 
Sec.  205.290(a) to include proposed Sec.  205.240.
    We received some comments on the proposed amendment to Sec.  
205.290(a); most supported as proposed, 1 commenter opposed because 
they opposed publication of Sec.  205.240. This action retains Sec.  
205.240 in amended form as explained in the beginning of the above 
discussion on the pasture practice standard. Accordingly, we have 
amended Sec.  205.290(a) by changing the provision to include Sec.  
205.240.

OMB Control Number (Sec.  205.690)

OMB Control Number--Changes Based on Comments
    Section 205.690 lists the Office of Management and Budget (OMB) 
control number assigned to the information collection requirements in 
this part by the OMB pursuant to the Paperwork Reduction Act of 1995, 
44 U.S.C. Chapter 35, as 0581-0181. This number was listed incorrectly 
in the final regulations published December 21, 2000 (65 FR 80548). The 
correct number is 0581-0191.
    We received at least 2 comments on the proposed correction to Sec.  
205.290(a); both supported the correction. Accordingly, this action 
amends Sec.  205.690 to correct the OMB control number. Section 205.690 
reads: ``The control number assigned to the information collection 
requirements in this part by Office of Management and Budget pursuant 
to the Paperwork Reduction Act of 1995, 44 U.S.C. Chapter 35, is OMB 
number 0581-0191.''

A. Executive Order 12988

    Executive Order 12988 instructs each executive agency to adhere to 
certain requirements in the development of new and revised regulations 
in order to avoid unduly burdening the court system. This final rule is 
not intended to have a retroactive effect.

[[Page 7183]]

    States and local jurisdictions are preempted under the OFPA from 
creating programs of accreditation for private persons or State 
officials who want to become certifying agents of organic farms or 
handling operations. A governing State official would have to apply to 
USDA to be accredited as a certifying agent, as described in paragraph 
2115(b) of the OFPA (7 U.S.C. 6514(b)). States are also preempted under 
Sec. Sec.  2104 through 2108 of the OFPA (7 U.S.C. 6503 through 6507) 
from creating certification programs to certify organic farms or 
handling operations unless the State programs have been submitted to, 
and approved by, the Secretary as meeting the requirements of the OFPA.
    Pursuant to paragraph 2108(b)(2) of the OFPA (7 U.S.C. 6507(b)(2)), 
a State organic certification program may contain additional 
requirements for the production and handling of organically produced 
agricultural products that are produced in the State and for the 
certification of organic farm and handling operations located within 
the State under certain circumstances. Such additional requirements 
must: (a) Further the purposes of the OFPA, (b) not be inconsistent 
with the OFPA, (c) not be discriminatory toward agricultural 
commodities organically produced in other States, and (d) not be 
effective until approved by the Secretary.
    Pursuant to paragraph 2120(f) of the OFPA (7 U.S.C. 6519(f)), this 
final rule would not alter the authority of the Secretary under the 
Federal Meat Inspection Act (21 U.S.C. 601 et seq.), the Poultry 
Products Inspections Act (21 U.S.C. 451 et seq.), or the Egg Products 
Inspection Act (21 U.S.C. 1031 et seq.), concerning meat, poultry, and 
egg products, nor any of the authorities of the Secretary of Health and 
Human Services under the Federal Food, Drug and Cosmetic Act (21 U.S.C. 
301 et seq.), nor the authority of the Administrator of the 
Environmental Protection Agency (EPA) under the Federal Insecticide, 
Fungicide and Rodenticide Act (7 U.S.C. 136 et seq.).
    Section 2121 of the OFPA (7 U.S.C. 6520) provides for the Secretary 
to establish an expedited administrative appeals procedure under which 
persons may appeal an action of the Secretary, the applicable governing 
State official, or a certifying agent under this title that adversely 
affects such person or is inconsistent with the organic certification 
program established under this title. The OFPA also provides that the 
U.S. District Court for the district in which a person is located has 
jurisdiction to review the Secretary's decision.

B. Executive Order 12866

    This action has been determined significant for purposes of 
Executive Order 12866, and therefore, has been reviewed by the Office 
of Management and Budget. Executive Order 12866 requires the agency to 
consider alternatives to this rulemaking and the benefits and costs of 
this rule.

Need for the Rule

    AMS has determined that current regulations regarding access to 
pasture and the contribution of grazing to the diet of organically 
raised ruminant livestock lack sufficient specificity and clarity to 
enable AMS to efficiently administer the Program. The current 
provisions in the regulations regarding access to pasture and 
conditions warranting temporary confinement are too general. This has 
resulted in significant variations in practice.
    For example, ``Stage of production,'' as a limited exception for 
temporary confinement, was included in the NOP final rule, but without 
specifying the circumstances under which the exception would be 
warranted. The final rule was promulgated with the clear expectation of 
future NOP and NOSB collaboration to provide specificity regarding the 
above provisions. However, the final rule was also promulgated with the 
expectation that a pasture-based system would play a prominent role in 
feeding ruminant livestock.
    In February 2005, the NOSB reengaged in the discussion that began 
prior to the publication of the NOP final rule, concerning the pasture 
requirements and delivered a recommendation for greater specificity of 
the pasturing requirements. The NOSB process for the development of 
recommendations consists of: (1) Identification of a need by members of 
the public, the NOSB, or the NOP; (2) development of a draft NOSB 
recommendation; (3) public meeting notice published by the NOP on its 
Web site and in the Federal Register; (4) solicitation of public 
comments on the recommendation through regulations.gov and at the 
NOSB's public meetings; (5) finalization of the recommendation; (6) 
NOSB approval of the recommendation; and (7) NOSB referral to the 
Secretary for the Secretary's consideration and any appropriate action 
(e.g., rulemaking, policy development, guidance).
    In 2005, the NOSB referred a recommendation to the Secretary that 
consisted of proposed regulatory changes and guidance on the 
interpretation of ``access to pasture.'' The regulatory changes 
contained 2 components: (i) Replace ``access to pasture'' with 
``ruminant animals grazing pasture during the growing season;'' and, 
(ii) permit exceptions to the pasturing requirement for birthing, dairy 
animals up to 6 months of age, and beef animals during the final 
finishing stage--not to exceed 120 days with the provision that 
lactation of dairy animals is not a stage of life that may be used to 
deny pasture for grazing.
    The NOSB also asked NOP to issue guidance stating that producers 
should develop organic system plans with the goal of providing not less 
than 30 percent dry matter intake (DMI) from grazed feed during the 
growing season and not less than 120 days. It further clarified the 
existing provisions for temporary confinement and noted the regional 
Natural Resources Conservation Service (NRCS) Conservation Practice 
Standards for Prescribed Grazing (Code 528) as the tool for determining 
appropriate pasture conditions.
    The 30 percent DMI from grazing figure was recommended to the NOSB 
by dairy producers through public testimony at NOSB meetings. The 
choice of 30 percent was based on producer collaboration on the minimum 
amount of grazing that is necessary for ruminants to obtain feed value 
from the grazing of pasture.
    When the NOSB recommendation was finalized in 2005, AMS had 
received 5 complaints alleging violations of pasture provisions on 
certified organic operations. In part, these resulted from OSPs dealing 
with livestock management that reflected varying application of 
existing regulations and interpretations of requirements across 
accredited certifying agents (ACAs). ``Temporary'' confinement 
exceptions, for example, have been granted for lactation and brief 
periods of moderate rainfall which do not warrant confinement. AMS, 
therefore, initiated the rulemaking process for comprehensive 
regulatory changes to ensure that compliance with pasture provisions 
would be readily discernable.
    On April 13, 2006, NOP published an Advanced Notice of Proposed 
Rulemaking (ANPR) (71 FR 19131) seeking input on the role of pasture in 
the NOP regulations and what parts of the NOP regulations should be 
amended to address the role of pasture in organic livestock management. 
Over 80,500 comments, nearly all from consumers, were received on the 
ANPR. Support for strict standards and greater detail on the role of 
pasture in organic livestock

[[Page 7184]]

production was nearly unanimous with consumers requesting regulations 
that would clearly establish grazing as a primary source of 
nourishment. Organic consumers have clearly stated in comments that 
they expect organic ruminants to graze pasture and receive not less 
than 30 percent of their DMI needs from grazing.
    On October 24, 2008, the NOP published a Proposed Rule on Access to 
Pasture (Livestock) (PR) (73 FR 63584). The PR proposed basic 
parameters for pasturing ruminants including that producers manage 
pasture as a crop, provide year-round access to pasture for ruminants, 
ensure an average of 30 percent DMI from pasture for all ruminants over 
the growing season, 120-days at minimum, and incorporate pasture 
practices into the OSP. The PR further stipulated a sacrificial pasture 
to maximize the amount of time livestock are outdoors and grazing 
pasture, and the fencing of all streams and other bodies of water to 
protect water quality. In the PR, the NOP sought comments on the impact 
of this standard, including the effects upon production and consumer 
prices, feed supplies and costs, the extent to which producers would 
have to change practices to comply, and whether the proposed 
information collection would be sufficient to verify compliance with 
the new provisions.
    Over 26,000 written comments were submitted in response to the 
proposed rule. In addition, 121 persons delivered oral comments during 
5 public listening sessions. Comments were received from producers, 
retailers, handlers, certifying agents, consumers, trade associations, 
organic associations, animal welfare organizations, consumer groups, 
state and local government entities, and various industry groups. More 
than 20,000 commenters commended efforts to add greater specificity for 
an enforceable standard and expressed support for the metrics as 
attainable and/or consistent with market expectations for organic 
production. These commenters endorsed that ruminant animals intake not 
less than 30 percent DMI from grazing pasture during grazing rather 
than growing season, a period which must be 120 days at minimum.
    The provisions which generated the strongest objection were 
sacrificial pasture and fencing of water bodies. Comments from 
producers and state and local regulatory agencies, warned that 
installation and maintenance costs would be exorbitant, and that in 
certain agro-systems these features would ultimately be detrimental to 
soil and water quality.
    Despite extensive public discussions about access to pasture, 
practice disparities within the livestock sector remain. At the time of 
publication of this rule, AMS has received a total of 14 complaints 
requesting enforcement actions for alleged violations of the pasture 
provisions of the NOP livestock standards. There is discontent that 
operations without the land base to afford grazing pasture for the 
entire herd throughout period of pasture growth exceed temporary 
confinement exceptions. The NOP is using information provided by 
commenters to the proposed rule and public comments at NOSB meetings, 
and the experience of administering the NOP since 2002, to make 
clarifications to the NOP standards regarding pasture provisions. 
Absent greater specificity in the regulations, we expect the 
inconsistent application of pasturing practices to continue. While we 
recognize that the majority of organic producers adhere to practices 
consistent with the intent of the regulations, they face a disadvantage 
when consumers perceive dilution of organic standards due to the 
publicity given to operations that skirt the margins of the 
regulations.

Regulatory Objective

    The purpose in amending the NOP regulations is to make clear what 
access to pasture and grazing mean under the NOP. A stated purpose of 
the OFPA (7 U.S.C. 6501) is to assure consumers that organically 
produced products meet a consistent and uniform standard. This action 
is being taken to facilitate and improve compliance and enforcement and 
satisfy consumer expectations that ruminant livestock animals are 
grazing pastures and that pastures are managed to support grazing 
throughout the grazing season. Sufficient specificity and clarity will 
bring uniformity in application of the livestock regulations and enable 
certifying agents and producers to assess compliance. The amendments 
set minimal objectives which align with consumer expectations and 
producer perspectives. Producers can select measures suitable to the 
conditions of their operation, regardless of size or location, to meet 
and exceed the requirements.

Alternatives Considered

    Alternatives to this rulemaking are to: (1) Make no changes to the 
existing regulations; (2) adopt a stocking rate of 3 ruminants per 
acre; or (3) adopt a minimum pasturing period, such as 120 days as 
recommended by the NOSB and supported by many public comments.
    Alternative one is make no changes to the existing regulations. 
This option would result in continued dissatisfaction and confusion 
among consumers, producers, and certifying agents in the organic 
community and would not resolve the inconsistent application of pasture 
practices. This option would also continue to pose difficulty in 
enforcement of the existing regulations by certifying agents who are 
seeking greater regulatory certainty in these pasture provisions. This 
rulemaking was requested by consumers, producers, and certifying agents 
to provide uniformity in application of livestock regulations by 
requiring that all organic ruminant livestock graze pasture throughout 
the grazing season. Support for enforceable standards with greater 
clarity for the role of pasture in organic livestock production 
strongly outweighed opposing views.
    Some commenters stated that the amendments, or portions of, are too 
prescriptive and that the current regulations have sufficient detail 
for compliance and enforcement. Some advised introducing specifications 
via guidance. However, guidance is not an effective resolution because 
it leaves certifiers without a firm basis to defend legitimate adverse 
certification decisions. The number of complaints calling for 
enforcement actions resulting from the current inconsistent application 
of the pasture provisions among the ACAs is evidence of the need for 
regulations to facilitate enforcement. We believe that the public 
rulemaking process is the proper means to add the expected specificity 
to the regulations. The current livestock provisions need additional 
specificity to assist ACAs with assuring the consistent standard 
purpose of the OFPA.
    A second alternative is to adopt a 3-ruminants-per-acre stocking 
rate measure as suggested by some commenters. Commenters suggested 
regulatory language that would set pasture stocking rates of no more 
than and preferably less than, three ruminants per acre, in order to 
meet combined feed intake and ecological goals that would be easily 
verifiable. Some commenters suggested a set ratio for animal units/
acre, and some suggested that the ratio on an individual operation be 
determined by the operation and certifying agent.
    Neither stocking rate nor animal units/acre would achieve the goal 
of ensuring that ruminants graze pasture at a level sufficient to 
provide an average of not less than 30 percent of each animal's daily 
dry matter needs during the growing season. Nor would it assure that 
ruminants graze pasture throughout the growing season. These comments 
do

[[Page 7185]]

not appear to consider what would be the appropriate stocking rate for 
the diverse species of ruminants (e.g., buffalo, bison, cattle, goats, 
or sheep).
    The provisions of this rule inherently require that each operation 
maintain an appropriate stocking rate for equilibrium between pasture 
quantity, quality and grazing animals. Due to the broad range of 
pasture types and grazing strategies available to producers, stocking 
rates will vary from pasture to pasture and within pastures and must be 
determined in the context of each operation. A mandatory nationwide 
stocking rate has significant drawbacks. Prescribing 3 ruminants per 
acre stocking rate, or any set stocking rate, will result in 
overgrazing of poor quality pastures, erosion and nutrient runoff. If 
pasture and grazing management is poor, ruminants will not obtain any 
significant amount of feed intake from pasture. Further, a stocking 
rate would be detrimental to operations where pastures are managed to 
support a higher grazing density without adverse ecological 
consequences.
    The producer, in cooperation with the ACA, has the discretion to 
determine the stocking rate to conform to the carrying capacity of the 
pasture. The requirements to manage pasture as a crop in compliance 
Sec. Sec.  205.202, 205.203(d) and (e), 205.204, and 205.206(b) through 
(f), will prevent operations from exceeding carrying capacity.
    Further, the NOP standard is a global standard, and producers can 
apply for certification to this standard in any country for which they 
may be eligible to comply and achieve certification. Even if we could 
set an ideal stocking rate suitable for terrain in the United States, 
such rate would unlikely be suitable on a global scale.
    A third alternative is to adopt the 120 day minimum pasturing 
period as recommended by the NOSB. This recommendation was the 
culmination of NOSB discussion on access to pasture, which began prior 
to the publication of the NOP final rule and was developed with public 
input. The NOSB recommendation also advised that each OSP maximize 
pasture, setting a target of not less than 30 percent DMI from grazed 
feed on an average daily basis during the pasturing period. The choice 
of 120 days was based on producer knowledge of the minimum period when 
pasture is actively growing and suitable for grazing. The 30 percent 
DMI was based upon the metric by which a dairy operation would qualify 
as a grazing system in several traditional dairy production areas in 
the United States.
    The proposed rule expanded the NOSB recommendation by inserting the 
requirement for year-round access to pasture. Due to the number of 
comments that convincingly explained how this could jeopardize animal 
welfare and threaten soil and water quality, we have withdrawn that 
requirement. This final rule aligns closely to the NOSB recommendation 
in terms of the amount of time on pasture and minimum DMI, but is more 
thorough in delineating the exceptions to those provisions.
    The NOSB recommendation also attempted to identify under what 
conditions temporary confinement would be permitted. This final rule 
stipulates all of the circumstances that would permit confinement or 
shelter. These narrow exceptions consider, foremost, the health and 
welfare of the animals as well as the production needs that are unique 
to certain types of ruminants. The specifications permit ACA and 
producer discretion, but will prevent abuse of exceptions especially 
for inclement weather and stage of life.
    This final rule incorporates the NOSB recommended exception 
authorizing temporary confinement (up to 120 days) for the finish 
feeding of organic slaughter stock. However, we added an additional 
requirement to that exception to prohibit confinement without access to 
pasture during the finishing period. Without such an additional 
criterion, the finishing period for organic slaughter stock would 
permit practices that consumers have adamantly opposed. We acknowledge 
that finish feeding necessitates the use of a yard, feeding pad, or 
feedlots to provide the finish feed ration, but are also aware that the 
term feedlot may be thought of in a pejorative sense. Therefore, we 
have included an additional criterion to enable these features to be 
used in a manner that is consistent with organic production.

Baseline

    The 2007 Census of Agriculture (Census) provides a glimpse into 
official data on the U.S. organic sector, which is to be followed up in 
2010 with more detailed reports. In addition, we have data provided by 
a 2005 Agricultural Research Management (ARM) survey of ACAs conducted 
by the Economic Research Service (ERS), specifically related to the 
organic dairy sectors. We also have some data reported to the NOP from 
certifying agents, as ACAs must annually report certain information 
concerning the operations they certified in the previous year, but the 
database created from this information is not yet fully queriable 
beyond its ability to tell us the total number of certified operations.
    According to the Census, in 2007, there were approximately 2.6 
million acres in organic production on over 20,400 farms. Of this 
total, approximately 1.3 million acres were used for crop production 
and the rest was either in pasture or being converted to pasture. The 
total number of farms raising pasture or converting land to certified 
pasture was reported at 19,601 out of the 20,400 farms--clearly, most 
farms are engaged in using land for both crops and pasture according to 
the Census. Farms reporting organic crop production totaled 16,778, 
which aligns closely with numbers reported by ACAs to NOP for annually 
certified operations.
    Also according to the Census, farms reporting production of organic 
livestock and poultry totaled just under 2,500 and 90 percent of those 
had sales below $50,000; there were around 250 farms with sales above 
$50,000. Farms reporting value-added products of organic livestock and 
poultry totaled nearly 3,200 in 2007 and almost 40 percent 
(approximately 1,264) of these farms reported sales above $50,000 from 
livestock and poultry value-added product sales. According to ERS, 
however, dairy farmers comprised approximately half of the livestock 
and poultry farmers with value-added sales--at 1,617 of these farms.\2\ 
The Census did not break out the total livestock and poultry farms 
further, so we have no easy way of knowing exactly how many of these 
farms are engaged solely in beef ruminant slaughter production, poultry 
production, or both. Therefore, we cannot draw a detailed baseline 
about ruminant slaughter producers because of a lack of data on farm 
numbers and their distribution. Nor do we know how many dairy farmers 
there are who sell milk only to a processor, with no on-farm value-
added sales production.
---------------------------------------------------------------------------

    \2\ Census report specially tabulated for research conducted by 
ERS, November 2009. Value-added product sales include the production 
and sale of meats, milk, cheeses, etc. and sold directly by 
producers to consumers, retailers, restaurateurs, CSAs, or some 
other final buyers. McBride, William D., and Catherine Greene. 
Characteristics, Costs, and Issues for Organic Dairy Farming, USDA, 
Economic Research Service (ERS), ERR-82, (November 2009).
---------------------------------------------------------------------------

    Data from the 2005 ARM survey also shows that there were 36,113 
organic beef cows, 87,082 organic dairy cows, 58,822 unclassified cows 
and young stock, and 4,471 sheep and lambs. Not broken out in this data 
is the number of organic goats, buffalo, and bison which were lumped 
with other animals.

[[Page 7186]]

    The ARM survey reported that 86 percent of organic dairies and 62 
percent of the organic milk cows are located in the Northeast and Upper 
Midwest. Seven percent of organic dairies and organic milk cows are 
found in the Corn Belt. By contrast, 7 percent of organic dairies were 
located in the West, but these operations held a third of the organic 
milk cows. Nationally the average size of an organic dairy is 82 cows 
based on the ARM survey, with an average in the Northeast of 53 cows, 
64 in the Upper Midwest, and 381 in the West.
    The ARM Survey also reported that organic dairies averaged about 
13,600 pounds of milk per cow or a daily average of 45 pounds of milk 
per cow. Using a pay-price of $22 per hundredweight (cwt), based on the 
ARM Survey, each cow would generate approximately $2,992. Based on the 
Small Business Administration (SBA) definition of what constitutes a 
small agricultural producer (annual receipts up to $750,000), a small 
dairy is one with fewer than 251 cows. Therefore, on average, all 
organic dairy farms are small producers, but based on regional 
distributions of operations from the ARM survey, approximately 93 
percent of all organic dairies--located in the Northeast, Upper 
Midwest, and Corn Belt, are small producers. On average, organic dairy 
producers in the West do not fit into this small producer category. 
This likely reflects costs and land available to all operations--there 
is more land available at lower costs in the West, hence operations 
tend to be larger than in the East.
    In the ARM survey, producers were asked to define a pasture-based 
feeding program. They responded that a pasture-based feeding program 
provides at least half of the forage fed to milk cows during the 
grazing months, and they reported an average grazing period for 6.5 
months. The survey also reported that more than 60 percent of producers 
provided their animals with pasture that provided more than 50 percent 
of forage needs throughout the grazing season; almost 90 percent of 
operators provided at least 25 percent of animals' pasture needs 
through forage. But this also means that potentially, approximately 10 
percent of operators may need to make adjustments--to increase the 
amount of time animals spend on pasture to meet the 30 percent DMI 
during a grazing season of at least 120 days required by this final 
action.

Benefits to the Final Rule

    This final rule brings uniformity in application to the livestock 
regulations; especially as they relate to the pasturing of ruminants. 
This uniformity will create equitable, consistent performance standards 
for all ruminant livestock producers. Producers who currently operate 
based on grazing will perceive a benefit because these producers claim 
an economic disadvantage in competing with livestock operations that do 
not provide pasture. This final rule would also bring uniformity in 
application of the livestock regulations. This uniformity in 
application will allow the ACAs and AMS to administer the livestock 
regulations in a way that reflects consumer preferences regarding the 
production of organic livestock and their products. An additional 
benefit is that with uniform application of the NOP livestock 
regulations there should be a near elimination of violations of the 
pasture regulations. This will eliminate the filing of complaints 
regarding the pasturing of ruminants.
    Commenters have clearly stated that they expect organic ruminants 
to graze pasture and receive not less than 30 percent of their dry 
matter needs from grazing averaged over the grazing season. This final 
rulemaking is intended to reflect consumer expectations and producer 
perspectives. This action makes clear what access to pasture means 
under the NOP. We note that organic livestock and dairy producers have 
long been required to provide their livestock with access to pasture 
for grazing. This final rule is the result of a long discussion in 
implementing that requirement. This action should not take organic 
producers unawares and includes a 16-month implementation period.
    This action will ensure that NOP livestock production regulations 
have sufficient specificity and clarity to enable AMS and ACAs to 
efficiently administer the NOP and to facilitate and improve compliance 
and enforcement. This specificity and clarity is expected to assure 
that ACAs and producers know what constitutes compliance and will 
satisfy consumer expectations that ruminant livestock animals graze 
pastures during the grazing season. This rule also adds 2 new 
regulatory provisions, which many ruminant livestock producers already 
comply with. New regulatory provisions include: (1) The requirement 
that pastures be managed for grazing throughout the grazing season per 
Sec.  205.237(c)(2), (the pasture system must provide all ruminants 
under the OSP with an average of not less than 30 percent of their DMI 
from grazing throughout the grazing season); and (2) the requirement 
that for the grazing season, producers provide not more than an average 
of 70 percent of a ruminant's DMI from their total feed ration minus 
grazed vegetation rooted in pasture or residual forage per Sec.  
205.237(c)(1). These 2 new regulatory provisions will ensure that 
ruminants spend more time on pasture and that they receive a 
significant portion of their daily feed intake, during the grazing 
season, from grazing vegetation rooted in pasture or residual forage. 
Inconsistency in the application of the livestock regulations by 
producers and ACAs has resulted in the filing of consumer complaints 
under the NOP complaint procedures. This action provides more 
information which will contribute to producer and certifying agent 
understanding which will in turn eliminate the current inconsistent 
application of livestock regulations under the NOP. Further, since the 
NOP regulations were implemented in October 2002, we have found that 
producers need to improve their description of the practices and 
procedures they employ to comply with the livestock regulations in 
general and the pasture requirements in particular. Accordingly, this 
final rule provides greater detail about acceptable and required 
practices related to organic livestock and pasture management that will 
result in more thorough organic system plans (OSPs). The OSP commits 
the producer to a sequence of practices and procedures resulting in an 
operation that complies with every applicable provision in the 
regulations.
    By eliminating the current inconsistent application of livestock 
regulations under the NOP and improving OSPs, consumers will have the 
assurance that the organic label is applied according to clear, 
consistently implemented, standards. These standards will provide for 
the grazing of ruminants on pasture throughout the grazing season such 
that ruminants obtain feed value from the grazing of pasture and 
residual forage. This will in turn satisfy consumer expectations that 
ruminant livestock animals graze pastures during the grazing season. 
Eliminating the current inconsistent application of livestock 
regulations is expected to greatly reduce or end the filing of 
complaints which will, in turn, end the generation of negative press 
which has damaged the image of organic milk and milk products. This is 
anticipated to lead to an improved image for organic milk and milk 
products which should increase consumer confidence and result in 
increased markets for organic livestock products.

[[Page 7187]]

Costs of Final Rule

    This final rule will increase the cost of production for producers 
who currently do not pasture their ruminant animals and those producers 
who do not manage their pastures at a sufficient level to provide at 
least 30 percent DMI. New regulatory provisions include: (1) The 
requirement that pastures be managed for grazing throughout the grazing 
season per Sec.  205.237(c)(2), (the pasture system must provide all 
ruminants under the OSP with an average of not less than 30 percent of 
their DMI from grazing throughout the grazing season); and (2) the 
requirement that for the grazing season, producers provide not more 
than an average of 70 percent of a ruminant's DMI from their total feed 
ration minus grazed vegetation rooted in pasture or residual forage per 
Sec.  205.237(c)(1).
    The costs associated with complying with this rule would vary based 
on the livestock producer's current practices and the degree to which 
they conform to the amended livestock regulations. Organic dairy 
operations that confine cows and rely upon high energy feeds, but do 
not have adequate land base to pasture their livestock in accordance 
with this rule, are expected to experience increased production costs 
to come into compliance with these requirements. Likewise, organic 
finish feeding operations which continuously confine the animals, 
maintain yards/feeding pads/feedlots which are not accessible to 
pasture, and have a finish feeding period that typically exceeds 120 
days would be expected to experience a rise in production costs to come 
into compliance with this rule. Ruminant slaughter producers will need 
to accommodate finish feeding in ways that still provide animals with 
access to pasture. This may require adjustments on their part as they 
adapt their operations to provide grain outside of a confined feeding 
operation in order to meet the requirements of this regulation.
    However, we do not expect that many organic operations will incur 
significant costs in implementing this final rule. A report by USDA's 
Economic Research Service (ERS) finds: (1) More than 60 percent of 
organic milk producers reported that at least half of their total 
forage ration came from pasture during the grazing months (an average 
of 6.5 months per year); and (2) nearly 90 percent of organic dairies 
sourced at least 25 percent of their total forage ration from 
pasture.\3\ Therefore, we expect that a large majority of organic dairy 
producers will be able to comply with this regulation without 
modification to their operation, especially as the more costly 
requirements in the proposed rule--fencing of water bodies and 
sacrificial pasture--have been eliminated. Moreover, according to the 
Federation of Organic Dairy Farmers (FOOD Farmers) most ruminant 
livestock producers pasture their animals and many maximize the use of 
pasture. FOOD Farmers is a national dairy producer organization 
representing over 1,200 of the approximately 1,800 U.S. organic dairy 
producers. A comment submitted by an ACA included the results of a 
survey which the ACA distributed to its certified livestock--
predominantly dairy producers. Of the 161 survey respondents, 96 
percent indicated they currently comply or would be able to comply with 
the requirements for 30 percent dry matter intake from grazing during 
the grazing season of 120 days minimum. Therefore, while some ruminant 
livestock producers have not been providing pasture, or have 
insufficient pasture to support the size of their herd, and may need to 
obtain pasture to comply with the new regulatory provisions, we 
estimate that the number of producers who may need to obtain pasture to 
comply with the new regulatory provisions is well under 100. This 
estimate is based on our understanding that almost all of the estimated 
1,800 ruminant livestock producers are currently providing at least 
some pasture and that only a few currently lack sufficient pasture to 
graze all of their animals enough to achieve the 30 percent DMI level.
---------------------------------------------------------------------------

    \3\ McBride, William D., and Catherine Greene. Characteristics, 
Costs, and Issues for Organic Dairy Farming, USDA, Economic Research 
Service (ERS), ERR-82, November (November 2009).
---------------------------------------------------------------------------

    Ruminant livestock operations currently pasturing their animals may 
see minimal increased costs, if any. Some who already pasture their 
animals may need to improve the quality of their pastures to provide 
sufficient vegetation for grazing throughout the grazing season to meet 
the average 30 percent DMI level. The potential costs include land and 
seed for pasture. Costs associated with providing sufficient vegetation 
for grazing throughout the grazing season would include the time 
(labor) spent seeding the pastures, fuel for equipment used in seeding, 
and the cost of seed.
    Costs of pasture vary depending on location. USDA's Agricultural 
Statistics, 2008, show 2007 pasture land values per acre ranging from 
$12,100 (NJ), $2,820 (CA), $2,180 (WI), $1,370 (TX), $800 (CO), to $300 
(ND). Costs would likely be higher for certified organic pasture. 
USDA's Agricultural Statistics, 2008, show 2007 pasture land cash rents 
per acre ranging from $40 (WI), $14 (CA), $8.30 (TX), $5.50 (CO) to $2 
(NM). Again, costs would likely be higher for certified organic 
pasture. Per acre rental rates would also vary based on pasture quality 
factors. The higher the pasture quality, the more the producer may pay 
per acre, but the fewer the acres needed to comply with the 
regulations. On the other hand, some producers may not require more 
pasture at all, but instead may shift to using intensive rotational 
grazing, which is becoming the standard for grazing today. Under 
intensive grazing, producers use the same or fewer acres of land to 
graze the same or greater numbers of animals.
    Geographical location, current year growing conditions, and pasture 
conditions will influence the need for seeding. Productive well managed 
perennial grass pastures would likely not require annual seeding. Poor 
producing and poorly managed perennial grass pastures would require 
annual seeding. It is anticipated that some producers will need to 
annually plant annual crops for grazing to provide sufficient 
vegetation for grazing throughout the grazing season. This would be 
especially true for those periods during the grazing season when 
perennial grass pastures are dormant.
    Seed costs will vary depending on what is to be grown and how many 
acres are to be grown. As an example, if organic fescue is to be grown, 
the seed will cost approximately $120-130 per acre at 2009 prices.\4\ 
If organic festulolium is to be grown the seed will cost approximately 
$73 per acre at 2009 prices.\5\ Certified organic orchardgrass would 
cost approximately $65 per acre at 2009 prices.\6\ Certified organic 
ryegrass would cost approximately $76-$85 per acre at 2009 prices.\7\ 
Such costs may be offset by the benefits of using improved pasture, 
which include a lower cost of purchased feed (grains and forages) per 
hundredweight of milk or

[[Page 7188]]

meat produced, reduced forage harvest costs, and reduced veterinary 
costs.\8\
---------------------------------------------------------------------------

    \4\ The seed prices were obtained from 2 commercial seed 
suppliers because USDA does not track prices of organic seeds. Based 
upon an application rate for organic Laura Meadow fescue of 25 lbs/
acre and seed price of $240-$260/50 lbs. (as priced by Albert Lea 
Seed House and Welter Seed and Honey Company).
    \5\ This is based on an application rate for organic spring 
green festulolium of 25 lbs/acre and seed price of $145/50 lbs. 
(Albert Lea Seed House and Welter Seed and Honey Company).
    \6\ Based upon an application rate for organic Niva orchardgrass 
of 10 lbs/acre and seed price of $325/50 lbs. (Welter Seed and Honey 
Company).
    \7\ Based upon an application rate for organic Calibra perennial 
ryegrass of 25 lbs/acre and seed price of $152-$170/50 lbs. (Welter 
Seed and Honey Company and Albert Lea Seed House).
    \8\ For an example of data on reduced veterinary costs see page 
76 of Knoblauch, Wayne A., Putnam, Linda D., and Karszes, Jason. 
Dairy Farm Management Business Summary New York State 2004. Ithaca, 
New York: Cornell University, November, 2005.
---------------------------------------------------------------------------

    At the retail level, there may be increased consumer prices. For 
organic slaughter stock producers, an increase in costs might result in 
a greater volume of slaughter animals, at least in the short term, 
entering the market driving down prices. Longer term these increased 
costs could result in increased consumer prices unless the increased 
costs are offset by reductions in other costs of production. Other 
costs of production that could be expected to go down are costs 
associated with producer harvest and purchase of feed and the cost of 
herd health.
    Dairy producers not currently pasturing their animals and those not 
managing their pastures at a level sufficient to provide at least 30 
percent DMI are also expected to experience increased costs. This 
increased cost could, at least in the short term, lead to a reduced 
organic milk supply. Increased costs combined with a reduced milk 
supply might be followed by an increased pay-price to producers. Milk 
and milk product processors would be motivated to increase the pay-
price so as to both maintain existing supplies and to encourage 
expanded supplies. With increased consumer prices accompanied by 
increased pay-price to producers, some organic producers would be 
expected to expand production and additional conventional producers 
would be expected to transition to organic production. An increased 
pay-price to producers would surely result in increased consumer 
prices. Longer term increased costs should be offset, at least in part, 
by reductions in other costs of production.
    Some producers may see an overall reduction in production costs as 
a result of this rule. Operations which have an adequate land base, but 
are not optimizing the use of pasture may experience reduced feed 
costs. According to an ERS report, ``Average feed costs per cow 
declined as pasture use for dairy forage increased.'' As measured in 
that publication, organic dairies that relied on pasture for 25-49 
percent of for forage fed had feed costs of $500 less per cow than 
organic dairies that relied on pasture for 0-24 percent forage fed.\9\ 
In addition, for feed from grazing (according to the 2005 ARM Survey), 
costs per hundredweight of milk sold were eight times less expensive 
than home-grown harvested feed and ten times cheaper than purchased 
feed on organic farms.\10\ The cost savings from the substitution of 
pasturing for purchased feed will fluctuate with the price of feed. 
When the proposed rule was issued in December 2008, organic producers 
were experiencing tight feed supplies and high costs. According to AMS' 
National Organic Grain and Feedstuffs Report for October 22, 2009, the 
price of organic yellow feed corn was $5.15-$6.85/bushel, in comparison 
to $10.14 in October 2008. The price of organic feed grade soybeans was 
$17.00-$19.00/bushel compared to $21.92/bushel one year prior. Other 
costs of production that could be expected to go down are costs 
associated with producer harvest (if perennial forage crops are 
established) and purchase of feed and the cost of herd health.
---------------------------------------------------------------------------

    \9\ McBride, William D., and Catherine Greene. Characteristics, 
Costs, and Issues for Organic Dairy Farming, USDA, Economic Research 
Service (ERS), ERR-82, (November 2009).
    \10\ McBride, William D., and Catherine Greene, ``A Comparison 
of Conventional and Organic Milk Production Systems in the U.S.,'' 
Selected Paper prepared for presentation at the AAEA, Portland, 
Oregon, 2007.
---------------------------------------------------------------------------

    Livestock producers can participate in various Federal, State, and 
Local conservation programs that may assist producers with the costs of 
complying with portions of this rule. For example, certified organic 
producers and producers transitioning to organic production may be 
eligible to apply for financial and technical assistance through the 
Environmental Quality Incentive Program's National Initiative to 
support organic and transition to organic production systems. EQIP is 
administered by the NRCS.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.) 
requires agencies to consider the economic impact of each rule on small 
entities and evaluate alternatives that would accomplish the objectives 
of the rule without unduly burdening small entities or erecting 
barriers that would restrict their ability to compete in the market. 
The purpose is to fit regulatory actions to the scale of businesses 
subject to the action. Section 605 of the RFA allows an agency to 
certify a rule, in lieu of preparing an analysis, if the rulemaking is 
not expected to have a significant economic impact on a substantial 
number of small entities.
    Pursuant to the requirements set forth in the RFA, AMS performed an 
economic impact analysis on small entities in the final rule published 
in the Federal Register on December 21, 2000 (65 FR 80548). AMS has 
also considered the economic impact of this action on small entities. 
Small entities include producers and agricultural service firms, such 
as handlers and ACAs. AMS has determined that this rule will not have a 
significant economic impact on a substantial number of small entities.
    AMS notes that several requirements to complete the RFA overlap 
with the Regulatory Impact Analysis (RIA) and the Paperwork Reduction 
Act (PRA). For example, the RFA requires an analysis of a final rule's 
costs to small entities. The RIA provides an analysis of the benefits 
and cost of a final rule. Further, the RFA requires a description of 
the projected reporting and recordkeeping requirements of a final rule. 
The PRA provides an estimate of the reporting and recordkeeping 
(information collection) requirements of a final rule. In order to 
avoid duplication, we combined some analyses as allowed in section 
605(a) of the Act. The RIA in the Access to Pasture final rule provides 
summary information on the size of the domestic organic crop and 
livestock sector especially as it applies to ruminant producers who are 
the entities affected by this rulemaking action. It also provides 
information on potential costs to livestock producers who elect to 
produce organically. The RIA and PRA should be referred to for more 
detail.
    Small agricultural service firms, which include handlers and ACAs, 
have been defined by the Small Business Administration (SBA) (13 CFR 
121.201) as those having annual receipts of less than $7,000,000.
    The U.S. organic industry at the end of 2001 included nearly 6,949 
certified organic crop and livestock operations. These operations 
reported certified acreage totaling just over 2 million acres of 
organic farm production of which approximately 790 thousand acres were 
pasture and rangeland. Data on the numbers of certified organic 
handling operations (any operation that transforms raw product into 
processed products using organic ingredients) were not available at the 
time of survey in 2001; but they were estimated to be in the thousands. 
U.S. sales of organic food and beverages have grown from $1 billion in 
1990, to an estimated $12.2 billion in 2004 and $13.8 billion in 2005 
and nearly $17 billion in 2006. The organic industry is viewed as the 
fastest growing sector of agriculture, representing almost 3 percent of 
overall food and beverage sales. Since 1990, organic retail sales have 
historically demonstrated a growth rate between 20 to 24 percent each 
year, including a 22 percent increase in 2006.
    In addition, USDA has 100 ACAs who provide certification services 
to

[[Page 7189]]

producers and handlers. A complete list of names and addresses of ACAs 
may be found on the AMS NOP Web site, at http://www.ams.usda.gov/nop. 
ACAs are required to monitor the operations which they certify for 
compliance with the NOP rule, and may incur costs for educating and 
training staff to enforce this final rule. We expect these costs to be 
minimal as certifying agents are already enforcing the NOP livestock 
provisions and should have the expertise to apply the more specific 
provisions of this rule. Small agricultural producers are defined by 
the Small Business Administration (SBA) (13 CFR 121.201) as those 
having annual receipts of less than $750,000. AMS estimates that most 
of these entities would be considered small entities under the criteria 
established by the SBA. AMS believes that the impact of this rule, if 
any, on small agricultural service firms will be minor. Further, this 
final rule is not expected to have an impact on a substantial number of 
small agricultural producers.
    The 2007 Census of Agriculture (Census) provides a glimpse into 
official data on the U.S. organic sector, which is to be followed up in 
2010 with more detailed reports. In addition, we have data provided by 
a 2005 Agricultural Research Management (ARM) survey of ACAs conducted 
by the Economic Research Service (ERS), specifically related to the 
organic dairy sectors. We also have data reported to the NOP from 
certifying agents, as ACAs must report annually certain information 
concerning the operations they certified in the previous year, but the 
database created from this information is not yet fully queriable 
beyond its ability to tell us the total number of certified operations.
    According to the Census, in 2007, there were approximately 2.6 
million acres in organic production on over 20,400 farms. Of this 
total, approximately 1.3 million acres were used for organic crop 
production and the rest was either in certified organic pasture or 
being converted to pasture. The total number of farms raising pasture 
or converting land to certified pasture was reported at 19,601 out of 
the 20,400 farms--clearly, most farms are engaged in using land for 
both organic crops and pasture according to the Census. Farms reporting 
organic crop production totaled 16,778--which aligns more closely with 
numbers reported by ACAs to NOP for annually certified operations.
    Also according to the Census, farms reporting production of organic 
livestock and poultry totaled just under 2,500 and 90 percent of those 
had sales below $50,000; there were around 250 farms with sales above 
$50,000. Farms reporting value-added products of organic livestock and 
poultry totaled nearly 3,200 in 2007 and almost 40 percent of these 
farms (approximately 1,264) reported sales above $50,000 from livestock 
and poultry value-added product sales. According to ERS, however, dairy 
farmers comprised approximately half of the livestock and poultry 
farmers with value-added sales--at 1,617 of these farms.\11\ The Census 
did not break out the total livestock and poultry farms further, so we 
have no easy way of knowing exactly how many of these farms are engaged 
solely in beef ruminant slaughter production, poultry production, or 
both. Therefore, we cannot draw a detailed baseline about ruminant 
slaughter producers because of a lack of data on farm numbers and their 
distribution. Nor do we know how many dairy farmers there are who sell 
milk only to a processor, with no on-farm value-added sales production.
---------------------------------------------------------------------------

    \11\ Census report specially tabulated for research conducted by 
ERS, November 2009. Value-added product sales include the production 
and sale of meats, milk, cheeses, etc. and sold direct by producers 
to consumers, retailers, restaurateurs, CSAs, or some other final 
buyers.
---------------------------------------------------------------------------

    Data from the 2005 ARM survey also shows that there were 36,113 
organic beef cows, 87,082 organic dairy cows, 58,822 unclassified cows 
and young stock, and 4,471 sheep and lambs. Not broken out in this data 
is the number of organic goats, buffalo, and bison which were lumped 
with other animals.
    The ARM survey reported that 86 percent of organic dairies and 62 
percent of the organic milk cows are located in the Northeast and Upper 
Midwest. Seven percent of organic dairies and organic milk cows are 
found in the Corn Belt. By contrast, 7 percent of organic dairies were 
located in the West, but these operations held a third of the organic 
milk cows. Nationally the average size of an organic dairy is 82 cows 
based on the ARM survey, with an average in the Northeast of 53 cows, 
64 in the Upper Midwest, and 381 in the West.
    The ARM Survey also reported that organic dairies averaged about 
13,600 pounds of milk per cow or a daily average of 45 pounds of milk 
per cow. Using a pay-price of $22 per hundredweight (cwt), based on the 
ARM Survey, each cow would generate approximately $2,992. Based on the 
Small Business Administration (SBA) definition of what constitutes a 
small agricultural producer (annual receipts up to $750,000), a small 
dairy is one with fewer than 251 cows. Therefore, on average, all 
organic dairy farms are small producers, but based on regional 
distributions of operations from the ARM survey, approximately 93 
percent of all organic dairies--located in the Northeast, Upper 
Midwest, and Corn Belt, are small producers. On average, organic dairy 
producers in the West do not fit into this small producer category. 
This likely reflects costs and land available to all operations--there 
is more land available at lower costs in the West, hence operations 
tend to be larger than in the East.
    In the ARM survey, producers were asked to define a pasture-based 
feeding program. They responded that a pasture-based feeding program 
provides at least half of the forage fed to milk cows during the 
grazing months, and they reported an average grazing period of 6.5 
months. The survey also reported that more than 60 percent of producers 
provided their animals with pasture that provided more than 50 percent 
of forage needs throughout the grazing season; almost 90 percent of 
operators provided at least 25 percent of animals' pasture needs 
through forage. In addition, according to the Federation of Organic 
Dairy Farmers (FOOD Farmers), most ruminant livestock producers pasture 
their animals and many maximize the use of pasture.
    But this also means that potentially, approximately 10 percent of 
operators may need to make adjustments--to increase the amount of time 
animals spend on pasture to meet the 30 percent DMI during a grazing 
season of at least 120 days required by this final action.
    This final rule brings uniformity in application to the livestock 
regulations; especially as they relate to the pasturing of ruminants. 
This uniformity will create equitable, consistent, performance 
standards for all ruminant livestock producers. Producers who currently 
operate based on grazing will perceive a benefit because these 
producers claim an economic disadvantage in competing with livestock 
operations that do not provide pasture. This final rule would also 
bring uniformity in application of the livestock regulations. This 
uniformity in application will allow the ACAs and AMS to administer the 
livestock regulations in a way that reflects consumer preferences 
regarding the production of organic livestock and their products. 
Commenters have clearly stated that they expect organic ruminants to 
graze pasture and receive not less than 30 percent of their dry matter 
needs from grazing averaged over the entire grazing season. This final 
rulemaking is intended to reflect consumer expectations and producer 
perspectives. This action makes clear

[[Page 7190]]

what access to pasture means under the NOP. We note that organic 
livestock and dairy producers have long been required to provide their 
livestock with access to pasture for grazing. This final rule is the 
result of a long discussion in implementing that requirement. This 
action should not take organic producers unaware especially due to the 
extended implementation period.
    This action will ensure that NOP livestock production regulations 
have sufficient specificity and clarity to enable AMS and ACAs to 
efficiently administer the NOP and to facilitate and improve compliance 
and enforcement. This specificity and clarity is expected to assure 
that ACAs and producers know what constitutes compliance and will 
satisfy consumer expectations that ruminant livestock animals graze 
pastures during the grazing season. This proposed rule also adds 2 new 
regulatory provisions, which many ruminant livestock producers already 
comply with. New regulatory provisions include: (1) The requirement 
that pastures be managed for grazing throughout the grazing season per 
Sec.  205.237(c)(2), (the pasture system must provide all ruminants 
under the OSP with an average of not less than 30 percent of their DMI 
from grazing throughout the grazing season); and (2) the requirement 
that for the grazing season, producers provide not more than an average 
of 70 percent of a ruminant's DMI from their total feed ration minus 
grazed vegetation rooted in pasture or residual forage per Sec.  
205.237(c)(1). These 2 new regulatory provisions will ensure that 
ruminants spend more time on pasture and that they receive a 
significant portion of their daily feed intake, during the grazing 
season, from grazing vegetation rooted in pasture or residual forage. 
Inconsistency in the application of the livestock regulations by 
producers and ACAs has resulted in the filing of consumer complaints 
under the NOP complaint procedures. This action provides more 
information which will contribute to producer and certifying agent 
understanding which will in turn eliminate the current inconsistent 
application of livestock regulations under the NOP. Further, since the 
NOP regulations were implemented in October 2002, we have found that 
producers need to improve their description of the practices and 
procedures they employ to comply with the livestock regulations in 
general and the pasture requirements in particular. Accordingly, this 
final rule provides greater detail about acceptable and required 
practices related to organic livestock and pasture management that will 
result in more thorough organic system plans (OSPs). The OSP commits 
the producer to a sequence of practices and procedures resulting in an 
operation that complies with every applicable provision in the 
regulations.
    By eliminating the current inconsistent application of livestock 
regulations under the NOP and improving OSPs, consumers will have the 
assurance that the organic label is applied according to clear, 
consistently applied, standards. These standards will provide for the 
grazing of ruminants on pasture throughout the grazing season such that 
ruminants obtain feed value from the grazing of pasture and residual 
forage. This will in turn satisfy consumer expectations that ruminant 
livestock animals graze pastures during the grazing season. Eliminating 
the current inconsistent application of livestock regulations is 
expected to end the filing of complaints which will, in turn, end the 
generation of negative press which has damaged the image of organic 
milk and milk products.
    Costs associated with providing sufficient vegetation for grazing 
throughout the grazing season would include the time (labor) spent 
seeding the pastures, fuel for equipment used in seeding, and the cost 
of seed. Seed costs will vary depending on what is to be grown and how 
many acres are to be grown. Examples of 2009 certified organic seed 
prices, per acre, include approximately $120-130 for fescue, $73 for 
festolium, $65 for orchardgrass, and $76-85 for ryegrass.
    Costs of pasture vary depending on location. USDA's Agricultural 
Statistics, 2008, show 2007 pasture land values per acre ranging from 
$12,100 (NJ), $2,820 (CA), $2,180 (WI), $1,370 (TX), $800 (CO), to $300 
(ND). Costs would likely be higher for certified organic pasture. 
USDA's Agricultural Statistics, 2008, show 2007 pasture land cash rents 
per acre ranging from $40 (WI), $14 (CA), $8.30 (TX), $5.50 (CO) to $2 
(NM). Again, costs would likely be higher for certified organic 
pasture. Per acre rental rates would also vary based on pasture quality 
factors. The higher the pasture quality, the more the producer may pay 
per acre, but the fewer the acres needed to comply with the 
regulations. On the other hand, producers may not require more pasture 
at all, but instead may shift to using intensive rotational grazing, 
which is becoming the standard for grazing today. Under intensive 
grazing, producers use the same or fewer acres of land to graze the 
same or greater numbers of animals. Costs associated with providing 
pasture should only increase for those producers who currently do not 
pasture their animals at all (e.g., producers not in compliance with 
the current regulations) and those producers who do not manage their 
pastures at a sufficient level to provide at least 30 percent DMI.
    For those producers who do not provide sufficient pasture for their 
animals, the costs associated with providing sufficient pasture will 
vary not just on the location and quality, but also on the size of the 
herd. Large operations that do not provide adequate pasture may require 
large amounts of additional pasture, whereas small operations may 
require small amounts of additional pasture. According to the 2005 ARM 
survey, geographic areas with higher land costs (such as the Northeast) 
have smaller livestock operations and areas with lower land costs (such 
as in the West) have larger livestock operations. Based on this data, 
those producers who do not have adequate pasture and are located in 
areas with high land costs will likely require smaller amounts of 
pasture compared to those producers who do not have adequate pasture 
and are located in areas with low land costs.
    AMS believes that the costs incurred by producers in complying with 
this final action would be offset by a stronger marketplace for organic 
livestock products including dairy products. Implementation of this 
final rule will ensure that consumer expectations are met, and improve 
the image of organic milk and other organic livestock products, both of 
which in turn will lead to a robust market for these organic products. 
AMS believes that, over the long run, the economic impact on producers 
of not implementing this final rule would be greater than the economic 
impact of this final rule.

D. Paperwork Reduction Act (Including the Information Collection 
Burden)

    In accordance with Office of Management and Budget (OMB) 
regulations (5 CFR Part 1320) that implement the Paperwork Reduction 
Act (44 U.S.C. 3501-3520) (PRA), the current information collection 
requirements associated with the NOP have been previously approved by 
OMB and assigned OMB control number 0581-0191. A new information 
collection package is being submitted to OMB for approval of 9,200 
hours in total burden hours to cover this new collection and 
recordkeeping burden of paragraph 205.237(d) of this final rule. Upon 
OMB's approval of this new information collection, we will merge this 
collection into currently approved

[[Page 7191]]

OMB Control Number 0581-0191. The total burden hours to cover this new 
collection and recordkeeping burden of Sec.  205.237(d), is 9,200 
hours. In accordance with 5 CFR Part 1320, we have included below a 
description of the collection and recordkeeping requirements and an 
estimate of the annual burden on organic ruminant producers who would 
be required to maintain information under this final rule. Authority 
for this action is the Organic Foods Production Act of 1990, as 
amended.
    Title: National Organic Program.
    OMB Control Number: 0581-0252.
    Expiration Date of Approval: 3 years from OMB date of approval.
    Type of Request: New collection.
    Abstract: The information collection and recordkeeping necessitated 
by new Sec.  205.237(d) is essential for verification that ruminants 
obtain not less than 30 percent of dry matter intake from grazing 
pasture, averaged over the grazing season, 120 days minimum (dry matter 
grazed includes only residual forage and vegetation rooted in pasture). 
This action requires that producers document: a description of the 
total feed ration for each type and class of animal, including pasture, 
feed supplements and additives; the amount of each type of feed fed; 
and, the method for calculating dry matter demand and dry matter 
intake.
    The proposed rule specified mandatory formulas to calculate daily 
dry matter demand and daily dry matter intake for each class of animal. 
It also stipulated that producers perform and record these calculations 
monthly. Some commenters who supported the requirement that ruminants 
receive no more than 70 percent of dry matter intake from dry matter 
fed, conveyed that stipulating formulas was overly prescriptive. 
Commenters also asserted that the fixed variable of 3 percent body 
weight within the dry matter demand formula was not universally 
suitable to accurately estimate the nutritional needs of all animals. 
Alternatively, we received proposals that producers document the total 
daily feed rations for each class of animal, any changes to those 
rations, and select a method for calculating dry matter demand and dry 
matter intake with the consent or assistance of the certifying agent.
    We accepted the proposal that producers and certifying agents 
should determine what method(s) are suitable to use for calculating dry 
matter demand and dry matter intake in the context of the certified 
operation. This action is consistent with commenters proposals for 
minimizing the information collection burden. Recordkeeping is a core 
pillar of the organic program and an important tool for producers to 
demonstrate, and certifying agents to verify, compliance with the 
regulations. We believe that the discretion granted to the producers 
and certifying agents, in lieu of prescribed formulas and frequency of 
calculations, will minimize additional recordkeeping burden and 
preserve a reliable means to verify compliance with the livestock feed 
provisions.
    According to FOOD Farmers (a dairy farmer organization representing 
over 1,200 of the approximately 1,800 U.S. organic dairy farmers), 
accredited certifying agents and organic ruminant producers currently 
determine the daily DMI need of their animals and establish feed 
rations (which identify the percentage of dry matter for each 
ingredient) as a part of their good business and livestock management 
practices. Moreover, most of these organic ruminant producers already 
document and maintain feed ration records. We concur that many organic 
livestock producers already record the data that will enable dry matter 
intake calculations.
    For those operations that do not currently calculate dry matter 
demand or dry matter intake, there are numerous resources on the 
various calculation methods. Certifying agents may also direct 
producers to resources that will enable compliance with this 
information collection requirement. As producers become accustomed to 
additional recordkeeping requirements, we expect this information 
collection burden to decrease in subsequent years.
    Based on the number of certified operations reported by certifying 
agents in comments to the proposed rule, AMS estimates that there are 
approximately 1,800 certified dairy operations and 500 other ruminant 
livestock operations in the U.S. that will be subject to the provisions 
of Sec.  205.237(d). This final rule requires that ruminant producers 
document: (1) Total feed ration for each type and class of animal, 
describing all feed produced on-farm, all feed purchased from off-farm 
sources, the percentage of each type of feed in the total ration, and a 
list of all feed supplements and additives; (2) amount of each type of 
feed actually fed to each type and class of animal; (3) changes made to 
all rations throughout the year; and, (4) the method for calculating 
dry matter demand and dry matter intake. To minimize disruption to the 
normal business practices of the affected producers, producers will be 
permitted to develop their own format for documenting the requirements 
of Sec.  205.237(d).
    The PRA also requires AMS to measure the recordkeeping burden. 
Under the NOP (Sec.  205.103) each producer is required to maintain and 
make available upon request, for 5 years, such records as are necessary 
to verify compliance with the NOP. These records will enable producers 
to provide the best evidence of compliance with the requirement that 
for the grazing season, producers of organic ruminants provide not more 
than an average of 70 percent of a ruminant's dry matter demand from 
dry matter fed. The recordkeeping burden includes the amount of time 
needed to store and maintain records. AMS estimates that, since most 
organic ruminant producers already document and maintain feed ration 
records additional annual costs will be nominal.
    This information collection is only used by the organic ruminant 
producer; authorized representatives of USDA, including AMS, NOP staff; 
and USDA accredited certifying agents. Organic ruminant producers and 
USDA accredited certifying agents are the primary users of the 
information and AMS is the secondary user.

Information Collection Burden

    Estimate of Burden: Public reporting burden for collection of 
information is estimated to be 3 hours per year. Several commenters 
asserted that the estimated information collection burden in the 
proposed rule was too low. That assertion, however, was mostly 
attributed to requirements which have been omitted from this final 
rule, particularly, calculating dry matter intake and dry matter fed 
for each type and class of animal on a monthly basis in accordance with 
specified formulas. We have not changed the estimated reporting burden, 
based upon the premise that producers, having the discretion to 
determine the method and frequency of dry matter calculations, will 
choose an efficient and readily adaptable means.
    AMS estimates that the provisions in this final rule that require 
producers to document information on feed rations, feed intake and 
pasture management requirements will cost each affected producer $55.65 
annually. This estimate is based on an estimated 3 labor hours per year 
at $18.55 per hour for a total salary component cost of $55.65 per 
year. The source of the hourly rate is the National Compensation 
Survey: Occupational Wages in the United States, June 2006, published 
by the Bureau of Labor Statistics. The rate is the mean hourly wage for 
first line supervisors/managers of farming, fishing and forestry 
workers. This

[[Page 7192]]

classification was selected because the individual(s) responsible for 
the compliance of a certified operation must have the skills to manage 
the operation.
    Respondents: Organic ruminant producers.
    Estimated Number of Respondents: 2,300.
    Estimated Total Annual Burden per Respondent: 3 hours.
    Estimated Total Annual Burden on Respondents: 9,200 hours.
    Total Cost: $170,660.

Recordkeeping Burden

    Estimate of Burden: Public recordkeeping burden is estimated to be 
1.0 hour per year per respondent at $18.55 per hour for a total salary 
component cost of $18.55 per year.
    Respondents: Organic ruminant producers.
    Estimated Number of Respondents: 2,300.
    Estimated Number of Responses per Respondent: 1 (per year).
    Estimated Total Annual Burden on Respondents: 2,300 hours.
    Total Cost: $42,665.
    AMS is committed to compliance with the Government Paperwork 
Elimination Act (GPEA), which requires Government agencies in general 
to provide the public the option of submitting information or 
transacting business electronically to the maximum extent possible.

E. Civil Rights Impact Analysis

    AMS has reviewed this final rule in accordance with the Department 
Regulation 4300-4, Civil Rights Impact Analysis (CRIA), to address any 
major civil rights impacts the rule might have on minorities, women, 
and persons with disabilities. After a careful review of the rule's 
intent and provisions, AMS has determined that this rule would only 
impact the organic practices of livestock producers and that this rule 
has no potential for affecting livestock producers in protected groups 
differently than the general population of livestock producers. This 
rulemaking was initiated by the organic community and by small 
livestock producers in particular.
    Protected individuals have the same opportunity to participate in 
the NOP as non-protected individuals. The NOP regulations prohibit 
discrimination by certifying agents, specifically, Sec.  205.501(d) 
provides that ``No private or governmental entity accredited as a 
certifying agent under this subpart shall exclude from participation in 
or deny the benefits of the NOP to any person due to discrimination 
because of race, color, national origin, gender, religion, age, 
disability, political beliefs, sexual orientation, or marital or family 
status.'' Paragraph 205.501(a)(2) requires ``certifying agents to 
demonstrate the ability to fully comply with the requirements for 
accreditation set forth in this subpart'' including the prohibition on 
discrimination. The granting of accreditation to certifying agents 
under Sec.  205.506 requires the review of information submitted by the 
certifying agent and an on-site review of the certifying agent's 
operation. Further, if certification is denied, Sec.  205.405(d) 
requires that the certifying agent notify the applicant of their right 
to file an appeal to the AMS Administrator in accordance with Sec.  
205.681. These regulations provide protections against discrimination, 
thereby permitting all livestock producers, regardless of race, color, 
national origin, gender, religion, age, disability, political beliefs, 
sexual orientation, or marital or family status, who voluntarily choose 
to adhere to the proposed rule and qualify, to be certified as meeting 
NOP requirements by an accredited certifying agent. This final rule in 
no way changes any of these protections against discrimination.

List of Subjects in 7 CFR Part 205

    Administrative practice and procedure, Agriculture, Animals, 
Archives and records, Imports, Labeling, Organically produced products, 
Plants, Reporting and recordkeeping requirements, Seals and insignia, 
Soil conservation.


0
For the reasons set forth in the preamble, 7 CFR Part 205 is amended as 
follows:

PART 205--NATIONAL ORGANIC PROGRAM

0
1. The authority citation for 7 CFR Part 205 continues to read:

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


0
2. Section 205.2 is amended by revising the definitions of ``crop'' and 
``livestock'' and adding 15 new terms in alphabetical order to read as 
follows:


Sec.  205.2  Terms defined.

* * * * *
    Class of animal. A group of livestock that shares a similar stage 
of life or production. The classes of animals are those that are 
commonly listed on feed labels.
* * * * *
    Crop. Pastures, cover crops, green manure crops, catch crops, or 
any plant or part of a plant intended to be marketed as an agricultural 
product, fed to livestock, or used in the field to manage nutrients and 
soil fertility.
* * * * *
    Dry lot. A fenced area that may be covered with concrete, but that 
has little or no vegetative cover.
    Dry matter. The amount of a feedstuff remaining after all the free 
moisture is evaporated out.
    Dry matter demand. The expected dry matter intake for a class of 
animal.
    Dry matter intake. Total pounds of all feed, devoid of all 
moisture, consumed by a class of animals over a given period of time.
* * * * *
    Feedlot. A dry lot for the controlled feeding of livestock.
* * * * *
    Graze. (1) The consumption of standing or residual forage by 
livestock.
    (2) To put livestock to feed on standing or residual forage.
    Grazing. To graze.
    Grazing season. The period of time when pasture is available for 
grazing, due to natural precipitation or irrigation. Grazing season 
dates may vary because of mid-summer heat/humidity, significant 
precipitation events, floods, hurricanes, droughts or winter weather 
events. Grazing season may be extended by the grazing of residual 
forage as agreed in the operation's organic system plan. Due to 
weather, season, or climate, the grazing season may or may not be 
continuous. Grazing season may range from 120 days to 365 days, but not 
less than 120 days per year.
* * * * *
    Inclement weather. Weather that is violent, or characterized by 
temperatures (high or low), or characterized by excessive precipitation 
that can cause physical harm to a given species of livestock. 
Production yields or growth rates of livestock lower than the maximum 
achievable do not qualify as physical harm.
* * * * *
    Livestock. Any cattle, sheep, goats, swine, poultry, or equine 
animals used for food or in the production of food, fiber, feed, or 
other agricultural-based consumer products; wild or domesticated game; 
or other nonplant life, except such term shall not include aquatic 
animals for the production of food, fiber, feed, or other agricultural-
based consumer products.
* * * * *
    Residual forage. Forage cut and left to lie, or windrowed and left 
to lie, in place in the pasture.
* * * * *
    Shelter. Structures such as barns, sheds, or windbreaks; or natural 
areas

[[Page 7193]]

such as woods, tree lines, large hedge rows, or geographic land 
features, that are designed or selected to provide physical protection 
or housing to all animals.
* * * * *
    Stage of life. A discrete time period in an animal's life which 
requires specific management practices different than during other 
periods (e.g., poultry during feathering). Breeding, freshening, 
lactation and other recurring events are not a stage of life.
* * * * *
    Temporary and Temporarily. Occurring for a limited time only (e.g., 
overnight, throughout a storm, during a period of illness, the period 
of time specified by the Administrator when granting a temporary 
variance), not permanent or lasting.
* * * * *
    Yards/Feeding pad. An area for feeding, exercising, and outdoor 
access for livestock during the non-grazing season and a high traffic 
area where animals may receive supplemental feeding during the grazing 
season.

0
3. Section 205.102 is amended by revising paragraph (a) to read as 
follows:


Sec.  205.102  Use of the term, ``organic.''

* * * * *
    (a) Produced in accordance with the requirements specified in Sec.  
205.101 or Sec. Sec.  205.202 through 205.207 or Sec. Sec.  205.236 
through 205.240 and all other applicable requirements of part 205; and
* * * * *

0
4. Section 205.237 is amended as follows:
0
A. Revising paragraphs (a), (b)(5), and (b)(6);
0
B. Adding new paragraphs (b)(7), (b)(8), (c) and (d) to read as 
follows:


Sec.  205.237  Livestock feed.

    (a) The producer of an organic livestock operation must provide 
livestock with a total feed ration composed of agricultural products, 
including pasture and forage, that are organically produced and handled 
by operations certified to the NOP, except as provided in Sec.  
205.236(a)(2)(i), except, that, synthetic substances allowed under 
Sec.  205.603 and nonsynthetic substances not prohibited under Sec.  
205.604 may be used as feed additives and feed supplements, Provided, 
That, all agricultural ingredients included in the ingredients list, 
for such additives and supplements, shall have been produced and 
handled organically.
    (b) * * *
    (5) Feed mammalian or poultry slaughter by-products to mammals or 
poultry;
    (6) Use feed, feed additives, and feed supplements in violation of 
the Federal Food, Drug, and Cosmetic Act;
    (7) Provide feed or forage to which any antibiotic including 
ionophores has been added; or
    (8) Prevent, withhold, restrain, or otherwise restrict ruminant 
animals from actively obtaining feed grazed from pasture during the 
grazing season, except for conditions as described under Sec.  
205.239(b) and (c).
    (c) During the grazing season, producers shall:
    (1) Provide not more than an average of 70 percent of a ruminant's 
dry matter demand from dry matter fed (dry matter fed does not include 
dry matter grazed from residual forage or vegetation rooted in 
pasture). This shall be calculated as an average over the entire 
grazing season for each type and class of animal. Ruminant animals must 
be grazed throughout the entire grazing season for the geographical 
region, which shall be not less than 120 days per calendar year. Due to 
weather, season, and/or climate, the grazing season may or may not be 
continuous.
    (2) Provide pasture of a sufficient quality and quantity to graze 
throughout the grazing season and to provide all ruminants under the 
organic system plan with an average of not less than 30 percent of 
their dry matter intake from grazing throughout the grazing season: 
Except, That,
    (i) Ruminant animals denied pasture in accordance with Sec.  
205.239(b)(1) through (8), and Sec.  205.239(c)(1) through (3), shall 
be provided with an average of not less than 30 percent of their dry 
matter intake from grazing throughout the periods that they are on 
pasture during the grazing season;
    (ii) Breeding bulls shall be exempt from the 30 percent dry matter 
intake from grazing requirement of this section and management on 
pasture requirement of Sec.  205.239(c)(2); Provided, That, any animal 
maintained under this exemption shall not be sold, labeled, used, or 
represented as organic slaughter stock.
    (d) Ruminant livestock producers shall:
    (1) Describe the total feed ration for each type and class of 
animal. The description must include:
    (i) All feed produced on-farm;
    (ii) All feed purchased from off-farm sources;
    (iii) The percentage of each feed type, including pasture, in the 
total ration; and
    (iv) A list of all feed supplements and additives.
    (2) Document the amount of each type of feed actually fed to each 
type and class of animal.
    (3) Document changes that are made to all rations throughout the 
year in response to seasonal grazing changes.
    (4) Provide the method for calculating dry matter demand and dry 
matter intake.

0
5. Section 205.239 is amended as follows:
0
A. Revising paragraph (a), introductory text, and paragraphs (a)(1) 
through (3);
0
B. Revising paragraph (b), introductory text, and paragraphs (b)(2) 
through (b)(4);
0
C. Redesignating paragraph (c) as (e);
0
D. Revising newly designated paragraph (e); and
0
E. Adding new paragraphs (a)(5), (b)(5) through (b)(8), (c), and (d) to 
read as follows:


Sec.  205.239  Livestock living conditions.

    (a) The producer of an organic livestock operation must establish 
and maintain year-round livestock living conditions which accommodate 
the health and natural behavior of animals, including:
    (1) Year-round access for all animals to the outdoors, shade, 
shelter, exercise areas, fresh air, clean water for drinking, and 
direct sunlight, suitable to the species, its stage of life, the 
climate, and the environment: Except, that, animals may be temporarily 
denied access to the outdoors in accordance with Sec. Sec.  205.239(b) 
and (c). Yards, feeding pads, and feedlots may be used to provide 
ruminants with access to the outdoors during the non-grazing season and 
supplemental feeding during the grazing season. Yards, feeding pads, 
and feedlots shall be large enough to allow all ruminant livestock 
occupying the yard, feeding pad, or feedlot to feed simultaneously 
without crowding and without competition for food. Continuous total 
confinement of any animal indoors is prohibited. Continuous total 
confinement of ruminants in yards, feeding pads, and feedlots is 
prohibited.
    (2) For all ruminants, management on pasture and daily grazing 
throughout the grazing season(s) to meet the requirements of Sec.  
205.237, except as provided for in paragraphs (b), (c), and (d) of this 
section.
    (3) Appropriate clean, dry bedding. When roughages are used as 
bedding, they shall have been organically produced in accordance with 
this part by an operation certified under this part, except as provided 
in Sec.  205.236(a)(2)(i),

[[Page 7194]]

and, if applicable, organically handled by operations certified to the 
NOP.
* * * * *
    (5) The use of yards, feeding pads, feedlots and laneways that 
shall be well-drained, kept in good condition (including frequent 
removal of wastes), and managed to prevent runoff of wastes and 
contaminated waters to adjoining or nearby surface water and across 
property boundaries.
    (b) The producer of an organic livestock operation may provide 
temporary confinement or shelter for an animal because of:
* * * * *
    (2) The animal's stage of life: Except, that lactation is not a 
stage of life that would exempt ruminants from any of the mandates set 
forth in this regulation;
    (3) Conditions under which the health, safety, or well-being of the 
animal could be jeopardized;
    (4) Risk to soil or water quality;
    (5) Preventive healthcare procedures or for the treatment of 
illness or injury (neither the various life stages nor lactation is an 
illness or injury);
    (6) Sorting or shipping animals and livestock sales: Provided, 
that, the animals shall be maintained under continuous organic 
management, including organic feed, throughout the extent of their 
allowed confinement;
    (7) Breeding: Except, that, bred animals shall not be denied access 
to the outdoors and, once bred, ruminants shall not be denied access to 
pasture during the grazing season; or
    (8) 4-H, Future Farmers of America and other youth projects, for no 
more than one week prior to a fair or other demonstration, through the 
event and up to 24 hours after the animals have arrived home at the 
conclusion of the event. These animals must have been maintained under 
continuous organic management, including organic feed, during the 
extent of their allowed confinement for the event.
    (c) The producer of an organic livestock operation may, in addition 
to the times permitted under Sec.  205.239(b), temporarily deny a 
ruminant animal pasture or outdoor access under the following 
conditions:
    (1) One week at the end of a lactation for dry off (for denial of 
access to pasture only), three weeks prior to parturition (birthing), 
parturition, and up to one week after parturition;
    (2) In the case of newborn dairy cattle for up to six months, after 
which they must be on pasture during the grazing season and may no 
longer be individually housed: Provided, That, an animal shall not be 
confined or tethered in a way that prevents the animal from lying down, 
standing up, fully extending its limbs, and moving about freely;
    (3) In the case of fiber bearing animals, for short periods for 
shearing; and
    (4) In the case of dairy animals, for short periods daily for 
milking. Milking must be scheduled in a manner to ensure sufficient 
grazing time to provide each animal with an average of at least 30 
percent DMI from grazing throughout the grazing season. Milking 
frequencies or duration practices cannot be used to deny dairy animals 
pasture.
    (d) Ruminant slaughter stock, typically grain finished, shall be 
maintained on pasture for each day that the finishing period 
corresponds with the grazing season for the geographical location: 
Except, that, yards, feeding pads, or feedlots may be used to provide 
finish feeding rations. During the finishing period, ruminant slaughter 
stock shall be exempt from the minimum 30 percent DMI requirement from 
grazing. Yards, feeding pads, or feedlots used to provide finish 
feeding rations shall be large enough to allow all ruminant slaughter 
stock occupying the yard, feeding pad, or feed lot to feed 
simultaneously without crowding and without competition for food. The 
finishing period shall not exceed one-fifth (\1/5\) of the animal's 
total life or 120 days, whichever is shorter.
    (e) The producer of an organic livestock operation must manage 
manure in a manner that does not contribute to contamination of crops, 
soil, or water by plant nutrients, heavy metals, or pathogenic 
organisms and optimizes recycling of nutrients and must manage pastures 
and other outdoor access areas in a manner that does not put soil or 
water quality at risk.

0
6. Section 205.240 is added to subpart C to read as follows:


Sec.  205.240  Pasture practice standard.

    The producer of an organic livestock operation must, for all 
ruminant livestock on the operation, demonstrate through auditable 
records in the organic system plan, a functioning management plan for 
pasture.
    (a) Pasture must be managed as a crop in full compliance with 
Sec. Sec.  205.202, 205.203(d) and (e), 205.204, and 205.206(b) through 
(f). Land used for the production of annual crops for ruminant grazing 
must be managed in full compliance with Sec. Sec.  205.202 through 
205.206. Irrigation shall be used, as needed, to promote pasture growth 
when the operation has irrigation available for use on pasture.
    (b) Producers must provide pasture in compliance with Sec.  
205.239(a)(2) and manage pasture to comply with the requirements of: 
Sec.  205.237(c)(2), to annually provide a minimum of 30 percent of a 
ruminant's dry matter intake (DMI), on average, over the course of the 
grazing season(s); Sec.  205.238(a)(3), to minimize the occurrence and 
spread of diseases and parasites; and Sec.  205.239(e) to refrain from 
putting soil or water quality at risk.
    (c) A pasture plan must be included in the producer's organic 
system plan, and be updated annually in accordance with Sec.  
205.406(a). The producer may resubmit the previous year's pasture plan 
when no change has occurred in the plan. The pasture plan may consist 
of a pasture/rangeland plan developed in cooperation with a Federal, 
State, or local conservation office: Provided, that, the submitted plan 
addresses all of the requirements of Sec.  205.240(c)(1) through (8). 
When a change to an approved pasture plan is contemplated, which may 
affect the operation's compliance with the Act or the regulations in 
this part, the producer shall seek the certifying agent's agreement on 
the change prior to implementation. The pasture plan shall include a 
description of the:
    (1) Types of pasture provided to ensure that the feed requirements 
of Sec.  205.237 are being met.
    (2) Cultural and management practices to be used to ensure pasture 
of a sufficient quality and quantity is available to graze throughout 
the grazing season and to provide all ruminants under the organic 
system plan, except exempted classes identified in Sec.  205.239(c)(1) 
through (3), with an average of not less than 30 percent of their dry 
matter intake from grazing throughout the grazing season.
    (3) Grazing season for the livestock operation's regional location.
    (4) Location and size of pastures, including maps giving each 
pasture its own identification.
    (5) The types of grazing methods to be used in the pasture system.
    (6) Location and types of fences, except for temporary fences, and 
the location and source of shade and the location and source of water.
    (7) Soil fertility and seeding systems.
    (8) Erosion control and protection of natural wetlands and riparian 
areas practices.

0
7. Section 205.290 is amended by revising paragraph (a) introductory 
text to read as follows:


Sec.  205.290  Temporary variances.

    (a) Temporary variances from the requirements in Sec. Sec.  205.203 
through 205.207, 205.236 through 205.240 and 205.270 through 205.272 
may be

[[Page 7195]]

established by the Administrator for the following reasons:
* * * * *

0
8. In Sec.  205.690, the number ``0581-0181'' is removed and ``0581-
0191'' is added in its place.

    Dated: February 9, 2010.
Rayne Pegg,
Administrator, Agricultural Marketing Service.
[FR Doc. 2010-3023 Filed 2-12-10; 4:15 pm]
BILLING CODE P