[Federal Register Volume 73, Number 207 (Friday, October 24, 2008)]
[Proposed Rules]
[Pages 63583-63608]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-25094]



[[Page 63583]]

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Part III





Department of Agriculture





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Agricultural Marketing Service



7 CFR Part 205



National Organic Program (NOP)--Access to Pasture (Livestock); Proposed 
Rule

Federal Register / Vol. 73, No. 207 / Friday, October 24, 2008 / 
Proposed Rules

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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 205

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


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

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Proposed rule.

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SUMMARY: This proposed rule would amend livestock and related 
provisions of the NOP. Comments have been received from consumers, 
producers, certifying agents, trade associations, retailers, organic 
associations, animal welfare organizations, consumer groups, and 
various industry groups seeking greater detail on the role of pasture 
in organic livestock production. Also since implementation of the NOP 
in 2002, the National Organic Standards Board (NOSB) has made several 
recommendations regarding the role of pasture. As a result of comments, 
complaints, and noncompliances, we are proposing amendments to the 
livestock provisions of the NOP. This proposed rule provides greater 
detail for selected provisions of the existing livestock regulations, 
especially as they relate to pasture and ruminant animals. By 
specifying in greater detail that producers are to provide ruminants 
with pasture, recognize pasture as a crop, and incorporate pasture into 
their organic system plan, producers will have better records and tools 
for managing pasture and demonstrating compliance with the livestock 
regulations. Certifying agents will have better tools for measuring 
compliance with the livestock regulations. Consumers will have better 
assurances that the organic label is applied in ways that meet their 
expectations that ruminant livestock animals graze pastures during the 
growing season. This proposed rule would also clarify the replacement 
animal provision for dairy animals.

DATES: Comments must be received by December 23, 2008.
    Comments on the information collection and recordkeeping 
requirements contained in this proposed rule must be received by 
December 23, 2008.

ADDRESSES: Interested persons may comment on this proposed rule using 
the following procedures:
     Mail: Comments may be submitted by mail to: Richard H. 
Mathews, Chief, Standards Development and Review Branch, National 
Organic Program, Transportation and Marketing Programs, USDA-AMS-TMP-
NOP, 1400 Independence Ave., SW., Room 4008-So., Ag Stop 0268, 
Washington, DC 20250.
     Internet: http://www.regulations.gov.
     Written comments on this proposed rule should be 
identified with the docket number AMS-TM-06-0198; TM-05-14.
     Identify the issue or questions of this proposed rule to 
which the comment refers. Comments should directly relate to issues or 
questions raised by the proposed rule.
     Clearly indicate if you are for or against the proposed 
rule or some portion of it and your reason for your position. Include 
recommended language changes as appropriate.
     Comments should be supported by reliable data. Commentors 
may include a copy of articles or other references that support their 
comments. Only relevant material should be submitted.
    It is our intention to have all comments to this proposed rule, 
including names and addresses when provided, whether submitted by mail 
or internet, available for viewing on the Regulations.gov 
(www.regulations.gov) Internet site. Comments submitted in response to 
this proposed rule also will be available for viewing in person at 
USDA-AMS, Transportation and Marketing, Room 4008--South Building, 1400 
Independence Ave., SW., Washington, DC, from 9 a.m. to 12 noon and from 
1 p.m. to 4 p.m., Monday through Friday (except official Federal 
holidays). Persons wanting to visit the USDA South Building to view 
comments received in response to this proposed rule are requested to 
make an appointment in advance by calling (202) 720-3252.
    Pursuant to the Paperwork Reduction Act, interested persons may 
comment on the information collection and recordkeeping requirements 
required by this proposed rule by:
     Mail: Comments should be sent to above address and to the 
Desk Officer for Agriculture, Office of Information and Regulatory 
Affairs, Office of Management and Budget, New Executive Office 
Building, 725 17th Street, NW., Room 725, Washington, D.C. 20503.
     Written comments on this proposed rule should be 
identified with the docket number AMS-TM-06-0198; TM-05-14 and should 
reference the date and page number of this issue of the Federal 
Register and indicate that the comment is regarding the information 
collection and recordkeeping requirements.
     Comments are specifically invited on: (1) The accuracy of 
the Agency's burden estimate of the proposed collection of information; 
(2) ways to minimize the burden of the collection of information on 
those affected; (3) whether the proposed collection of information is 
sufficient or necessary to demonstrate compliance with the requirement 
that, during the growing season, producers of organic ruminants provide 
not more than an average of 70 percent of a ruminant's dry matter 
demand from dry matter feed; and (4) ways to enhance the quality, 
utility, and clarity of the information to be collected.
    All comments on the information collection and recordkeeping 
requirements required by new paragraph 205.237(c) of this proposed rule 
will become a matter of public record and will be available for public 
viewing at the above referenced location.

FOR FURTHER INFORMATION CONTACT: Richard H. Mathews, Chief, Standards 
Development and Review Branch, 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 pastures during the 
growing 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.

[[Page 63585]]

    (1) In 1994, the NOSB recommended that certified operations provide 
``access to shade, shelter, fresh air, and daylight suitable to the 
species, the stage of production, the climate, and the environment.'' 
The NOSB also proposed that design of animal housing must accommodate 
``the natural maintenance, comfort behaviors, and the opportunity to 
exercise'' required by specific species. Natural maintenance refers to 
the animal's ability to engage in natural activities including but not 
limited to lick, scratch, stretch, lie down, stand up.
    (2) In 1995, the NOSB modified its recommendation on organic 
livestock living standards by specifying the conditions under which 
temporary confinement may be justified. These conditions were inclement 
weather, the health, safety and well being of the livestock and 
protection of soil and water quality.
    In our December 1997 first proposed rule (62 FR 65850, December 16, 
1997), based on NOSB recommendations, we proposed that, if necessary, 
animals could be maintained under conditions that restrict the 
available space for movement or access to outdoors if other living 
conditions were still met so that an animal's health could be 
maintained without the use of a permitted animal drug.
    The provision for temporary confinement considered the effects of 
climate, geographical location, and physical surroundings on the 
ability of animals to have access to the outdoors. Our understanding 
was considered in balance with other animal health issues, such as the 
need to keep animals indoors during extended periods of inclement 
weather. The determination of ``necessary'' was to be based on site-
specific conditions described by the producer in an organic system 
plan, which requires approval from the certifying agent. We stated in 
the preamble to that first proposed rule that such flexibility ``would 
allow operations without facilities for outdoor access to be certified 
for organic livestock production and would permit animals to be 
confined during critical periods such as farrowing'' (62 FR 65881, 
December 16, 1997). As a part of the 1997 proposal, we specifically 
requested public comment as to the conditions under which animals may 
be maintained to restrict the available space for movement or access to 
the outdoors.
    (3) In 1998, the NOSB reaffirmed its earlier positions on 
confinement and recommended that no exceptions be made for large 
livestock concentrations. However, the NOSB did not further define or 
add context to the phrase ``large livestock concentrations.''
    In October 1998, we released an issue paper, ``Livestock 
Confinement in Organic Production Systems'' to obtain further input on 
this issue and improve the drafting of the Department's second proposed 
rule that was published in March 2000 (65 FR 13512, March 13, 2000). In 
response to the March 2000 proposed rule, some commenters stated that 
the requirement that ruminants receive ``access to pasture'' did not 
adequately describe the relationship that should exist between 
ruminants and the land they graze. Many of these commenters requested 
that the final rule require that ruminant production be ``pasture-
based.'' The NOSB shared this perspective and also requested that the 
final rule require that ruminant production systems be pasture-based.
    Other comments we received stated that a uniform, prescriptive 
definition of pasture was inappropriate to be applied universally over 
all dairy farms. These comments stated that the diversity of growing 
seasons, environmental variables, and forage and grass species could 
not be captured in a single definition and that certifying agents 
should work with livestock producers to evaluate pasture on an 
individual farm basis. These comments disagreed with a pasture-based 
requirement and stated that pasture should be only one of several 
components of balanced livestock nutrition. These comments said that 
making pasture the foundation for ruminant management would distort 
this balance; it would also deprive crop producers of the revenue and 
rotation benefits they could earn by growing livestock feed.
    The Department considered all these comments but ultimately decided 
to retain the proposed ``access to pasture'' requirement in the final 
regulations published in December 2000 (65 FR 80548, December 21, 
2000). No comments were submitted that defined a pasture-based system 
or how a pasture-based system would replace access to pasture.
    The March 2000 proposed rule also retained provisions allowing for 
temporary confinement for animals: Inclement weather, stage of 
production, conditions under which the health, safety, or well-being of 
the animal is jeopardized, or risk to soil or water quality.
    Many comments received in response to the March 2000 proposed rule 
expressed concern that the exemption for stage of production might be 
used to deny an animal's access to the outdoors during naturally 
occurring life stages, including lactation for dairy animals. These 
commenters overwhelmingly opposed such an allowance, stating that the 
stage of production exemption should be narrowly applied. Commenters 
stated that a dairy operation, for example, might have seven or eight 
distinct age groups of animals, with each group requiring distinct 
living conditions. Under these circumstances, these commenters 
maintained that a producer should be allowed to temporarily house one 
of these age groups indoors to maximize use of the whole farm and the 
available pasture. In drafting the final rule, we retained the stage of 
production exemption because of the difficulty of adding further 
restrictions to the confinement exemption based on species, age group, 
production stage, or in relation to pasture.
    Following both the March 2000 proposed rule and December 2000 final 
regulations, the NOSB continued work on a recommendation to address the 
relationship between ruminant animals, conditions for temporary 
confinement of ruminant animals, and pasture.
    (4) In June 2000, the NOSB recommended that ``the allowance for 
temporary confinement should be restricted to short-term events such as 
birthing of newborn, finish feeding for slaughter stock, and should 
specifically exclude lactating dairy animals.''
    (5) In June 2001, the NOSB recommended that ``ruminant livestock 
must have access to graze pasture during the months of the year when 
pasture can provide edible forage, and the grazed feed must provide a 
significant portion of the total feed requirements.'' The NOSB further 
recommended that ``the producer of ruminant livestock may be allowed 
temporary exemption to pasture because of conditions under which the 
health, safety, or well-being of the animal could be jeopardized, 
inclement weather or temporary conditions which pose a risk to soil and 
water quality.''
    (6) In February 2005, the NOSB modified its June 2001 
recommendation by proposing to further amend the livestock living 
condition requirement for access to pasture (Sec.  205.239). Under this 
requirement, the producer of an organic livestock operation must 
establish and maintain livestock living conditions which accommodate 
the health and natural behavior of animals, including providing 
``access to pasture.'' The NOSB proposed to replace the phrase ``access 
to pasture'' with the phrase ``ruminant animals grazing pasture during 
the growing season.''
    The NOSB also proposed exceptions to the general requirement for 
pasturing: For birthing, for dairy animals up to 6

[[Page 63586]]

months of age and for beef animals during the final finishing stage--
not to exceed 120 days. Finally, the NOSB recommendation noted that 
lactation of dairy animals is not a stage of life that may be used to 
deny pasture for grazing.
    At the same time (February 2005), the NOSB asked the NOP to issue 
guidance to interpret the existing NOP pasture requirements, and the 
NOSB drafted the guidance that it wanted the NOP to issue. The NOP 
posted the draft guidance on the Web for comment to the NOSB. The NOSB 
formally approved its recommendation to the Secretary at its August 
2005 meeting. The NOSB guidance would have imposed specific 
requirements within a livestock producer's organic system plan (OSP). 
An OSP is the basic business plan that must be developed by each 
organic operation and agreed to by an accredited certifying agent 
(Sec.  205.201). An OSP has six required elements and is a fundamental 
requirement of the NOP final regulations. Under the NOSB guidance, the 
requirements would have imposed the following for livestock producers:
     The OSP shall have the goal of providing grazed feed 
greater than 30 percent of the total dry matter intake on a daily basis 
during the growing season but not less than 120 days;
     The OSP must include a timeline showing how the producer 
will satisfy the goal to maximize the pasture component of total feed 
used in the farm system;
     For livestock operations with ruminant animals, the OSP 
must describe: (1) The amount of pasture provided per animal; (2) the 
average amount of time that animals are grazed on a daily basis; (3) 
the portion of the total feed requirement that will be provided from 
pasture; (4) circumstances under which animals will be temporarily 
confined; and (5) the records that are maintained to demonstrate 
compliance with pasture requirements.
    The NOSB guidance also addressed temporary confinement and the 
conditions of pasture. In the NOSB guidance, temporary confinement 
would be permitted only during periods of inclement weather such as 
severe weather occurring over a period of a few days during the grazing 
season; conditions under which the health, safety, or well being of an 
individual animal could be jeopardized, including to restore the health 
of an individual animal or to prevent the spread of disease from an 
infected animal to other animals; and to protect soil or water quality. 
The guidance also stated that appropriate pasture conditions shall be 
determined according to the regional Natural Resources Conservation 
Service (NRCS) Conservation Practice Standards for Prescribed Grazing 
(Code 528) for the animals in the OSP.
    On April 13, 2006, NOP published an Advanced Notice of Proposed 
Rulemaking (ANPR) (71 FR 19131) seeking input on the following issues:
    (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. Pasture appears in 
the NOP definitions (subpart B, Sec.  205.2), and in subpart C of 
production and handling requirements under livestock feed (Sec.  
205.237), livestock healthcare (Sec.  205.238), and livestock living 
conditions (Sec.  205.239).
    We also asked whether the organic system plan requirements (Sec.  
205.201) should be changed to introduce specific means to measure and 
evaluate compliance with pasture requirements for all producers of 
livestock operations, or whether a new standard should be developed 
just for pasture alone.

Comments Received

    We received over 80,500 comments. There were approximately 250 
individual comments with the remaining comments in a modified form 
letter. Comments were received from consumers, producers, certifying 
agents, trade associations, retailers, organic associations, animal 
welfare organizations, consumer groups, and various industry groups. 
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. 
Over 54,000 commenters stated that they pay a premium for milk from 
animals that graze pastures. At the time that these comments were 
submitted organic milk was selling at a 50 percent premium over 
conventionally produced milk. Over 71,300 commenters expressed 
opposition to the feeding of organic dairy animals in non-pasture 
settings such as dry-lots. Over 10,500 commenters suggested amending 
the regulations to require pasture stocking rates. The most common 
figure cited was no more than and preferably less than, three ruminants 
per acre, in order to meet combined feed intake and ecological goals.
    Consumers and other commenters, including small entities, have 
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). This compares to comments we received supplying consumer 
survey results in which consumers expressed varying degrees of negative 
feedback over dairy animals not being raised on pasture. A Whole Foods 
Market, Inc. survey revealed that 69 percent of consumer respondents 
expected most of an organic dairy animal's food to come from pasture. A 
Consumers Union survey found that more than two-thirds of those 
surveyed believed that the NOP standards should require that organic 
animals graze outdoors. Finally, a Natural Marketing Institute study 
found that 72 percent of organic dairy users indicated that it was 
``extremely/somewhat'' important that organic dairy products, including 
organic milk, are from animals that graze in a pasture.
    Many of the comments received related quantifiable minimums to 
improvements in herd and animal health, taste and quality of the milk, 
soil and pasture quality, compliance with the intent of the organic 
regulations, and confidence in the integrity of the organic label for 
consumers. In addition, some commenters related increased time that 
animals spend on pasture to increased health of the soil, a 
relationship that has been demonstrated in research through the 
recycling of manure. Some of the health benefits that commenters 
related indirectly to pasture, such as the benefits of conjugated 
linoleic acid, an anti-carcinogen stemming from milk and allegedly 
related to reduced rates of some forms of cancer, have not been 
verified by the Food and Drug Administration (FDA) and are not 
presently permitted for labeling on dairy products.
    Commenters 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

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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 received comments 
from consumers who expressed concern over factory-style farms that 
import calves and raise them in feedlot dairies with little or no 
access to pasture. We received comments that prohibited materials are 
being used on dairy animals, although such comments are not the subject 
of this rulemaking.
    We also received comments about dairy replacement animals in this 
rulemaking, although such comments are not the subject of this 
rulemaking. These comments may have been jointly submitted at the time 
that the USDA dairy symposium was held and the rulemaking pursuant to 
the court order in Harvey v. Johanns was published for comment (71 FR 
24820, April 27, 2006). Therefore, these comments were not considered 
as part of this rulemaking on pasture, but have been considered 
regarding the intended rulemaking on origin of livestock.
    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 
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 from certifying agents concerned about 
quantifiable minimum measures, such as 120 days on pasture or that 
animals receive at least 30 percent of their daily DMI from pasture on 
days that they graze. Their concerns were that quantifiable minimums 
may present problems with compliance and enforcement for producers who 
might not meet the minimums by small amounts over some period of time, 
but who otherwise successfully demonstrate compliance with the 
livestock regulations.
    We received comments concerned about changes to the pasture 
regulations without recognizing differences in species of animals, in 
climate, topography, animal health, age, veterinary needs, or other 
factors. We received comments that the suggested 30 percent-DMI and 
120-day minimum pasture requirements have never been supported by 
scientific evidence and appear arbitrary.
    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 (tens of thousands of commenters) and feedlot feeding 
(thousands of commenters). Commenters who favored such an exemption 
requested that the exemption not exceed 90 days. Others argued that 
allowing beef animals to be confined for the last 120 days of finish 
feeding, prior to slaughter, is not in keeping with the integrity 
(accommodation of the health and natural behavior of animals) of the 
organic standards that consumers expect from the certified organic 
label. It was also argued that this is contrary to the expected intent 
of pasture-raised animals in organic systems. A commenter made the 
point that such an exemption would permit beef animals to be raised off 
pasture, in some climates, for nearly their entire lives. This 
commenter cited the 6 months pasture exemption for young stock, the 
non-growing season, and a 4-month pasture exemption for finish feeding 
as possibly consisting of as many as 17 months of a beef animal's 18- 
to 24-month life span.

Proposed Changes Based on Comments

    The role of pasture in an organic livestock operation is defined in 
the following sections of the NOP regulations. Section 205.2 defines 
pasture as land used for livestock grazing that is managed to provide 
feed value and maintain or improve soil, water, and vegetative 
resources. Section 205.237 requires the producer of an organic 
livestock operation to provide livestock with a total feed ration 
composed of agricultural products, including pasture and forage that 
are organically produced. Section 205.238(a)(3) requires producers to 
establish and maintain livestock health care practices which include 
establishing appropriate pasture conditions to minimize the occurrence 
and spread of diseases and parasites. Finally, Sec.  205.239 requires 
that ruminants be given access to pasture. The regulations, as 
originally published and currently in effect, require ruminants to 
graze pastures for the purposes of obtaining nutritional value as well 
as to accommodate their health and natural behavior.
    Some producers, with the approval of their certifying agents, have 
used other provisions within the regulations to avoid or minimize the 
role of pasture, or to justify not providing ruminants with pasture. 
Some producers have claimed, for instance, that lactation is a stage of 
production for which dairy animals require near-constant veterinary 
care or oversight and therefore, must be denied access to pasture for 
health and safety reasons. We agree with commenters that lactation is 
not a stage of production that justifies keeping dairy animals off 
pasture. This practice is not in compliance with Sec.  205.239, 
livestock living conditions. Some producers have also provided dairy 
animals with feed rations totally or nearly devoid of pasture. This 
practice is also not in compliance with Sec.  205.237, livestock feed. 
Other producers have put ruminants on acreage, which certifying agents 
have certified as pasture, that is so devoid of rooted grazable 
vegetation that the acreage does not meet the definition of pasture as 
defined in Sec.  205.2. Such producers feed ruminants on such acreage 
with forage harvested from other acreages certified as pasture.
    As noted in Sec.  205.2, pasture is defined as land used for 
livestock grazing that is managed to provide feed value and maintain or 
improve soil, water, and vegetative resources. Accordingly, producers 
must actively manage pasture, in full compliance with Sec. Sec.  
205.200 through 205.206, just as they manage any other cropland, to 
provide adequate feed and forage for animals while balancing the 
ecological needs of the soil, water, and other natural resources.
    Commenters stated that pasture practices should be part of each 
producer's OSP, and that it should be obviously available as a 
compliance tool for inspectors and certifying agents. We agree. Section 
205.201 requires that producers develop an OSP that includes, among 
other things, a description of practices and procedures to be performed 
and maintained, including the frequency with which they will be 
performed. As stated in the preamble to the December 21, 2000 Final 
Rule (65 FR 80548), 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. Since implementation of 
these regulations, however, we have learned 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 we conclude that the role of 
pasture needs to be further defined.
    To address the issues noted above and the NOSB February 2005 
recommendation for a pasture guidance document, we are proposing

[[Page 63588]]

amendments to Sec. Sec.  205.237 and 205.239 and the addition of a 
pasture practice standard as new Sec.  205.240. Additionally, we are 
proposing new definitions to be added to Sec.  205.2.
    We are also proposing, in this proposed rulemaking, to clarify the 
replacement animal provision of paragraph 205.236(a)(2)(iii) which 
applies when what is commonly referred to as the ``80/20 rule'' 
(paragraph 205.236(a)(2)(ii)) was used to convert an entire distinct 
herd to organic production. It now also applies to paragraph 
205.236(a)(2)(i) which was added (71 FR 32803) following amendment to 
OFPA (Pub. L. 109-97, Title VII, Sec.  797). In discussing the 80/20 
rule, the preamble to the final rule published December 21, 2000, (65 
FR 80570) contains the sentence ``After a dairy operation has been 
certified, animals brought onto the operation must be organically 
raised from the last third of gestation.'' We are proposing to replace 
the language currently found in paragraph 205.236(a)(2)(iii) with 
language similar to the sentence found in the final rule preamble and 
the phrase ``using the exception in paragraph (a)(2)(i) or (ii) of this 
section.'' Paragraph 205.236(a)(2)(iii) would now read, ``Once an 
operation has been certified for organic production using the exception 
in paragraph (a)(2)(i) or (ii) of this section, all dairy animals 
brought onto the operation shall be under organic management from the 
last third of gestation.'' We are taking this action to clarify that 
there remain two tracks for replacement dairy animals following the 
Congressional amendment (Pub. L. 109-97, Title VII, Sec.  797) and the 
final rulemaking that was published June 7, 2006, (71 FR 32803) based 
on the court order in Harvey v. Johanns. One track applies to 
operations that were certified for organic production using the 
exception in paragraph (a)(2)(i) or (ii) of Sec.  205.236. For these 
operations all dairy animals brought onto the operation are required to 
be under organic management from the last third of gestation. The 
second track applies to operations that did not use the exception in 
paragraph (a)(2)(i) or (ii) of Sec.  205.236. These operations may 
purchase conventional animals for conversion to organic production or 
animals that have been converted from conventional to organic. In a 
separate rulemaking action, we intend to address the two track system 
and seek public comment relative to recommended changes to the origin 
of livestock in organic production.
    This action adds a new Sec.  205.240, Pasture practice standard. 
Section 205.240 provides that a producer of an organic livestock 
operation must, for all ruminant livestock on the operation, 
demonstrate through auditable records in the OSP, a functioning 
management plan for pasture that meets all requirements of Sec. Sec.  
205.200 through 205.240. Producers are encouraged to work with their 
local Cooperative Extension or NRCS office to develop an active 
management plan for pasture.
    Section 205.240 also requires pasture to be managed as a crop in 
accordance with Sec. Sec.  205.200 through 205.206. To the extent that 
they have not already done so, producers would be required to develop 
and annually update a comprehensive pasture plan for inclusion in their 
OSP. At the time of annual update, certified operations will submit an 
updated comprehensive pasture plan. When there is no change to the 
previous year's comprehensive pasture plan the certified operation may 
resubmit the previous year's comprehensive pasture plan.
    Currently, paragraph 205.103(b)(2) requires that records fully 
disclose all activities and transactions of the certified operation in 
sufficient detail as to be readily understood and audited. Also 
paragraph 205.201(a)(1) requires an OSP that includes a description of 
practices and procedures to be performed and maintained, including the 
frequency with which they will be performed. Accordingly, proposed 
Sec.  205.240 also provides that a comprehensive pasture plan must 
include a detailed description of: (1) Crops to be grown in the pasture 
and haymaking system; (2) cultural practices, including but not limited 
to varying the crops and their maturity dates in the pasture system, to 
be used to ensure pasture of a sufficient quality and quantity is 
available to graze throughout the growing season and to provide all 
ruminants under the organic systems plan with an average of not less 
than 30 percent of their dry matter intake from grazing throughout the 
growing season; (3) the haymaking system; (4) the location of pasture 
and haymaking fields, including maps showing the pasture and haymaking 
system and giving each field its own identity; (5) the types of grazing 
methods to be used in the pasture system; (6) the location and types of 
fences and the location and source of shade and water (paragraph 
205.239(a)(1) provision); (7) the soil fertility, seeding, and crop 
rotation systems (Sec. Sec.  205.203, 205.204, 205.205 provisions); (8) 
the pest, weed, and disease control practices (Sec.  205.206 
provision); (9) the erosion control and protection of natural wetlands, 
riparian areas, and soil and water quality practices (Sec.  205.200 and 
paragraph 205.203(c) provisions); (10) pasture and soil sustainability 
practices (Sec.  205.200 provision); and (11) restoration of pastures 
practices (Sec.  205.200 provision).
    Section 205.240 also introduces the requirement that the pasture 
system include a sacrificial pasture. A sacrificial pasture is intended 
to protect the other pastures from excessive damage during periods when 
saturated soil conditions render the pasture(s) too wet for animals to 
graze. The sacrificial pasture must be sufficient in size to 
accommodate all animals in the herd without crowding. The sacrificial 
pasture must be located where: Soils have good trafficability, well-
drained, there is a low risk of soil erosion, there is low or no 
potential of manure runoff, surrounded by vegetated areas, and easily 
restored. The sacrificial pasture must be managed to: Provide feed 
value and maintain or improve soil, water, and vegetative resources. 
Finally, the sacrificial pasture must be restored through active 
pasture management.
    This provision will assist producers in complying with existing 
requirements in Sec.  205.200, which requires that producers maintain 
or improve the natural resources of the operation, while complying with 
the pasturing requirements of paragraph 205.239(a)(2). We have included 
this requirement on sacrificial pasture because we have observed some 
producers using minimal amounts of rainfall to deny access to pasture, 
claiming that these wet conditions are detrimental to the pasture and 
the health and well being of the animals. We do not concur.
    By requiring that the pasture system include a sacrificial pasture, 
the regulations ensure that ruminants are on pasture when it is raining 
and immediately after it has rained. Drawing from USDA and University 
Extension research on sacrificial pastures, we propose to define 
sacrificial pasture as ``a pasture or pastures within the pasture 
system, of sufficient size to accommodate all animals in the herd 
without crowding, where animals are kept for short periods during 
saturated soil conditions to confine pasture damage to an area where 
potential environmental impacts can be controlled. This pasture is then 
deferred from grazing until it has been restored through active pasture 
management. Sacrificial pastures are located where soils have good 
trafficability, are well-drained, have low risk of soil erosion, have 
low or no potential of manure runoff, are surrounded by vegetated 
areas, and are easily restored. A sacrificial pasture is land used for

[[Page 63589]]

livestock grazing that is managed to provide feed value and maintain or 
improve soil, water, and vegetative resources; it is not a dry lot or 
feedlot.'' The Dictionary of Agriculture (Lipton 1995) defines dry lot 
as ``[a] relatively small enclosure without vegetation, either with a 
shelter or an open yard, in which animals may be confined 
indefinitely.'' Dry lot is defined by the Environmental Protection 
Agency (EPA) and the Purdue Research Foundation as ``an open lot that 
may be covered with concrete, but that has no vegetative cover. 
Generally used as exercise areas in most of the United States, but may 
be used as primary cow housing in the more arid climates'' (U.S. EPA, 
Ag 101, Glossary). Thus, drawing upon these definitions, we propose to 
define dry lot as ``a confined area that may be covered with concrete, 
but that has no vegetative cover.'' The same EPA publication defines 
feedlot as an ``enterprise in which cattle are fed grains and other 
concentrates for usually 90-120 days. Feedlots range in size from less 
than 100-head capacity to many thousands.'' The USDA's National 
Agricultural Library Thesaurus defines feedlots as ``confinement 
facilities where cattle are fed to produce beef for the commercial 
trade.'' The Dictionary of Agriculture and Environmental Science (Troeh 
and Donahue, 2003) defines feedlot, in part, as ``a confined area for 
the controlled feeding of animals for fattening and finishing for 
market.'' Thus, we propose to define feedlot as ``a confined area for 
the controlled feeding of ruminants.'' Dry lots and feedlots do not 
meet the requirements for pasturing organic ruminant animals.
    Finally, Sec.  205.240 requires producers to manage pasture in ways 
that comply with all applicable requirements of Sec. Sec.  205.236 
through 205.239.
    We are proposing to amend the definition of the term ``crop'' in 
Sec.  205.2, by inserting the phrase ``pastures, sod, cover crops, 
green manure crops, catch crops, and any'' at the beginning of the 
definition and ``or used in the field to manage nutrients and soil 
fertility'' at the end of the definition. We are taking this action to 
ensure that pastures and sod are crops. This amendment would also 
ensure the fact that pastures, sod, cover crops, green manure crops, 
and catch crops are crops subject to the requirements of Sec.  205.204. 
The definition for ``crop'' would now read, ``Pastures, sod, cover 
crops, green manure crops, catch crops, and 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.''
    We are proposing to amend Sec.  205.239, livestock living 
conditions, by adding the words ``year-round'' to the introductory text 
of paragraphs (a) and (a)(1). To the end of the introductory text of 
paragraph (a) we propose adding the text ``those listed in paragraphs 
(a)(1) through (a)(3) of this section. Further, producers shall not 
prevent, withhold, restrain, or otherwise restrict animals from being 
outdoors, except as otherwise provided in paragraph (b) and (c) of this 
section. Producers shall also provide:''. We also propose adding the 
words ``for all animals'' to paragraph 205.239(a)(1). These changes 
will help producers and certifying agents understand that producers are 
to accommodate the health and natural behavior of animals throughout 
the year. Further, we propose to amend paragraph 205.239(a)(1) by 
amending the words ``its stage of production'' to read ``its stage of 
life.'' We are taking this action so that producers do not use this 
provision to deny lactating dairy animals access to pasture. We also 
propose to amend paragraph 205.239(a)(1) by adding ``water for 
drinking'' to the list of items provided to animals. We are adding 
``water for drinking'' to paragraph 205.239(a)(1) to ensure that all 
producers are providing water for drinking to their animals while the 
animals are outdoors. The introductory text of paragraphs (a) and 
(a)(1) would now read, ``(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 those listed in paragraphs (a)(1) through (a)(3) of 
this section. Further, producers shall not prevent, withhold, restrain, 
or otherwise restrict animals from being outdoors, except as otherwise 
provided in paragraph (b) and (c) of this section. Producers shall also 
provide: (1) Year-round access for all animals to the outdoors, shade, 
shelter, exercise areas, fresh air, water for drinking, and direct 
sunlight, suitable to the species, its stage of life, the climate, and 
the environment.''
    In seeking ways to respond to commenters who proposed a minimum of 
120 days on pasture and to help producers and certifying agents 
understand the role of pasture without a new regulatory requirement 
that specifies a minimum number of days and would require significant 
documentation, we looked for other ways to describe a time frame that 
would capture the intent that animals graze as much as possible in a 
broad range of climatic conditions. A commonly used indicator 
throughout agriculture is the growing season. The growing season is 
commonly defined as the time period from the date of the average last 
killing frost in late winter or spring to the date of the average first 
killing frost in the fall or early winter. Growing seasons vary 
throughout the United States (and other countries); however, they 
provide a variable but easily measurable timeframe that clearly defines 
periods when organic operations and their certifying agents can, except 
during periods of drought, ensure pastures provide sufficient forage to 
allow all ruminant animals opportunity to graze. In the United States, 
growing seasons range from 121 days to 365 days, depending on location. 
By using the growing season as the minimum time period for grazing, the 
regulations ensure that ruminants raised in areas with longer grazing 
periods are not denied the opportunity to graze for more than the 
minimum of 120 days proposed by commenters. We consider this measure to 
align with commenters' proposed minimum 120 days on pasture. 
Accordingly, we propose to amend paragraph 205.239(a)(2) to require 
that ruminants be provided with continuous year-round management on 
pasture for grazing throughout the growing season. Additionally, we 
propose to amend paragraph 205.239(a)(2) to require that ruminants be 
provided with continuous year-round management on pasture for access to 
the outdoors throughout the year, including during the non-growing 
season. Exceptions to these requirements would be listed in paragraph 
205.239(c).
    We also include in the amendment to paragraph 205.239(a)(2), the 
statement that dry lots and feedlots are prohibited. As previously 
stated, a dry lot is a confined area that may be covered with concrete, 
but that has no vegetative cover. Feedlots are confined areas for the 
controlled feeding of ruminants.
    We believe that amended paragraph 205.239(a)(2) and new paragraph 
205.240(c)(2) meet the original intent of the regulations and the 
expectations of some commenters that dairy animals graze on pasture 
throughout the growing season and be on pasture during the non-growing 
season. Amended paragraph 205.239(a)(2) would now read, ``For all 
ruminants, continuous year-round management on pasture, except as 
otherwise provided in paragraph (c) of this section, for: (i) grazing 
throughout the growing season; and (ii) access to the outdoors 
throughout the year, including during the non-growing season. Dry lots 
and feedlots are prohibited.''

[[Page 63590]]

    We propose to amend paragraph 205.239(a)(3) by removing ``If the 
bedding is typically consumed by the animal species, it must comply 
with the feed requirements of Sec.  205.237'' and inserting in its 
place ``When hay, straw, ground cobs, or other crop matter typically 
fed to the animal species is used as bedding, it must comply with the 
feed requirements of Sec.  205.237.'' We are taking this action because 
some producers, with the approval of their certifying agents, have used 
conventional bedding typically consumed by the animal species. Such 
producers claim that their animals do not consume their bedding. 
However, paragraph 205.239(a)(3) 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. This amendment is intended to eliminate this 
manipulation of the wording in existing paragraph 205.239(a)(3). 
Amended paragraph 205.239(a)(3) would now read, ``Appropriate clean, 
dry bedding. When hay, straw, ground cobs, or other crop matter 
typically fed to the animal species is used as bedding, it must comply 
with the feed requirements of Sec.  205.237.''
    We propose to amend paragraph 205.239(b) to make it only applicable 
to non-ruminant animals. Temporary confinement of ruminants would now 
be covered under a new paragraph 205.239(c). The existing paragraph 
205.239(c) would be redesignated as 205.239(e). We also propose to 
amend paragraph 205.239(b)(2) by changing the word ``production'' to 
``life'' to make the animal stage provision consistent with amended 
paragraph 205.239(a)(1). Amended paragraph 205.239(b) would now read, 
``The producer of an organic livestock operation may temporarily deny a 
non-ruminant animal access to the outdoors because of.'' Amended 
paragraph 205.239(b)(2) would now read, ``The animal's stage of life.''
    Under proposed paragraph 205.239(c), the producer of an organic 
livestock operation may temporarily deny a ruminant animal pasture 
when: (1) The animal is segregated for treatment of illness or injury 
(the various life stages, such as lactation, are not an illness or 
injury); (2) one week prior to parturition (birthing), parturition, and 
up to one week after parturition; (3) in the case of newborns for up to 
six months, after which they must be on pasture and may no longer be 
individually housed; (4) in the case of goats, during periods of 
inclement weather; (5) in the case of sheep, for short periods for 
shearing; and (6) 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 dry matter intake 
from grazing of not less than 30 percent throughout the growing season. 
Milking frequencies or duration practices cannot be used to deny dairy 
animals pasture.
    The provisions of new paragraph 205.239(c) provide a detailed 
description of requirements under current paragraphs 205.239(b)(1) 
through (3). Risk to soil and water quality is now addressed through 
the sacrificial pasture provision of new Sec.  205.240.
    Paragraph 205.239(c)(2) addresses the expectation of many consumers 
and producers that lactating organic dairy animals not be denied 
pasture. Paragraph 205.239(c)(4) addresses the NOSB recommendation and 
generally recognized practice of allowing denial of pasture to 
ruminants below six months of age for health reasons. Paragraph 
205.239(c)(7) addresses consumer and producer expectations that organic 
dairy animals receive not less than 30 percent of their dry matter 
intake from grazing pastures.
    Through this action we provide greater detail regarding existing 
paragraph 205.239(b) because some producers, with the approval of their 
certifying agents, have incorrectly used paragraphs (b)(1) and (b)(3) 
of this section to deny ruminants pasture. An example is the claim by 
some producers that lactation is a stage of production for which dairy 
animals require constant veterinary care or oversight and therefore, 
must be denied pasture for health and safety reasons. We do not concur. 
Other examples include denying pasture because of rain, regardless of 
the amount of rain. Some producers have claimed that pasturing the 
animals in wet fields would damage the pasture and compromise the 
health and safety of the animals. While this is true of saturated 
pastures, it is not true each time it rains. As noted above, we have 
included in this action a proposal requiring a sacrificial pasture (new 
Sec.  205.240 paragraph (d)) for use when saturated soil conditions 
render the pasture(s) too wet for animals to graze. By requiring that 
the pasture system include a sacrificial pasture, the regulations 
ensure that ruminants are on pasture when it is raining and immediately 
after it has rained.
    Existing paragraph 205.238(a)(3) requires the producer to maintain 
preventive livestock health care practices including the establishment 
of appropriate housing, pasture conditions, and sanitation practices to 
minimize the occurrence and spread of diseases and parasites. Further, 
paragraph 205.239(a) provides that producers must establish and 
maintain livestock living conditions to accommodate the health and 
natural behavior of animals in general. This action adds a new 
paragraph 205.239(d) which elaborates on the good practices necessary 
to provide living conditions that accommodate the health and natural 
behavior of ruminant animals. New paragraph 205.239(d) clarifies that 
the good dairy management practices carried out by most organic dairy 
operations are required of all. To that end, ruminants must be provided 
with: (1) A lying area with well-maintained clean, dry bedding, which 
complies with paragraph (a)(3) of this section, during periods of 
temporary housing, provided due to temporary denial of pasture during 
conditions listed in paragraphs (c)(1) through (c)(5) of this section; 
(2) yards and passageways kept in good condition and well-drained; (3) 
shade and, in the case of goats, shelter open on at least one side; (4) 
water at all times except during short periods for milking or 
shearing--such water must be protected from fouling; (5) feeding and 
watering equipment that is designed, constructed, and placed to protect 
from fouling--such equipment must be cleaned weekly; and (6) in the 
case of newborns, hay in a rack off the ground, beginning 7 days after 
birth, unless on pasture, and pasture for grazing in compliance with 
paragraph 205.240(a) not later than six months after birth. The 
provision that newborns be provided with pasture for grazing in 
compliance with paragraph 205.240(a) not later than six months after 
birth codifies the NOSB recommendation, the common practice of organic 
dairy producers, and comments from some of the public.
    In this action we propose further addressing risk to soil or water 
quality through a new paragraph 205.239(f), which provides that the 
producer of an organic livestock operation must manage outdoor access 
areas, including pastures, in a manner that does not put soil or water 
quality at risk. This would include the use of fences and buffer zones 
to prevent ruminants and their waste products from entering ponds, 
streams, and other bodies of water. Buffer zone size shall be extensive 
enough, in full consideration of the physical features of the site, to 
prevent the waste products of ruminants from entering ponds, streams, 
and other bodies of water. Proposed paragraph 205.239(f) makes it clear 
that allowing ruminants to enter ponds, streams, and other bodies of 
water is not consistent

[[Page 63591]]

with protecting soil and water from contamination as currently required 
under existing Sec. Sec.  205.202 and 205.203. New paragraph 205.239(f) 
reinforces that producers are to manage outdoor access areas, including 
pastures, in a manner that would protect soil and water quality. 
Benefits to fencing ponds, streams, and other bodies of water include 
minimizing erosion of shoreline, reducing sediment deposition, 
improving water quality for livestock, wildlife, and aquatic life, 
eliminating or minimizing fecal oral transmission of diseases through 
water and better wildlife habitat along the shoreline. Fencing will 
also extend the useful life of a pond and prevent animals from getting 
on ice during the winter and falling into the pond.
    New paragraph 205.239(f) would also help ensure that the temporary 
confinement provision, risk to soil and water quality, of paragraph 
205.239(b)(4) would only be used under the most extreme climatic 
conditions.
    Amended Sec.  205.239 uses the terms ``growing season,'' 
``inclement weather,'' and ``temporary and temporarily.'' We are 
proposing to define these terms by amending Sec.  205.2, terms defined. 
Because the proposed definition for growing season uses the term 
``killing frost,'' we also propose a definition for killing frost. We 
are using the NRCS, National Water and Climate Center, WETS Table 
Documentation, May 15, 1995 document to craft the definition for 
growing season. This definition for growing season is consistent with 
use of the term growing season as it occurs in the definition of crop 
year found in Sec.  205.2 and the OFPA. Growing season is defined as, 
``the period of time between the average date of the last killing frost 
in the spring to the average date of the first killing frost in the 
fall or early winter in the local area of production. This represents a 
temperature threshold of 28 degrees Fahrenheit (-3.9 degrees Celsius) 
or lower at a frequency of 5 years in 10. Growing season may range from 
121 days to 365 days.'' The range most often cited for a killing frost 
is between 25 degrees and 28 degrees Fahrenheit. Accordingly, this 
proposal defines killing frost as, ``a frost that takes place at 
temperatures between 25 degrees and 28 degrees Fahrenheit (-2.2 and -
3.9 degrees Celsius) for a period sufficiently severe to end the 
growing season or delay its beginning.'' Livestock producers can obtain 
information concerning the growing season in their area from their 
local NRCS office. This proposal defines inclement weather as, 
``weather that is violent, or characterized by temperatures (high or 
low), that can kill or cause permanent physical harm to a given species 
of livestock.'' Finally, this proposal defines temporary and 
temporarily as, ``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), and 
not permanent or lasting.''
    We have been asked whether ``organically produced'' in paragraph 
205.237(a) means that agricultural products, including pasture and 
forage, have to be produced by certified organic operations. Persons 
raising the questions were interested in whether agricultural products 
produced by exempt operations and operations transitioning to organic 
could be fed to organic livestock. Agricultural products, including 
pasture and forage, do have to be produced by certified organic 
operations except as provided in paragraph 205.236(a)(i)). Paragraph 
205.236(a)(i) provides that, crops and forage from land, included in 
the organic system plan of a dairy farm, that is in the third year of 
organic management may be consumed by the dairy animals of the farm 
during the 12-month period immediately prior to the sale of organic 
milk or milk products. Accordingly, we are amending paragraph 
205.237(a) to clarify that agricultural products, including pasture and 
forage, must be organically produced by operations certified to the 
NOP, except as provided in paragraph 205.236(a)(i)), and, if 
applicable, organically handled by operations certified to the NOP.
    We are also proposing in paragraph 205.237(a) to reverse the 
reference to nonsynthetic substances and synthetic substances allowed 
under Sec.  205.603 so that it reads, ``Except, That, synthetic 
substances allowed under Sec.  205.603 and nonsynthetic substances may 
be used as feed additives and supplements.'' We are proposing this 
simple restructuring of the sentence because when read incorrectly this 
sentence can lead some to assume that nonsynthetic substances are also 
listed in Sec.  205.603 when they are not. This action does not create 
a new requirement.
    Finally, we propose to add to the end of paragraph 205.237(a) the 
proviso that reads, ``Provided, That, all agricultural ingredients in 
such additives and supplements shall have been produced and handled 
organically.'' Section 205.237 already requires that the producer 
provide a total feed ration composed of agricultural products that have 
been 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 agricultural ingredients were supplements or used as 
carriers. One example involved a product that contained conventionally 
produced molasses as the primary ingredient. This proposal clarifies 
the existing requirement that organic livestock must be provided with a 
total feed ration composed of agricultural products that are 
organically produced and handled. Section 205.237 provides no 
exceptions which permit the use of nonorganic agricultural products. 
This action does not create a new requirement.
    Paragraph 205.237(a) would now read, ``(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 by operations certified to the NOP, 
except as provided in Sec.  205.236(a)(i), and, if applicable, 
organically handled by operations certified to the NOP: Except, That, 
synthetic substances allowed under Sec.  205.603 and nonsynthetic 
substances may be used as feed additives and supplements, Provided, 
That, all agricultural ingredients in such additives and supplements 
shall have been produced and handled organically.''
    We propose to amend Sec.  205.237 by removing the word ``or'' from 
the end of paragraph 205.237(b)(5) and replacing the period at the end 
of paragraph 205.237(b)(6) with a semicolon.
    We also propose amending Sec.  205.237 by adding new paragraphs 
205.237(b)(7) and 205.237(b)(8). New paragraph 205.237(b)(7) would 
prohibit producers from providing feed or forage to which anyone, at 
anytime, has added an antibiotic. New paragraph 205.237(b)(8) prohibits 
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 
in paragraph 205.239(c). The prohibition on antibiotics in new 
paragraph 205.237(b)(7) reinforces the existing prohibition on the use 
of antibiotics found in paragraph 205.238(c)(1). Existing Sec.  205.237 
provides for feed from pasture and existing Sec.  205.239 provides for 
access to pasture and lists reasons for temporary confinement from 
pasture. New paragraph 205.237(b)(8) reinforces these requirements and 
those of amended paragraph 205.239(a)(2), which provides that ruminants 
have continuous year-round management on pasture.

[[Page 63592]]

    In response to an NOSB recommendation, and public comments, that 
ruminants receive not less than thirty percent of their dry matter 
intake from pastures, this action adds a new paragraph 205.237(c). This 
new regulation provides that during the growing season, producers shall 
provide not more than an average of 70 percent of a ruminant's dry 
matter demand from dry matter feed (dry matter feed does not include 
dry matter grazed from vegetation rooted in pasture). The paragraph 
further provides that producers shall, once a month, on a monthly 
basis: (1) Document each feed ration (in other words, for each type of 
animal (beef cattle, dairy cattle, sheep, goat), each class of animal's 
intended daily diet showing all ingredients, daily pounds of each 
ingredient per animal, each ingredient's percentage of the total 
ration, the dry matter percentage for each ingredient, and the dry 
matter pounds for each ingredient); (2) Document the daily dry matter 
demand of each class of animal using the formula: Average Weight/Animal 
(lbs) x .03 = lbs DM/Head/Day x Number of Animals = Total DM Demand in 
lbs/Day; (3) Document how much dry matter is fed daily to each class of 
animal; and (4) Document the percentage of dry matter fed daily to each 
class of animal using the formula: (DM Fed / DM Demand in lbs/day) x 
100 = % DM Fed. Plans for complying with new paragraph 205.237(c) must 
be a part of the producer's annual OSP.
    The following is an example of a feed ration document that 
producers could use to document compliance with new paragraph 
205.237(c).
BILLING CODE 3410-02-P

[[Page 63593]]

[GRAPHIC] [TIFF OMITTED] TP24OC08.001

    Finally, this action proposes that Sec.  205.2 be further amended 
to add definitions for graze, grazing, dry matter, dry lot, and 
feedlot. These are terms found in new and amended language in 
Sec. Sec.  205.237, 205.239, and 205.240. Their addition to Sec.  205.2 
will facilitate understanding of the terms as used. The definitions for 
graze, grazing, and dry matter come from the NRCS, National Range and 
Pasture Handbook, Glossary, September 1997. The definitions for dry lot 
and feedlot are derived from the various sources as discussed above. 
Graze is defined as, ``(1) The consumption of standing forage by 
livestock. (2) To put livestock to feed on standing forage.'' Grazing 
is defined as, ``To graze.'' Dry matter is defined as, ``The amount of 
a feedstuff remaining after all the free moisture is evaporated out.'' 
Dry lot is defined as, ``A confined area that may be covered with 
concrete, but that has no vegetative cover.'' Dry lots are prohibited 
in organic livestock production. Feedlot is defined as, ``A confined 
area for the controlled feeding of ruminants.'' Feedlots are prohibited 
in organic livestock production.

Changes Requested But Not Made

    In developing this proposed rule, we considered the implications of 
120 days as a minimum requirement for the amount of time that ruminants 
should spend on pasture during the calendar year. A 120-day minimum 
pasture requirement means that animals potentially could be confined 
indoors or

[[Page 63594]]

in dry lots for the remaining 245 days of the year and still be in 
compliance with the regulation. We believe this is contrary to the 
expectations of the organic community and consumers. The intent of 
pasture is for all animals of an operation to graze on pasture 
throughout the growing season. In the United States, growing seasons 
range from 121 days to 365 days, depending on location. By using 
growing season as the minimum time period for grazing, the regulations 
ensure the ruminants raised in areas with longer grazing periods are 
not denied the opportunity to graze for more than the commenter 
proposed 120 days. We consider the amendment to paragraph 205.239(a)(2) 
to closely align with commenters' proposed minimum 120 days on pasture. 
As previously discussed in this action, paragraph 205.239(a)(2), as 
amended, would require, for all ruminants, continuous year-round 
management on pasture for grazing throughout the growing season and 
access to the outdoors throughout the year, including during the non-
growing season; except as otherwise provided in paragraph (c) of Sec.  
205.239. Paragraph 205.239(a)(2) further provides that dry lots and 
feedlots are prohibited. Therefore, we are declining to specify a 
minimum number of days spent on pasture because an arbitrary number of 
days to graze may not be consistent with the growing season for an 
organic livestock operation.
    Over 10,500 commenters suggested amending the regulations to 
require pasture stocking rates. The most common figure cited was no 
more than and preferably less than, three ruminants per acre, in order 
to meet combined feed intake and ecological goals. We believe that the 
broad range of pasture types and grazing strategies available to 
producers makes a prescribed minimum stocking rate for pasture 
arbitrary and often contrary to good management practices. We believe 
that on organic operations in balance with the resources available to 
them, stocking rates will best be determined by grazing only the number 
of animals during the required time period on a parcel that can support 
such grazing without harm to the pasture, soil, or water quality. 
Higher quality pastures will support greater numbers of animals per 
acre, while lesser stands will support a lower stocking density. 
Therefore, we did not include a specified stocking rate for pastures in 
this proposed rule.
    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 (tens of thousands of commenters) and feedlot feeding 
(thousands of commenters). Commenters who favored such an exemption 
requested that the exemption not exceed 90 days. Others argued that 
allowing beef animals to be confined for the last 120 days of finish 
feeding, prior to slaughter, is not in keeping with the integrity 
(accommodation of the health and natural behavior of animals) of the 
organic standards that consumers expect from the certified organic 
label. It was also argued that this is contrary to the expected intent 
of pasture-raised animals in organic systems. A commenter made the 
point that such an exemption would permit beef animals to be raised off 
pasture, in some climates, for nearly their entire lives. This 
commenter cited the 6 months pasture exemption for young stock, the 
non-growing season, and a 4 month pasture exemption for finish feeding 
as possibly consisting of as many as 17 months of a beef animal's 18 to 
24 month life span.
    We agree with those commenters who argued that exemption from 
pasture for finish feeding is contrary to the expected intent of 
pasture-raised animals in organic systems. There is nothing inherent in 
the finish feeding of beef cattle that precludes them from being 
provided with pasture. Allowing confinement feeding for beef cattle 
would constitute an inconsistent application of the pasturing 
requirement and would lead to other misapplications of this part of the 
regulations. Further, routinely confining animals to dry lots or 
feedlots for any stage of production for any reason is inconsistent 
with consumers' expectations, based on comments received, that 
livestock graze on pasture during the growing season. As noted above, 
we have included in the amendment to paragraph 205.239(a)(2), the 
statement that dry lots and feedlots are prohibited. We are not 
providing an exemption to the requirement for pasture or to the 
requirements of new paragraph 205.237(c), for the finish feeding of 
beef cattle. New paragraph 205.237(c) provides that for the growing 
season, 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 vegetation rooted in pasture).

Other Proposed Changes

    Paragraph (a) of Sec.  205.102 requires that any agricultural 
product that is sold, labeled, or represented as ``100 percent 
organic,'' ``organic,'' or ``made with organic,'' to be produced in 
accordance with livestock Sec. Sec.  205.236 through 205.239. This 
action would amend paragraph 205.102(a) by adding proposed Sec.  
205.240. Paragraph 205.102(a) would now read ``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.''
    Paragraph (a) of Sec.  205.290 authorizes temporary variances from 
the requirements in livestock Sec. Sec.  205.236 through 205.239. This 
action would amend paragraph 205.290(a) by adding proposed Sec.  
205.240. Paragraph 205.290(a) would now read ``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 established by the 
Administrator for the following reasons.''
    Section 205.690 lists the OMB control number assigned to the 
information collection requirements in this part by the Office of 
Management and Budget 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, 
December 21, 2000). The correct number is 0581-0191. Accordingly, this 
action amends Sec.  205.690 to correct the OMB number to read as 
follows: ``The control number assigned to the information collection 
requirements in this part by the Office of Management and Budget 
pursuant to the Paperwork Reduction Act of 1995, 44 U.S.C. Chapter 35, 
is OMB number 0581-0191.''
    Section 205.2 of the final regulations published on December 21, 
2000 (65 FR 80548, December 21, 2000) defines ``livestock'' as ``Any 
cattle, sheep, goat, swine, poultry, 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 or bees for the 
production of food, fiber, feed or other agricultural-based consumer 
products.'' This definition of livestock excludes aquatic animals and 
bees for the production of food, fiber, feed or other agricultural-
based consumer products. These exclusions are inconsistent with the 
definition of livestock found in the

[[Page 63595]]

OFPA. Further, the exclusion of aquatic animals is inconsistent with 
the 2003 Public Law 108-11 which amended the OFPA section 2107 (7 
U.S.C. Sec.  6506) to allow, through regulations promulgated after 
public notice and opportunity for comment, the certification and 
labeling of wild seafood as organic. The exclusion of bees is also 
inconsistent with AMS's determination that apiculture and the products 
of apiculture can be certified under the NOP regulations. For the 
preceding reasons we propose to remove the exclusions from the 
definition of livestock as currently found at Sec.  205.2. Removal of 
the exclusion from the definition of livestock does not change the fact 
that standards must be developed before aquatic species qualify for 
certification under the NOP. Further we are adding ``bee'' to make it 
clear that bees used in the production of food, fiber, feed, or other 
agricultural-based consumer products may be certified organic provided 
they comply with the NOP. The definition of ``livestock'' would now 
read, ``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.''

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.
    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 
proposed 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 the proposed rulemaking and the benefits and 
costs of the proposed 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 livestock lack sufficient specificity and clarity to enable AMS 
to efficiently administer the Program. OSPs dealing with livestock 
management reflects different application of existing regulations and 
interpretations of requirements across Accredited Certifying Agents 
(ACAs). AMS has received 11 complaints requesting enforcement actions 
for alleged violations of the pasture provisions of the NOP livestock 
standards.
    Furthermore, 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. 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 response, 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 were received on the 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 comments 
opposing changes to the pasture requirements. 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. Nearly all of the over 80,500 comments were received from 
consumers requesting regulations that would clearly establish grazing 
as a primary source of nourishment. Approximately 80,250 of these 
comments were in a modified form letter. Many of these consumers 
requested that grazing account for at least 30 percent of the 
ruminant's DMI needs.
    Thirty percent DMI from grazing was recommended to the Secretary by 
the NOSB. That 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 what was the minimum DMI from 
grazing necessary to meet the requirement that ruminants obtain feed 
value from the grazing of pasture.

[[Page 63596]]

Regulatory Objective

    The goal in amending the NOP regulations is to bring uniformity in 
application to the livestock regulations, especially as they relate to 
the pasturing of ruminants, so as to facilitate enforcement of 
livestock regulations that reflect consumer expectations and producer 
perspectives regarding the production of organic livestock and their 
products. The proposed rule would establish uniformity in the 
application of regulations for all ruminant livestock producers 
regardless of operation size or location. This is especially important 
to small producers who account for an estimated 93 percent of organic 
livestock producers. This action makes clear what pasturing means under 
the NOP.
    This action is being taken by AMS to 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 action is also intended to 
satisfy consumer expectations that ruminant livestock animals graze 
pastures during the growing season.

Alternatives Considered

    Alternatives to this proposed rulemaking are to: (1) Make no 
changes to the existing regulations; (2) adopt a reduced pasturing 
period, such as the 120 day minimum period recommended by the NOSB and 
some commenters; or (3) adopt a 3 ruminants per acre stocking rate 
measure as suggested by some commenters.
    Alternative one is make no changes to the existing regulations. 
This option would result in continued dissatisfaction among consumers, 
producers, and certifying agents in the organic community. 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 proposed rulemaking was 
requested by consumers, producers, and certifying agents to ensure 
uniformity in application of livestock regulations by requiring that 
all organic ruminant livestock graze pasture throughout the growing 
season. 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, on the ANPR, opposing changes to the 
pasture requirements. Finally, a stated purpose of the OFPA (7 U.S.C. 
Sec.  6501) is to assure consumers that organically produced products 
meet a consistent standard. The current livestock provisions need 
additional specificity to assist ACAs with assuring the consistent 
standard purpose of the OFPA. This is evidenced by the enforcement 
actions resulting from the current inconsistent application of the 
livestock standards among the ACAs. Amendment to the existing 
regulations is necessary to bring about enforceable consistency in 
application.
    A second alternative is to adopt the 120 day minimum pasturing 
period as recommended by the NOSB. This NOSB recommendation was 
developed with public input. The choice of 120 days was based on 
producer knowledge of the minimum period when pasture is actively 
growing and suitable for grazing. As recommended, however, this option 
would create a situation where ruminants could be denied pasture for 
grazing for as much as 245 days during the year. During this time the 
ruminants could conceivably be confined indoors or in dry lots for the 
remaining 245 days a year and still be in compliance with the 
regulations. We considered what this minimum requirement would mean for 
the remainder of the calendar year and determined that this option 
falls short in meeting the expectations of consumers, producers, and 
ACAs that organic ruminants graze pasture throughout the growing 
season.
    This option would also create a situation where producers in areas 
with the shortest growing seasons could, due to a late spring or early 
winter, fail to achieve the mandatory 120 days on pasture for grazing. 
From a compliance objective, certifying agents stated their reluctance 
to take an enforcement action if a producer fails by one or a few days 
to meet the minimum requirement of days on pasture. Furthermore, it is 
not clear how to achieve regulatory compliance if the goals are met for 
all but one or a few animals on the operation, compared with failing to 
meet the goals for all animals for a brief time.
    The proposed rule modifies the NOSB's recommendation to eliminate 
both of the identified short comings. We accomplish this by requiring 
continuous year-round management on pasture, except for the temporary 
confinement periods specifically provided within the regulations. This 
will ensure that ruminants graze pasture throughout the growing season 
and that ruminants are provided access to the outdoors throughout the 
year, including during the non-growing season. We are seeking comments 
on why ruminants should be allowed to graze for 120 days rather than 
for the growing season.
    The NOSB has recommended that the Secretary publish regulatory 
language authorizing temporary confinement (up to 120 days) in feedlots 
for the finish feeding of organic slaughter stock. This NOSB 
recommendation also stated that such temporary confinement should 
specifically exclude lactating dairy animals. We agree with those 
commenters who argued that exemption from pasture for finish feeding is 
contrary to the expected intent of pasture-raised animals in organic 
systems. Accordingly, the proposed rule specifically prohibits dry lots 
and feedlots which are currently not authorized within the regulations.
    A third alternative is to adopt a 3-ruminants-per-acre stocking 
rate measure as suggested by some commenters. Commenters suggested that 
the regulations require 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. These comments do not appear 
to consider what would be the appropriate stocking rate for the diverse 
species of ruminant (e.g., buffalo, bison, cattle, goats, sheep). 
Further, this option would not 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. It would, however, limit the number of 
ruminants an operation could raise per acre.
    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. Stocking 
rates are dependent on pasture and grazing management. The ability of 
any given pasture to provide nutritional value to a ruminant is 
dependent on the pasture's forage quality and quantity. Thus, stocking 
rates will vary from pasture to pasture and quite possibly within 
pastures.
    A mandated maximum stocking rate of 3 ruminants per acre could 
interfere with a producer's ability to balance forage supply with 
ruminant demand. On one hand, a maximum 3 ruminants per acre stocking 
rate could result in overgrazing of lesser quality pastures accompanied 
by adverse environmental consequences such as erosion and nutrient 
runoff. On the other hand, producers with high quality pastures could 
be prevented from maximizing the forage availability of their pasture

[[Page 63597]]

due to the mandated 3 ruminants per acre stocking rate. Rather than 
prescribing a specific stocking rate, the producer, together with their 
ACA, should be allowed to vary the stocking rate to conform to the 
carrying capacity of the pasture. Therefore, the proposed rule requires 
that the producer manage pasture as a crop in full compliance with 
Sec. Sec.  205.200 through 205.206. This proposal requires that 
ruminants receive an average of not less than 30 percent of their dry 
matter needs from grazing during the growing season. Within these 
parameters the producer, together with their ACA, is free to determine 
the number of animals the operation can accommodate while complying 
with all of the NOP regulations and the stocking rate appropriate for 
each pasture within the operation. The alternative that is proposed 
requires grazing throughout the growing season and a limit of not less 
than 30% DMI from grazing during the growing season. We are adopting 
the 30% standard recommended by the NOSB and supported by comments 
received in response to the ANPR, but welcome further comment on the 
impact of this standard, how many producers currently achieve this 
standard, how many producers would have to change their practices to 
achieve this standard, and the suitability of alternative percentages.

Baseline

    Based on the 2005 Agricultural Research Management (ARM) Survey of 
ACAs conducted by the Economic Research Service (ERS), U.S. certified 
organic acreage stood at 4 million acres of which approximately 2.3 
million was pasture and rangeland. The actual amount of certified 
organic acreage as of this date is currently unknown.
    By the end of 2005, the number of U.S. certified organic crop, 
livestock, and handling operations totaled about 8,500. Of this total, 
AMS estimates that there are currently approximately 1,800 U.S. organic 
dairy producers. The number of certified organic beef, sheep, lamb, 
goat, buffalo, and bison operations is currently unknown.
    Data from the 2005 ARM Survey 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. ERS includes goats, buffalo, bison, rabbits, and other 
specialties in the designation other animals. The actual number of 
certified organic ruminants of each type as of this date is currently 
unknown.
    With regard to dairies, the 2005 ARM Survey found that 84 percent 
of organic dairies and 60 percent of the organic milk cows were located 
in the Northeast and Upper Midwest. Nine percent of organic dairies and 
8 percent of the organic milk cows are found in the Corn Belt. By 
contrast only 7 percent of the organic dairies were located in the 
West, but these operations held 32 percent of the organic milk cows. 
Nationally the mean size of an organic dairy is 82 cows. The mean size 
of organic dairies in the Northeast is 52 cows versus 64 cows in the 
Upper Midwest and 381 cows in the West. USDA lacks data to determine 
whether these distributions have changed over the last three years.
    The 2005 ARM Survey also found 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 each cow would 
generate approximately $2,992. Based on the Small Business 
Administration (SBA) definition of what constitutes a small 
agricultural producer, this would make a small dairy any dairy with 
less than 251 cows. As noted in the previous paragraph, 7 percent of 
the organic dairies were located in the West, but these operations held 
32 percent of the organic milk cows and had a mean size of 381 cows. 
This would suggest that over 93 percent of the organic dairies are 
small producers and that large producers operate primarily in the West.
    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. AMS believes, but lacks data to substantiate, that these 
spreads have increased due to today's high costs for fuel and organic 
feed.
    The 2005 ARM Survey found that more than 60 percent of organic 
dairies provided their animals with pasture that provided more than 50 
percent of their forage needs throughout the growing season. USDA lacks 
data to determine whether these distributions have changed over the 
last three years.
    Livestock access to pasture and grazing as a source of nourishment 
varies greatly across regions because of climatic and related 
environmental conditions. Further, grazing practices and access to 
pasture vary greatly among similarly situated organic producers. OSPs 
dealing with livestock management reflect different application of 
existing regulations and interpretations of requirements across ACAs. 
This has resulted in a lack of uniformity in application of the 
livestock regulations, especially as they relate to the pasturing of 
ruminants. Current practices are expected to continue in the absence of 
additional specificity and clarity in the livestock regulations.

Benefits to the Proposed Rule

    This proposed 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 proposed rule 
would also bring uniformity in application to 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. Because of this, it is crucial 
that consumer expectations are met. This proposed rulemaking is 
intended to reflect consumer expectations and producer perspectives. 
This action makes clear what access to pasture means under the NOP.
    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 growing season. This proposed rule also adds 3 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 growing season (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 
growing season.); (2) use of a sacrificial pasture; and (3) the 
requirement that for the growing 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

[[Page 63598]]

pasture. These 3 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 growing season, from grazing 
vegetation rooted in pasture. 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. Some of 
these complaints have been followed by negative press generated by a 
consumer activist organization. This negative press has created 
consumer uncertainty regarding the organic status of milk and milk 
products labeled ``organic.'' Accordingly, 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 
action provides greater detail about acceptable and required practices 
related to organic livestock and pasture management that will result in 
more thorough 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 growing season such that 
ruminants obtain feed value from the grazing of pasture. This will in 
turn satisfy consumer expectations that ruminant livestock animals 
graze pastures during the growing 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 of Proposed Rule

    This action will increase the cost of production for producers who 
currently do not pasture their animals and those producers who do not 
manage their pastures at a sufficient level to provide at least 30 
percent DMI. 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. Because we have so little data on the organic 
slaughter sector, we are seeking input from commenters on how 
production costs and consumer prices may be affected by the changes in 
this proposed rulemaking.
    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 
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. 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. Because we have so little data on the 
organic dairy sector, we are seeking input from commenters on how 
production costs and consumer prices may be affected by the changes in 
this proposed rule.
    Organic livestock producers are currently faced with tight feed 
supplies and high costs. Because we have so little data on the organic 
feed sector, we are seeking input from commenters on how the 
availability of feed supplies and costs may be affected by the changes 
in this proposed rule. We are also seeking data from commenters on 
whether current feed stocks and price are limiting the expansion of 
livestock production.
    The costs associated with complying with this proposed rule would 
vary based on the livestock producer's current practices and the degree 
to which they conform to the proposed clarified and amended livestock 
regulations. Cost factors could include land and seed for pasture; 
fencing to protect ponds, streams, and other bodies of water; and 
documenting feed rations, once a month, on a monthly basis. We are 
seeking further comment on these costs, as the data we have on this 
industry are limited at this time.
    Some producers may see an overall reduction in production costs as 
a result of this proposed rule. 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.\1\ Therefore, we are also seeking 
additional information on how costs may decline if ruminants increase 
time grazing compared with being fed grain or harvested forage.
---------------------------------------------------------------------------

    \1\ 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.
---------------------------------------------------------------------------

    New regulatory provisions include: (1) The requirement that 
pastures be managed for grazing throughout the growing season (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 
growing season.); (2) use of a sacrificial pasture; and (3) the 
requirement that for the growing 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.
    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. The 2005 ARM Survey found that more than 60 
percent of organic dairies provided their animals with pasture that 
provided more than 50 percent of their forage needs throughout the 
growing season.
    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 growing season to meet 
the average 30 percent

[[Page 63599]]

DMI level. Costs associated with providing sufficient vegetation for 
grazing throughout the growing season would include the time (labor) 
spent seeding the pastures, fuel for equipment used in seeding, and the 
cost of seed.
    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 growing season. This would be 
especially true for those periods during the growing 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 $60 per acre at 2007 prices. If 
organic festolium is to be grown the seed will cost approximately $50 
per acre at 2007 prices. Certified organic orchardgrass would cost 
approximately $46 per acre at 2007 prices. Certified organic ryegrass 
would cost approximately $75 per acre at 2007 prices. Benefits of using 
improved pasture include a lower cost of purchased feed (grains and 
forages) per hundredweight of milk or meat produced, reduced forage 
harvest costs, and reduced veterinary costs, which could result in an 
overall increase in farm profitability (as noted above). 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. 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. In the past such 
complaints have been followed by negative press generated by a consumer 
activist organization. This negative press has created consumer 
uncertainty regarding the organic status of milk and milk products 
labeled ``organic.'' This should 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. Because we 
have so little data on the pasturing of ruminant animals by organic 
producers and the ability of existing pastures to provide the minimum 
30 percent DMI over the growing season, we are seeking input from 
commenters on how production costs may be affected by the changes in 
this proposed rule.
    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. 
The exact number of producers who may need to obtain pasture to comply 
with the new regulatory provisions is unknown, but estimated to be 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. Because we lack this data, we are seeking input 
from commenters on how many ruminant livestock producers are not 
providing pasture or have insufficient pasture to support the size of 
their herd.
    Costs of pasture vary depending on location. USDA's Agricultural 
Statistics, 2007, show 2006 pasture land values ranging from $11,700 
per acre in New Jersey to $250 per acre in North Dakota. Costs would 
likely be higher for certified organic pasture. USDA's Agricultural 
Statistics, 2007, show 2006 pasture land cash rents ranging from $38 
per acre in Iowa and Wisconsin to $2 per acre in New Mexico. 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. Benefits of 
pasture include a lower cost of purchased feed (grains and forages) per 
hundredweight of milk or meat produced, reduced forage harvest costs, 
and reduced veterinary costs. 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. Because we lack data 
on the price of organic pasture, we are seeking input from commenters. 
Costs associated with complying with the proposed new sacrificial 
pasture provision will depend on the individual producer's current 
practices and location. Sacrificial pastures are used as a place where 
animals are kept for short periods during saturated soil conditions to 
confine pasture damage to an area where potential environmental impacts 
can be controlled. Livestock operations already using a sacrificial 
pasture system would see minimal increased costs. Costs to livestock 
producers who do not currently use a sacrificial pasture system will 
vary. Costs will depend on what it would take to modify an existing 
pasture and its surrounding area to ensure that environmental impacts 
can be controlled. For livestock producers who have not been providing 
pasture, they will need to include a sacrificial pasture in their new 
pasture system. They will also need to ensure that the pasture used as 
a sacrificial pasture and its surrounding area are, if necessary, 
modified to ensure that environmental impacts can be controlled. 
Because we have so little data on the costs associated with providing a 
sacrificial pasture, we are seeking input from commenters on the costs 
associated with establishment and maintenance of a sacrificial pasture 
as well as how production costs may be affected.
    Some ruminant livestock operations have one or more pastures that 
contain a pond or have a stream running through. The exact number of 
organic ruminant livestock operations having one or more pastures that 
contain a pond or have a stream running through is unknown. Because we 
lack this data, we are seeking input from commenters.
    Water quality is adversely impacted when livestock are not excluded 
from ponds and streams. In this action we propose further addressing 
risk to soil or water quality through a new paragraph 205.239(f), which 
provides that the producer of an organic livestock operation must 
manage outdoor access areas, including pastures, in a manner that 
minimizes the potential adverse impacts of grazing on soil and water 
quality. This would include the use of fences and buffer zones to 
prevent ruminants and their waste products from entering ponds, 
streams, and other bodies of water. Proposed paragraph 205.239(f) makes 
it clear that allowing ruminants to enter ponds, streams, and other 
bodies of water is not consistent with protecting soil and water from 
contamination as currently required under existing Sec. Sec.  205.202 
and 205.203. New paragraph 205.239(f) reinforces that producers are to 
manage outdoor access areas, including pastures, in a manner that would 
protect soil and water quality.
    Costs associated with complying with new paragraph 205.239(f) may 
vary depending on the presence of any ponds, streams or other bodies of 
water, and the individual producer's current practices. Producers who 
already

[[Page 63600]]

prevent their animals from entering ponds, streams, and other bodies of 
water should see minimal increased costs. Producers who allow their 
animals to enter ponds, streams, and other bodies of water would incur 
costs for the fencing necessary to prevent such access. Costs 
associated with installing a fence will vary depending on its type, how 
it is installed, the terrain, and the type of animal (e.g., bison, 
cattle, sheep, goats) to be fenced in or out. Costs of building a \1/
4\-mile (1,320 feet) straight perimeter fence are presented in Tables 1 
through 3 and are included to illustrate to the public the potential 
costs of compliance. These tables compare three commonly used types of 
fencing (woven, barbed wire, high-tensile electrified).

                              Table 1--Construction Costs for Woven Wire Fence \2\
                                          [Based on a 1,320 foot fence]
----------------------------------------------------------------------------------------------------------------
                  Item                                    Amount                   Cost per unit    Total cost
----------------------------------------------------------------------------------------------------------------
Wood posts (8-in diameter)..............  4.....................................          $22.00          $88.00
Wood posts (4-in diameter)..............  57....................................            9.30          530.00
Steel posts (6.5 feet)..................  55....................................            3.69          203.00
Staples and clips.......................  10 pounds.............................            1.80           18.00
Barbed wire.............................  1,320 feet............................           0.037           49.00
Woven wire (48 inch)....................  1,320 feet............................            0.40          528.00
Labor (estimated).......................  42 hours..............................           13.60          571.00
                                         -----------------------------------------------------------------------
    Total...............................  ......................................  ..............        1,987.00
                                         -----------------------------------------------------------------------
    Total per foot......................  ......................................  ..............            1.51
----------------------------------------------------------------------------------------------------------------


                              Table 2--Construction Costs for Barbed Wire Fence \2\
                                          [Based on a 1,320 foot fence]
----------------------------------------------------------------------------------------------------------------
                  Item                                    Amount                   Cost per unit    Total cost
----------------------------------------------------------------------------------------------------------------
Wood posts (8-in diameter)..............  4.....................................          $22.00          $88.00
Wood posts (4-in diameter)..............  57....................................            9.30          530.00
Steel posts (6.5 feet)..................  55....................................            3.69          203.00
Staples and clips.......................  10 pounds.............................            1.80           18.00
Barbed wire.............................  6,600 feet............................           0.037          244.00
Labor (estimated).......................  39 hours..............................           13.60          530.00
                                         -----------------------------------------------------------------------
    Total...............................  ......................................  ..............        1,614.00
                                         -----------------------------------------------------------------------
    Total per foot......................  ......................................  ..............            1.23
----------------------------------------------------------------------------------------------------------------


                     Table 3--Construction Costs for High-Tensile Electrified Wire Fence \2\
                                          [Based on a 1,320 foot fence]
----------------------------------------------------------------------------------------------------------------
                  Item                                    Amount                   Cost per unit    Total cost
----------------------------------------------------------------------------------------------------------------
Wood posts (8-in diameter)..............  6.....................................          $22.00         $132.00
Wood posts (4-in diameter)..............  4.....................................            9.30           37.00
Steel posts (6.5 feet)..................  52....................................            3.69          192.00
Insulators..............................  285...................................            0.15           43.00
Springs.................................  5.....................................            4.50           23.00
Strainers...............................  5.....................................            2.50           13.00
High-tensile wire.......................  6,600 feet............................          0.0225          149.00
Energizer (priced over 4 years).........  \1/4\.................................          200.00           50.00
Cut-out switch..........................  1.....................................            9.00            9.00
Ground/lightning rods...................  4.....................................            9.00           36.00
Labor (estimated).......................  18 hours..............................           13.60          245.00
                                         -----------------------------------------------------------------------
    Total...............................  ......................................  ..............          927.00
                                         -----------------------------------------------------------------------
    Total per foot......................  ......................................  ..............            0.70
----------------------------------------------------------------------------------------------------------------

     
---------------------------------------------------------------------------

    \2\ Estimates from Iowa State University Extension (ISU) 
publication FM 1855 Estimated Costs for Livestock Fencing (Revised 
July 2005).
---------------------------------------------------------------------------

    Livestock producers can avail themselves of various Federal, State, 
and local conservation programs designed to assist producers with the 
cost of installing fencing for the purpose of protecting water quality. 
These programs can also provide technical assistance regarding 
suitability of various fencing materials and the buffer area within the 
fence that will properly control runoff. Qualified producers can 
voluntarily apply to the Environmental Quality Incentives Program 
(EQIP), administered by the Natural Resources Conservation Service 
(NRCS), and if approved, may receive reimbursement for part of the cost 
of practice installation. For example, a producer could receive EQIP 
payments of up to

[[Page 63601]]

75 percent towards the cost of installation of a fence along a stream 
that provides protection or improvement of water quality. Producers 
installing fencing to comply with new paragraph 205.239(f) may also 
incur costs for providing water to their animals if the only source of 
drinking water currently available is to allow their animals to enter 
ponds, streams, and other bodies of water to obtain drinking water. 
These costs will vary depending on what option is chosen for providing 
water. A pond from which water can be drawn will cost an estimated 
$3,000. A spring-fed watering system will cost an estimated $1,000 or 
more. A wet well will cost an estimated $1,500 to $2,500 installed. A 
drilled well will cost an estimated $15 to $30 per foot to drill plus 
$500 to $1,000 or more for a pumping system. It will cost an estimated 
$1,000 to $2,000 or more depending on the distance from water main to 
distribution point for rural water district supplies plus monthly fees. 
Hauling water includes costs for a tank and trailer, recurring labor, 
and fuel costs. Also to be factored in is the cost of an animal drink 
delivery system such as a bottomless tank or a fiberglass or galvanized 
tank. A bottomless tank will cost an estimated $1,400 for a 30[foot] x 
30[foot] x 6 concrete pad; $300 for rebar, bolts, overflow 
pipe; and $1,700 for rings. A 300 gallon fiberglass tank will cost an 
estimated $180 while a 10 foot diameter galvanized tank will cost an 
estimated $500.\3\
---------------------------------------------------------------------------

    \3\ Estimates used in this paragraph were sourced from: 
Blocksome, C.E. and G.M. Powell (eds). 2006. Waterers and watering 
systems: A handbook for livestock owners and landowners. Kansas 
State University Agricultural Experiment Station and Cooperative 
Extension Service, Manhattan, Kansas.
---------------------------------------------------------------------------

    Livestock producers can avail themselves of various Federal, State, 
and Local conservation programs designed to assist producers with the 
cost of installing watering systems. For example, producers can 
voluntarily apply to the EQIP, administered by the NRCS, and if 
approved, may receive reimbursement for part of the cost of installing 
water systems. Using EQIP, depending on location, qualified producers 
could receive EQIP payments of up to 75 percent to assist with the 
installation of conservation practices ponds, wells, and watering 
facilities that provide environmental benefits.

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 agricultural service firms, such as producers, 
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 proposed 
rule's costs to small entities. The RIA provides an analysis of the 
benefits and cost of a proposed rule. Further, the RFA requires a 
description of the projected reporting and recordkeeping requirements 
of a proposed rule. The PRA provides an estimate of the reporting and 
recordkeeping (information collection) requirements of a propose rule. 
In order to avoid duplication, we combine some analyses as allowed in 
section 605(b) of the Act. The RFA in the Access to Pasture proposed 
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 producers, 
handlers, and ACAs, have been defined by the Small Business 
Administration (SBA) (13 CFR 121.201) as those having annual receipts 
of less than $6,500,000.
    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. 
Based on the 2005 ARM Survey U.S. certified organic acreage had 
increased to 4 million acres of which approximately 2.3 million was 
pasture and rangeland. By the end of 2005, the number of U.S. certified 
organic crop, livestock, and handling operations totaled about 8,500. 
AMS estimates that most of these entities would be considered small 
entities under the criteria established by the SBA.
    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 95 ACAs who provide certification services to 
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. 
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.
    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. This proposed rule is not expected to have an 
impact on a substantial number of small agricultural producers.
    Data from the 2005 ARM Survey 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. ERS includes goats, buffalo, bison, rabbits, and other 
specialties in the designation other animals. Of the 36,113 organic 
beef animals, 21 percent of these are located in Alaska. Using the 
total certified pastureland and total numbers of certified animals, 
there is sufficient pasture for 12 acres per certified animal in the 
United States currently, based on these average numbers reported in 
2005.
    With regard to dairies, the 2005 ARM Survey found that 84 percent 
of organic

[[Page 63602]]

dairies and 60 percent of the organic milk cows were located in the 
Northeast and Upper Midwest. Nine percent of organic dairies and 8 
percent of the organic milk cows are found in the Corn Belt. By 
contrast only 7 percent of the organic dairies were located in the 
West, but these operations held 32 percent of the organic milk cows. 
Nationally the mean size of an organic dairy is 82 cows. The mean size 
of organic dairies in the Northeast is 52 cows versus 64 cows in the 
Upper Midwest and 381 cows in the West. AMS does not have specific data 
on the numbers of certified organic livestock operations, including 
certified organic dairies. However, using these average size numbers, 
there could be around 1,000 U.S. organic dairies--fewer than 75 located 
in the West, the remaining approximately 900 in the Northeast and Upper 
Midwest.
    Dairy pay-price varies with $22 per hundredweight being the lowest. 
Milk production per cow per day over a 300-day milking period varies 
with 35 pounds per day being at the low end of the range. Accordingly, 
a conservative estimate of yield per cow per day would be 10,500 pounds 
for the 300-day milking period. At a pay-price of $22 per hundredweight 
each cow would generate approximately $2,310 during that period. Thus 
using the lowest end of the pay-price and yield ranges a small dairy is 
any dairy with less than 325 cows. When a yield of 40 pounds per day is 
used, the yield is 12,000 pounds per cow for the 300-day milking 
period. Again using the lowest pay-price of $22 per hundredweight, each 
cow would generate approximately $2,640 during that period. Dividing 
this in, $750,000 would make a small dairy any dairy with less than 285 
cows. The 2005 ARM Survey found that organic dairies averaged about 
13,600 pounds of milk per cow or a daily average of 45 pounds of milk 
per cow. Once again using the lowest pay-price of $22 per 
hundredweight, each cow would generate approximately $2,992. Based on 
the SBA definition, this would make a small dairy any dairy with less 
than 251 cows. As noted in the previous paragraph, 7 percent of the 
organic dairies were located in the West, but these operations had a 
mean size of 381 cows. This would suggest that over 93 percent of the 
organic dairies are small producers.
    Current NOP regulations require that organic ruminants have access 
to pasture and that pasture be managed to provide feed value. The 2005 
ARM Survey found that more than 60 percent of organic dairies provided 
their animals with pasture that provided more than 50 percent of their 
forage needs throughout the growing season. 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.
    Under its Livestock and Seed Programs, AMS also established a 
voluntary U.S. standard for Livestock and Meat Marketing Claims for a 
grass (forage) fed claim for ruminant livestock, published on October 
10, 2007, in response to overwhelming comments by beef producers and 
consumers--many of them organic, expressing the desire for a 100-
percent grass-fed claim. Under that proposed voluntary marketing claim, 
AMS received over 19,000 comments, many of which stated that in order 
to earn the grass-fed marketing claim, ruminant livestock must be 
grazed a minimum of 120 days on pasture, and longer, if possible, ``as 
it is with organic standards.'' Other commenters suggested that dry 
matter intake from forage should reach 99 percent. Additional comments 
expressed a desire for the livestock claim to be extended to dairy 
animals; however, AMS did not extend the grass-fed claim to more than 
ruminant meat animals and excepted dairy animals and their milk 
products. AMS also defined the growing season in this voluntary 
marketing standard as the time period extending from the average date 
of the last frost in spring to the average date of the first frost in 
the fall in the local area of production, in response to the 
overwhelming comments received during the comment period. (See FR Vol. 
72, No. 199, p. 58631-58637).
    Similarly, comments we received during the ANPR, including those 
from small entities, also 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. 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. Over 
54,000 commenters stated that they pay a premium for milk from animals 
that graze pastures. Over 71,300 commenters expressed opposition to the 
feeding of organic dairy animals in non-pasture settings such as dry-
lots. Over 10,500 commenters suggested amending the regulations to 
require stocking rates--generally of no more than 3 animals per acre. 
Overwhelmingly, commenters expressed a clear expectation that organic 
ruminants graze pastures to obtain nutrition, and to accommodate their 
natural behavior and health. Commenters supported the adoption or 
incorporation of quantifiable, numeric measures into the regulations 
for the minimum amount of feed and the minimum amount of time spent on 
pasture. This is clearly reinforced by AMS's voluntary grass-fed claim 
for ruminant beef animals, which excludes dairy animals and milk 
products. Also, dairy producers recommended to the NOSB through public 
testimony at NOSB meetings that they expect organic ruminants to graze 
pasture and receive not less than 30 percent of the DMI needs from 
grazing. Because of this and other factors discussed herein, AMS 
believes that the impact of this rule, if any, on small agricultural 
service firms will be minor and limited to ruminant livestock 
producers.
    The effect of this proposed rule would be to bring greater detail, 
uniformity in application, and regulatory transparency to the livestock 
regulations. Consumers and other commenters, including small entities, 
have expressed a clear expectation that organic ruminants actively 
graze pastures for the purposes of obtaining nutritional value as well 
as to accommodate their health and natural behavior. While the NOP 
regulations are a process-based, truth-in-marketing claim for producers 
and processors, consumers are clearly the intended beneficiary of 
products that communicate these nationally uniform standards with the 
organic label and they generally pay premium prices for organic 
products. Because of this, it is crucial that consumer expectations are 
met, which in turn benefits organic producers, including small 
entities, by ensuring that the demand for organic products remains 
strong. This proposed rulemaking is intended to reflect consumer 
expectations, and benefit organic producers, including small entities, 
by ensuring that the NOP standards are applied consistently and serve 
their intended purpose through language that is clear. Comments 
submitted during the 2006 ANPR to AMS included a Whole Foods Market, 
Inc. survey which revealed that 69 percent of consumer respondents 
expect most of an organic dairy animal's food to come from pasture, and 
a Consumers Union survey which found that more than two-thirds of those 
surveyed believed that the NOP standards should require that organic 
animals graze outdoors. This proposed rule would provide a substantial 
level of information which will contribute greatly to producer and 
certifying agent understanding, which will in turn

[[Page 63603]]

eliminate the current inconsistent application of livestock regulations 
under the NOP.
    The proposed rule would establish uniformity in the application of 
regulations for all ruminant livestock producers regardless of 
operation size or location. This is especially important to small 
producers who account for an estimated 93 percent of organic livestock 
producers. This action makes clear what pasturing means under the NOP.
    The costs associated with complying with this proposed rule would 
vary based on the livestock producer's current practices and the degree 
to which they conform to the proposed clarified and amended livestock 
regulations. Cost factors could include land and seed for pasture; 
fencing to protect ponds, streams, and other bodies of water; and 
documenting feed rations, once a month, on a monthly basis. Based on 
the information supplied to AMS from FOOD Farmers, and comments 
received during the dairy symposium and in response to the ANPR, AMS 
believes that most small entities already conform to the proposed 
clarified and amended livestock regulations and thus would incur 
minimal to no additional costs in complying with this proposed rule.
    Although AMS has already published a voluntary grass-fed livestock 
claim, and is proposing clarifications to the pasture regulation in 
this proposed rulemaking in response to requests by organic livestock 
producers, we would still like to receive information about the costs 
associated with implementing these clarifications and changes by 
ruminant livestock producers.
    This proposed rule amends existing regulatory language that already 
requires that ruminant livestock be provided with access to pasture and 
that pasture provide a source of nutrition. This proposed rule also 
adds new language to provide greater detail and regulatory meaning to 
the existing livestock provisions of the NOP; especially as those 
provisions apply to the requirements for pasturing ruminants. This 
proposed rule also adds 3 new regulatory provisions which will ensure 
that ruminants spend time on pasture and that they receive a 
significant portion of their daily feed intake, during the growing 
season, from grazing vegetation rooted in pasture. According to FOOD 
Farmers most ruminant livestock producers pasture their animals and 
many maximize the use of pasture. The 2005 ARM Survey found that more 
than 60 percent of existing organic dairies provided their animals with 
pasture that already offer more than 50 percent of their forage needs 
throughout the growing season. Additionally, 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. Therefore, AMS 
believes that most ruminant livestock operations currently pasture 
their animals and would see minimal increased costs, if any. Existing 
data support the ARM Survey results with data on pasture--sufficient 
certified pasture is available for producers to provide adequate 
nutrition to organic ruminant livestock. Of the 2.3 million acres of 
certified pasture in 2005, nearly 500,000 acres are in the Western 
states with fewer than 30,000 certified organic dairy animals. This 
implies that certified organic dairies in the west have nearly 16 acres 
of existing certified pasture per organic dairy animal, on average, to 
provide pasture as a source of nutrition. In the Upper Midwest and 
Northeast, over 90,000 acres have been certified as organic pasture, 
where approximately 50,000 organic dairy animals graze--or sufficient 
land for 2 acres per existing certified organic dairy animal. Based on 
commenters' request for stocking rates, existing certified pasture land 
in the Northeast would actually support three times the number of 
certified organic animals as presently exist, or upwards of 150,000 
dairy animals, more than the entire certified organic livestock sector. 
Alaska, which has 21 percent of the certified organic beef animals 
located in its state, also has 65 percent of the certified organic 
pasture and rangeland--more than enough to graze its certified organic 
animals. A minority of livestock operations who already pasture their 
animals may need to improve the quality of their pastures to provide 
sufficient vegetation for grazing throughout the growing season to meet 
the average 30 percent DMI level. However, it should be noted that this 
30 percent figure is based on recommendations to the NOSB by dairy 
producers, including small dairy producers, through public testimony at 
NOSB meetings.
    Three new regulatory provisions may add some cost to becoming a 
certified organic operation or continuing organic certification. New 
regulatory provisions include: (1) The requirement that pastures be 
managed for grazing throughout the growing season (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 growing 
season.); (2) use of a sacrificial pasture; and (3) the requirement 
that for the growing 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.
    These potential costs, which could vary widely among producers, are 
described in detail above in the Executive Order 12866 discussion. We 
are seeking comments from producers as to how these regulatory 
provisions may affect the costs of certification and costs of 
operation.
    Costs associated with providing sufficient vegetation for grazing 
throughout the growing 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 2007 certified organic seed 
prices, per acre, include approximately $60 for fescue, $50 for 
festolium, $46 for orchardgrass, and $75 for ryegrass.
    For example, according to FOOD Farmers, most producers of organic 
ruminants are currently pasturing their ruminant livestock. However, 
some livestock producers, as evidenced by AMS investigations and 
enforcement actions and the enforcement actions of ACAs, have not been 
providing pasture, or have insufficient pasture to support the size of 
their herd. These producers may need to obtain pasture to comply with 
the new regulatory provisions, switch to intensive grazing, reduce the 
number of animals, or exit the organic program.
    Costs of pasture vary depending on location and quality, as 
described in detail above. USDA's Agricultural Statistics, 2007, show 
2006 pasture land values ranging from $11,700 per acre in New Jersey to 
$250 per acre in North Dakota. Costs would likely be higher for 
certified organic pasture. USDA's Agricultural Statistics, 2007, show 
2006 pasture land cash rents ranging from $38 per acre in Iowa and 
Wisconsin to $2 per acre in New Mexico. 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. 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

[[Page 63604]]

sufficient level to provide at least 30 percent DMI. As described 
above, AMS believes that most organic producers, including those that 
would be considered small entities, provide sufficient pasture to their 
animals. For those producers who do not provide sufficient pasture of 
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 
these 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.
    Costs associated with complying with the proposed new sacrificial 
pasture provision will also vary depending on a producer's current 
practices and location. We are proposing a sacrificial pasture to be 
used for short periods during saturated soil conditions to confine 
pasture damage to an area where potential environmental impacts can be 
controlled. Livestock operations already using a sacrificial pasture 
system, and small livestock operations with low-density pastures, 
should see minimal increased cost, if any. Costs to livestock producers 
who do not currently use a sacrificial pasture system, or who have 
high-density pastures, will vary. For some the cost will depend on what 
it would take to modify an existing pasture and surrounding area to 
ensure that environmental impacts can be controlled. If a producer has 
not been providing pasture, a sacrificial pasture will need to be 
included in the new pasture system. We are also seeking comments on the 
costs associated with designating sacrificial pasture, its effect on 
the operation, and alternatives.
    Some ruminant livestock operations have one or more pastures that 
contain a pond or have a stream running through. The exact number of 
organic ruminant livestock operations having one or more pastures that 
contain a pond or have a stream running through is unknown. In 
discussion of this issue under ``Costs of Proposed Rule'' we 
acknowledge our lack data and seek input from commenters.
    Water quality is adversely impacted when livestock are not excluded 
from ponds and streams. In this action we propose further addressing 
risk to soil or water quality through a new paragraph 205.239(f), which 
provides that the producer of an organic livestock operation must 
manage outdoor access areas, including pastures, in a manner that does 
not put soil or water quality at risk. This would include the use of 
fences and buffer zones to prevent ruminants and their waste products 
from entering ponds, streams, and other bodies of water. Proposed 
paragraph 205.239(f) makes it clear that allowing ruminants to enter 
ponds, streams, and other bodies of water is not consistent with 
protecting soil and water from contamination as currently required 
under existing Sec. Sec.  205.202 and 205.203. New paragraph 205.239(f) 
reinforces that producers are to manage outdoor access areas, including 
pastures, in a manner that would protect soil and water quality.
    Costs associated with complying with new paragraph 205.239(f) would 
vary depending on the presence of any ponds, streams or other bodies of 
water, and individual producer's current practices. Those producers who 
already prevent their animals from entering ponds, streams, and other 
bodies of water should see minimal increased cost, if any. Those 
producers who allow their animals to enter ponds, streams, and other 
bodies of water would incur costs for the fencing necessary to prevent 
such access. As described in detail above, costs associated with 
installing a fence will vary depending on its type, how it is 
installed, the terrain, and the type of animal (e.g., buffalo, bison, 
cattle, sheep, goats) to be fenced in or out. In the Executive Order 
12866 discussion above, we include 3 tables for comparing the cost of 
building a \1/4\-mile (1,320 feet) straight perimeter fence. Table 1 
shows that construction costs for 1,320 feet of woven wire fence would 
be $1,987 or $1.51 per foot. Table 2 shows that construction costs for 
1,320 feet of barbed wire fence would be $1,614 or $1.23 per foot. 
Table 3 shows that construction costs for 1,320 feet of high-tensile 
electrified wire fence would be $927 or $0.70 per foot. These costs 
would be one-time expenses and, as explained in the Executive Order 
12866 discussion above, a producer could receive EQIP payments of up to 
75 percent towards the costs of installation of a fence. Thus, eligible 
producers could see their costs for a \1/4\-mile fence reimbursed up to 
as much as $1,489, $1,211, or $695 in the examples above, depending on 
the type of fencing installed.
    Producers installing fencing to comply with new paragraph 
205.239(f) may also incur costs for providing water to their animals if 
the only source of drinking water currently available is to allow their 
animals to enter ponds, streams, and other bodies of water to obtain 
drinking water. These costs will vary depending on what option is 
chosen for providing water. As noted above in the Executive Order 12866 
discussion above, estimated cost is $3,000 for a pond, $1,000 or more 
for a spring-fed watering system, $1,500 to $2,500 installed for a wet 
well, $15 to $30 per foot to drill plus $500 to $1,000 or more for a 
pumping system for a drilled well, or $1,000 to $2,000 or more 
depending on the distance from water main to distribution point plus 
monthly fees for rural water district supplies. Hauling water includes 
costs for a tank and trailer, recurring labor, and fuel costs. Also to 
be factored in is the cost of an animal drink delivery system such as a 
bottomless tank or a fiberglass or galvanized tank. A bottomless tank 
will cost an estimated $1,400 for a 30' x 30' x 6'' concrete pad; $300 
for rebar, bolts, overflow pipe; and $1,700 for rings. A 300 gallon 
fiberglass tank will cost an estimated $180 while a 10 foot diameter 
galvanized tank will cost an estimated $500. As explained in the 
Executive Order 12866 discussion above, qualified producers could 
receive EQIP payments of up to 75 percent towards the costs of 
installation of water systems. Again, eligible producers could receive 
reimbursements up to $135-$375, depending on the type of water system 
installed, to defray costs.
    In consideration of the foregoing, and notwithstanding the 
additional costs that some producers may incur in complying with this 
proposed rule, AMS concludes that the economic impact on small 
producers of providing greater detail, uniformity in application, and 
regulatory transparency to the livestock regulations, if any, would be 
minimal. Nevertheless, AMS is seeking comments on these clarifications 
and how they may affect the costs of operating as organic livestock 
producers under this proposed rulemaking.
    AMS believes that any costs incurred by producers in complying with 
this proposed rule would be offset by a stronger marketplace for 
organic livestock products. Implementation of this proposed 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

[[Page 63605]]

believes that, over the long run, the economic impact on producers of 
not implementing this proposed rule would be greater than the economic 
impact of this proposed rule.

D. Paperwork Reduction Act

    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 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 7,200 
hours in total burden hours to cover this new collection and 
recordkeeping burden of proposed paragraph 205.237(c) of this proposed 
rule. Upon OMB's approval of this new information collection, we will 
merge this collection into currently approved OMB Control Number 0581-
0191. 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 proposed rule. Authority 
for this action is the Organic Foods Production Act of 1990, as 
amended.
    Title: National Organic Program.
    OMB Control Number: 0581-NEW.
    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 paragraph 205.237(c) is essential to establish that producers of 
organic ruminants, for the growing season, are providing 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 
vegetation rooted in pasture). Based on information available, AMS 
estimates that there are approximately 1,800 organic ruminant livestock 
operations in the United States that will be subject to the provisions 
of new paragraph 205.237(c). This proposed rule would require that 
ruminant producers, once a month, on a monthly basis, document: (1) 
Each feed ration (i.e., each type of animal, each class of animal's 
intended daily diet showing all ingredients, daily pounds of each 
ingredient per animal, each ingredient's percentage of the total 
ration, the dry matter percentage of each ingredient, and the dry 
matter pounds for each ingredient); (2) the daily dry matter demand of 
each animal using the formula: Average Weight/Animal (lbs) x .03 = lbs 
DM/Head/Day x Number of Animals = Total DM Demand in lbs/Day; (3) how 
much dry matter is fed daily to each animal; and (4) the percentage of 
dry matter fed daily to each animal using the formula: (DM Fed / DM 
Demand in lbs/day) x 100 = % DM Fed. Plans for complying with new 
paragraph 205.237(c) must be a part of the producer's annual OSP.
    According to FOOD Farmers (a dairy farmer organization representing 
over 1,200 of the approximately 1,800 U.S. organic dairy farmers) and 
accredited certifying agents, 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. New paragraph 205.237(c) 
establishes the common practice of documenting and maintaining feed 
ration records as a requirement for all organic ruminant producers. 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 paragraph 205.237(c).
    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. Under this proposed rule, monthly 
documentation of: (1) Feed rations; (2) the daily dry matter demand of 
each animal; (3) how much dry matter is fed daily to each animal; and 
(4) the percentage of dry matter fed daily would become a part of that 
recordkeeping system. These records will provide the best evidence of 
compliance with the requirement that for the growing 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 a quarter of an hour per report. AMS 
estimates the annual collection cost per affected producer to be 
$63.99. This estimate is based on an estimated 3 labor hours per year 
(15 minutes per month) at $21.33 per hour for a total salary component 
cost of $63.99 per year.
    Respondents: Organic ruminant producers.
    Estimated Number of Respondents: 1,800.
    Estimated Number of Responses per Respondent: 12 (one per month).
    Estimated Total Annual Burden on Respondents: 5,400 hours.
    Total Cost: $115,182.

Recordkeeping Burden

    Estimate of Burden: Public recordkeeping burden is estimated to be 
1.0 hour per year per respondent at $21.33 per hour for a total salary 
component cost of $21.33 per year.
    Respondents: Organic ruminant producers.
    Estimated Number of Respondents: 1,800.
    Estimated Number of Responses per Respondent: 1 (per year).
    Estimated Total Annual Burden on Respondents: 1,800 hours.
    Total Cost: $38,394.
    Comments: AMS is inviting comments from all interested parties 
concerning the information collection and recordkeeping required as a 
result of new paragraph 205.237(c) of this proposed rule. Comments are 
invited on: (1) Whether the proposed collection of information is 
necessary for the proper performance of the functions of the agency, 
including whether the information will have practical utility; (2) the 
accuracy of the agency's estimate of the burden of the proposed 
collection of information, including the validity of the methodology 
and assumptions used; (3) ways to enhance the quality, utility, and 
clarity of the information to be collected; and (4) ways to minimize 
the burden of the collection of information on those who are to 
respond, including through the use of appropriate automated, 
electronic, mechanical, or other technological collection techniques or 
other forms of information technology.
    Comments that specifically pertain to the information collection 
and recordkeeping requirements of this

[[Page 63606]]

action should be sent to Richard H. Mathews, Chief, Standards 
Development and Review Branch, National Organic Program, Transportation 
and Marketing Programs, at the previously referenced address and to the 
Desk Officer for Agriculture, Office of Information and Regulatory 
Affairs, Office of Management and Budget, New Executive Office 
Building, 725 17th Street, NW., Room 725, Washington, DC 20503. 
Comments on the information collection and recordkeeping requirements 
should reference the date and page number of this issue of the Federal 
Register. All comments will become a matter of public record.
    The comment period for the information collection and recordkeeping 
requirements contained in this proposed rule is 60 days.
    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 proposed 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, paragraph 205.501(d) 
of the current accreditation of certifying agents regulations 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, paragraph 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 proposed rule in 
no way changes any of these protections against discrimination.

List of Subjects in 7 CFR Part 205

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

    For the reasons set forth in the preamble, 7 CFR part 205, is 
proposed to be amended as follows:

PART 205--NATIONAL ORGANIC PROGRAM

    1. The authority citation for 7 CFR part 205 continues to read as 
follows:

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

    2. Section 205.2 is amended by revising the definitions of ``Crop'' 
and ``Livestock'' and adding ten new terms in alphabetical order to 
read as follows:


Sec.  205.2  Terms Defined.

* * * * *
    Crop. Pastures, sod, cover crops, green manure crops, catch crops, 
and 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 matter. The amount of a feedstuff remaining after all the free 
moisture is evaporated out.
    Dry lot. A confined area that may be covered with concrete, but 
that has no vegetative cover.
* * * * *
    Feedlot. A confined area for the controlled feeding of ruminants.
* * * * *
    Graze. (1) The consumption of standing forage by livestock.
    (2) To put livestock to feed on standing forage.
    Grazing. To graze.
    Growing season. The period of time between the average date of the 
last killing frost in the spring to the average date of the first 
killing frost in the fall or early winter in the local area of 
production. This represents a temperature threshold of 28 degrees 
Fahrenheit (-3.9 degrees Celsius) or lower at a frequency of 5 years in 
10. Growing season may range from 121 days to 365 days.
* * * * *
    Inclement weather. Weather that is violent, or characterized by 
temperatures (high or low), that can kill or cause permanent physical 
harm to a given species of livestock.
* * * * *
    Killing frost. A frost that takes place at temperatures between 25 
degrees and 28 degrees Fahrenheit (-2.2 and -3.9 degrees Celsius) for a 
period sufficiently severe to end the growing season or delay its 
beginning.
* * * * *
    Livestock. 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.
* * * * *
    Sacrificial pasture. A pasture or pastures within the pasture 
system, of sufficient size to accommodate all animals in the herd 
without crowding, where animals are kept for short periods during 
saturated soil conditions to confine pasture damage to an area where 
potential environmental impacts can be controlled. This pasture is then 
deferred from grazing until it has been restored through active pasture 
management. Sacrificial pastures are located where soils have good 
trafficability, are well-drained, have low risk of soil erosion, have 
low or no potential of manure runoff, are surrounded by vegetated 
areas, and are easily restored. A sacrificial pasture is land used for 
livestock grazing that is managed to provide feed value and maintain or 
improve soil, water, and vegetative resources; it is not a dry lot or 
feedlot.
* * * * *
    Temporary and Temporarily. Occurring for a limited time only (e.g.,

[[Page 63607]]

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.
* * * * *
    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
* * * * *
    4. Section 205.236 is amended by revising paragraph (a)(2)(iii) to 
read as follows:


Sec.  205.236  Origin of Livestock.

    (a) * * *
    (2) * * *
    (iii) Once an operation has been certified for organic production 
using the exception in paragraph (a)(2)(i) or (ii) of this section, all 
dairy animals brought onto the operation shall be under organic 
management from the last third of gestation.
* * * * *
    5. Section 205.237 is amended by:
    A. Revising paragraphs (a), (b)(5), and (b)(6);
    B. Adding new paragraphs (b)(7) and (b)(8); and
    C. Adding new paragraph (c) 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 by 
operations certified to the NOP, except as provided in Sec.  
205.236(a)(i), and, if applicable, organically handled by operations 
certified to the NOP: Except, That, synthetic substances allowed under 
Sec.  205.603 and nonsynthetic substances may be used as feed additives 
and supplements, Provided, That, all agricultural ingredients in 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 anyone, at anytime, has added 
an antibiotic; or
    (8) Prevent, withhold, restrain, or otherwise restrict ruminant 
animals from actively obtaining feed grazed from pasture during the 
growing season, except for conditions as described under Sec.  
205.239(c).
    (c) During the growing season, 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 
vegetation rooted in pasture). Producers shall, once a month, on a 
monthly basis:
    (1) Document each feed ration (i.e., for each type of animal, each 
class of animal's intended daily diet showing all ingredients, daily 
pounds of each ingredient per animal, each ingredient's percentage of 
the total ration, the dry matter percentage for each ingredient, and 
the dry matter pounds for each ingredient);
    (2) Document the daily dry matter demand of each class of animal 
using the formula:
    Average Weight/Animal (lbs) x .03 = lbs DM/Head/Day x Number of 
Animals = Total DM Demand in lbs/Day;
    (3) Document how much dry matter is fed daily to each class of 
animal; and
    (4) Document the percentage of dry matter fed daily to each class 
of animal using the formula: (DM Fed / DM Demand in lbs/day) x 100 = % 
DM Fed.
    6. Section 205.239 is amended by:
    A. Revising paragraphs (a) introductory text, (a)(1)(a)(2) and 
(a)(3);
    B. Revising paragraph (b) introductory text and paragraph (b)(2);
    C. Redesignating paragraph (c) as (e); and
    D. Adding new paragraphs (c), (d), and (f) 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 those listed in 
paragraphs (a)(1) through (a)(3) of this section. Further, producers 
shall not prevent, withhold, restrain, or otherwise restrict animals 
from being outdoors, except as otherwise provided in paragraph (b) and 
(c) of this section. Producers shall also provide:
    (1) Year-round access for all animals to the outdoors, shade, 
shelter, exercise areas, fresh air, water for drinking (indoors and 
outdoors), and direct sunlight, suitable to the species, its stage of 
life, the climate, and the environment.
    (2) For all ruminants, continuous year-round management on pasture, 
except as otherwise provided in paragraph (c) of this section, for:
    (i) Grazing throughout the growing season; and
    (ii) Access to the outdoors throughout the year, including during 
the non-growing season. Dry lots and feedlots are prohibited.
    (3) Appropriate clean, dry bedding. When hay, straw, ground cobs, 
or other crop matter typically fed to the animal species is used as 
bedding, it must comply with the feed requirements of Sec.  205.237.
* * * * *
    (b) The producer of an organic livestock operation may temporarily 
deny a non-ruminant animal access to the outdoors because of:
    (1) * * *
    (2) The animal's stage of life;
* * * * *
    (c) The producer of an organic livestock operation may temporarily 
deny a ruminant animal pasture under the following conditions:
    (1) When the animal is segregated for treatment of illness or 
injury (the various life stages, such as lactation, are not an illness 
or injury);
    (2) One week prior to parturition (birthing), parturition, and up 
to one week after parturition;
    (3) In the case of newborns for up to six months, after which they 
must be on pasture and may no longer be individually housed;
    (4) In the case of goats, during periods of inclement weather;
    (5) In the case of sheep, for short periods for shearing; and
    (6) 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 dry matter intake 
from grazing of not less than 30 percent throughout the growing season. 
Milking frequencies or duration practices cannot be used to deny dairy 
animals pasture.
    (d) Ruminants must be provided with:
    (1) A lying area with well-maintained clean, dry bedding, which 
complies with paragraph (a)(3) of this section, during periods of 
temporary housing, provided due to temporary denial of pasture during 
conditions listed in paragraphs (c)(1) through (c)(5) of this section;
    (2) Yards and passageways kept in good condition and well-drained;
    (3) Shade and in the case of goats, shelter open on at least one 
side;
    (4) Water at all times except during short periods for milking or 
sheering--

[[Page 63608]]

such water must be protected from fouling;
    (5) Feeding and watering equipment that are designed, constructed, 
and placed to protect from fouling--such equipment must be cleaned 
weekly; and
    (6) In the case of newborns, hay in a rack off the ground, 
beginning 7 days after birth, unless on pasture, and pasture for 
grazing in compliance with Sec.  205.240(a) not later than six months 
after birth.
* * * * *
    (f) The producer of an organic livestock operation must manage 
outdoor access areas, including pastures, in a manner that does not put 
soil or water quality at risk; this includes the use of fences and 
buffer zones to prevent ruminants and their waste products from 
entering ponds, streams, and other bodies of water. Buffer zone size 
shall be extensive enough, in full consideration of the physical 
features of the site, to prevent the waste products of ruminants from 
entering ponds, streams, and other bodies of water.
    7. 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 that meets all requirements of Sec. Sec.  205.200-205.240.
    (a) Pasture must be managed as a crop in full compliance with 
Sec. Sec.  205.200 through 205.206.
    (b) The producer must develop and annually update a comprehensive 
pasture plan for inclusion in the producer's organic system plan. When 
there is no change to the previous year's comprehensive pasture plan 
the certified operation may resubmit the previous year's comprehensive 
pasture plan.
    (c) The comprehensive pasture plan must include a detailed 
description of:
    (1) Crops to be grown in the pasture and haymaking system;
    (2) Cultural practices, including but not limited to varying the 
crops and their maturity dates in the pasture system, to be used to 
ensure pasture of a sufficient quality and quantity is available to 
graze throughout the growing season and to provide all ruminants under 
the organic systems plan with an average of not less than 30 percent of 
their dry matter intake from grazing throughout the growing season;
    (3) The haymaking system;
    (4) The location of pasture and haymaking fields, including maps 
showing the pasture and haymaking system and giving each field its own 
identity;
    (5) The types of grazing methods to be used in the pasture system;
    (6) The location and types of fences and the location and source of 
shade and water;
    (7) The soil fertility, seeding, and crop rotation systems;
    (8) The pest, weed, and disease control practices;
    (9) The erosion control and protection of natural wetlands, 
riparian areas, and soil and water quality practices;
    (10) Pasture and soil sustainability practices; and
    (11) Restoration of pastures practices.
    (d) The pasture system must 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. The sacrificial pasture must be:
    (1) Sufficient in size to accommodate all animals in the herd 
without crowding;
    (2) Located where:
    (i) Soils have good trafficability;
    (ii) Well-drained;
    (iii) There is a low risk of soil erosion;
    (iv) There is low or no potential of manure runoff;
    (v) Surrounded by vegetated areas; and
    (vi) Easily restored.
    (3) Managed to:
    (i) Provide feed value; and
    (ii) Maintain or improve soil, water, and vegetative resources.
    (4) Restored through active pasture management.
    (e) In addition to the above, producers must manage pasture to 
comply with all applicable requirements of Sec. Sec.  205.236-205.239.
* * * * *
    8. Section 205.290 is amended by revising paragraph (a) 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 established by the Administrator for the following reasons:
* * * * *


Sec.  205.690  [Amended]

    9. In Sec.  205.690, the number ``0581-0181'' is revised to read 
``0581-0191''.

    Dated: October 15, 2008.
Lloyd C. Day,
Administrator, Agricultural Marketing Service.
 [FR Doc. E8-25094 Filed 10-23-08; 8:45 am]
BILLING CODE 3410-02-P