National Organic Program (NOP)-Access to Pasture (Livestock), 63584-63608 [E8-25094]

Agencies

• Agricultural Marketing Service
• DEPARTMENT OF AGRICULTURE

[Federal Register Volume 73, Number 207 (Friday, October 24, 2008)]
[Proposed Rules]
[Pages 63584-63608]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-25094]



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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: https://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

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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 clo