National Organic Program; Access to Pasture (Livestock), 7154-7195 [2010-3023]

Agencies

• Agricultural Marketing Service
• DEPARTMENT OF AGRICULTURE

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



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Part II





Department of Agriculture





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Agricultural Marketing Service



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7 CFR Part 205



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

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

[[Page 7154]]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 205

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


National Organic Program; Access to Pasture (Livestock)

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule with request for comments.

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

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

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

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

SUPPLEMENTARY INFORMATION:

Background

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

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

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

Comments Received

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

Definitions (Sec.  205.2)

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

Definitions--Changes Based on Comments

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

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

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

[[Page 7159]]

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

[[Page 7160]]

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

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

    We agree with defining the term ``shelter'' to clarify its meaning 
as used in livestock living conditions. We have used the first version 
suggested, but added ``large hedge rows'' and ``simultaneously'' to 
address unique contributions from the other two versions.
    Stage of life--The proposed rule did not contain a definition for 
stage of life, although we received comments requesting a definition. 
Very similar variations were submitted and supported by some of the 
commenters. Common to all of the suggested definitions were the words, 
``a discrete time period in an animal's life which requires specific 
management practices different than during other periods.'' The types 
of comments we received are shown below:
     Lactation, breeding and other recurring events are not a 
stage of life;
     Calves and chicks were cited as examples of stage of life; 
this is also true for calves, piglets and chicks;
     Each comment completed the example with the word etcetera. 
The phrase ``time period in an animal's life'' makes it clear that the 
definition is intended to cover animals of all ages.
     The definition is needed to ensure that the exception 
allowing temporary confinement due to stage of life in not abused;
     The definition is needed to clearly distinguish between 
recurring management events such as freshening, breeding, lactating 
that are not a stage of life and one time life-cycle events that are in 
fact a stage of life; as an example, pullets, calves, heifers, and cows 
are examples of stages of life. According to this comment, stage of 
life covers animals of all ages;
     A more narrow definition for stage of life, as ``a 
discrete time period in an animal's life which requires specific 
management practices to protect the health and welfare of the animal 
and/or their offspring that are different from practices required 
during other periods; such as chicks and poults after hatching; sows 
and piglets at farrowing, etc.''
    We agree that a definition for ``stage of life'' should be added. 
This final rule makes clear that an animal's ``stage of life'' does not 
alone warrant temporary denial of access to pasture or the outdoors, or 
temporary confinement or shelter. In order to prevent the abuse of 
those exceptions, it is important for producers and Accredited 
Certifying Agents to have a common understanding of ``stage of life.'' 
The definition from the last commenter above captures the essence of 
denying access to the outdoors, temporarily, for health reasons. This 
definition recognizes, through reference to ``the animal and/or their 
offspring'' as well as sows, that stage of life covers animals of all 
ages. It is clear from the comments we received that a definition 
should cover animals of all ages. We believe a definition should fully 
clarify the meaning of a term used, and use of the word ``etcetera'' in 
the last comment does not provide full meaning. Accordingly, we have 
included a definition for stage of life, including the recommendation 
that lactation, breeding, and other recurring events (including 
freshening) are not stages of life.
    Yard/feeding pad--The proposed rule did not define this term. Among 
the comments received suggesting a definition, there were generally 
three variations (numbers in parentheses) for defining a ``yard/feeding 
pad'' as:
     ``An improved area for feeding, exercising, and outdoor 
access for livestock during the non-grazing season and a high traffic 
area where animals may receive supplemental feeding during the grazing 
season.'' A commenter claimed this definition ``provides a clear 
distinction between yard/feeding pad and feed lots or dry lots.''
     ``An improved area for feeding, exercising, and outdoor 
access for livestock during inclement weather, as well as supplemental 
feeding during the grazing season, allowing the producer to avoid 
serious damage to pasture sod, soil, and water quality, and providing 
for the collection and management of animal waste.''
     ``An enriched area for eating and food searching, 
exercising and outdoor access for livestock during the non-grazing 
season and a high traffic area where animals may receive supplemental 
feeding during the grazing season.''
    We agree that the regulations need to provide for yards/feeding 
pads and comments we received provided sound justification for the 
introduction of a definition of yards/feeding pads--particularly in 
light of removing the provision for sacrificial pasture in this final 
rule. Yards/feeding pads are integral to grazing systems as they can 
serve as an area where lactating animals are gathered and dispersed 
between pastures and the milking facility. These areas minimize damage 
to fields that can occur during wet conditions and high impact 
activities such as feeding. We have incorporated the first definition 
recommended by commenters above because this clearly conveys the 
purpose of these features and the limited activities they support. We 
omitted the word, ``improved'' from the commenters definition because 
its meaning is unclear. The provisions in this final rule for yards/
feeding pads are discussed below under livestock living conditions.

Definitions--Changes Requested But Not Made

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

[[Page 7161]]

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

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

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

Origin of Livestock (Sec.  205.236)

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

Livestock Feed (Sec.  205.237)

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

[[Page 7162]]

further examination. A commenter explained that vitamins and minerals, 
as supplied by the manufacturer, may contain very small amounts of 
nonorganic agricultural carriers and this clarification would add an 
obstacle to the annotation in the NOP regulation which solely requires 
that nutrient vitamins and minerals are FDA approved;
     Agree with the clarification provided on the basis that it 
will level the playing field among producers of all sizes and guarantee 
to consumers that all feed fed to organically certified livestock is 
NOP certified;
     Agree, but questions remain about the applicability. Does 
the requirement apply to ingredients in an ingredient listing on a 
package of supplements or feed additives? Or alternatively, does the 
requirement apply to the agricultural component of an item in Sec.  
205.603, or the substrate used to produce a nonsynthetic (natural) 
ingredient?
     One commenter took issue with the phrase ``by operations 
certified to the NOP'' in this paragraph. The commenter stated that 
each day, organic feeds are transported by haulers not certified to the 
NOP. The commenter went on to acknowledge that proper procedures must 
be followed to prevent contamination but stressed that this can be done 
without certification and this requirement could result in an increase 
in transportation costs of feed products.
    Section 205.237 already requires producers to provide a total feed 
ration composed of agricultural products that are organically produced 
and handled. However, some additive and supplement handlers have used 
nonorganic agricultural ingredients in products for which they have 
sought and received certification, by claiming that the nonorganic 
agricultural ingredients were supplements or used as carriers. One 
example involved a supplement product, for which an organic label was 
sought, and whose primary ingredient was conventionally produced 
molasses. The amended language clarifies the existing requirement that 
organic livestock must be provided with a total feed ration composed of 
organically produced and handled agricultural products.
    We agree that further clarification of the organic livestock ration 
is needed. We have clarified the provision at the end of Sec.  
205.237(a) to refer to ingredients included in the ingredients list. 
Section 205.603 identifies synthetic substances that are allowed for 
use in organic livestock production. Because these substances are not 
agricultural products which could be certified organic, Sec.  
205.237(a) is not applicable to those substances.
    The definition of ``handle'' in the original NOP rule in Sec.  
205.2, specifically excludes the transportation or delivery of crops. 
Furthermore, Sec.  205.100(a) defines handling operations that must 
obtain certification in order to sell, label, or represent agricultural 
products as organic. Haulers are excluded from the definition of 
handling operations under Sec.  205.100(a) and are not required to be 
certified to transport agricultural products that are intended to be 
sold, labeled, or represented as ``100 percent organic,'' ``organic,'' 
or ``made with organic (specified ingredients of food group(s)).'' 
Therefore, to address the confusion raised by the comment, we are 
clarifying that haulers are not required to be certified for 
transporting and delivering feed.
    Section 205.237(b)(7) Antibiotics prohibited in feed--The purpose 
of this proposed paragraph is to reinforce the prohibition on the use 
of antibiotics currently found in Sec.  205.238(c)(1), which states 
that producers must not sell, label, or represent as organic any animal 
or edible product derived from any animal treated with antibiotics. We 
received the following comments:
     The provision is already covered by Sec. Sec.  205.237(a) 
and 205.238(c)(1)