Access to Pasture Rule: Win, Lose or Draw for Producers?

By Ed Maltby, NODPA Executive Director

Fixing the Access to Pasture Rule has been a priority for NODPA since its formation in 2001. We have been advocating for change since 2004 with detailed comments in 2006 in response to the Advanced Notice of Proposed Rulemaking (ANPR), our formal and unofficial participation at the Pasture Symposium at Penn State in April, 2006, numerous National Organic Standards Board (NOSB) meetings and letters to the USDA, plus teaming up with the National Organic Coalition and Horizon Organic to advocate directly to the USDA and different federal agencies during 2008.
In March 2007, the Federation Of Organic Dairy Farmers (FOOD Farmers)* was formed and rapidly became the national voice for organic dairy producers with members in the midwest and on the western, and eastern seaboards agreeing on joint recommendations in a fair and equitable way to solve the massive inequities that the existing interpretation was causing for organic dairies nationwide.

*[Food Farmers, The Federation Of Organic Dairy Farmers, is an umbrella group for the three regional organic dairy farmer organizations: Northeast Organic Dairy Producers Alliance (NODPA), Midwest Organic Dairy Producers Association (MODPA), and Western Organic Dairy Producers Alliance (WODPA).]

When the Proposed Pasture Rule was published, NODPA and FOOD Farmers were prepared to organize not only a response by organic dairy producers, but also to work with the National Organic Coalition, Organic Trade Association, Accredited Certifiers Association and many other organizations and individuals to share ideas and concerns as well as coordinate wherever possible on the recommendations to the NOP. We were able to provide the leadership and coordination to move forward with a positive, timely, and inclusive process.

Part of the success of this process was the willingness of the USDA NOP to respond to requests from FOOD Farmers, processors and others to hold listening sessions across the country. At these listening sessions, the USDA NOP gathered comments and explained the rationale behind the proposed rule.

When you add direct mailings to producers; localized meetings sponsored by producer, processor, certifier and other groups; articles in both organic and conventional farming newspapers and newsletters; numerous cross country conference calls and web based discussions; there was every opportunity for producers to learn about the proposed rule and to participate in the process. All of these opportunities to digest and comment on the proposed rule resulted in the many recommendations submitted by organizations and individuals.

For most consumer groups there was no need for in depth discussion as they have been advocating for ‘access to pasture’ standards for many years. They welcomed the proposed rule and were very willing to adopt the FOOD Farmers recommendations for changes so long as the quantifiable measurement for consumption of pasture was not diluted and there was no chance of allowing organic feedlots or CAFO’s. The terms ‘feedlot’ and ‘CAFO’ have become emotional touchstones for consumer groups who naturally oppose any long term confinement of organic livestock during the grazing season.

The Result

The last issue of the NODPA News covered the proposed rule in detail, highlighting the proposed changes and giving our initial opinion on where changes were needed. As a result of many conference calls across the country and coordination with numerous certifiers, producer, trade and consumer organizations,* we developed clear and concise rulemaking language, comments and data, reflecting the input from this extremely broad cross section of the organic community.

*[These organizations include: National Organic Coalition (Beyond Pesticides, Center for Food Safety, Equal Exchange, Food & Water Watch, Maine Organic Farmers and Gardeners Association, Midwest Organic and Sustainable Education Services, National Cooperative Grocers Association, Northeast Organic Dairy Producers Alliance, Northeast Organic Farming Association Interstate Council, Rural Advancement Foundation International –USA, Union of Concerned Scientists), Accredited Certifiers Association, Organic Trade Association, Consumers Union, National Campaign for Sustainable Agriculture, Midwest Organic Services Association, Inc., Penn Dutch Cow Care, Organic Farming Research Foundation, Cornucopia Institute, Sustainable Ag Coalition, Organic Consumers Association, all major organic dairy processors, individual certifiers and numerous individuals and organizations who offered their suggestions and ideas.]

The proposed rule needs to be improved to remove overly prescriptive language that would cause problems for the health and safety of animals; could have negative impacts on the environment; and place extensive record keeping burdens on farmers. Below is a summary of the changes and recommendations that FOOD Farmers submitted as comment to the NOP on December 22nd:

• We thanked the NOP for including the requirement for a minimum 30% dry matter intake (DMI) from pasture, averaged over the full growing season, with the growing season ranging from 120 to 365 days. We added many comments as to how this could be easily calculated in a variety of ways without an undue burden on producers. We suggested that “grazing season” be substituted for “growing season,” as that can be better defined to take into account the reality of organic dairying in different areas. Our definition of the grazing season took into account many different production practices from all areas of the country and suggested an increased reliance on the organic system plan worked out between producer and certifier. Our suggested wording for grazing season is: 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 systems 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 recommend changing the requirement that organic livestock be managed on pasture year round to a requirement that they must be managed on pasture only during the grazing season, still requiring access to the outdoors year round. This change will take into account the different farming conditions and will protect pastures from permanent damage that could result from use during the non-grazing season. It will also prevent manure runoff contamination of waterways, and will not cause any risks to the health and safety of the livestock from winter weather conditions. While acknowledging that sacrificial pasture can be an acceptable use of pasture and is used by some graziers, we do not want the use mandated as the practice may be detrimental to the environment, including to soil and water quality and to animal health when operations do not have well drained land that is accessible for livestock or during winter weather or excessive rain conditions. We recommended that the definition remain in the Final Rule as it correctly draws the distinction between a sacrificial pasture and a feed lot specifically with the words “restored to active pasture management.”
• We advocated for the reinstatement of needed exemptions for livestock to be on pasture and have outdoor access during periods of inclement weather in order to protect soil and water quality. We also suggested changes to the definition of inclement weather to take into account conditions that could cause temporary rather than just permanent physical harm to livestock.
• We recommended that parts of the proposed Pasture Practice Standard and Livestock Living Conditions remain in the rule to ensure that there is a comprehensive pasture plan in every livestock operation’s organic system plan. We recommended moving some of the very prescriptive proposed text to guidance for certifiers and producers, as production practices vary with location and climate and from operation to operation. We also suggested changes to create minimal new record keeping requirements.
• One area of discussion that took many of us by surprise was the use of non-certified bedding that many certifiers were allowing if it wasn’t part of the operations prescribed ration. While acknowledging that there might be some economic hardship for producers who are currently using non-certified bedding, we felt it important that everybody compete on a level playing field and recommended that crop material bedding must be organically certified when it is typically consumed by livestock, even if it’s not a typical feed for the certified operation using the bedding. Some advocated for a “commercially available” clause, which we rejected as unnecessary and easy to abuse. We hope that a requirement for organically certified bedding will provide a steady demand for organic straw and other cropping material which will lead to an increase in the profitability and interest in organic small grain production.
• We strongly recommended the removal of any consideration of origin of livestock from this rule change and urged the NOP to work diligently to get a proposed rule on origin of livestock published, as soon as possible, that will stop the continuous transition of conventional animals as dairy replacements. Some have advocated for transitioned cows and heifers to be sold as organic. Allowing transitioned animals to be sold as certified organic creates a loophole that will be exploited. Transitioned animals are, technically, not organic. A transitioned animal is certified to produce organic milk, but cannot be sold for organic slaughter, and shouldn’t be allowed to be sold as an organic dairy animal. If culled from the herd, a transitioned animal should be sold into the conventional market. To equate transitioned dairy animals to last third organic animals devalues those animals raised organic from the last third of gestation. It discriminates against the producers who had to invest more money in the raising of the last third of gestation dairy animals and unfairly rewards the producer of transitioned animals. We suggest the following language: “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 suggested adding an exemption from meeting the 30% dry matter intake from pasture during the grazing season, not to exceed 120 days, for organic beef to accommodate the consumer’s desire for grain finished meat. This language, which would still require access to pasture, recognizes the requirements of the market and the producer’s need to maximize their profit by receiving top dollar for their meat while not creating a beef finishing lot which the US consumer believes is something that is bad for livestock and the environment.

Next Steps

We look forward to the publication of a Final Rule in spring 2009 with the hopes that the NOP will allow not more than one season to implement the new rule. While the new administration has exceeded all expectations with the speed they have made appointees, there are still many appointments that need to be made, including the Under Secretary and Administrator level in the USDA. Until those appointments have been made it will be difficult to make any progress forward. While the Final Rule is being shepherded through the Federal review process prior to being published and implemented, we need the NOP to enforce the current pasture regulation. We are committed to working with the NOP to carefully monitor the enforcement of the new regulation to ensure that it is applied fairly and consistently to all producers by the spring of 2010.

With the rapid growth of organic livestock, especially dairy, we see a great need to educate inspectors and certifiers about their role in determining the validity of the producer’s organic systems plan and the actual working of the plan. With well educated certifiers and inspectors, the interpretation of the rule within the context of different operations will be much more uniform and fair. At a recent NOSB meeting Barbara Robinson announced the NOP’s priority to provide educational resources to certifiers and their inspectors. We share Ms. Robinson’s commitment to this priority and pledge to work with the NOP to assist in any way possible.

Rumor has it that Richard Mathews will be continuing his work at the NOP to help shepherd the final Access to Pasture rule to publication which will ensure that we have someone with experience, skill and knowledge working on the rule from beginning to end. We will, of course, continue to advocate the FOOD Farmers position to NOP employees and new appointees to ensure they continue to understand the importance of this rulemaking.

One of the benefits of the transparent and inclusive discussion of the proposed rule was the heightened awareness of the many different interpretations of the USDA standards by different certifiers and producers. While we hope that the Final Access to Pasture rule will provide clear parameters and requirements for certifiers to enforce, leveling the economic and production playing field across the country, we also recognize that some producers will have to adapt their production practices to meet the new standards. An interesting observation is that it is certifiers, not producers, who have expressed more concern about the cost and difficulty of making changes. The most common reaction from producers has been that they know they may have to make some changes, but it is required to maintain the integrity of the organic seal.

As producers, we know that organic livestock production is determined by experience and knowledge of working with animals, their care and welfare; not by a rule book. Producers are also concerned about the inequality of interpretation of the standards and the protection of the integrity of the USDA organic seal that ensures the continued marketing premium essential to the economic future of their family farms. While some organic dairy pioneers have suggested that the NOP is neglecting organic certification’s basic premise of continual improvement through the organic systems plan by becoming increasingly prescriptive, there is the more basic need that caused the organic community to originally support legislation for an organic program through the USDA; fair and consistent standards applied equally to all. Too often this difference of opinion has been exaggerated to heighten disagreement. The reality is that we need to set the bar at the level practiced by the vast majority of organic dairy producers and supported by the NOSB which stated “The management practices must make clear that these additional exemptions in no way change the intent that ruminant organic livestock systems be pasture based.”

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Access to Pasture Timeline for Change

June 2000 NOSB recommended that: the allowance for temporary confinement should be restricted to short-term events such as birthing of newborn or finish feeding for slaughter stock and should specifically exclude lactating dairy animals.

October 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 and that the Farm Plan must include a timeline showing how the producer will work to maximize the pasture component of total feed used in the farm system.

2/1/ 2005 NODPA advocates for 120 days - 30% DM

3/2/ 2005, the NOSB recommended that the phrase “access to pasture for ruminants” be changed to “ruminant animals grazing pasture during the growing season,” and that “stage of production” be changed to “stage of life”

8/16/2005, the NOSB recommended clarifying the types of information to be included in a livestock operation’s Organic System Plan with a minimum of 120 days as a rule and consumption of 30% DM as guidance.

4/13/06 ANPR on Access to Pasture with 60 day comment period. NODPA provides comment supporting the 120 day/30% DM recommendation.

4/17/06 NOSB Pasture Symposium

August 2006 USDA NOP promises Proposed Rule in the Fall 2006

March 2007 FOOD Farmers formed

June 2007 FOOD Farmers sponsors meeting between processors and producers.

December 2007 NOC makes Access to Pasture rule a priority

January — October 2008 NOC, NODPA, FOOD Farmers, and Horizon Organic advocate in DC for publication of a Proposed Rule

October 24 2008 publication of a Proposed Rule

October 28 2008 First listening session at NODPA annual meeting NODPA News November 2008 explains changes and implications of the Proposed Rule

11/16/08 NCSA / NOC open meeting at NOSB

11/18/08 OTA sponsored open meeting at NOSB

12/1/08 Listening session in La Farge, WI

12/4/08 Listening session in Chico, CA 12/8/08 Listening session in Amarillo, TX

12/11/08 Listening session in Gap, PA

12/23/08 Comments close on Proposed Rule

Acronyms:
NOSB – National Organic Standards Board ANPR - Advanced Notice of Proposed Rulemaking
NOC - National Organic Coalition
NCSA - National Campaign for Sustainable Ag OTA – Organic Trade Association

The USDA National Organic Program (NOP) released the Proposed Access to Pasture Rule that would tighten the pasture requirements for organic livestock on Friday October 24, 2008. It was everything we had asked for and a lot more that we didn’t ask for; responding to areas where the NOP had experienced difficulty in prosecuting non-compliance and add-ing text suggested in comments and presentations to the NOP.

As expected, the emotional issue of creating rulemaking to define “cows need to be on grass” brought many responses. They came from those that thought the existing rule was good enough if enforced; that continuous improvement should be the guiding principle, not prescriptive language. It came from others that feel that one universal measurement to quantify the consumption of pasture is not possible. There were also many responses supporting the requirements in the proposed rule for quantifiable measurement of consumption of pasture and illustrating how the 30% consumption is already being measured by many producers.

We saw battling action alerts, mass mailings, form letters and media placements that argued the pasture rule, as written, would be the end of organic dairy family farms, would bankrupt organic dairy pioneers in northern California or, alternatively, was a proposed rule that needed to be improved.

Through the confusion and concerns of overly prescriptive language, unrealistic expectations, lack of time to make considered comments, too much “non pasture” related material and fear of uninformed federal mandates authorized by political appointees, NODPA and FOOD Farmers were successful in providing a thoughtful and interactive process that resulted in a 240 page document on recommendations for a Final Rule, complete with supporting data.

Background

MORE RESOURCES TO CHECK OUT

• Commentary from farmers--both to NODPA, FOOD Farmers and the National Organic Program. Gets you into the minds of other concerned farmers, and demonstrates the kind of constructive engagement that was typical of this process.
• Final Pasture Rule Recommendations
  Posted December 23, 2008
  Final recommendations and detailed commentary on the pasture rule from Food Farmers. See bottom of page.

Attached File:

• Food-Farmers-Recomendations-Comments-12-23-2008.pdf