USDA/APHIS is reconsidering its newly released requirement that every bale of Roundup Ready (RR) alfalfa sold commercially be individually tagged. The regulation, if left unchanged, would require growers to individually tag as many as 20 million hay bales annually in California alone.

The bag tagging regulation was one of several onerous rules laid down by USDA in the wake of a federal district court ruling, banning the sale of RR alfalfa until the federal government completed an environmental impact statement (EIS) on commercialization of the new herbicide-resistant alfalfa. The EIS was ordered despite extensive review of the biotech alfalfa by several agencies before it was approved for sale last fall.

Before the judge made his ruling, about 220,000 acres of the new technology had been planted last fall and earlier this spring. The judge did not require that it be disked out, but he did place strict sanitation and identification requirements on its harvest and movement.

The most burdensome was the bale tagging rule. It prompted an outcry from the industry that resulted in a recent conference call between APHIS and industry leaders.

As a result of that, the National Alfalfa and Forage Alliance (NAFA) will be quickly filing a petition with USDA and the Justice Department, detailing the impossibility of such a requirement, citing animal and worker safety issues plus the cost, according to Beth Nelson, NAFA president.

Instead, NAFA will be proposing that RR alfalfa lots be identified on invoices and shipping manifests, as most growers have been doing since the judge made his ruling, according to Nelson.

The petition will be backed by letters from the California Alfalfa and Forage Association, San Joaquin Valley Hay Growers, Forage Genetics, and others.

“The department wants the petition ASAP, and we are working to get it there in the very near future,” said Nelson.

About a month after USDA/APHIS came out with its RR alfalfa handling rules, Monsanto appealed the Northern California U.S. District Court judge's injunction banning the sale of the Roundup-resistant forage.

The appeal was filed Aug. 13 — almost four months after the injunction was made permanent — seeking to “correct the legal standards” applied as the basis for the injunction, resulting in unnecessary restrictions on growers, seed dealers, Forage Genetics Inc. (FGI) and Monsanto, while the EIS is completed.

The industry was becoming concerned that Monsanto would not appeal the decision, opting to wait 18 months until an EIS was finished to put the RR alfalfa back on the market. Some were concerned Monsanto would drop the RR alfalfa program as it did with RR wheat and other herbicide-resistant crops like lettuce. Both of those programs were dropped due to a fear of consumer backlash.

A Monsanto spokesman said the delay in the alfalfa case was due to “procedural rules” in the appeals process. “We filed the appeal at the earliest possible moment and are taking measures to expedite the appeal process,” said the Monsanto spokesman.

The appeal asserts that the industry will suffer irreparable financial harm, despite previous acknowledgement that Roundup Ready alfalfa poses no harm to humans and livestock.

The appeal will be heard in the 9th Circuit Court of Appeals. No hearing date has been set.

The injunction to ban the sale of RR alfalfa until USDA completes an EIS on the impact of herbicide-resistant alfalfa planting seed was issued on May 3 by the federal district court, following a lawsuit brought by the Center for Food Safety and two alfalfa seed producers and others against the USDA.

Along with the ruling banning seed sales, the judge also ordered the exact field locations of an estimated 220,000 acres of RR alfalfa be identified and that the production, harvesting and marketing restrictions be imposed on the forage crop deemed safe for humans and livestock. An estimated 80,000 acres of RR alfalfa is in California where the stringent set of harvesting and handling rules issued in late summer by USDA/APHIS to seemingly comply with the judge's orders created almost as much uproar and consternation among growers as the initial ruling banning the sale of the seed.

Seed companies, growers and University of California specialists and others are attempting to modify the rules.

Besides the bale tagging regulations, USDA/APHIS also is requiring that:

  • Producers clean all swathers, balers, pick-up wagons/harrow beds and leave the sweepings in the RR field.

  • Truckers clean their equipment after transporting RR alfalfa.

  • RR hay and conventional hay be segregated when stacked.

When USDA/APHIS issued its rules, growers and others called them ludicrous, totally unnecessary and impossible to follow.

Nelson said the petition to modify the rules only covers bale tagging and none of the other regulations. “It is questionable whether these measures accomplish the stated goal of preventing RR alfalfa from disrupting organic alfalfa production or non-GE markets,” said Dan Putman, University of California, Davis alfalfa/forage Extension agronomist. “We are hoping we can convince USDA/APHIS to examine reasonable alternatives to these unworkable regulations.”

The ruling banning RR alfalfa seed sales was described as the “tail waging the dog” since of the more than 22 million acres of alfalfa grown in the U.S., only about 200,000 acres are certified organic, which plaintiffs said would be “contaminated” by the transgenic seed.

Monsanto says unless the ruling is overturned, it could cost conventional alfalfa growers $250 million. Monsanto joined the lawsuit after the preliminary injunction was issued to defend grower choice to use the technology. However, the judge made his injunction permanent.