[Federal Register Volume 88, Number 211 (Thursday, November 2, 2023)]
[Rules and Regulations]
[Pages 75394-75449]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-23726]
[[Page 75393]]
Vol. 88
Thursday,
No. 211
November 2, 2023
Part II
Department of Agriculture
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Agricultural Marketing Service
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7 CFR Part 205
National Organic Program (NOP); Organic Livestock and Poultry
Standards; Final Rule
Federal Register / Vol. 88 , No. 211 / Thursday, November 2, 2023 /
Rules and Regulations
[[Page 75394]]
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DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 205
[Doc. No. AMS-NOP-21-0073]
RIN 0581-AE06
National Organic Program (NOP); Organic Livestock and Poultry
Standards
AGENCY: Agricultural Marketing Service, USDA.
ACTION: Final rule.
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SUMMARY: The United States Department of Agriculture's (USDA)
Agricultural Marketing Service (AMS) amends the organic livestock and
poultry production requirements by adding new provisions for livestock
handling and transport, slaughter, and avian (poultry) living
conditions; and expanding and clarifying existing requirements covering
livestock care and production practices and non-avian living
conditions. These changes will ensure organically produced foods meet a
transparent and consistent standard to allow the industry to maintain
consumer confidence in USDA organic products, to align with consumer
expectations regarding outdoor access, and to further facilitate
interstate commerce in organic products.
DATES:
Effective Date: This rule is effective January 2, 2024.
Compliance Dates: All organic operations must comply with the
requirements of this rule by January 2, 2025, except:
(1) Currently certified organic layer operations and layer
operations that are certified before January 2, 2025, must comply with
the Sec. Sec. 205.241(c)(2), (c)(4), and (c)(5), concerning outdoor
stocking density requirements and soil and vegetation requirements, by
January 2, 2029.
(2) Currently certified organic broiler operations and broiler
operations that are certified before January 2, 2025, must comply with
Sec. Sec. 205.241(b)(10), (c)(2), and (c)(6), concerning indoor and
outdoor stocking density requirements and soil and vegetation
requirements, by January 5, 2029.
(3) Currently certified organic poultry operations and poultry
operations that are certified before January 2, 2025 must comply with
Sec. [thinsp]205.241(b)(4), concerning poultry house exit area
requirements, by January 2, 2029.
For more information, see the IMPLEMENTATION AND COMPLIANCE DATES
FOR THE FINAL RULE section of this document.
FOR FURTHER INFORMATION CONTACT: Erin Healy, Director, Standards
Division, Telephone: (202) 720-3252; Email: [email protected].
SUPPLEMENTARY INFORMATION:
Table of Contents
Executive Summary
A. Introduction
B. Summary of Provisions
C. Costs and Benefits
I. General Information
Does this action apply to me?
II. Background
A. Purpose and Need for the Rule
B. Statutory Authority To Issue Final Rule
C. NOSB Recommendations on Livestock Production
D. Organic Livestock Regulatory History
III. Overview of Public Comments
A. Responses to Comment on Statutory Authority
B. Responses to Comment on Market Failure
IV. Overview of Final Rule and Responses to Comments
A. Terms Defined (Sec. [thinsp]205.2)
B. Livestock Care and Production Practices Standard (Sec.
[thinsp]205.238)
C. Mammalian and Non-Avian Livestock Living Conditions (Sec.
[thinsp]205.239)
D. Avian Living Conditions (Sec. [thinsp]205.241)
E. Transport and Slaughter (Sec. 205.242)
F. Implementation and Compliance Dates for the Final Rule
G. Severability
V. Regulatory Analyses
A. Summary of Economic Analyses
B. Executive Order 12988
C. Executive Order 13132
D. Executive Order 13175
E. Civil Rights Impact Analysis
F. Paperwork Reduction Act
G. Related Documents
List of Subjects in 7 CFR Part 205
Part 205--National Organic Program
Executive Summary
A. Introduction
The Organic Livestock and Poultry Standards (OLPS) final rule
amends the USDA organic regulations (7 CFR part 205) related to the
production of livestock, including poultry, marketed as organic. The
rule adds detailed regulations related to animal health care, indoor
and outdoor space standards, manure management, temporary confinement
of livestock, access to the outdoors, transportation conditions, and
humane euthanasia and slaughter. USDA expects that the detailed
regulations established by this final rule will clarify aspects of the
existing USDA organic regulations that are not interpreted or enforced
in a consistent manner. In turn, the detailed regulations in this final
rule will better assure consumers that organic livestock products meet
a consistent standard, as intended by the Organic Foods Production Act
(OFPA or ``the Act'').
The OLPS proposed rule received extensive public comment that
indicated broad support for its policy changes. Ninety-four percent of
the public comments and petition signatures that AMS received support
the rule and its goals. Many comments also suggested policy revisions
and provided helpful economic data, which AMS took into account when
writing this final rule.
B. Summary of Provisions
Livestock that are certified organic under the USDA organic
regulations include mammalian species (e.g., cattle, swine, sheep,
goats), avian or poultry species (e.g., chickens, turkeys, ducks), and
other animal species used for food or in the production of food, fiber,
feed, or other agricultural-based consumer products. The changes in
this rule address a range of topics related to the care of organic
livestock, including:
Livestock health care practices--the rule specifies which physical
alteration procedures are prohibited or restricted for use on organic
livestock. The livestock health care practice standards include
requirements for euthanasia to reduce suffering of irreversibly sick or
disabled livestock;
Living conditions--the rule sets livestock living condition
standards that reflect the needs and behaviors of different types of
animals and consumers' expectations about the living conditions of
animals in organic production. The avian (or poultry) livestock living
standards include indoor and outdoor space requirements and require
that housing provides sufficient exit areas for birds to access the
outdoors;
Transport of animals--the rule adds new requirements for the
transport of organic livestock to sale or slaughter;
Slaughter--the rule adds a new section to clarify how organic
facility slaughter practices and USDA Food Safety and Inspection
Service (FSIS) regulations work together to support animal welfare.
C. Costs and Benefits
AMS analyzed the rule's impact on the organic broiler market and
the organic egg market. Table 1 summarizes the full range of benefits
and costs related to the implementation of this rule. AMS has sought to
quantify these benefits and costs to the greatest extent possible in
Section F of the RIA.
[[Page 75395]]
Table 1--Qualitative Summary of Rule's Benefits and Costs
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Benefits Costs
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Reduces information asymmetries between On-going compliance costs: more
producers and consumers, resulting in indoor space for organic
a more optimal distribution of organic broilers and more outdoor
and other value-added products. space for organic layers.*
Reduces consumer search costs for
consumers aware of these
inconsistencies.
Adds value to organic products: Temporary losses of economic
consistent minimum animal welfare welfare: total surplus in
standards, increased space for organic organic egg market decreases
broilers*, and increased outdoor more than total surplus
access for organic layers.* increases in the cage-free egg
market as organic egg
production unable to comply
with the rule shifts to cage-
free markets.*
Reduces risk to the integrity of the
organic label, increasing the
likelihood of sustained demand and
continued growth of organic sales.\1\
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* These benefits/costs are quantified in the analysis.
Table 2 below captures the monetized costs, benefits, and net
benefit in these markets. AMS estimates annual costs for organic layer
operations of $28.1-$32.9 million and costs for organic broiler
operations of $4.8-$5.5 million. Additionally, AMS estimates that
organic egg production exiting for the cage-free egg market will lead
to a temporary economic welfare loss of approximately $8.7-$16.0
million over the first 20 years of the rule. AMS estimates annual
benefits for layer operations of $76.6-$89.6 million and benefits for
organic broiler operations of $31.5-$35.6 million. In total, AMS
anticipates this rule will produce an annualized net benefit ranging
from $59.1 million (assuming a 7% discount rate overall) to $78.1
million (assuming a 3% discount rate overall). For more detailed
discussion of the economic analysis, including its assumptions and
methods, see the Regulatory Impact Analysis for this rule.
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\1\ AMS finds it likely that controversy or confusion about one
product under the organic scheme will cause secondary effects to the
overall label and other products, including, but not limited to,
risk to consumer confidence, trust, and demand. Because of the
unique nature of the organic label, quantifying or monetizing this
risk based on existing literature is not possible. See further
discussion in Section F. For general information on the relationship
between trust reputations and labels see: Jahn, G., Schramm, M., &
Spiller, A. (2005). The reliability of certification: Quality labels
as a consumer policy tool. Journal of Consumer Policy, 28, 53-73.
For more on the relation between trust and organic label sales see:
Janssen, M., & Hamm, U. (2014). Governmental and private
certification labels for organic food: Consumer attitudes and
preferences in Germany. Food Policy, 49, 437-448. For more
information on the erosion of trust see: Golan, E., Kuchler, F.,
Mitchell, L., Greene, C., & Jessup, A. (2001). Economics of food
labeling. Journal of Consumer Policy, 24(2), 117-184.
Table 2--Executive Summary: Unit Costs and Benefits for Eggs and
Broilers
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Eggs Broilers
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Unit Benefits and Costs
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Avg. Benefit Per Unit (Consumer 0.205/dozen 0.14/lb.
Willingness to Pay) *..................
Cost Change in Average Total Cost of 0.06/dozen 0.02/lb.
Production Per Unit....................
Net Benefit per Unit Gaining Outdoor 0.145/dozen 0.16/lb.
Access.................................
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Total Annualized Benefits and Costs
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20-Year Annualized Discounted Benefits $89,564 $35,641
(3%) ($1,000) *........................
20-Year Annualized Discounted Benefits 76,641 31,467
(7%) (1,000) *.........................
20-Year Annualized Discounted Costs (3%) 32,893 5,491
(1,000)................................
20-Year Annualized Discounted Costs (7%) 28,147 4,848
(1,000)................................
20-Year Annualized Discounted Economic 8,709 0
Welfare Loss (3%) (1,000)..............
20-Year Annualized Discounted Economic 16,046 0
Welfare Loss (7%) (1,000)..............
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Total Annualized Net Benefits
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20-Year Annualized Discounted Net 47,962 30,149
Benefits (3%) (1,000)..................
20-Year Annualized Discounted Net 32,448 26,619
Benefits (7%) (1,000)..................
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One-time Domestic Information Collection Cost (1,000)... 4,930
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* Layer benefit reports the mid-point benefits of the two estimates
($0.16/dz. and $0.25/dz.).
I. General Information
Does this action apply to me?
You may be affected by this action if you are engaged in the meat,
egg, poultry, dairy, or animal fiber industries. Potentially affected
entities may include, but are not limited to:
--Individuals or business entities that are considering organic
certification for a new or existing livestock farm or slaughter
facility;
--Existing livestock farms and slaughter facilities that are currently
certified organic under the USDA organic regulations; and
--Certifying agents accredited by USDA to certify organic livestock
operations and organic livestock handling operations.
This listing is not intended to be exhaustive but identifies key
entities likely to be affected by this action. Other types of entities
could also be affected. To determine whether you or your
[[Page 75396]]
business may be affected by this action, you should carefully examine
the regulatory text. If you have questions regarding the applicability
of this action to a particular entity, consult the person listed above
under FOR FURTHER INFORMATION CONTACT.
II. Background
A. Purpose and Need for the Rule
The purpose of this rule is to address several inconsistencies in
organic livestock production that have arisen due to varying
interpretations of the current livestock standards. This rule will add
detail to the organic livestock health care and living conditions
standards and add new standards specific to avian species. This
additional detail will help producers and certifiers interpret and
apply the organic livestock regulations more consistently, ensuring
fair competition between producers and bolstering consumer confidence
in the organic label.
In 2021, U.S. sales of organic livestock and poultry were $2.2
billion, and sales of organic livestock and poultry products were $2.9
billion.\2\ Compared to 2011, this represents a 715 percent increase in
sales of organic livestock and poultry and a 175 percent increase in
sales of organic livestock and poultry products.\3\ The organic
regulations have included general standards for livestock production
since they were first published in 2000, however, the regulations lack
specific standards for certain topics such as physical alterations,
euthanasia, transport, slaughter, and avian-specific living conditions.
This means producers and certifying agents must interpret and apply
these general standards to different livestock production systems, each
of which has its own unique needs and practices. This has led to
different interpretations of the organic regulations--both differences
in how some operations produce organic livestock and differences in how
some certifying agents enforce the organic livestock standards.
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\2\ USDA, National Agricultural Statistics Service, 2021
Certified Organic Survey (released December 15, 2022), https://www.nass.usda.gov/Surveys/Guide_to_NASS_Surveys/Organic_Production/.
\3\ USDA, National Agricultural Statistics Service, 2011
Certified Organic Survey (released October 2012), https://www.nass.usda.gov/Surveys/Guide_to_NASS_Surveys/Organic_Production/.
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Production practices may differ substantially among different
producers and certifiers, and a key purpose of this rule is to resolve
widely divergent interpretations of existing organic production
standards. For example, the existing regulation at Sec. 205.239(a)(1)
requires ``[y]ear-round access for all animals to the outdoors.'' Some
operations and certifying agents have interpreted this general
requirement for outdoor access to mean that organically managed poultry
need only to have access to fresh air and sunlight, and this can be
satisfied by screened, elevated patio structures known as ``porches.''
Other certifying agents require operations to provide outdoor spaces
with soil and vegetation, but even then, may differ in their
interpretations of how much space must be provided outdoors. The final
rule also details requirements for other aspects of organic livestock
production for the purpose of reducing divergent interpretations of the
regulations and divergent practices among organic livestock producers.
These aspects include living conditions (both indoors and outdoors),
health care practices, transport, and slaughter conditions.
Inconsistencies in livestock practices and enforcement such as
these have several detrimental effects on the organic market: producers
can have significantly different production costs for the same organic
product, and in some cases, consumers are unaware that not all organic
products are produced with attributes they desire (e.g., outdoor
access), resulting in consumers paying for an attribute they are not
receiving.\4\ If consumers become aware that they are paying for an
attribute that does not exist, like access to soil and vegetation, they
are likely to lose confidence in the organic label.
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\4\ Recent survey data shows that 65% of frequent organic
purchasers and 54% of all organic purchasers think that all organic
animals have outdoor access throughout the day. See ASPCA and the
Animal Welfare Institute survey, September 2022. https://www.aspca.org/sites/default/files/awi_aspca_organic_consumer_survey_summary_2022_final.pdf.
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AMS has found that inconsistent application of the organic
livestock standards has likely produced a market failure, that has been
in some part allowed to exist through government failure (action or
inaction). ``Market failure'' occurs when the free market does not
allocate resources efficiently--in other words, there is some market
distortion such as information asymmetry--despite consumers making
rational economic choices; analogously, ``government failure,'' for the
purposes of this document, is the government's failure to refine its
approach to addressing information asymmetry through regulation or
through other government action. For example, if consumers are paying
for an attribute that they believe they are receiving, such as an
animal's full access to the outdoors, the money they spend on an
attribute they do not receive is likely associated with the combination
of information asymmetry from market and government failure. After
reviewing the economic data, AMS believes that inconsistent application
of the organic program standards has led to information asymmetry
within the organic egg market and could be present in other organic
livestock markets.\5\ For more discussion of market failure, see
Section II.D, ORGANIC LIVESTOCK REGULATORY HISTORY, and this rule's
Regulatory Impact Analysis (RIA).
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\5\ For example, based on data from the ASPCA/AWI Organic
Consumer Survey, AMS estimates that at least 31.5% of organic eggs
are purchased by consumers who mistakenly think the chickens
producing their eggs have outdoor access that includes soil or
pasture. See Section II Subsection D for more detail.
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As a result of these failures, some consumers are losing trust in
the organic label. In public comments, consumers conveyed they lost
trust when they became aware that the organic label has not necessarily
meant animals are raised under the conditions they expected. During the
public comment period for the proposed OLPS rule, over 26,000 members
of the public submitted letters that specifically referenced their
diminished trust in the organic label. For example, AMS received more
than 6,000 thousand copies of one letter saying, ``the lack of clear
standards undermines consumer confidence in the organic label,'' and
more than 700 copies of another saying, ``I expect the USDA Organic
seal to include robust standards for animal welfare and outdoor access
. . . without [that], I'm left wondering what I'm really getting when I
purchase products with the USDA Organic seal.'' Similarly, the
extensive and detailed comments submitted by several organic producers
and trade groups identified loss of consumer confidence in the organic
label as a primary concern. For more information on the relationship
between trust and demand for labels, see Section F of the RIA.
Additionally, public comments highlighted the uneven production
costs due to the inconsistencies in outdoor access.\6\ One comment
specifically stated that ``The allowance by some ACAs of ``porches'' to
satisfy the outdoor access requirements, created an uneven competitive
landscape as well as ``certifier shopping'' which is unrebutted
evidence of inconsistency in the federal standards as well as
[[Page 75397]]
evidence of inconsistent products in the stream of commerce.'' \7\
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\6\ See https://www.regulations.gov/comment/AMS-NOP-21-0073-39096 and https://www.regulations.gov/comment/AMS-NOP-21-0073-39082.
\7\ https://www.regulations.gov/comment/AMS-NOP-21-0073-39082.
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Market failure, uneven production costs, and loss of trust in the
organic label are three consequences that AMS seeks to address with
this rule. The rule will establish avian-specific living conditions for
poultry and provide more detail on living conditions and health care
standards for all organic livestock. As a result of this rulemaking,
AMS predicts that producers and certifying agents will be able to
interpret and apply the organic regulations more consistently, assuring
consumers that organically produced products meet a consistent and
uniform standard, and safeguarding confidence in the organic label.
B. Statutory Authority To Issue Final Rule
Introduction
USDA is issuing these regulations under its authority as delegated
by OFPA and described below. In particular, USDA has statutory
authority to promulgate the regulations in the final rule pursuant to
USDA's authority: (1) to better assure consumers that organic livestock
products meet a consistent standard (7 U.S.C. 6501); (2) to establish a
national organic certification program (7 U.S.C. 6503(a)); (3) to
promulgate ``other terms and conditions as may be determined by the
Secretary to be necessary'' to the organic program (7 U.S.C.
6506(a)(11)); and (4) to develop and implement standards for livestock
production under the organic program (7 U.S.C. 6509). A discussion of
public comments received on the topic of USDA's authority, and AMS's
responses, can be found below in Section III., OVERVIEW OF PUBLIC
COMMENTS.
Reasons for Changing Interpretation From the OLPP Withdrawal Rule
USDA acknowledges that its position on USDA's statutory authority
to issue this rule differs from the rationale that USDA relied on for
the withdrawal of the Organic Livestock and Poultry Practices (OLPP)
final rule (Withdrawal Rule) in March 2018 (83 FR 10775). The sequence
of events related to this rule is outlined below in the section titled
``OLPP Rule and Legal Challenges.'' USDA discusses the reasons for its
change in position following a brief discussion of USDA's previous
rationale for the withdrawal of the OLPP final rule.
In the Withdrawal Rule, USDA stated it withdrew the OLPP rule based
on its then-interpretation of 7 U.S.C. 6509, which it believed did not
``authorize the animal welfare provisions of the OLPP final rule'' (83
FR 10776). At the time, USDA held that its authority under sec. 6509 to
issue regulations for the ``care'' of livestock was limited to physical
health care issues for livestock like those described in sec.
6509(d)(1), i.e., relating to the ``ingestion of chemical, artificial,
or non-organic substances'' (83 FR 10776). Based on this
interpretation, USDA stated that the OLPP final rule had included
``stand-alone animal welfare regulations'' that Congress had not
specifically authorized under sec. 6509. Additionally, the Withdrawal
Rule reasoned that if the statutory text could be construed as ``silent
or ambiguous,'' its interpretation was entitled to deference and based
on a permissible statutory construction'' (83 FR 10776).
USDA now disagrees with the rationale and narrow textual reading in
the Withdrawal Rule, and USDA finds it has ample authority to issue
this final rule based on the text and structure of sec, 6509 and the
statute's plain meaning (at sec. 6509 and elsewhere, including 7 U.S.C.
6501, 7 U.S.C. 6503(a), 7 U.S.C. 6506(a)(11)). Additionally, USDA's
longstanding interpretation of OFPA both prior to and since the
Withdrawal Rule, as reflected in numerous regulations promulgated by
AMS, confirms USDA's statutory authority to issue this rule (see ``D.
Organic Livestock Regulatory History'').
With this rule, USDA is using its authority to address regulatory
issues that (1) prevent fair competition among producers (as the
regulations are not interpreted consistently or applied equally to
producers), and (2) lead to such widely varying practices among some
producers that consumers cannot be assured an organic product meets a
consistent standard--a key purpose of OFPA. The promulgation of this
final rule is preferred to the alternative of relying on current
regulations that are inconsistently interpreted and enforced (see
Purpose and Need for the Rule). Data indicates that nothing since the
withdrawal of the OLPP final rule has changed to reduce the
inconsistency in practices, which continues to cause harm to consumers
(see additional discussion of Market/Government Failure in the RIA for
this final rule). Taking no action when known inconsistencies exist
would run counter to a fundamental purpose of OFPA to assure consumers
that organically produced products meet a consistent standard (7 U.S.C.
6501). This final rule addresses these inconsistencies and, in turn,
satisfies OFPA's purposes. For these reasons above and others discussed
throughout this final rule, USDA finds that it has good reasons to
revise its previous position from the Withdrawal Rule and issue this
final rule.
Long-Standing Interpretation of OFPA and Promulgation of Livestock
Regulations
Since the implementation of the December 2000 final rule (65 FR
80548) that established the AMS National Organic Program (NOP) and the
USDA organic requirements, organic livestock producers have been
required to meet requirements related to origin of livestock (Sec.
205.236), livestock feed (Sec. 205.237), livestock health care
practice standards (Sec. 205.238), and livestock living conditions
(Sec. 205.239). These regulations address measures to avoid disease
and illness; provisions about feed and pasture; principles governing
housing, pasture conditions, sanitation practices; and requirements for
access to the outdoors and a natural environment. As described in the
December 2000 final rule, a producer must, ``establish and maintain
livestock living conditions for the animals under his or her care which
accommodate the health and natural behavior of the livestock. The
producer must provide access to the outdoors, shade, shelter, exercise
areas, fresh air, and direct sunlight suitable to the species, its
stage of production, the climate, and the environment.'' These
regulations that have been effective since April 2001 (66 FR 15619)
reflect our longstanding interpretation of care of livestock, and
necessarily implicate animal welfare considerations.
USDA, through its National Organic Program (NOP), oversees the
entirety of the national organic certification program, from production
standards to accreditation of USDA-accredited certifying agents, to
noncompliance and appeal procedures, to international organic
agreements, and more. The NOP does this through its comprehensive
regulations at 7 CFR part 205. While the bulk of these specific
regulations were published by USDA in December 2000, the NOP has
elaborated on the regulations regularly since December 2000 under its
authority delegated by OFPA.
AMS has updated the organic livestock regulations, specifically,
multiple times since 2000. Notably, the 2010 Access to Pasture final
rule (75 FR 7153) expanded the organic regulations to, ``satisfy
consumer expectations that ruminant livestock animals are grazing
pastures and that pastures are managed to support grazing throughout
the
[[Page 75398]]
grazing season.'' \8\ The rule specifically addressed areas related to
production of organic ruminants (e.g., cattle, sheep, goats), including
pasture management, recordkeeping, access to the outdoors, temporary
confinement from the outdoors and pasture, and the amount of pasture
required in proportion to the total diet or ration. More recently, a
2022 Origin of Livestock final rule (87 FR 19740) clarified the manner
in which organic dairy operations can transition livestock to organic
production to increase uniformity in production practices for organic
dairy animals and reduce variance between certifying agents. The
regulatory history demonstrates a long precedent of AMS promulgating
detailed regulations on organic livestock production. Similarly, this
rule clarifies requirements for livestock production and supports the
purposes of OFPA (7 U.S.C. 6501).
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\8\ https://www.federalregister.gov/d/2010-3023/p-453.
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Congress has also amended OFPA multiple times, but amendments to
OFPA have never sought to restrict the types of organic livestock
production practices that USDA may regulate under its delegated
authority. In fact, Congress has occasionally urged USDA to finalize
certain livestock regulations rather than clarify requirements through
amendments to OFPA. For example, in the Further Consolidated
Appropriations Act, 2020 (Pub. L. 116-94, div. B, title VII, sec. 756,
Dec. 20, 2019, 133 Stat. 2654)), Congress directed USDA to issue a
final rule based on the ``Origin of Livestock'' proposed rule that AMS
published in April 2015.
OFPA Provisions and OFPA History
The plain language and the legislative history of OFPA and USDA's
longstanding interpretation of the statute support USDA's authority to
issue these regulations. OFPA includes few details about organic
livestock production, organic crop production, and handling of organic
products. In all cases, the USDA organic regulations (7 CFR part 205)
have, since their inception, include more detailed requirements than
included in OFPA, as Congress authorized and intended. For livestock,
Congress was particularly clear in stating that the livestock
requirements in OFPA were not fully developed, and delegated rulemaking
authority to USDA to develop more detailed livestock production
requirements and standards (7 U.S.C. 6509(g)).
As stated in the Conference Report of October 22, 1990 (p. 1177):
The Conference substitute adopts the House provision with an
amendment which requires the Secretary to hold hearings and develop
regulations regarding livestock standards in addition to those
specified in this title . . . the Managers recognize the need to
further elaborate on the standards set forth in the title and expect
that by holding public discussions with interested parties and with
the National Organic Standards Board, the Secretary will determine
the necessary standards . . .
Moreover, as stated in the Senate Report, Congress made clear that USDA
would develop ``more detailed'' livestock production standards, as well
as implement them:
More detailed standards are enumerated for crop production than
for livestock production. This reflects the extent of knowledge and
consensus on appropriate organic crop production methods and
materials. With additional research and as more producers enter into
organic livestock production, the Committee expects that USDA, with
the assistance of the National Organic Standards Board will
elaborate on livestock criteria. The Committee recommends as well
that, over time, USDA and the Organic Standards Board develop
standards for aquaculture products.
S. Rep. No. 101-357, at 292 (1990).
In addition, OFPA grants USDA authority to establish standards for
the national organic program. Sec. 6503(a) states: ``The Secretary
shall establish an organic certification program for producers and
handlers of agricultural products that have been produced using organic
methods as provided for in this chapter,'' and 7 U.S.C. 6506(a)(11)
which provides: ``A program established under this chapter shall
require such other terms and conditions as may be determined by the
Secretary to be necessary.''
OFPA also specifically authorizes USDA to develop detailed
requirements for animal production practices (7 U.S.C. 6509). 7 U.S.C.
6509(a) specifies that ``Any livestock that is to be slaughtered and
sold or labeled as organically produced shall be raised in accordance
with this chapter.'' ``Organically produced,'' as defined by OFPA, is
broad. It is defined as ``an agricultural product that is produced and
handled in accordance with this chapter.'' \9\ Sec. 6509(d)(1)
addresses a handful of specific prohibited health care practices
related to use of medications and feed on organic farms. Notably, OFPA
specifies at subsection 6509(d)(2): ``The National Organic Standards
Board shall recommend to the Secretary standards in addition to those
in paragraph (1) [titled ``Prohibited practices''] for the care of
livestock to ensure that such livestock is organically produced.''
Finally, 7 U.S.C. 6509(g) also provides that ``the Secretary shall hold
public hearings and shall develop detailed regulations, with notice and
public comment, to guide the implementation of the standards for
livestock products provided under this section'' (italics added). USDA
has long interpreted these provisions to grant the authority to address
animal welfare as part of the organic standards, regularly developing
and promulgating detailed regulations that implicate animal welfare
through the statutorily outlined process of consulting NOSB and
offering notice and public comment on additional standards developed.
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\9\ 7 U.S.C. 6502(15).
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In withdrawing the OLPP Rule, USDA at that time asserted that
standards for animal care practices are limited to physical health care
practices similar to those specified in 7 U.S.C. 6509(d)(1) and could
not encompass concerns about animal welfare. However, sec. 6509(d)(2)
provides that the NOSB shall consider and propose additional standards,
and the language of that section broadly allows the NOSB to recommend
standards for the ``care of livestock'', and nowhere explicitly limited
to provisions that prohibit the ingestion or administration of
chemical, synthetic, or non-naturally occurring substances for
livestock. Indeed, the two subsections of sec. 6509(d) address certain
prohibited health care practices and other types of care separately,
suggesting Congress's intent that the NOSB consider and propose
standards for each type of care. Sec. 6509(d)(1) lists ``prohibited
practices'' in health care of livestock, including prohibiting
administering routine antibiotics, synthetic internal parasiticides, or
any medication beyond vaccines, in the absence of illness. Sec.
6509(d)(2) instead provides that NOSB shall recommend ``standards in
addition to'' those prohibited practices ``for the care of livestock to
ensure that such livestock is organically produced.'' (7 U.S.C.
6509(d)(2)). That Congress went to the effort of distinguishing certain
prohibited medical practices from the general ``care'' for which NOSB
can recommend standards reflects an intent that USDA's authority to
regulate livestock production practices extends beyond the medication
and feed examples in sect. 6509(d)(1).
In addition, OFPA did not define ``raised,'' ``health care,'' or
``care,'' and instead authorized USDA to promulgate regulations and
implement standards for the organic program, generally, and for organic
livestock products more specifically. Moreover, the plain meaning of
the terms ``care,'' (7 U.S.C.
[[Page 75399]]
6509(d)(2)) ``raised,'' (7 U.S.C. 6509(a) and (e)) and ``health care,''
(7 U.S.C. 6509(d)) includes considerations of animal welfare. Merriam-
Webster defines ``care'' as ``charge, supervision . . . especially:
responsibility for or attention to health, well-being, and safety.''
\10\ Similarly, the American Heritage Dictionary defines ``care'' as
``watchful oversight; charge or supervision,'' \11\ and the Cambridge
Dictionary defines ``care'' as ``the process of protecting or providing
for the needs of someone or something.'' \12\ Merriam-Webster defines
``raise'' as ``to breed and bring (an animal) to maturity,'' \13\ and
the American Heritage Dictionary defines ``raise'' as ``to breed and
care for to maturity: raise cattle.'' \14\ In addition, ``health care''
is defined as ``efforts made to maintain or restore physical, mental,
or emotional well-being especially by trained and licensed
professionals.'' \15\
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\10\ Merriam-Webster Dictionary, available at https://www.merriam-webster.com/dictionary/care.
\11\ American Heritage Dictionary, available at https://www.ahdictionary.com/word/search.html?q=care.
\12\ Cambridge Dictionary, available at https://dictionary.cambridge.org/dictionary/essential-american-english/care.
\13\ Merriam Webster, available at https://www.merriam-webster.com/dictionary/raise.
\14\ American Heritage Dictionary, available at https://www.ahdictionary.com/word/search.html?q=raise.
\15\ Merriam Webster, available at https://www.merriam-webster.com/dictionary/health%20care.
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In contrast to the narrow interpretation of the OFPA term ``health
care'' used in the Withdrawal Rule, the OLPS final rule returns to
USDA's longstanding interpretation of ``health care'' which goes beyond
specific healthcare practices for organic livestock and can reasonably
encompass production practices related to the welfare and well-being of
livestock. This interpretation aligns with longstanding organic
regulations related to health care at 7 CFR 205.238 titled ``Livestock
health care practice standard'' and included in the 2000 final rule.
Section 205.238(a) includes provisions that support livestock health,
including provisions related to housing, feed, sanitation, species
selection, exercise and movement, and conditions which allow for
reduction of stress.
The aforementioned terms (``care,'' ``raised,'' and ``health
care'') connote a broader conception of livestock health care and
livestock care that includes livestock living conditions and
considerations of welfare, and these terms allow USDA to prescribe
modes of caring for livestock that extend beyond prohibiting specific
health care practices such as the ``ingestion of chemical, artificial,
or non-organic substances.'' (83 FR 10776). The language in sec. 6509,
including allowing the NOSB to recommend regulations ``in addition to''
those in subsection 6509(d)(1) ``for the care of livestock'' indicates
that the scope of USDA's authority extends beyond regulations
prohibiting the ingestion of chemical, artificial, or non-organic
substances. Sec. 6509(e)(1) and (2) describe ``additional guidelines''
for ``rais[ing] and handl[ing]'' poultry and dairy livestock,
respectively. The use of the phrase ``[r]aised and handled in
accordance with this chapter'' (6509(e)(1), (2)(A)) suggests a more
comprehensive understanding of care that goes beyond narrow conceptions
of medical care of organic livestock and can reasonably encompass
production practices related to livestock living conditions and
welfare. Thus, USDA believes that sec. 6509 supports the promulgation
of these regulations concerning the humane raising of livestock.
However, even if the text of sec. 6509 were silent or ambiguous about
this issue, USDA believes that its interpretation is a permissible
reading, an interpretation that is entitled to deference.
Animal Welfare
This rule's focus on animal welfare, especially outdoor access
requirements, supports the organic regulations' existing principles of
resource cycling and ecological balance (see ``organic production''
defined at 7 CFR 205.2 and Sec. 205.239(e)). Nevertheless, USDA
recognizes that NOSB recommendations and public comments that have
shaped this final rule may have intended to enhance the welfare or
well-being of animals marketed as organic. Many in the contemporary
organic industry do not view animal welfare as distinct from the
concerns expressly reflected in the statutory text of OFPA. A growing
body of research is showing that livestock and poultry with access to
pasture and the outdoors to forage and engage in natural behaviors may
be positively associated with the following outcomes: improved well-
being of the animals, environmental benefits, and healthier livestock
and poultry products \16\ for human consumption.\17\
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\16\ Is Grassfed Meat and Dairy Better for Human and
Environmental Health? Frederick D. Provenza, Scott L. Kronberg, and
Pablo Gregorini, Front Nutr. 2019; 6: 26. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6434678/.
\17\ Palupi, Eny; Jayanegara, Anuraga; Ploegera, Angelika and
Kahla, Johannes (2012) ``Comparison of nutritional quality between
conventional and organic dairy products: a meta-analysis,'' Journal
of the Science of Food and Agriculture, Vol. 92, pp. 2774-2781.
https://pubmed.ncbi.nlm.nih.gov/22430502/.
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Public perception and the expectations of organic consumers
parallel this research. For example, a 2021 study found that consumers
expect less need for antibiotics and other medications that sec.
6509(d) expressly limits when animals are raised with practices that
improve the health and welfare of livestock.\18\ Since OFPA was
enacted, expectations for the conditions under which animals are raised
(i.e., animal welfare) have become an integral part of organic
production, as evidenced by the hundreds of thousands of public
comments that USDA has received on this topic over three decades, as
well as an emerging body of research on the motivations that drive
consumers to buy organic livestock products. Several studies point to
animal welfare concerns as significant or even primary drivers for
organic consumers.\19\ Likewise, consumers perceive organic livestock
to be raised according to higher animal welfare standards than non-
organic livestock.\20\ Literature also suggests government-sponsored
ecolabels provide the highest levels of consumer confidence.\21\
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\18\ Wemette, M., Safi, A.G., Wolverton, A.K., Beauvais, W.,
Shapiro, M., Moroni, P., . . . & Ivanek, R. (2021). Public
perceptions of antibiotic use on dairy farms in the United States.
Journal of Dairy Science, 104(3), 2807-2821 https://pubmed.ncbi.nlm.nih.gov/33455793/.
\19\ Alonso, Marta E.; Gonz[aacute]lez-Monta[ntilde]a,
Jos[eacute] R.; and Lomillos, Juan M. (2020) ``Consumers' Concerns
and Perceptions of Farm Animal Welfare,'' Animals, Vol. 10, pp. 385-
397. McEachern, M.G.; Willock, J. (2004) ``Producers and consumers
of organic meat: A focus on attitudes and motivations.'' British
Food Journal, Vol. 106, pp.534-552.
\20\ Harper, Gemma C; Makatouni, Aikaterini (2002) ``Consumer
perception of organic food production and farm animal welfare.''
British Food Journal; Vol. 104, Iss. 3-5, pp. 287-299.
\21\ Kim Mannemar S. [Atilde]nderskov, and Carsten Daugbjerg.
``The State and Consumer Confidence In Eco-labeling: Organic
Labeling In Denmark, Sweden, The United Kingdom and The United
States.'' Agriculture and human values, v. 28,.4 pp. 507-517. doi:
10.1007/s10460-010-9295-5.
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The March 2018 Withdrawal Rule reasoned that OFPA did not authorize
``stand-alone animal welfare regulations.'' USDA's current position is
that the OLPS final rule is not a stand-alone animal welfare
regulation. Some provisions of the rule may improve animal welfare, but
USDA's primary objective is to clarify requirements for products sold
as ``organic.'' This role and its corresponding authority are clearly
intended by OFPA, where Congress delegated authority to USDA ``to
establish an organic certification program for producers and handlers
of agricultural products'' (7 U.S.C. 6503(a)) and develop standards for
the care of
[[Page 75400]]
livestock (7 U.S.C. 6509) to meet the purposes of the OFPA, including
``to assure consumers that organically produced products meet a
consistent standard'' (7 U.S.C. 6501(2)). Since the enactment of OFPA,
the USDA has worked to establish, develop, and administer standards on
numerous aspects of organic production, including standards for the
care of livestock that extend beyond the Withdrawal Rule's narrow
interpretation of ``health care.'' USDA maintains that, notwithstanding
the novel interpretation of the Withdrawal Rule, the authority of its
national organic certification program to establish, develop, and
administer livestock standards--including those that implicate the
welfare of animals used in organic production--is confirmed by USDA's
present and longstanding interpretation of OFPA.
NOSB Consultation (OFPA) and Development of OLPS
Congress directed USDA to consult with the NOSB to establish a
national organic certification program (7 U.S.C. 6503(c), 6509(d)) and
develop detailed livestock regulations with notice and public comment
(7 U.S.C. 6509(g)). USDA has done just that in developing this and
previous livestock regulations (see, for example, ``History of AMS
Livestock Policy'' in Section D; to see recommendations related to the
OLPS rule, see ``C. NOSB Recommendations on Livestock Production'').
The vast majority of NOSB recommendations and public comments agree
with and support the USDA's decision to establish the regulations
included in the OLPS final rule.
Conclusion
AMS is issuing this rule after determining, in consultation with
the National Organic Standards Board (NOSB) and following notice and
public comment, that regulations are necessary to clarify the existing
livestock production standards. This follows the process intended for
livestock standards development authorized by OFPA at 7 U.S.C. 6503 and
6509. USDA determined that existing organic livestock production
regulations have not been interpreted or enforced in a consistent
manner among certifiers to assure consumers that organic livestock and
products from livestock (e.g., eggs) meet a consistent standard. Under
the authority granted by OFPA, AMS is issuing this rule with clearer
standards to address inconsistencies in livestock production
regulations.
Comment summaries and AMS responses on the topic of USDA's
statutory authority to promulgate these regulations can be found below
in Section III, OVERVIEW OF PUBLIC COMMENTS.
C. NOSB Recommendations on Livestock Production
The NOSB is a federal advisory committee established by OFPA (7
U.S.C. 6518) to provide recommendations to USDA on the development of
organic standards and regulations. NOSB recommendations are developed
through a rigorous process involving technical information, stakeholder
input through public comment, open meetings, and a decisive two-thirds
majority vote of the Board. Although the Board cannot direct or bind
USDA through its recommendations, USDA utilizes the NOSB
recommendations to inform rulemaking, including this rulemaking.
Between 1994 and 2011, the NOSB made nine recommendations regarding
livestock health care, living conditions, and welfare in organic
production. Between 1997 and 2000, AMS issued two proposed rules and a
final rule regarding national standards for the production and handling
of organic products, including livestock and their products. Members of
the public commented on these rules regarding the health care and
welfare of livestock. Summarized below are the key actions from that
period that led to the development of the existing standards for
organic livestock and that have informed this OLPS final rule.
(1) In June 1994, the NOSB recommended a series of provisions to
address the care and handling of livestock on organic farms. Within
this recommendation, the NOSB developed much of the framework for
organic health care and welfare of livestock, including health care
standards, living conditions, and transportation of livestock
practices.
(2) In April and October 1995, the NOSB made a series of
recommendations as addenda to the June 1994 recommendations. These
recommendations further addressed various health care practices, a
requirement for outdoor access, and the use of vaccines.
(3) On December 16, 1997, AMS incorporated the 1994 and 1995 NOSB
recommendations in a proposed rule to establish the NOP (62 FR 65850).
Consistent with the NOSB's recommendation, the proposed language would
have required that organic livestock producers develop a preventive
health care plan and use synthetic drugs only if preventive measures
failed. The 1997 proposed rule also included standards for livestock
living conditions, including when livestock could be confined. That
proposed rule was not finalized.
(4) In March 1998, the NOSB reaffirmed its earlier recommendations
on livestock health care and living conditions. The 1998 NOSB
recommendation also stressed the importance of treating sick livestock
by recommending that any organic producer who did not take specified
actions to provide care for a diseased animal would lose certification.
This recommendation also included provisions to clarify when livestock
could be confined indoors and defined ``outdoors'' as having direct
access to sunshine.
(5) On March 13, 2000, AMS published a second proposed rule to
establish the National Organic Program (65 FR 13512) that incorporated
public feedback on the December 1997 proposed rule. AMS also
incorporated the NOSB's March 1998 recommendations related to livestock
health care and living conditions. AMS proposed that organic producers
must use disease prevention practices first, then approved synthetic
medications only if preventive measures failed. However, a producer
would need to use all appropriate measures to save the animal even if
the animal lost organic status. In addition, AMS proposed that the
living conditions for organic livestock must maintain the health of the
animals and allow for natural behaviors, including access to the
outdoors.
(6) On December 21, 2000, AMS published a final rule establishing
the USDA organic regulations (65 FR 80548) (``NOP Rule''). Through this
action, AMS finalized the standards for health care practices and
livestock living conditions. This rule addressed a range of matters
related to organic livestock production, including organic feed; use of
hormones and supplements; measures to avoid disease and illness;
veterinary biologics, medications, synthetic parasiticides, and other
drugs; and general principles governing housing, pasture conditions,
sanitation practices, and physical alterations. The NOP Rule also
generally required producers to provide organic livestock with ``access
to the outdoors, shade, shelter, exercise areas, fresh air, and direct
sunlight suitable to the species, its stage of production, the climate,
and the environment,'' but allowed producers to satisfy those criteria
in different ways. That rule became effective on April 21, 2001
(correction of effective date; 66 FR 15619) and was fully implemented
on October 21, 2002.
[[Page 75401]]
(7) In May 2002, the NOSB again addressed outdoor access, stating
this should include open air and direct access to sunshine.\22\ In
addition, the May 2002 recommendation stated that bare surfaces other
than soil do not meet the NOP Rule's intent for outdoor access for
poultry. This recommendation also included clarifications as to when
livestock could be temporarily confined.
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\22\ NOSB, 2002. Recommendation Access to Outdoors for Poultry.
Available at: http://www.ams.usda.gov/rules-regulations/organic/nosb/recommendations.
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(8) In March 2005, the NOSB recommended that the temporary
confinement provision for ``stage of production'' be changed to ``stage
of life.'' \23\ The NOSB reasoned that confinement for a ``stage of
life'' would limit producers from confining animals for long periods,
such as confinement during the entire period that a dairy animal is
lactating. ``Stage of life'' was reasoned to be more specific than
``stage of production.''
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\23\ NOSB, 2005. Formal Recommendation by the NOSB to NOP. NOSB
recommendation for Rule change--``Stage of Production'' to ``Stage
of Life.'' Available at: http://www.ams.usda.gov/rules-regulations/organic/nosb/recommendations.
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(9) On October 24, 2008, AMS published a proposed rule on access to
pasture for ruminant livestock (73 FR 63584), based on several NOSB
recommendations regarding ruminant livestock feed and living conditions
and public comments. AMS published the final rule, Access to Pasture
(Livestock), on February 17, 2010 (75 FR 7154). This rule amended
numerous areas of the organic livestock regulations, including 7 CFR
205.237, 205.239, 205.240, as described below in Section D, ``Organic
Livestock Regulatory History.''
(10) Between 2009 and 2011, the NOSB issued a series of
recommendations on livestock welfare. These were intended to
incorporate prior NOSB recommendations that AMS had not addressed. The
November 2009 recommendation suggested revisions and additions to the
livestock health care practice standards and living conditions
standards.\24\ The NOSB recommended banning or restricting certain
physical alterations and requiring organic producers to keep records on
livestock that were lame and/or sick and how they were treated. This
recommendation proposed to separate mammalian living conditions from
avian living conditions sections of the USDA organic regulations so
that the provisions could be more directly tailored to various
livestock species. In the mammalian section, the NOSB proposed
mandatory group housing of swine and a requirement for rooting
materials for swine. In the avian section, the NOSB proposed a variety
of provisions, including maximum ammonia levels, perch space
requirements, and outdoor access clarifications.
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\24\ NOSB, 2009. Formal Recommendation by the NOSB to the NOP,
Animal Welfare. Available at: http://www.ams.usda.gov/rules-regulations/organic/nosb/recommendations.
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(11) In October 2010, the NOSB passed a recommendation on the use
of drugs for pain relief.\25\ The NOSB recommended changing the health
care practice standards to allow the administration of drugs in the
absence of illness to prevent disease or alleviate pain. In April 2010,
the NOSB passed a recommendation to clarify that milk from animals
treated with allowed synthetic medical treatments and annotated with a
milk withholding time may be fed to young organic livestock still
receiving milk in their diet.\26\ The NOSB stated that such changes
would improve the welfare of organic livestock.
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\25\ NOSB, 2010. Formal Recommendation by the NOSB to the NOP,
Clarification of 205.238(c)(2). Available at: http://www.ams.usda.gov/rules-regulations/organic/nosb/recommendations.
\26\ NOSB, 2010. Formal Recommendation by the NOSB to the NOP,
Clarification of 205.238(c)(1). Available at: http://www.ams.usda.gov/rules-regulations/organic/nosb/recommendations.
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(12) In December 2011, the NOSB passed an additional livestock
welfare recommendation.\27\ The 2011 recommendation added definitions
for terms related to livestock production and provisions for health
care standards and living conditions. The NOSB also revised its prior
recommendation on physical alterations to provide a broader list of
prohibited procedures. In the mammalian living conditions section, the
NOSB recommended that outdoor access for swine include a minimum of 25
percent vegetative cover at all times. For avian species, the NOSB
recommended specific indoor and outdoor space requirements, e.g.,
stocking densities, among other provisions for living conditions
specific to poultry. For layers, the NOSB recommended a minimum of 2.0
ft\2\ per bird indoors and outdoors.
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\27\ NOSB, 2011. Formal Recommendation by the NOSB to the NOP,
Animal Welfare and Stocking Rates. Available at: http://www.ams.usda.gov/rules-regulations/organic/nosb/recommendations.
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(13) In December 2011, the NOSB passed a separate recommendation to
add standards for the slaughter process, including transportation of
livestock to slaughter facilities.\28\ The NOSB's recommendation for
transport included provisions for veal calves and the trailers/trucks
used to transport animals to ensure continuous organic management. The
NOSB recommended that slaughter facilities meet certain performance-
based standards assessed via observations of animal handling and any
slips, falls or vocalizations before and during slaughter.
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\28\ NOSB, 2011. Formal Recommendation by the NOSB to the NOP,
Animal Handling and Transport to Slaughter. Available at: http://www.ams.usda.gov/rules-regulations/organic/nosb/recommendations.
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The series of recommendations described above demonstrate the
collective effort of NOSB to develop specific standards for certain
livestock production topics such as physical alterations, euthanasia,
transport, slaughter, and avian-specific living conditions. AMS has
utilized these recommendations to inform standards set forth in the
OLPS rule. In doing so, NOSB and AMS have followed the process required
by OFPA to consult with the NOSB (7 U.S.C. 6503(c)) to develop detailed
regulations for livestock production (7 U.S.C. 6509(d) and (g)).
D. Organic Livestock Regulatory History
History of AMS Livestock Policy
This final rule clarifies and expands on the original December 2000
organic requirements (the ``NOP Rule'') to support consistent
interpretation and enforcement of organic livestock standards. USDA has
revised the regulations related to organic livestock production since
December 2000. On October 29, 2002, AMS issued a memorandum to clarify
outdoor access and temporary confinement requirements for livestock
under the USDA organic regulations.\29\ The memorandum stated that
producers are required to balance accommodations for an animal's health
and natural behavior with measures to ensure an animal's safety and
well-being. It further explained that the USDA organic regulations do
not specify an outdoor space allowance or stocking rate, nor do they
require that all animals in the herd or flock have access to the
outdoors at the same time. This memorandum explained how producers
could provide evidence of compliance to support temporary
confinement.\30\ However, NOP determined that additional specificity
was required to improve compliance and enforcement and satisfy consumer
expectations.
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\29\ National Organic Program, 2002. Access to the Outdoors for
Livestock. Retained as Policy Memo 11-5. Available in the NOP
Handbook: https://www.ams.usda.gov/sites/default/files/media/Program%20Handbk_TOC.pdf.
\30\ This memorandum was incorporated into the NOP Handbook (as
``PM 11-5'') on January 31, 2011.
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On July 15, 2002, an operation applied for organic certification of
its
[[Page 75402]]
egg laying operation with a USDA-accredited certifying agent. As part
of the application, the operation's organic system plan (OSP) stated
that outdoor access would be provided through covered and screened
``porches'' (enclosed, covered, and screened areas attached to a
poultry house, either elevated or at ground level). The certifying
agent denied certification for failing to provide hens with access to
the outdoors. The certifying agent stated that a porch did not provide
outdoor access as required by the USDA organic regulations. The
operation appealed the Denial of Certification to the AMS Administrator
on October 22, 2002. The Administrator sustained the appeal on October
25, 2002, and directed the certifying agent to grant organic
certification to the operation retroactively to October 21, 2002.
The certifying agent objected to the Administrator's decision and
appealed to the USDA Office of the Administrative Law Judge (ALJ). On
November 4, 2003, the USDA ALJ dismissed the appeal. On December 11,
2003, the certifying agent appealed to the USDA Judicial Officer. On
April 21, 2004, the USDA Judicial Officer dismissed the appeal. On
September 27, 2005, the certifying agent filed an appeal with the U.S.
District Court, District of Massachusetts. On March 30, 2007, the U.S.
District Court granted USDA's motion to dismiss the case (Massachusetts
Independent Certification, Inc. v. Johanns, 486 F. Supp. 2d 105). As a
result of these adjudications, use of porches to meet the requirement
in the USDA organic regulations for outdoor access expanded, and
certain producers have settled on production practices that rely on
porches, leading to inconsistencies with producers that offer animals
access to outdoor spaces with soil, vegetation, direct sunlight, and
considerable space per animal.
While the use of porches was expanding in the organic poultry
industry, AMS was more precisely defining outdoor access for other
species. On February 17, 2010, AMS published a final rule adopting new
provisions relating to organic livestock production. The Access to
Pasture Rule was informed by NOSB's 2005 recommendation and extensive
public input requesting clear outdoor access requirements for ruminant
livestock. It required that ruminants graze at least 120 days per year,
described situations that warrant denying ruminants access to the
outdoors (e.g., birthing cows or newborn calves), required that
ruminants receive not less than 30 percent of dry matter intake from
grazing, and addressed several other matters related to the management
of pasture and feeding yards, pads, and lots. The Access to Pasture
Rule also clarified that the requirements for outdoor access and
species-appropriate access to shade, shelter, exercise, fresh air, and
direct sunlight required by the NOP Rule must be provided for all
organic livestock, including poultry, on a year-round basis.
In March 2010, the USDA Office of the Inspector General (OIG)
issued a report concerning, in part, AMS guidance on outdoor access for
organic livestock.\31\ The OIG found inconsistent certification
practices regarding outdoor access for poultry. For example, one
operation they visited provided a total of 300 square feet of outdoor
access for approximately 15,000 chickens, while two other operations
provided large pasture areas. Of the four certifying agents OIG
visited, only one had developed stocking density requirements for
livestock. The OIG recommended that AMS issue further guidance on
outdoor access for livestock, especially poultry.
In response, AMS published draft guidance, Outdoor Access for
Organic Poultry, on October 13, 2010 and sought public comment.\32\ The
draft guidance advised certifying agents to use the 2002 and 2009 NOSB
recommendations as the basis for certification decisions regarding
outdoor access for poultry.\33\ It informed certifying agents and
producers that maintaining poultry on soil or outdoor runs would
demonstrate compliance with the outdoor access requirement in 7 CFR
205.239.
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\32\ On October 13, 2010, AMS also published a Notice of
Availability of Draft Guidance and Request for Comments in the
Federal Register (75 FR 62693).
\33\ The 2002 and 2009 NOSB recommendations included daily
outdoor access from an early age and access to direct sunlight, open
air and soil.
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AMS received 69 comments on the draft guidance. Comments varied
widely. Several commenters, including organic poultry producers,
requested a change to the draft guidance language to say that poultry,
when outdoors, should be maintained on soil, pasture, or vegetation.
They described health benefits and protection of the environment that a
pasture or other vegetated outdoor access area would afford.
Additionally, some supported more specific and stringent stocking
densities. Commenters suggested a maximum stocking rate of 1.75 square
feet per bird in henhouses that provide access to perches, with an
additional 5 square feet per bird available in vegetated outdoor runs
accessible to all birds at the same time.
On the other hand, some commenters favored allowing porches as
acceptable outdoor access, citing biosecurity and animal health
concerns. One trade association, some organic egg producers, and
consultants described several benefits in the use of production systems
that limit outdoor access via the use of enclosed porches that keep
poultry from contact with soil or pasture. These benefits included
protection from predation and parasites, and seclusion from contact
with pathogens that cause food safety problems and wild birds that
could carry diseases. The commenters asserted that these systems are
consistent with the 2002 NOSB recommendation and noted that organic egg
producers had made substantial investments in facilities with porches.
Some also expressed concerns that placing birds on soil would affect
their ability to comply with the Food and Drug Administration's
Salmonella prevention food safety regulations (21 CFR part 118).
Several producers expressed concern with the 2009 NOSB recommendation
that pullets be given outdoor access at 6 weeks of age, because layers
are not fully immunized (including for protection against Salmonella)
until 16 weeks of age. These producers said that pullets should not be
exposed to uncontrolled environments until that time.
However, many comments suggested that AMS's draft guidance was
unenforceable, and rulemaking would be a better action. These stated
that certifying agents would be able to enforce a rule more clearly and
decisively than guidance. Given this request that USDA address the
issue of outdoor access for poultry through the rulemaking process, AMS
determined to pursue rulemaking and did not finalize the draft
guidance.
OLPP Rule and Legal Challenges
In April 2016, AMS published a proposed rule, Organic Livestock and
Poultry Practices (OLPP), which incorporated NOSB recommendations. The
proposed rule included provisions related to livestock health care
practices (such as physical alteration procedures, euthanasia, and
treatment of sick animals), living conditions for mammalian and avian
livestock (including minimum indoor and outdoor space requirements for
avian livestock), and requirements for care during transport and for
slaughter practices. It received 6,675 written comments during the 90-
day comment period, and petition signatures numbering in the tens of
thousands. Comments were received from
[[Page 75403]]
producers, producer associations, handlers, certifying agents,
consumers and consumer groups, animal welfare organizations,
veterinarians, state government agencies, foreign government agencies,
and trade associations or organizations. They provided insight on
topics such as regulatory authority, import impact, trade agreements,
and alternatives to regulation. Comments generally found the rule
beneficial for the industry and the organic label, but several raised
challenges with the proposed standards.
In response to public comment, AMS made a number of changes to the
proposed rule to further clarify the requirements and mitigate economic
impact on the industry. AMS published the Organic Livestock and Poultry
Practices final rule (OLPP Rule) on January 19, 2017 (82 FR 7042).
Prior to the OLPP Rule becoming effective, USDA (under a new
Administration) delayed the effective date of the rule to allow the
Administration to review it.\34\
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\34\ See 82 FR 9967 (February 9, 2017); 82 FR 21677 (May 19,
2017); and 82 FR 52643 (November 14, 2017).
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After delaying the OLPP Rule's effective date and conducting its
review, AMS proposed withdrawing the OLPP Rule. It determined that the
agency lacked the legal authority to issue the rulemaking, cited
substantive errors in OLPP's economic analysis, and maintained that
there was no market failure (82 FR 59988, December 18, 2017). On March
13, 2018, AMS published a final rule withdrawing the OLPP Rule for
those reasons (Withdrawal Rule; 83 FR 10775). Plaintiffs challenged
USDA's delay and subsequent withdrawal the OLPP Rule. The Center for
Food Safety (CFS) and Center for Environmental Health (CEH) sued USDA,
and the Organic Trade Association (OTA) separately filed a suit, see
Organic Trade Association v. USDA, No. 17-cv-1875-RMC (D.D.C.); CEH v.
USDA, No. 3:18-cv-1763 (N.D. Cal.)).
In March 2020, the U.S. District Court for the District of Columbia
granted USDA's motion to remand to USDA for purposes of clarifying and
supplementing the records regarding the economic analyses underlying
the OLPP Rule and the Withdrawal Rule. The District Court set a
deadline of 180 days for USDA to complete these economic analysis
actions.
AMS reviewed the economic analyses for both the OLPP Rule and the
Withdrawal Rule. It discovered additional errors in the OLPP Rule,
beyond those already cited by the Withdrawal Rule, and substantive
errors in the economic analysis of the Withdrawal Rule itself. AMS
published the Organic Livestock and Poultry Practice Economic Analysis
Report on April 23, 2020, describing all the errors and seeking public
comment on the Report (85 FR 22664). After considering the comments,
AMS published the Final Decision on Organic Livestock and Poultry
Practices Rule and Summary of Comments on the Economic Analysis Report
on September 17, 2020 (85 FR 57937). In the Final Decision, AMS
concluded that ``[t]o the extent the Withdrawal Rule formed an
assessment of the likely costs and benefits of the OLPP Rule based on
that flawed analysis, AMS hereby modifies that assessment and concludes
simply that the Final RIA does not support promulgation of the OLPP
Rule in light of its significant flaws.'' AMS further concluded that
``[i]mplementing the OLPP Rule based on such a flawed economic analysis
is not in the public interest'' and decided not to take any further
regulatory action with respect to the OLPP Rule (85 FR 57944).
In June 2021, Secretary Vilsack announced that USDA would
``reconsider the prior Administration's interpretation that [OFPA] does
not authorize USDA to regulate the practices that were the subject of
the [OLPP Rule].'' He further directed NOP ``to begin a rulemaking to
address this statutory interpretation and to include a proposal to
disallow the use of porches as outdoor space in organic production over
time and on other topics that were the subject of the OLPP Final
Rule.''
Economic Analysis and Market Failure
In the Economic Analysis Report, AMS described the three errors
that had been identified in the economic analysis of the Withdrawal
Rule: (1) the incorrect application of the discounting formula; (2) the
use of an incorrect willingness to pay value for eggs produced under
the new outdoor access requirements; and (3) the incorrect application
of a depreciation treatment to the benefit calculations. The Report
explained that although the economic analysis of the Withdrawal Rule
correctly identified these errors and properly addressed the first two
errors (incorrect discounting methodology and willingness-to-pay
values), it had not fully removed the incorrect depreciation treatment
from the cost and benefit calculations, which erroneously reduced the
calculation of both costs and benefits.
The Report went on to identify and discuss four categories of
additional errors in the economic analysis of the OLPP Rule that were
previously undetected and therefore inadvertently carried forward to
the economic analysis of the Withdrawal Rule. These were: (1)
inconsistent or incorrect documentation of key calculation variables;
(2) an error in the volume specification affecting benefits
calculations in two of three scenarios considered; (3) the incorrect
use of production values in the benefits calculations that do not
account for projected increased mortality loss; and (4) aspects of the
cost calculations that resulted in certain costs being ignored,
underreported, or inconsistently applied. In addition, the Report
described certain minor errors that did not have a material impact on
the cost and benefit calculations (85 FR 57938).
In this OLPS final rule, AMS has worked to ensure that the RIA
addresses these concerns. Some of the mathematical or descriptive
concerns were addressed with rewriting the rule. AMS specifically
addressed issues with discounting and depreciation in the analysis and
fixed various errors found by the report. Additionally, AMS adjusted
the willingness to pay for outdoor access in eggs to the more precise
measure suggested by the economic analysis report. While AMS maintains
the use of enterprise budgets in the original rule to model costs, AMS
updated costs in the rule to the extent possible based on data
availability, as they provide the most detailed estimates for the
organic industry and USDA ERS has shown that both feed and land costs
have remained approximately steady since their
development.35 36
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\35\ USDA ERS. Farmland Value. https://www.ers.usda.gov/topics/farm-economy/land-useland-value-tenure/farmland-value.
\36\ USDA NASS. Paid Indexes by Farm Origin and Month, Feed and
Livestock & Poultry. https://www.nass.usda.gov/Charts_and_Maps/Agricultural_Prices/prod3.php.
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Based on data provided through public comment, AMS determined that
there is inconsistent application of outdoor access requirements for
organic livestock, leading to information asymmetry.\37\ This
inconsistency and information asymmetry threatens both consumer
confidence in the organic label and future industry growth. One of the
primary purposes of OFPA is ``to assure consumers that organically
produced products meet a consistent standard (7 U.S.C. 6501).''
Therefore, USDA must issue additional regulations to ensure that
organic livestock products meet a consistent, nationwide standard
across the industry. This rule will
[[Page 75404]]
minimize the inconsistency and information asymmetry in the organic
livestock industry and meet one of OFPA's main purposes.
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\37\ For example, based on data from the ASPCA/AWI Organic
Consumer Survey, AMS estimates that at least 31.5% of organic eggs
are purchased by consumers who mistakenly think the chickens
producing their eggs have outdoor access that includes soil or
pasture. See below for more detail.
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Third-party certification can result in different certifiers
interpreting the standards differently. In the case of organic animals,
including organic poultry, there has been significant divergence among
certifiers in how the ``access to the outdoors'' requirement in 7 CFR
205.239(a)(1) is interpreted and enforced. As a matter of practice,
certifiers determine how much outdoor access is needed to meet the
rule's requirements, and this has led to divergent certification and
production practices.
While differing practices within a given industry do not
necessarily constitute a market failure, highly varied practices under
a single marketing label can create a market failure through
information asymmetry. Information asymmetry occurs because consumers
may not know how their organic livestock products are being produced
but producers do, resulting in some organic consumers paying a premium
for organic products that they incorrectly believe contain specific
attributes (e.g., outdoor access). When consumers pay for a product
that does not include certain attributes they expect, this may
represent a market failure caused by an information asymmetry between
consumers and organic operations. The existence of this information
asymmetry has been a driver of the creation and operation of USDA's
organic certification program, and organic labeling thus communicates
product attributes in accordance with the program's ``organic''
definition, standards, and enforcement; as a result, suboptimal past
program choices may have contributed to the baseline market
distortions.
In the organic egg industry, AMS estimates that approximately 30%
of organic egg production comes from hens with access to outdoor areas
that include soil or pasture, while approximately 70% of organic egg
production only has access to the outdoors through enclosed porches
with no soil or pasture. Recent survey data shows that 65% of frequent
organic purchasers and 54% of all organic purchasers think that all
organic animals have access to ``outdoor pastures and fresh air
throughout the day.'' \38\ Using this data, AMS estimates that 31.5% of
organic eggs are purchased by consumers who mistakenly think the
chickens producing their eggs have outdoor access that includes soil or
pasture. This survey also demonstrates consumers may face similar
information asymmetries about space and welfare requirements in organic
agriculture, with 59% of consumers believing organic animals have more
space and 45% of consumers believing organic animals are prohibited
from having their beaks and tails removed.
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\38\ ASPCA and the Animal Welfare Institute. Survey. September
2022. https://www.aspca.org/sites/default/files/awi_aspca_organic_consumer_survey_summary_2022_final.pdf.
---------------------------------------------------------------------------
In summary, rulemaking is the best solution to resolve the market/
government failure and meet the OFPA purpose of ``assur[ing] consumers
that organically produced products meet a consistent standard''--in
this case assuring consumers that organic livestock products are
produced using consistent animal welfare and outdoor access standards.
Given that third-party labels are not regulated by USDA, it would be
difficult to attain informational consistency needed to address the
information asymmetry. Additionally, stakeholders have expressed
concerns about the additional producer costs and consumer confusion
these labels may create.39 40 This rulemaking aligns with
existing third-party labels regarding outdoor access, easing the burden
on producers (relative to a hypothetical rulemaking with similar goals
but no such alignment). AMS also believes that rulemaking is a better
option than increased consumer education about the livestock attributes
of the organic label. Consumer education may help consumers know what
to expect from the organic label, but it would not address inconsistent
production practices among organic livestock producers, which
undermines AMS's statutory mission to ensure that products produced and
sold under the organic label are meeting a consistent national
standard. AMS believes rulemaking is the best option.
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\39\ Producer costs under the various requirements are estimated
in Section F of the RIA.
\40\ Theoretical discussion about the relations between consumer
confusion and label trust can be found in Section F of the RIA.
---------------------------------------------------------------------------
Summaries of comments received on the topic of market failure and
AMS's responses to comments on the topic are below. Many of the
comments received supported AMS's conclusion that there is a market
failure caused by a lack of clear standards.
III. Overview of Public Comments
AMS published the OLPS proposed rule on August 9, 2022, opening a
60-day public comment period. On August 19, AMS held an online public
listening session on the proposed rule to gather additional feedback;
132 listeners attended the listening session, and 19 gave oral
comments. At the request of several organic stakeholders, AMS extended
the public comment period another 30 days to allow more time for the
public to develop detailed comments on the rule's requirements. By the
close of the 90-day public comment period on November 10, 2022, AMS had
received 40,336 written comments from a variety of stakeholders,
including consumers, operations, certifying agents, retailers, trade
associations, and advocacy groups. Some of these comments (which can be
found at Regulations.gov) included signed petitions, which totaled
57,000 signatures to petitions (in addition to the written comments).
The subjects of the comments (including petitions) are discussed below.
The organic industry demonstrated considerable interest in this rule
and provided AMS detailed feedback on this rule.
By a large majority (94%), public comments and petitions supported
the rule, with many saying that consumers already expect outdoor access
to be part of the organic label in keeping with animals' natural
behaviors. Several organic operations, certifying agents, and organic
trade groups asserted the rule is necessary to ensure all producers
have a consistent interpretation of what qualifies as outdoor access
under the organic regulations. Most of the comments opposing the rule
did not think it went far enough in protecting animal welfare and asked
AMS to include additional animal welfare protections in the rule. Other
comments disputed the need for the rule, AMS's authority to promulgate
the rule, and the effect of the rule on animal safety and organic
markets. AMS responds to these comments below.
In addition to soliciting general comments, AMS sought specific
feedback on USDA's statutory authority to issue this rule, the rule's
clarity, the accuracy of its Regulatory Impact Analysis (RIA) and
Regulatory Flexibility Analysis (RFA), its consistency with current
organic livestock production practices, and on specific implementation
timeline options. The implementation timeline received by far the most
public comment, with the nearly all commenters on that topic requesting
implementation timelines shorter than the 15-year option. Poultry space
requirements received the second most attention, and commenters
responded in detail to several other livestock production practices and
to issues regarding food and animal safety. AMS took public comments
into
[[Page 75405]]
consideration when revising the policy and setting the implementation
timeline.
AMS also received many public comments on the specific policies and
livestock production practices we proposed. The revisions to this final
rule took those public comments into account. Discussion of comments
specific to the rule's policy follow in Section IV, OVERVIEW OF FINAL
RULE.
A. Responses to Comment on Statutory Authority
(Comment) Many comments posited that AMS is appropriately
exercising its authority under OFPA to establish regulations regarding
livestock and poultry health care practices, living conditions, and
welfare. Comments asserted that OFPA directs AMS to regulate the care
of farmed animals, which broadly encompasses animal welfare.
Specifically, comments stated that OFPA commands AMS to ``establish an
organic certification program for producers and handlers of
agricultural products that have been produced using organic methods''
and to consult with the NOSB in development of that program.\41\
Comments stated that OFPA provides that the NOSB may recommend
standards specifically for the ``care of livestock to ensure that such
livestock is organically produced'' in addition to provisions related
to animal health care.\42\ As OFPA does not define ``care,'' comments
argued that it should be interpreted by its ordinary use definition
\43\ to include animal welfare.
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\41\ 7 U.S.C. 6503(a), (c).
\42\ 7 U.S.C. 6509(d)(2).
\43\ F.D.I.C. v. Meyer, 510 U.S. 471, 476 (1994).
---------------------------------------------------------------------------
Comments asserted that the legislative purpose and history
demonstrate that Congress unambiguously intended for animal welfare
practices to be required at certified organic operations. These
comments argued that to meet OFPA's broad purposes of establishing
``national standards governing the marketing of [organically produced]
agricultural products,'' assuring consumers that ``organically produced
products meet a consistent standard,'' and facilitating interstate
commerce with fresh and processed [organically produced] food,'' \44\
AMS must regulate animal welfare to align with consumer expectations.
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\44\ 7 U.S.C. 6501.
---------------------------------------------------------------------------
Comments also cited AMS's historical interpretation that OFPA
grants the authority to regulate animal welfare through NOSB
recommendations, as AMS did in the 2010 Access to Pasture rule. The
Pasture rule was promulgated ``in response to the 2005 NOSB
recommendation and extensive public input requesting clear outdoor
access requirements for ruminant livestock,'' \45\ and received over
4,000 public comments.\46\ Comments noted the Pasture rule, which
regulates animal welfare, was promulgated through the same process as
this rule, based on recommendations, public hearings, and public
comments.\47\ Similarly, commenters said the OLPS proposed rule is
based on NOSB recommendations, so both rulemaking precedent and NOSB
recommendations reinforce AMS's authority to regulate animal welfare in
the OLPS final rule.
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\45\ 87 FR at 48567.
\46\ National Organic Program (NOP)--Access to Pasture
(Livestock) Proposed Rule: https://www.regulations.gov/document/AMS-TM-06-0198-0001.
\47\ 75 FR 7154, 7154-56 (Feb. 17, 2010).
---------------------------------------------------------------------------
Finally, comments cited concepts of statutory construction to
support the notion that both OFPA and current livestock regulations
authorize OLPS. One comment argued that ``the accepted canons of
statutory construction'' support the interpretation that OFPA
``expressly give[s] USDA authority to set the Organic Livestock Rule
standards.'' \48\ This comment details how these ``three core canons of
statutory construction''--ordinary meaning, whole text, and
surplusage--each support AMS's legal authority to regulate animal
welfare under OFPA. The ordinary meaning canon holds that absent
specific definitions, words in a statute must be interpreted using
``their ordinary, contemporary, common meaning.'' \49\ Comments stated
that the terms ``care,'' ``health,'' and ``health care,'' which are
referenced but not defined in OFPA, are broad in their ordinary
meanings to include animal welfare. The whole text canon calls for
interpretation of statutory language to be based on consideration of
the entire text and its logical relations.\50\ Comments stated that
this canon supports USDA's authority to issue this final rule, as OFPA
provisions work together to require USDA to expand livestock care
standards beyond prohibitions of certain substances: USDA cited
Sec. Sec. 6509(d)(2) and (g) when it promulgated the rule, explaining
that Sec. 6509(d)(2) authorizes the NOSB to recommend standards in
addition to the OFPA provisions for livestock health care to ensure
that livestock is organically produced. Sec. 6509(g) directs the
Secretary to develop detailed regulations through notice and comment
rulemaking to implement livestock production standards. Comments found
that when read as a whole, OFPA's structure supports the USDA's
authority to issue this final rule. The surplusage canon, which
commands that ``every word and every provision is to be given effect,''
\51\ prevents interpretations that would render a provision pointless;
instead, courts should interpret a provision in a way that ``leaves
both provisions with some independent operation.'' \52\ Comments found
that this provision allows for the agency to adopt additional standards
``for the care of livestock,'' including standards that promote animal
welfare.
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\48\ https://www.regulations.gov/document/AMS-NOP-21-0073-39096.
\49\ Perrin v. United States, 444 U.S. 37, 42 (1979); see
generally A. Scalia & B. Garner, Reading Law 69-77 (1st ed. 2012).
\50\ Mont v. United States, 139 S. Ct. 1826, 1833-34 (2019).
\51\ Scalia & Garner, supra at 174.
\52\ Scalia & Garner, supra at 176.
---------------------------------------------------------------------------
(Response) ``Care of livestock'' necessarily includes livestock
wellbeing and welfare. AMS agrees that ordinary definitions of ``care''
and ``health care''--which are not explicitly defined in OFPA nor its
regulations--encompass living conditions included in the rule, and that
``care of livestock'' includes animal welfare.\53\ Additionally, as
OFPA provides, NOSB has previously issued recommendations regarding
organic livestock production, and AMS has revised the organic
regulations in response to the recommendations (e.g., ``Access to
Pasture'' and ``Origin of Livestock''). Several NOSB recommendations
are relevant to this final rule. At its Fall 2009 meeting, NOSB issued
a final recommendation on animal welfare,\54\ which was updated by
subsequent recommendations. These recommendations set the framework for
this final rule.
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\53\ 7 U.S.C. 6509(d)(2).
\54\ 2009 NOSB Sunset Recommendation: https://www.ams.usda.gov/sites/default/files/media/NOP%20Final%20Sunset%20Rec%20Animal%20Welfare.pdf.
---------------------------------------------------------------------------
(Comment) Several comments disagreed with AMS's statutory authority
to regulate organic livestock welfare. These comments posited that AMS
lacks the legal authority to promulgate the rule, arguing that OFPA
authority is limited to livestock and poultry feeding and medication
practices. In this view, animal handling practices are not a defining
characteristic of organic agriculture and are not germane to the NOP as
authorized by Congress. Comments also referenced a previous rulemaking
that was withdrawn in March 2018, specifically AMS's rationale for
withdrawing the OLPP Final Rule. Reasons cited include AMS's own stated
[[Page 75406]]
lack of statutory authority to promulgate the OLPP Final Rule, errors
in calculating estimated benefits, and a lack of evidence of market
failure to justify prescriptive regulatory action.\55\
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\55\ 82 FR 59990, Dec. 18, 2017.
---------------------------------------------------------------------------
Many of these comments stated that because OFPA is limited in scope
to organic production, regulations enacted pursuant to its authority
must be narrowly tailored to specific practices that differentiate
organic from any other method of agricultural production--and that
animal welfare is not unique to organic production. One comment
referenced the NOSB definitions of organic agriculture that omit
mention of animal welfare.\56\ Additionally, the definition of organic
production at 7 CFR 205.2 does not explicitly mention animal
welfare.\57\ Another comment referenced a 2006 USDA Sustainable
Agriculture Research and Education bulletin Transitioning to Organic
Production that describes organic farming as an ecologically focused,
input-based system as well as a 2007 USDA Cooperative State Research,
Education, and Extension Service publication Organic Agriculture
Overview that emphasizes biological diversity and economic
sustainability. This comment questioned the justification of the
proposed rule under OFPA given the cited publications do not mention
nor consider animal welfare as a defining characteristic of organic
agriculture.
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\56\ ``Organic agriculture is an ecological production
management system that promotes and enhances biodiversity,
biological cycles and soil biological activity. It is based on
minimal use of off-farm inputs and on management practices that
restore, maintain and enhance ecological harmony.'' & `` `Organic'
is a labeling term that denotes products produced under the
authority of the Organic Foods Production Act. The principal
guidelines for organic production are to use materials and practices
that enhance the ecological balance of natural systems and that
integrate the parts of the farming system into an ecological
whole.'' (April 1995 NOSB meeting).
\57\ ``A production system that is managed in accordance with
the Act and regulations in this part to respond to site-specific
conditions by integrating cultural, biological, and mechanical
practices that foster cycling of resources, promote ecological
balance, and conserve biodiversity.'' (7 CFR 205.2 ``Organic
production'').
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(Response) AMS finds that as animal health and welfare are
intertwined, OLPS provisions for both fall under the statutory
authority of OFPA. Given OFPA's plain language, legislative purpose and
history, and historical regulatory interpretations, OLPS is consistent
with the purposes of OFPA, and it establishes standards similar to
existing organic standards. As animal welfare is intrinsically part of
animal management,\58\ AMS is clearly within its statutory bounds to
mandate specific animal welfare requirements as part of organic animal
management.
---------------------------------------------------------------------------
\58\ https://www.avma.org/resources/animal-health-welfare/
animal-welfare-what-
it#:~:text=Good%20animal%20welfare%20requires%20disease,humane%20hand
ling%2C%20and%20humane%20slaughter.
---------------------------------------------------------------------------
Further, the 1990 Senate Report that accompanied OFPA demonstrates
Congressional expectation that USDA would update organic standards as
organic production systems evolve.\59\ The report states that ``with
additional research and as more producers enter into organic livestock
production, the [Senate Committee on Agriculture, Nutrition, and
Forestry] expects that USDA, with the assistance of the [NOSB] will
elaborate on livestock criteria.'' \60\ The report further states that
``[t]he Board shall recommend livestock standards, in addition to those
specified in this bill, to the Secretary.'' \61\ Furthermore, in its
October 1990 Conference Report, conference members noted, ``[t]he
Conference substitute adopts the House provision with an amendment
which requires the Secretary to hold hearings and develop regulations
regarding livestock standards in addition to those specified in this
title.'' (p. 1177). This amendment is reflected in OFPA at sec.
6509(g). For further discussion of the statutory authority to issue
this rule, see Section II.B, STATUTORY AUTHORITY TO ISSUE FINAL RULE.
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\59\ Sen. Rep. No. 101-357 (July 1990)).
\60\ Sen. Rep. No. 101-357, at 292 (July 1990).
\61\ Sen. Rep. No. 101-357, at 303 (July 1990).
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B. Responses to Comment on Market Failure
AMS received approximately 300 comments discussing the market
failure addressed by the rule. Discussion of specific themes and AMS's
responses are below. Additional discussion of market failure can be
found in the rule's Regulatory Impact Analysis.
(Comment) Many comments agreed there is market failure, citing
confusion over multiple certifications, cost of maintaining
certifications, and consumer expectation that the organic label
requires meaningful outdoor access for poultry. Some comments argued
that market failure has not occurred in the organic poultry industry,
pointing to the industry's rapid growth in the last five years. Most of
these comments asked for additional justification of the claim of
market failure in the organic label. However, most comments agreed that
uneven compliance with and enforcement of the outdoor access
requirement in organic livestock regulations creates a market failure.
Some comments highlighted the possible negative impacts of this market
failure, including loss of consumer confidence in the organic label and
economic harm to producers.
Some comments provided context on consumer confusion about organic
animal welfare requirements by sharing recent survey results. Several
comments cited a 2017 Consumer Reports survey that found 83 percent of
organic consumers ``think it's highly important that organic eggs come
from hens that were able to go outdoors, and have enough space to move
around freely.'' \62\ Others cited a 2022 ASPCA survey finding that 65%
of ``frequent purchasers'' (respondents who purchased organic animal
products once a week or more) believed that ``all animals raised on
organic farms have access to outdoor pastures and fresh air throughout
the day,'' with another 23% indicating they were not sure.\63\
---------------------------------------------------------------------------
\62\ ``Consumer Reports Survey Finds Consumers think it's
Important to Have High Animal Welfare Standards for Food Labeled
Organic,'' Consumer Reports, April 20, 2017, https://www.consumerreports.org/media-room/press-releases/2017/04/consumer_reports_survey_finds_consumers_thin_its_important_to_have_high_animal_welfare_standards_for_food_labeled_organic/.
\63\ Organic Consumer Survey, Animal Welfare Institute, 2022,
https://www.aspca.org/sites/default/files/awi_aspca_organic_consumer_survey_summary_2022_final.pdf.
---------------------------------------------------------------------------
(Response) AMS agrees with comments that some combination of market
failure and government failure (action or inaction) exists in poultry
products under the organic label. Market failure can occur even when a
market experiences rapid growth because consumers could be paying for
attributes they are not receiving. As some organic broilers and layers
are not currently raised with ``access to outdoor pastures and fresh
air throughout the day,'' AMS concludes, based on the survey data
submitted in public comments, that some organic consumers are not
receiving attributes they believe they are paying for (for example AMS
estimates that at least 31.5% of organic eggs are purchased by
consumers who mistakenly think the chickens producing their eggs have
outdoor access that includes soil or pasture).\64\ This gap in the
organic poultry market could impact the entire organic label, as
lowered consumer confidence in one product can impact consumer
confidence across the label and
[[Page 75407]]
threatening organic integrity.\65\ AMS revised the discussion on market
failure for this final rule in response to comments arguing that a
market failure likely exists under the current organic regulations. AMS
included references to surveys provided in comments where appropriate
and discussed concerns from commenters about how to address market
distortions in the organic context. Additional information regarding
market failure can be found in the RIA.
---------------------------------------------------------------------------
\64\ Based on data from ASPCA and the Animal Welfare Institute
survey, September 2022. https://www.aspca.org/sites/default/files/awi_aspca_organic_consumer_survey_summary_2022_final.pdf.
See Section II Subsection D for more detail.
\65\ AMS finds it likely that controversy or confusion about one
product under the organic scheme will cause secondary effects to the
overall label and other products, including, but not limited to,
risk to consumer confidence, trust, and demand. Because of the
unique nature of the organic label, quantifying or monetizing this
risk was not possible.
See Section F of the RIA for more detail.
---------------------------------------------------------------------------
(Comment) Some comments expressed the view that third-party labels
allowed for flexibility in the market, however, most who commented on
this topic felt that third-party labels do not address the problem and
cause additional consumer confusion. Several comments pointed out that
it costs producers to maintain additional third-party animal welfare
certifications and asserted that consumers were confused by the various
competing labels. A few comments stated that third-party labeling may
be sufficient to address the market failure. Comments pointed to the
many animal welfare certifying and labeling programs available for both
organic and conventional producers, offering flexibility to producers
and a range of options for consumers; these represent the diversity of
livestock and poultry production, differing priorities of certifying
organizations, and evolving scientific understanding of animal welfare.
(Response) AMS believes the existing combination of market failure
and government failure cannot be solved solely through third-party
labeling. Many organic poultry producers currently incur additional
costs by using third-party labels to solve the issue of different
production practices between operations. This rule's additional
specificity would improve the consistency of production practices and
could reduce the need for and cost of additional third-party labels.
Further, AMS agrees with other commenters who claim that third-party
labels cannot address the problem because they create more consumer
confusion. AMS revised the discussion on market failure in this final
rule to include discussion of the inability of third-party labels to
efficiently solve the observed information asymmetry. (See Section A,
``Need for the Rule,'' in the Regulatory Impact Analysis.)
IV. Overview of Final Rule and Responses to Comments
AMS provides a detailed description of the final rule below,
section by section, and responds to comments received on each section.
The descriptions of the requirements are meant to explain AMS's intent
and provide examples of how to comply with the requirements.
A. Terms Defined (Sec. 205.2)
This rule adds seventeen new terms to 7 CFR 205.2: beak trimming,
caponization, cattle wattling, de-beaking, de-snooding, dubbing,
indoors or indoor space, induced molting, mulesing, non-ambulatory,
outdoors or outdoor space, perch, pullet, religious (or ritual)
slaughter, stocking density, toe clipping, and vegetation. The
definitions are discussed below.
Eight New Terms To Define Prohibited Physical Alterations
Current organic regulations permit ``physical alterations'' of
animals ``as needed to promote the animal's welfare and in a manner
that minimizes pain and stress'' (7 CFR 205.238(a)). This rule
elaborates on this requirement and prohibits some specific types of
physical alterations. Defining these physical alterations supports
common understanding of the meaning of the terms, as some terms could
otherwise be interpreted in various ways (e.g., ``caponization'' may be
referred to as ``castrating'' in some regions). AMS prohibits some
alterations because they do not promote animal welfare or may be overly
painful or stressful without a corresponding benefit to animal welfare.
NOSB recommended prohibiting these specific physical alterations in
2009.
The following terms are defined in this rule: beak trimming,
caponization, cattle wattling, de-beaking, de-snooding, dubbing,
mulesing, and toe clipping.
Indoors or Indoor Space
The rule defines ``indoors or indoor space'' as the space inside of
an enclosed building or housing structure that is available to
livestock. The definition includes four examples of structures that are
commonly used in poultry production. These indoor housing types are
defined, in part, because space requirements are based on the housing
type. AMS also includes an indoor space requirement at Sec.
205.241(b)(8)(v) for housing that does not fit within one of the
specific types defined in Sec. 205.2. While all organic livestock must
be provided with species-appropriate shelter, structures providing
indoor space are not necessarily required. For example, beef cattle
raised on pasture or range in mild climates may not need to be provided
with indoor space.
The final rule uses the term ``enclosed'' to establish if a space
should be considered indoors or outdoors. Under the definition, the
space within the building or structure that can be enclosed is
considered the indoor space. The rule defines ``outdoors or outdoor
space'' separately (see discussion below).
Induced Molting
The rule defines ``induced molting'' as molting that is
artificially initiated. The term is broadly defined to include the
various methods a producer may use to induce, or force, molting in a
flock, such as withdrawal of feed or manipulation of light. The term
aligns with the definition that currently appears in FDA requirements
related to the production, storage, and transportation of shell eggs at
21 CFR 118.3.
Non-Ambulatory
The rule adds the term ``non-ambulatory'' and references FSIS
regulations at 9 CFR 309.2(b). FSIS describes non-ambulatory as
``livestock that cannot rise from a recumbent position or that cannot
walk, including, but not limited to, those with broken appendages,
severed tendons or ligaments, nerve paralysis, fractured vertebral
column, or metabolic conditions.'' The rule now requires that any non-
ambulatory livestock on organic farms must be medically treated--even
if the treatment causes the livestock to lose organic status--or be
humanely euthanized.
Outdoors or Outdoor Space
The rule defines ``outdoors or outdoor space'' to clarify the
meaning of outdoor areas for mammalian and avian species. ``Outdoors or
outdoor space'' is defined as any area outside of an enclosed building
or enclosed housing structure. In this definition, ``outdoors or
outdoor space'' includes all the non-enclosed space encompassing soil-
based areas such as pastures, pens, or sacrifice lots; hardened surface
areas such as feedlots, walkways, or loafing sheds; and areas providing
outdoor shelter such as windbreaks and shade structures. For avian
species, the definition specifies that pasture pens are considered
outdoor space. These are floorless pens that are moved regularly and
provide direct access to vegetation, soil, and direct sunlight. These
pens (often
[[Page 75408]]
referred to as ``chicken tractors'') may include roofing to provide
shelter for the birds, so long as birds are still able to express
natural behaviors (e.g., scratching) and meet all applicable
requirements at Sec. 205.241. To assist with the mitigation of
biosecurity and predation risks, fencing, netting, or other materials
are permitted over all or part of the outdoor areas to prevent
predators and other wild birds from entering. For example, bird netting
above a chicken pasture, where the chickens still have access to soil
underneath, would be permitted. This area would qualify as outdoor
space because it is not enclosed and allows access to soil. In
contrast, a structure that is enclosed and has a hard floor (i.e., no
soil) would not qualify as outdoor space.
The definition also clarifies that enclosed open sided structures
do not qualify as outdoors or outdoor space. This includes freestall
barns and ``open'' sided poultry housing (enclosed by gates and/or
wire, respectively). While housed in these structures, animals cannot
be ``outdoors.'' Similarly, screened poultry ``porches'' or
``verandas'' attached to poultry houses and enclosed by wire on the
sides, are not considered outdoors.
In this definition, ``outdoors or outdoor space'' includes all the
non-enclosed space encompassing soil-based areas such as pastures,
pens, or sacrifice lots; hardened surface areas such as feedlots,
walkways, or loafing sheds; and areas providing outdoor shelter such as
windbreaks and shade structures. For avian species, the definition
specifies that pasture pens are considered outdoor space. These are
floorless pens that are moved regularly and provide direct access to
vegetation, soil, and direct sunlight. These pens (often referred to as
``chicken tractors'') may include roofing to provide shelter for the
birds, so long as birds are still able to express natural behaviors
(e.g., scratching) and meet all applicable requirements at Sec.
205.241. To assist with the mitigation of biosecurity and predation
risks, fencing, netting, or other materials are permitted over all or
part of the outdoor areas to prevent predators and other wild birds
from entering.
Many producers also use portable or permanent shade structures
throughout their pastures, and the definition clarifies that unenclosed
structures used for shade are considered outdoor space. For example,
the area within a stand-alone, roofed shade structure in a pasture
could be included as outdoor space area. Non-enclosed areas under the
eaves or the awning of a building can also be considered outdoors.
While these areas may have solid roofs overhead, they offer the same
quality of outdoor space as uncovered outdoor areas, including natural
ventilation/open air and open access to uncovered areas with direct
sunlight, soil, and vegetation.
Perch
The rule defines the term ``perch'' as a rod- or branch-type
structure above the floor or ground that accommodates roosting and
allows birds to utilize vertical space. Perches may be indoors or
outdoors. The final rule includes specific requirements for perch space
for layers (Gallus gallus) indoors.
Pullets
AMS modified the definition of pullets, which is used by the AMS
Livestock, Poultry, and Seed Program, to include species other than
chickens. This rule defines ``pullets'' as female chickens or other
avian species being raised for egg production that have not yet started
to lay eggs. Once avian females begin laying eggs, AMS refers to them
as layers. The term ``pullets'' is not used to describe young broilers
used for meat production; broilers of any age are referred to as
broilers in this rule.
Religious (or Ritual) Slaughter
The rule adds the term ``religious (or ritual) slaughter.'' This
definition is very similar to a description in the Humane Methods of
Slaughter Act (7 U.S.C. 1902(b)), which allows for ritual slaughter in
accordance with religious faith. This method of slaughter relies on the
simultaneous and instantaneous severance of the carotid arteries with a
sharp instrument. Organic livestock and handling operations may use
religious (or ritual) slaughter to convert their mammalian or avian
livestock to meat or poultry without loss of organic status.
Stocking Density
The rule defines ``stocking density'' as the liveweight or number
of animals on a given area or unit of land. This term is used to
describe the indoor and outdoor space requirements for organic
livestock. For example, this rule establishes maximum stocking
densities for chickens, and the producer must ensure that the area
provided is large enough to not exceed the maximum stocking density
when all birds in the flock are in the area (i.e., assume all birds are
either indoors or all birds are outdoors when calculating space
available to each bird).
Vegetation
The rule adds the term ``vegetation'' and defines it as living
plant matter that is anchored in the soil by roots and provides ground
cover. This term applies to the requirement for vegetation in outdoor
areas, which is central to protecting soil and water quality as well as
providing for livestock to exhibit their natural behaviors. The roots
of vegetation provide stability and structure to soil. Vegetation helps
water soak into the soil rather than running off, which can cause
erosion. Livestock also have natural behaviors such as grazing,
rooting, nesting, etc., which require vegetation.
Changes From Proposed to Final Rule
AMS has made several changes to the regulatory text of the OLPS
proposed rule when writing this final rule. Changes to the final rule
are discussed below and are followed by specific topics and themes from
public comment.
AMS added the defined term ``induced molting.'' This term
was added to clarify the rule's prohibition on induced molting, as
described at Sec. 205.238, Livestock care and practice standards. This
term aligns with FDA regulations and includes all methods used to
artificially initiate molting.
AMS revised the definition of ``mobile housing'' to more
clearly state that this type of housing must allow birds continuous
access to outdoors during the daytime.
AMS revised the definition of ``outdoors or outdoor
space'' to clarify that open-sided but enclosed structures, such as
freestall barns, are not considered outdoor space. The revised
definition also clarifies that unenclosed shade structures are
considered outdoor space.
AMS revised the definition of avian ``pasture pens'' to
clarify that they must allow birds to express natural behaviors.
AMS revised the definition of ``perch'', so it more
broadly applies to perches in indoor and outdoor spaces.
AMS changed the term ``ritual slaughter'' to ``religious
(or ritual) slaughter.'' AMS amended this term for clarification and to
better align with current and preferred language.
AMS restructured the definition of ``slatted/mesh
flooring'' into a single paragraph to improve clarity.
AMS removed the definition of ``soil.'' Soil is a commonly
understood term and a definition is not necessary to understand or
implement this rule.
Responses to Public Comment
AMS received many public comments from stakeholders across the
organic
[[Page 75409]]
industry discussing this section of the proposed rule. The majority of
comments generally supported AMS's proposed revisions. Many commenters
requested further clarification of the proposed changes, particularly
regarding the definitions of soil and vegetation, and what qualifies as
indoor or outdoor space.
Soil
(Comment) Many of the comments that discussed soil requested either
modifying or removing the definition of ``soil'' included in the
proposed rule. Some commenters stated that because it did not originate
from an NOSB recommendation, it should not be included in the rule.
Others argued that defining ``soil'' for the purposes of livestock
production standards could lead to unintended effects on other organic
production areas, such as crop production.
(Response) AMS agrees that a regulatory definition of ``soil''
should take the entire organic standard into consideration and that
defining the term only for use in the livestock area of operation may
affect other areas of organic production. Because soil is generally a
well-understood term, a regulatory definition is not necessary for the
successful implementation of this rule. AMS has removed the definition
of ``soil'' from the final rule.
Vegetative Cover
(Comment) Some commenters requested a new definition for the term
``maximal vegetative cover.'' This term was used in the proposed rule
to describe a requirement for outdoor areas, but the term was not
defined. Comments requested a more exact description of the term to
support consistent enforcement of the proposed requirement.
(Response) AMS has elected to maintain the proposed language in the
definition of ``vegetation'' and does not define ``maximal vegetative
cover'' in this rule. The word ``maximal'' is removed in the final rule
from Sec. 205.239(a)(12) and Sec. 205.241(c)(2). Removing ``maximal''
gives operations the necessary flexibility to maintain vegetation in
outdoor areas that is appropriate to their region, climate, and other
site-specific conditions. See the ``Mammalian and non-avian livestock
living conditions'' and ``Avian living conditions'' sections of this
preamble for further information about vegetation in outdoor spaces.
Mobile Housing
(Comment) Several commenters stated that the definition of ``mobile
housing'' should be revised to better align with the industry's current
use of this type of avian indoor living space, and to ensure that these
types of structures allow appropriate outdoor access to outdoor areas.
(Response) AMS revised the definition of ``mobile housing'' to
specify that mobile housing structures must allow birds to continuously
access areas outside the structure during the daytime. AMS also removed
the previous term ``during the grazing season'' to clarify that mobile
housing is commonly used year-round. These changes better align with
how the organic industry uses mobile housing and will allow operations
to meet this rule's avian indoor living requirements with this type of
structure.
Pasture Pens (Avian)
(Comment) Commenters expressed concern with the definition of
``pasture pen,'' stating that some types of pasture pens (e.g., those
with wire or partial floor covering) should not be counted as outdoor
space because these pens may prevent the natural behaviors of birds or
limit movement of birds.
(Response) AMS recognizes the concerns and has revised the
definition of ``pasture pens'' to include the phrase ``allow birds to
express their natural behaviors.'' To be considered outdoor space,
pasture pens must provide direct access to soil and allow birds to
express natural behaviors, such as scratching and dust bathing.
Producers with pasture pens must also meet requirements at Sec.
205.241(a).
Stocking Density
(Comment) Some commenters requested changing the word ``animal'' in
the proposed definition to ``bird'' because the rule only defines
stocking density for poultry, not other types of livestock.
(Response) AMS has chosen to continue using ``animal'' in the
definition of ``stocking density.'' The word ``animal'' includes birds
and is therefore suitable for discussing and describing stocking
densities of birds.
Euthanasia and Death
(Comment) Several comments requested clarification on what the term
``euthanasia'' means, and asked AMS to develop a definition for
``euthanasia,'' ``death'' or ``dead'' to clarify what methods can be
used to verify death following a euthanasia procedure.
(Response) AMS has elected not to define ``euthanasia,'' ``death,''
or ``dead'' in the rule. Section 205.238, Livestock care and production
practices standard, addresses euthanasia, including how operations must
ensure animals are dead following euthanasia. The final rule does not
require operations to use a specific method to verify death. However,
AMS does recommend that operations use methods of euthanasia and
confirmation of death consistent with the American Veterinary Medical
Association (AVMA) Guidelines for the Euthanasia of Animals. See Sec.
205.238(e) of this rule for more information on euthanasia and
livestock care practices.
Outdoor Space
(Comment) One comment expressed concern that the proposed rule's
definition of outdoor space may allow operations to consider freestall
or hoop barns with the sides up as outdoor space. The commenter
requested such structures be counted as indoor space only.
(Response) AMS amended the definition of outdoor space to
specifically clarify that ``enclosed housing structures with open sides
(e.g., open-sided freestall barns) are not to be considered outdoors or
outdoor space.'' The definition was amended to remove language about
roofed areas that are not enclosed being permitted as outdoor space.
The language was replaced with a specification that open-sided enclosed
structures are not considered outdoor space. Because such structures
may not always allow animals free access to outdoor areas, the space is
enclosed and therefore considered indoor space, not outdoor space.
B. Livestock Care and Production Practices Standard (Sec. 205.238)
Description of Final Policy
This final rule updates Sec. 205.238 of the USDA organic
regulations. This section discusses requirements for the care and
management of organic livestock that apply to all species of livestock.
The two following sections of this rule (Sec. Sec. 205.239 and
205.241) cover living condition requirements specific to mammalian/non-
avian and avian species, respectively. The following discussion
describes the changes that this final rule makes to Sec. 205.238.
Updates to Sec. 205.238(a) require that producers select a species
suitable for the conditions of their site, establish appropriate
housing, and provide a feed ration sufficient to the nutritional
requirements of the animal. During on-site inspections, certifying
agents must verify the suitability of the breed to its housing and
living conditions and the adequacy of the animals' diet.
AMS revises Sec. 205.238(a)(5) to clarify the conditions under
which operations may perform physical alterations on
[[Page 75410]]
livestock. Physical alterations may be performed for identification
purposes or the safety of the animal. Alterations must be done at a
young age for the species, and in a manner that minimizes the animals'
pain and stress during and after the procedure. Alterations may only be
performed by an individual who is capable of doing so in a manner than
minimizes stress and pain. Operations may use an individual's training
or experience to demonstrate that individual's capability to perform
physical alterations.
A 2009 NOSB recommendation allowed teeth clipping and tail docking
in piglets, but this proposal was retracted in the 2011 NOSB
recommendation.\66\ Section 205.238(a)(5)(i) of this final rule
restricts needle teeth clipping and tail docking. These two types of
physical alterations may not be performed on a routine basis, but they
are not prohibited in all cases. As Sec. 205.238(a)(5)(i) specifies,
needle teeth clipping and tail docking may only be performed in
response to documented instances of harm, and only with documentation
that alternative steps to prevent such harm failed. For example, an
organic swine producer who clipped needle teeth or performed tail
docking would need to document excessive needle teeth scarring on the
underline of a sow or piglets, or document tail biting on piglets in
the litter. In this case, the producer also must document that
alternative methods to prevent scarring had failed. Such alternative
methods may include, but are not limited to, cross-fostering prior to
teat fidelity across litters to minimize weight variation, providing
sufficient enrichment materials, and providing vegetation for rooting.
Teeth clipping, if performed, is limited to the top third of each
needle tooth.
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AMS adds new paragraph (a)(5)(ii) to list the physical alterations
that an organic operation must not perform. Based on 2011 NOSB
recommendations, the following physical alterations to avian species
are prohibited: de-beaking, de-snooding, caponization, dubbing, toe
clipping of chickens, toe clipping of turkeys unless with infra-red at
hatchery, and beak clipping after 10 days of age. In addition, the
following physical alterations to mammalian species are prohibited:
tail docking of cattle, wattling of cattle, face branding of cattle,
tail docking of sheep shorter than the distal end of the caudal fold,
and mulesing of sheep.
AMS adds new requirements at Sec. 205.238(a)(7) to specify that
surgical procedures on livestock to treat illness or injury must be
done in a manner that minimizes pain, stress, and suffering. The NOSB
recommended that all surgical procedures for livestock be done with the
use of anesthetics, analgesics, and sedatives. USDA organic regulations
require that all surgical procedures for treatment of disease be
undertaken in a manner that employs best management practices in order
to minimize pain, stress, and suffering. Operations may only use
synthetic anesthetics, analgesics, and sedatives if listed on the
National List of Allowed and Prohibited Substances (``National List'')
at Sec. 205.603(a) and (b), which lists the synthetic substances that
are allowed in organic livestock production.
The final rule adds new Sec. 205.238(a)(8) that requires organic
producers to actively monitor lameness within the herd or flock and to
undertake timely and appropriate treatment and mitigation strategies.
Lameness can be an issue in various livestock species, including
broilers, sheep, and dairy cattle. This requirement for producers to
create a plan for monitoring and treating lameness in the OSP will
enable them to identify and address potential problems among animals
before they become widespread.
The final rule amends Sec. 205.238(b) to state that synthetic
medications allowed under Sec. 205.603 of the National List may be
administered to alleviate pain or suffering, as well as when preventive
practices and veterinary biologics are inadequate to prevent sickness.
Similarly, parasiticides allowed by the National List may be used on
breeder stock, dairy animals, and fiber bearing animals, as allowed
under Sec. 205.603. When using these substances, operations must
follow all applicable limitations of use as listed in Sec. 205.603,
including any withholding or withdrawal periods.
AMS amends Sec. 205.238(c)(1) to clarify that milk from an animal
treated with a substance that is allowed on the National List and has a
withdrawal period may not be sold, labeled, or represented as organic
during that withdrawal period. However, that milk may be fed to organic
calves on the same operation during the withdrawal period. This is
consistent with the 2010 NOSB recommendation that a calf nursing a cow
treated topically with lidocaine or other approved synthetic with a
withdrawal period should not lose organic status. For example, if an
organic cow became injured and was treated with lidocaine to minimize
pain, she could continue to nurse her organic calf during lidocaine's
seven-day withholding period, and the calf would not lose its organic
status.
The final rule revises Sec. 205.238(c)(2) to clarify that
producers may administer allowed synthetic medication (i.e., those on
the National List at Sec. 205.603) to alleviate pain and suffering, in
addition to use for the treatment of illness.
AMS revises Sec. 205.238(c)(3) to clarify that organic livestock
producers are prohibited from administering synthetic or non-synthetic
hormones to promote growth, or for production or reproductive purposes.
Hormones listed in Sec. 205.603 could be used as medical treatments
(e.g., oxytocin). Stakeholders have noted that the USDA organic
regulations fail to address use of hormones to stimulate production or
for reproductive purposes. AMS is not aware of any hormones used by
organic producers for these purposes, and no hormones are included on
the National List for these uses. Therefore, the final rule's change
maintains the status quo; that is, it affirms and supports the current
prohibition on using hormones to promote growth, production, or
reproduction. All hormones--unless used as medical treatments and
included on the National List--are prohibited in organic production.
The final rule adds new Sec. 205.238(c)(8) to prohibit organic
livestock producers from withholding treatment designed to minimize
pain and suffering for injured, diseased, or sick animals. Injured,
diseased, or sick animals may be treated with any allowed natural
substance or synthetic medication that appears on the National List
without losing their organic status. However, if no medication allowed
for organic production suffices to ease the animal's suffering, organic
livestock producers are required to administer treatment even if the
animals subsequently lose their organic status. Euthanasia is an
acceptable practice for minimizing pain and suffering only when the
animal is suffering from disease or injury that cannot be healed by
other treatments, including treatments that would cause an animal to
lose its organic status.
AMS adds new Sec. 205.238(c)(9), which requires livestock
producers to identify and record treatment of sick and injured animals
in animal health records. Early identification can lead to more
effective prevention or treatment, which can enhance the overall health
of the livestock on that operation. Certifiers should review treatment
during on-site inspections to verify that operations are individually
identifying treated animals
[[Page 75411]]
and that treatments comply with the organic regulations.
AMS adds new Sec. 205.238(c)(10) prohibiting induced molting in
poultry production. This rule also defines induced molting at Sec.
205.2 as any type of molting that is artificially induced. Section
205.238(a)(2) of this rule requires a nutritionally sufficient feed
ration for livestock. Induced molting, a practice by which feed
restriction, severe light manipulation, or other management practices
are used to rejuvenate egg production, runs counter to the welfare
intent of this final rule. An explicit prohibition on induced molting
is consistent with the organic regulation's general animal welfare
requirements, and the fall 2009 NOSB recommendation.\67\
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AMS adds new Sec. 205.238(d) requiring organic livestock
operations to have a plan to minimize internal parasite problems in
livestock. The plan must include preventive measures such as pasture
management, fecal monitoring, and emergency measures in the event of a
parasite outbreak. Certifying agents must approve a livestock
operation's parasite control plan as part of the operation's OSP.
In certain cases, livestock may suffer from an illness or injury
where recovery is unlikely. AMS adds new Sec. 205.238(e) to address
euthanasia based on the 2011 NOSB recommendations. Section
205.238(e)(1) requires livestock producers to maintain written plans
for euthanizing sick or injured livestock suffering from irreversible
disease or injury. Section 205.238(e)(2) prohibits the following
methods of euthanasia: suffocation, manual blows to the head by blunt
instrument or manual blunt force trauma, and use of equipment that
crushes the neck (e.g., killing pliers or Burdizzo clamps). In the
event of an emergency situation where a local, State, or Federal
government agency requires the use of a non-organic method of
euthanasia, organic livestock operations would not lose organic
certification or face other penalties for that instance of euthanasia.
The NOSB recommended listing the allowable methods of euthanasia;
however, given that new humane euthanasia methods may emerge, AMS does
not intend to discourage producers from using these techniques. AMS
therefore directs organic livestock producers to use methods of
euthanasia consistent with the most recent editions of the American
Veterinary Medical Association (AVMA) Guidelines for the Euthanasia of
Animals.\68\ The list of specifically prohibited methods could be
amended to include other techniques, if needed, through future
rulemaking. AMS also requires in Sec. 205.238(e)(3) that organic
producers carefully examine livestock to ensure they are dead following
a euthanasia procedure.
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Changes From Proposed to Final Rule
AMS has made several changes to the regulatory text of the OLPS
proposed rule when writing this final rule. Changes to the final rule
are discussed below and are followed by specific topics and themes from
public comment.
AMS removed the phrase ``resulting in appropriate body
condition'' from the feed ration requirement in Sec. 205.238(a)(2)
because some comments found this phrase to be unnecessarily
prescriptive or confusing. Removing this phrase reinforces that this
requirement is meant to ensure operations provide adequate and
nutritional feed to organic livestock.
AMS amended the requirements in Sec. 205.238(a)(5)
regarding physical alterations. AMS removed the phrase ``to benefit the
welfare of the animal'' as this is redundant with ``for . . . the
safety of the animal.'' In response to public comment, the final rule
clarifies who may perform alterations (``a person . . . capable of
performing the physical alteration in a manner that minimizes stress
and pain'') and when the alteration may be performed (``at a young age
for the species'').
In response to public comment, AMS amended the surgical
procedure requirements in Sec. 205.238(a)(7). AMS clarified that
surgical procedures may be required to treat ``illness or injury.'' AMS
also clarified that the reason for using surgical best practices is to
``promote the animal's wellbeing.''
AMS removed a requirement to record lameness and the
percent of herd suffering from lameness at Sec. 205.238(a)(8) and
revised the section to focus on a more general requirement to monitor,
treat, and prevent lameness as appropriate to the species. This
provides additional flexibility because some species are more prone to
lameness.
To align with changes made by AMS's Origin of Livestock
final rule (April 5, 2022; 87 FR 19740) to the preventive medicine and
parasiticide livestock practice standards, AMS amended Sec.
205.238(b).
In response to public comment, AMS clarified in Sec.
205.238(c)(1) that milk from animals treated with synthetic substances
that ``have associated withdrawal periods'' cannot be sold, labeled, or
represented as organic during the withdrawal period.
AMS revised the language in Sec. 205.238(c)(10) that
prohibits induced molting. The proposed rule used the term ``forced
molting or withdrawal of feed to induce molting.'' AMS finds that
``induced molting'' is a more common and comprehensive term that better
captures AMS's intent for a total ban on this practice, and it also
aligns with the FDA definition of induced molting (21 CFR 118.3).
AMS removed the sentence in Sec. 205.238(d)(1) stating
that ``Parasite control plans shall be approved by the certifying
agent.'' Because parasite control plans are part of an OSP, and
certifying agents must approve organic systems plans, the sentence was
unnecessary, and AMS removed the language to avoid confusion.
In response to public comment, AMS revised Sec.
205.238(e)(1) to state that euthanasia is for ``sick or injured
livestock suffering from irreversible disease or injury.'' This change
clarifies that euthanasia should be used only if treatment is not an
option.
Responses to Public Comment
AMS received many public comments from stakeholders across the
organic industry discussing this section of the proposed rule. The
topics that received the most public comment were physical alterations,
body condition, induced molting, monitoring of lameness, medicines with
withholding periods, and euthanasia. AMS summarizes and responds to
those comments below.
Physical Alterations
(Comment) Several commenters requested that AMS clarify the
requirements in Sec. 205.238(a)(5) for when physical alteration is
permitted and who may perform it. Commenters found ``reasonably young
age'' (the language in the proposed rule) vague and requested a
definition or species-specific listing of ages. Similarly, commenters
said the requirement that alterations be performed ``by a competent
person'' was vague. Some proposed alternative definitions of
``competent person'' while others asked that the regulation specify the
person must be a veterinarian or that that the phrase be replaced with
language such as ``a person skilled in the procedure.
(Response) AMS agrees that ``reasonably young age'' is too vague
and has instead required that alterations
[[Page 75412]]
must be performed ``at a young age for the species.'' This clarifies
that operations should choose an age that is appropriate to the species
of livestock. Similarly, AMS has added a phrase to clarify who may
perform physical alterations: ``a person who is capable of performing
the physical alteration in a manner that minimizes stress and pain.''
This language avoids being overly prescriptive and leaves flexibility
to operations and certifiers while emphasizing that an operator's
ability to minimize the animals' stress and pain during the alteration
is the key qualification. Operations should choose a person capable of
performing physical alterations based on their training and experience.
This means that the capability of the person performing the physical
alteration should scale with the complexity of the alteration. For
example, ear tagging of cattle is a simple procedure that requires
minimal knowledge and training, while a physical alteration that
necessitates a permitted sedative and pain reliever may require the
expertise of a more experienced or specially trained individual such as
a veterinarian. These revisions clarify the use of permitted physical
alterations, but also provide appropriate flexibility for operations to
choose safe and responsible methods that best match their species of
livestock.
(Comment) Several comments asked AMS to require that pain relief be
administered--some said by a licensed veterinarian--both before and
after physical alterations.
(Response) While AMS agrees that pain relief is an important
element of physical alteration procedures, we believe that the final
rule adequately addresses this concern. The final rule at Sec.
205.238(a)(5) requires that ``physical alterations must be performed .
. . in a manner that minimizes stress and pain.'' Operations should
provide pain relief before and after physical alterations if this is
necessary to minimize the stress and pain of the livestock.
(Comment) Some commenters objected to the proposed requirement to
use anesthetics, analgesics, and sedatives for surgical procedures in
cattle and sheep. Commenters interpreted the proposed requirement as
requiring these drugs for all surgical procedures and stated the
requirement was, ``inappropriate given that FDA has not approved any
post-surgical analgesic products for pain management.''
(Response) Section 205.238(a)(7) of the final rule requires that
surgical procedures be conducted using best practices to promote animal
well-being and to minimize pain, stress, and suffering. In response to
comments about the requirement to use medications for surgical
procedures, AMS revised the final rule to clarify that medications
should be used, ``as appropriate''. This section does not require use
of anesthetics, analgesics, and sedatives for all procedures, although
some surgical procedures may require medication to minimize pain,
stress, and suffering. As to the commenters' point about lack of FDA
approval for analgesics, AMS is aware that the National List (Sec.
205.603) includes animal drugs that are not necessarily labeled (i.e.,
FDA approved) for use on all species. AMS also understands that the
Animal Medicinal Drug Use Clarification Act (AMDUCA) allows
veterinarians to prescribe ``extra-label'' use of drugs under certain
conditions (see https://www.fda.gov/animal-veterinary/guidance-regulations/animal-medicinal-drug-use-clarification-act-1994-amduca),
which may include use of a drug on a species that is not included on
the approved drug label. AMS anticipates that operations will work with
veterinarians to determine the appropriate, legal, and safe drugs for
surgical procedures to minimize pain, stress, and suffering. The use of
any individual substance in Sec. 205.603 in a formulated product that
is intended or used as a medical treatment is under the authority of
FDA and must comply with all FDA regulations.
(Comment) Several comments requested that AMS add detusking to the
list of prohibited pig management practices. Commenters cited that
prohibiting tusk removal would align with third party boar welfare
standards, namely the Certified Animal Welfare Approved by AGW (AWA),
Global Animal Partnership (GAP), Regenerative Organic Certified (ROC),
and Certified Humane Standards for pigs. They argued that physical
alterations should be limited to those only necessary for an animal's
well-being.
(Response) Consistent with NOSB recommendations, the final rule
prohibits needle teeth clipping and tail docking as routine procedures
and allows them only ``with documentation that alternative methods to
prevent harm failed.'' AMS elected not to include detusking among the
prohibited practices listed at Sec. 205.238(a)(5)(ii). The NOSB
recommendations did not address detusking or recommend that the
practice be prohibited, and most pigs are slaughtered prior to an age
when tusks would be present. Although not expressly prohibited by the
final rule, an operation could only detusk if it could demonstrate it
meets the requirements at Sec. 205.238(a)(5).
Body Condition
(Comment) Several commenters pointed out that the proposed rule's
requirement in Sec. 205.238(a)(2) that feed and nutrition result in
``appropriate body condition'' was unclear. Many found the term
``appropriate'' too subjective. Others warned that the phrase ``body
condition'' could be confused with ``body condition scoring'' as used
in the livestock industry and be interpreted to mean that an animal's
body condition score would establish whether a producer complied with
the requirement.
(Response) AMS appreciates and agrees with these comments and has
removed the phrase ``resulting in appropriate body condition'' from the
final rule. By removing the phrase, the requirement correctly focuses
on an operation's ability to meet nutritional needs by providing an
appropriate food ration. Certifying agents and inspectors should verify
that operations are meeting this requirement by reviewing an
operation's feeding and nutrition practices. In some cases, a body
condition score may be an appropriate measure of compliance.
Milk From Animals Treated With Substances That Have a Withdrawal Period
(Comment) Many commenters noted that the proposed regulatory text
at Sec. 205.238(c)(1) lacked helpful language from the preamble, which
specified that milk from an animal treated with an allowed substance
``which has a withholding time'' could not be sold, labeled, or
represented as organic ``during that withholding time.'' Commenters
suggested that the language from the preamble should be included in the
regulatory text.
(Response) AMS appreciates and agrees with this editorial
suggestion. In the final rule, Sec. 205.238(c)(1) specifies that milk
from animals treated with substances ``that are allowed under Sec.
205.603 but have associated withdrawal periods'' may not be sold,
labeled, or represented as organic ``during the withdrawal period.''
Additionally, the regulatory text now says ``withdrawal period'' rather
than ``withholding time'' for consistency with the language in the
National List.
Preventive Medicines and Parasiticides
(Comment) Several comments noted that the OLPS proposed language at
Sec. 205.238(b) had not been updated to reflect changes to this
section of the regulations by a recent AMS final rule
[[Page 75413]]
on the ``Origin of Livestock'' (April 5, 2022; 87 FR 19740).
(Response) AMS acknowledges the error and has revised the language
at Sec. Sec. 205.238(b)(2) and (b)(3) to reflect the regulatory text
finalized by the Origin of Livestock final rule. The regulatory text
now simplifies the reference to dairy and includes a reference to fiber
bearing animals.
Induced (Forced) Molting
(Comment) Several comments requested a definition of the term
``forced or induced molting,'' as the term is used but not defined in
the rule. Many commenters found it unclear whether all induced molting
was prohibited, or only certain practices to induce molting. Some
comments noted that the phrase ``or withdrawal of feed to induce
molting'' may suggest that some methods of induced molting may be
allowed. Commenters overwhelmingly requested that AMS prohibit any form
of induced molting.
(Response) The final rule adopts the term ``induced molting'' as it
better aligns with existing industry standards. AMS also added
``induced molting'' as a defined term in Sec. 205.2 to mean ``molting
that is artificially initiated.'' This term aligns with the FDA's
definition of the term (21 CFR 118.3). The definition of induced
molting and the language at Sec. 205.238(c)(10) that ``An organic
livestock operation must not . . . practice induced molting,''
clarifies that no form of artificially initiated molting is permitted
in organic production.
Euthanasia
(Comment) Several commenters requested definitions for the terms
``death'' and ``euthanasia,'' which are used several times in the rule
but not defined. Some wanted clarity on how death should be properly
assessed following euthanasia.
(Response) AMS has chosen not to define ``death'' or ``euthanasia''
in the rule. AMS appreciates the feedback on this topic; however,
commenters asked AMS to require very specific methods of confirming
death. AMS believes that requiring such specific ways to confirm death
would limit the options available to operations and make the
requirement difficult to meet. AMS has chosen to keep the proposed
rule's language, which requires that euthanized livestock ``must be
carefully examined to ensure that they are dead.'' This will give
operations the flexibility needed to confirm death in a way that best
matches their livestock, production system and practices, and site-
specific conditions. AMS recommends that operations use methods of
euthanasia and confirmation of death consistent with the American
Veterinary Medical Association (AVMA) Guidelines for the Euthanasia of
Animals.
(Comment) Several commenters requested that the language in Sec.
205.238(e) clearly state that euthanasia should only be used in cases
where there is incurable illness or disease and cannot be used in lieu
of treatment that would cause an animal to lose its organic status.
Some commenters also believed that the proposed rule could be
interpreted to suggest that euthanasia is the only or preferred option
for sick or injured animals.
(Response) The final rule adds a phrase to clarify that organic
operations must have written plans for ``prompt, humane euthanasia for
sick or injured livestock suffering from irreversible disease or
injury.'' Sick or injured livestock must be treated if recovery is
possible, even if treatment would cause the animal to lose its organic
status. Section 205.238(c)(7) clearly states that operations must not
withhold medical treatment to protect organic status. AMS intends for
euthanasia to be used in the humane management of irreversibly diseased
or injured animals, not as a way to conveniently dispose of sick or
injured animals.
Lameness
(Comment) One commenter noted that the proposed rule only required
producers to monitor for lameness but that the rule did not require
producers to treat animals for lameness or to modify conditions on the
operation that might contribute to lameness. The comment requested that
AMS include these additional requirements in the final rule to better
align OLPS with third-party welfare standards.
(Response) AMS revised Sec. 205.238(a)(8) to require that, in
addition to monitoring lameness, operations provide ``timely and
appropriate treatment of lameness'' and ``mitigation of the causes of
lameness.'' Like all requirements in Sec. 205.238 and subpart C of the
organic regulations, an operation must describe in their OSP how they
meet this requirement. However, AMS is not prescribing specific types
of recordkeeping or documentation regarding lameness. The requirement
in the final rule is sufficient to address monitoring, prevention, and
treatment of lameness, while also being flexible enough that producers
can choose options that best fit their operation, species of livestock,
and site-specific conditions.
(Comment) Several comments suggested revising or removing Sec.
205.238(a)(8). One commenter stated that interpretations of lameness
can vary greatly, so additional clarification would be needed. Another
commenter stated that this requirement is redundant, as recording sick
livestock is already required in Sec. 205.238(c)(9), and recordkeeping
is required in Sec. 205.103.
(Response) AMS agrees that other recordkeeping requirements in the
rule and the existing organic regulations are sufficient to address
lameness. AMS has removed the proposed rule's requirement to keep
``records of the percent of the herd or flock suffering from lameness
and the causes.'' The final rule replaces the recordkeeping language
with requirements for ``timely and appropriate treatment of lameness
for the species; and mitigation of the causes of lameness.''
Vaccines
(Comment) Two certified operations and a veterinarian suggested
that poultry vaccines should be allowed regardless of how they are
produced.
(Response) Like the existing regulations and the proposed rule, the
final rule in Sec. 205.238(a)(6) continues to allow ``vaccines and
other veterinary biologics'' as part of a producer's preventive health
care practices. The status of specific vaccine manufacturing processes
under Sec. 205.603(a) (National List) or Sec. 205.105(e) (Excluded
Methods) is outside the scope of practice standards addressed in this
rule.
C. Mammalian and Non-Avian Livestock Living Conditions (Sec.
[thinsp]205.239)
Description of Final Policy
The final rule separates the organic regulation's livestock living
condition requirements into two distinct sections: one for mammalian
and non-avian livestock species and one for avian species. Using two
distinct sections acknowledges that these types of animals have
different physiologies and therefore require certain unique husbandry
practices. Section 205.239 includes requirements for mammalian and non-
avian species. Avian living conditions are addressed in new Sec.
[thinsp]205.241. Applicable sections of Sec. 205.239 may be used for
the certification of non-avian and non-mammalian livestock defined as
``livestock'' at Sec. 205.2. For example, this may include
certification of honeybees for the production of organic honey and
honey products. However, livestock as defined in Sec. 205.2 does not
include aquatic animals for the production of food, fiber, feed, or
other agricultural-based consumer products.
[[Page 75414]]
The final rule revises Sec. [thinsp]205.239(a)(1) to remove the
requirement that all ruminant livestock must be able to feed
simultaneously. One method of feeding livestock, including ruminants,
is the use of a self-feeder or a creep-feeder. With creep-feeding and
self-feeding, feed is accessible to all livestock at all times though
they may not feed at the exact same time. Allowing self-feeding and
creep-feeding systems provides organic ruminant producers with more
flexibility and options to manage their farm and livestock in farm-
specific methods.
AMS is making no changes to the current Sec.
[thinsp]205.239(a)(3), which requires the use of appropriate, clean,
dry bedding. If roughages are used as bedding, they must be organically
produced and handled by certified operations, with the exception of
transitioning dairy producers, who may provide crops and forage from
third-year transitioning land--that is, land included in the OSP of the
dairy farm in its third year of organic management, during the 12-month
period immediately prior to the sale of organic milk and milk products
(7 CFR 205.236(a)(2)(iii)).
Section[thinsp]205.239(a)(4) describes the requirements for
livestock shelter. Shelter must have sufficient space for the animals
to lie down, stand up, and fully stretch their limbs and allow
livestock to express their normal patterns of behavior over a 24-hour
period. Shelter for livestock must provide temperatures, ventilation,
and air circulation that is appropriate to the species using the
shelter. This means that shelter must be designed to protect animals
from extreme weather conditions they may face, including extreme cold,
heat, precipitation, wind, or other conditions that could endanger the
physical safety or well-being of the animal. Shelter must also be
designed and managed in a way that reduces the potential for livestock
to be injured when using the shelter.
AMS recognizes that there are times when an animal's freedom of
movement may need to be temporarily limited for handling or management
purposes. For example, an operation may need to temporarily limit
freedom of movement for short periods of time for milking, feeding, or
to ensure the well-being of animals. Stalls for organic dairy cattle
are often designed to limit the animals from turning to the sides. This
stall design directs manure and urine into a collection system to
prevent mastitis and maintain low somatic cell counts in the milk.
Mammalian livestock may be housed for part of the day in stalls as
described in the OSP as long as they have complete freedom of movement
during significant parts of the day for grazing, loafing, and
exhibiting natural social behavior. This allowance does not permit the
use of gestation crates, farrowing crates, or other confinement systems
in which swine are housed individually in stalls that do not allow for
sufficient space and freedom to lie down, turn around, stand up, fully
stretch their limbs, and express normal patterns of behavior. If
livestock are temporarily confined indoors as permitted in Sec.
[thinsp]205.239(b), livestock must be able to move around (stand up and
lie down) and stretch their limbs. Operations must fully describe in
their OSP the use of any stalls, including their methods of stall
management and how livestock will be able to express their normal
patterns of behavior.
AMS adds Sec. [thinsp]205.239(a)(4)(iv) to set requirements for
indoor bedding and resting areas. Bedding and resting areas must be
sufficiently large and comfortable to keep livestock clean, dry, and
free of lesions. This requirement does not apply to animals raised on
pasture or range. AMS recognizes that while livestock must be provided
with shelter (defined in Sec. [thinsp]205.2), sometimes livestock on
pasture or range do not have access to traditional barns or bedded
areas and therefore do not have access to indoor space. These types of
operations may provide animals with natural forms of shelter (e.g.,
trees) to serve the same purpose as indoor shelter. Operations must
describe in their OSP how they provide shelter to their livestock in a
manner suitable for the species, stage of production, and environment.
AMS adds new requirements in Sec. [thinsp]205.239(a)(7) concerning
the individual housing of dairy young stock. Section 205.239(a)(7)
allows for the individual housing of animals until the weaning process
is complete, as long as the animals have sufficient room to turn
around, lie down, stretch out while lying down, get up, rest, and groom
themselves. In addition, individual pens for young stock must be
designed so that animals can see, smell, and hear other animals.
Once weaning is complete, an operation may no longer confine dairy
young stock for this reason. An operation may confine dairy young stock
for other reasons permitted under Sec. 205.239(c), if applicable. For
example, Sec. 205.239(c)(2) permits temporary confinement of young
dairy cattle from pasture for up to six months (prior to development of
the rumen). Certifying agents must review any confinement practices
following completion of the weaning process to determine if the
temporary confinement is justified and allowed, especially when animals
continue to be housed individually.
AMS adds three new provisions in Sec. [thinsp]205.239(a)(8) to
require the group housing of swine, with three listed exceptions: (1)
Sec. [thinsp]205.239(a)(8)(i) allows for sows to be individually
housed at farrowing and during the suckling period, except gestation
and farrowing creates are prohibited; (2) Sec.
[thinsp]205.239(a)(8)(ii) allows for boars to be individually housed to
reduce the likelihood of fights and injuries; and (3) Sec.
[thinsp]205.239(a)(8)(iii) allows for swine to be individually housed
after multiple documented instances of aggression or to allow an
individual pig to recover from a documented illness. Certified
operations should not use individual housing as the only remedy to
aggressive behavior. Operations should also attempt to mitigate
aggressive behavior by modifying practices or living conditions that
could reduce this behavior. If these fail to correct the behavior,
animals may be individually housed.
AMS adds two new provisions in Sec. [thinsp]205.239(a)(9) and (10)
concerning swine housing. Section 205.239(a)(9) prohibits the use of
flat decks or piglet cages. This provision prohibits the stacking of
piglets in flat decks in multiple layers. AMS is not aware of any
organic producers currently using these methods for organic production
but prohibits the practices to affirm that these systems do not and
cannot meet the living conditions requirements of the organic
regulations. In addition, Sec. 205.239(a)(10) requires that rooting
materials be provided at all times, except during the farrowing and
suckling period. Rooting is a natural behavior that organic swine
producers must accommodate. Rooting can be done in soil, deep packed
straw, or other materials.
AMS adds a new provision in Sec. [thinsp]205.239(a)(11) to further
clarify the use of barns or other structures with stalls. If indoor
shelter is provided by a structure with stalls, this structure must
have enough stalls to allow for the natural behaviors of the animals. A
cage does not qualify as a stall. AMS is aware that some operations use
systems that robotically feed animals that take turns entering an
individual feeding stall. AMS does not intend to prohibit such systems
since they could enhance the well-being of organic livestock.
Therefore, Sec. [thinsp]205.239(a)(11) provides an exception for this
type of system: more animals than feeding stalls may be allowed for
group-housed swine as long as all animals are fed routinely every day.
[[Page 75415]]
AMS also adds specific allowances for a variety of cattle barns,
including tie-stall barns and stanchion barns, as long as an operation
uses them in a way that is compatible with organic production. That
means that animals must be given space to lie down, turn around, stand
up, fully stretch their limbs, and express normal patterns of behavior
over a 24-hour period (see the requirement at Sec. 205.239(a)(4)(i)).
Because tie-stall and stanchion barns do not allow an animal to turn
around, an operation cannot leave an animal tied up in this type of
indoor space for more than 24 hours. Operations must describe their
practices in their OSP and demonstrate to an accredited certifying
agent that their use of these structures complies with other applicable
organic regulations.
AMS adds a new requirement for outdoor access in Sec.
[thinsp]205.239(a)(12). Organic livestock must have unencumbered access
to the outdoors year-round, unless temporary confinement is justified
under a specific reason described at Sec. 205.239(b)-(d) (e.g.,
nighttime confinement for protection from predators). When the outdoor
space includes soil, then vegetative cover must be maintained as
appropriate for the season, climate, geography, species of livestock,
and stage of production. Ruminants must have access to pasture during
the grazing season. Swine are not required to have access to soil or
vegetation; however, if a swine producer chooses to allow swine to have
access to the soil as a rooting material, then the producer must
maintain vegetative cover that is appropriate to the season, the local
environmental conditions, and the natural rooting behavior of swine.
AMS revises Sec. [thinsp]205.239(b)(7) to clarify the exemption
for temporary confinement for the purpose of breeding livestock.
Livestock may only be confined for the time required for natural
breeding or to perform artificial insemination. A group of livestock
may be confined before the procedures and while individual animals are
bred; afterward, the group must be returned to living spaces that allow
outdoor access. Livestock must not be confined to observe estrus, or
after breeding to confirm pregnancy.
AMS revises Sec. [thinsp]205.239(b)(8) to clarify the temporary
confinement exception for youth livestock projects. Because many youth
livestock projects include the sale of market animals, organic animals
that were under continuous organic management may be sold as organic
animals at youth fairs, even if the sales facility is not certified
organic. Thus, the revision includes an exemption to the Sec.
[thinsp]205.239(b)(6) requirement that a livestock sales facility be
certified as an organic operation. As an example, if a youth exhibition
and sale is held at a livestock sales facility that is not certified
organic, the livestock may be temporarily confined indoors during the
event. In this case, the youth may still sell the organic animal as an
organic animal, provided all other requirements for the organic
management of livestock are met. Otherwise, non-certified sales
facilities, such as auction barns or fairgrounds, may not sell or
represent livestock as organic. AMS includes this exception to
encourage the next generation of organic farmers.
AMS revises Sec. [thinsp]205.239(d) to mirror a revision at Sec.
[thinsp]205.239(a)(1). Specifically, the revisions remove a requirement
that ruminant slaughter stock be able to feed simultaneously during the
finishing period. The update does not require space for simultaneous
feeding but simply requires that all animals be able to feed without
crowding and without competition for feed.
Changes From Proposed to Final Rule
AMS has made several changes to the regulatory text of the OLPS
proposed rule when writing this final rule. Changes to the final rule
are discussed below and are followed by specific topics and themes from
public comment. For discussion of comments about the economic impacts
of the rule, please see the Regulatory Impact Analysis (RIA) included
in the docket.
AMS revised the title of Sec. 205.239 from ``Mammalian
livestock living conditions'' to ``Mammalian and non-avian livestock
living conditions'' to ensure that operations producing organic
invertebrates (e.g., honeybees) can continue to do so under the
applicable standards of this rule.
In Sec. 205.239(a)(4)(iv), AMS added language to clarify
that the indoor housing standards for ``clean and dry'' bedding and
resting areas should be applied as appropriate to the species of
livestock. This acknowledges that different species have different
bedding and resting area requirements and gives operations greater
flexibility when applying the requirement to different species.
In response to public comment, AMS removed from Sec.
205.239(a)(7) the six-month time limit for temporary confinement of
dairy young stock during the weaning process, authorizing temporary
confinement only until the weaning process is complete. This change was
made because the weaning process is typically much shorter than six
months.
AMS added language in Sec. 205.239(a)(8)(i) to explicitly
prohibit the use of gestation and farrowing crates for sows at
farrowing and during the suckling period. This change was made in
response to public comments requesting the explicit prohibition of
these methods of individual confinement.
AMS revised language in Sec. 205.239(a)(8)(iii) to limit
individual confinement of swine to only animals who have shown multiple
instances of aggression or for recovery from an illness.
AMS removed the word ``maximal'' relating to vegetative
cover in Sec. 205.239(a)(12). AMS removed this term because comments
stated that the proposed rule's use of ``maximal vegetative cover'' was
unclear and would be difficult to implement consistently. AMS refers to
``vegetation'' because that is a defined term.
In response to requests in public comment, AMS added
language to Sec. 205.239(b)(7) to clarify that animals cannot be
confined after breeding to confirm pregnancy.
Responses to Public Comment
Naming of Section
(Comment) Several comments requested changes to the title of this
section to include non-mammalian species of livestock (e.g.,
invertebrates). Commenters indicated that many operations are currently
certified to produce organic invertebrates, such as honeybees. Those
operations have used the existing requirements at Sec. 205.239, and
comments noted that AMS's proposed revision to split Sec. 205.239 into
only mammalian and avian sections would leave out standards for non-
avian and non-mammalian operations.
(Response) AMS revises the title of this section from ``Mammalian
livestock living conditions'' to ``Mammalian and non-avian livestock
living conditions'' to avoid unintentionally excluding non-mammalian
and non-avian species of livestock (e.g., invertebrates) from this
rule. Adding ``non-avian'' clarifies that operations may use the
applicable livestock standards at Sec. 205.239 to produce organic
livestock that is not avian or mammalian (e.g., invertebrates). Adding
this term ensures that operations producing organic invertebrates can
continue to do so without interruption and allows future operations to
enter the market and produce non-mammalian and non-avian livestock
under the organic label.
Ammonia Monitoring
(Comment) Some comments requested that AMS set ammonia testing
[[Page 75416]]
requirements for mammals in addition to poultry.
(Response) AMS acknowledges that ammonia is an air contaminant that
can impact all livestock. This rule sets limits on ammonia in poultry
houses and requires regular monitoring. Compared to other livestock,
poultry are more susceptible to ammonia accumulation due to the
physical layout of poultry housing and the decomposition of uric acid
from poultry droppings. Additionally, the NOSB has not recommended
monitoring or limiting ammonia levels in mammalian livestock
production, and AMS did not propose to do so in the proposed rule.
Therefore, AMS has elected not to set ammonia requirements for mammals
in the final rule.
Bedding
(Comment) Some comments requested clarification on the use of
``clean and dry'' in relation to the requirement for bedding and
resting areas in indoor housing. Commenters explained that the
interpretation of ``clean'' is both subjective and species dependent.
(Response) AMS acknowledges that what is considered ``clean and
dry'' depends on the species of livestock. AMS revises the language in
the final rule to clarify that operations must use clean and dry
bedding ``as appropriate for the species.'' This change gives
operations the flexibility to manage bedding in a way that fits the
specific type of livestock they are raising.
Swine Standards
(Comment) Several commenters requested more specific standards for
swine, including minimum stocking density requirements and a
requirement for access to soil and vegetative cover.
(Response) This final rule includes swine-specific standards at
Sec. 205.239(a)(8)--(11). The rule requires that swine must be housed
in a group, limits when swine can be housed individually, requires
rooting materials, prohibits the use of flat decks and piglet cages,
and describes allowable types of feeding techniques. This rule also
includes many other requirements that apply to all livestock, including
swine. At this time, AMS believes these requirements are adequate to
ensure the welfare of organically raised swine, and AMS has not
included the additional swine-specific criteria in the final rule.
(Comment) Several commenters asked that the final rule's regulatory
text allow swine to be housed individually only after multiple
instances of aggression, as stated in the preamble.
(Response) AMS revises the final rule's regulatory text to specify
that swine may be individually housed only after multiple documented
instances of aggression to clarify AMS's intent. Certified operations
should not use individual housing as the only remedy to aggressive
behavior. Operations should also attempt to mitigate aggressive
behavior by modifying practices or living conditions that could reduce
this behavior. If these fail to correct the behavior, animals may be
individually housed.
(Comment) Several commenters requested that AMS specifically
prohibit gestation and farrowing crates, citing that these crates can
cause pain, reduce the weaning rate of piglets, and increase the rate
of stillbirths.
(Response) AMS revises the final rule to clarify that gestation and
farrowing crates are prohibited in organic production. AMS did not use
these terms in the proposed rule, but AMS recognizes that gestation and
farrowing crates are commonly used terms so is including them in the
final rule. Sows may be housed individually for farrowing and during
the suckling period, as proposed, and the final rule clarifies that
sows may not be confined to gestation or farrowing crates during these
time periods.
(Comment) Many commenters noted that rooting materials are not
explained, nor specific materials defined in the proposed rule. The
commenters requested additional clarification on the standard for
rooting materials. Advocacy organizations and some certifiers also
asked for clarification on whether rooting materials must be provided
both indoors and outdoors, including during temporary confinement.
(Response) AMS discusses the use of rooting materials and Sec.
205.239(a)(10) in the ``Description of final policy'' section above.
Operations must provide rooting materials to allow swine to express
their natural behavior, which includes rooting (see Sec. 205.239(a)(1)
and (4)). The final rule does not specify the allowed types of rooting
materials or where, exactly, rooting materials must be available. For a
producer to comply with general requirements to accommodate natural
behaviors at Sec. 205.239, AMS expects producers will provide rooting
opportunities in all locations, as well as during periods of temporary
confinement, when feasible. However, the rule provides operations
flexibility to choose materials and management techniques that best
accommodate natural swine rooting behavior and that best fit site-
specific conditions.
Temporary Confinement of Cattle
(Comment) Several comments asked if tie-stall and stanchion barns
are allowed in organic production. These comments noted that tie-stall
and stanchion barns do not allow animals to turn around, and that this
may conflict with the rule's requirement that animals must be able to
turn around within a 24-hour period.
(Response) Tie-stall barns and stanchion barns are permitted in
organic certification systems if an operation uses them in a way that
is compatible with organic production. That means that animals must be
given space to lie down, turn around, stand up, fully stretch their
limbs, and express normal patterns of behavior over a 24-hour period
(see the requirement in Sec. 205.239(a)(4)(i)). Because tie-stall and
stanchion barns do not allow an animal to turn around, an operation
cannot leave an animal tied up in this type of indoor space for more
than 24 hours. However, during periods of temporary confinement,
animals may remain in stalls. In this case, AMS recognizes that animals
may not be able to turn around.
(Comment) Commenters requested that some specific references to
cattle in the proposed rule be broadened so the requirements would
apply to any species. Specifically, comments requested that AMS revise
requirements related to individual housing for young dairy animals at
Sec. 205.239(a)(7) and Sec. 205.239(c)(2).
(Response) AMS agrees that animals of all species should have
sufficient space and freedom of movement. However, Sec. 205.239(a)(7)
and Sec. 205.239(c)(2) address production practices specific to dairy
animals and to dairy cattle, respectively. The more general requirement
that all organically managed animals should have ``sufficient space and
freedom to lie down, turn around, stand up, fully stretch their limbs,
and express normal patterns of behavior'' is set in Sec.
205.239(a)(4)(i).
Temporary Confinement To Confirm Breeding
(Comment) Several comments requested that AMS clarify animals may
not be confined after breeding to confirm pregnancy, as this could
allow producers to confine animals for long periods of time without any
corresponding benefit to animal health or welfare.
(Response) AMS agrees that this change would benefit the welfare of
the livestock and has added language to Sec. 205.239(b)(7) to clarify
that animals may not be confined after breeding to confirm pregnancy.
[[Page 75417]]
Individual Housing of Calves
(Comment) Several commenters disliked that the proposed rule
allowed an operation to individually house dairy young stock for up to
six months, citing that this practice does not align with consumer
expectations or third-party welfare standards. One commenter requested
a shorter time limit for individual housing of calves, referencing an
eight-week limit in both European Union organic standards and Certified
Humane standards. Other comments requested that AMS clarify how long an
operation can confine for weaning (Sec. 205.239(a)).
(Response) AMS removed the phrase ``but no later than six months of
age'' in the requirements related to housing for weaning at Sec.
205.239(a)(7). This section of the rule now specifies that dairy young
stock (of any species) may be housed individually only until completion
of the weaning process. Once weaning is complete, an operation may no
longer confine dairy young stock for this reason. An operation may
confine dairy young stock for other reasons permitted under Sec.
205.239(c), if applicable. For example, Sec. 205.239(c)(2) permits
temporary confinement of young dairy cattle from pasture for up to six
months (prior to development of the rumen). AMS is not revising the
maximum time requirement for confinement from pasture at Sec.
205.239(c)(2) in the final rule. Certifying agents must review any
confinement practices following completion of the weaning process to
determine if the temporary confinement is justified and allowed,
especially when animals continue to be housed individually.
(Comment) One commenter requested the removal of the requirement
for calves to see other calves, as this may not be feasible in some
cases where an operation has very few calves.
(Response) AMS has elected to revise this language. During
temporary confinement in individual pens, it is important for young
dairy animals to be able to see, smell, and hear other calves, or other
animals in cases where this is not feasible, such as an operation with
a single offspring.
Outdoor Space
(Comment) One commenter requested AMS set a minimum amount of
outdoor space for mammalian livestock. The commenter also asked AMS to
specify what this outdoor space should be composed of (i.e., specify
what percentage of outdoor space be soil and vegetation).
(Response) AMS had not proposed minimum outdoor space requirements
for mammalian livestock, and the NOSB has never provided minimum space
recommendations for mammals. Similarly, the final rule does not include
minimum space requirements for mammals. However, the USDA organic
regulations have included and will continue to include many provisions
related to outdoor space requirements for mammalian livestock. Section
Sec. 205.239(a) specifies that operations must provide living
conditions that accommodate the well-being and natural behavior of
mammalian livestock. This includes year-round access for all animals to
the outdoors, shade, shelter, exercise areas, fresh air, and direct
sunlight, suitable to the species, stage of life, climate, and
environment. Additionally, ruminant livestock must be provided with
daily grazing throughout the grazing season to meet feed intake
requirements (Sec. Sec. 205.237 and 205.239), and yards, feeding pads,
and feedlots must be large enough to allow all ruminant livestock to
feed without competition for food (Sec. 205.239). Finally, this rule
adds a requirement that operations maintain vegetation on outdoor space
that includes soil, and that vegetation must be appropriate for the
season, climate, geography, species of livestock, and stage of
production (Sec. 205.239(a)(12)). Together these requirements for
outdoor conditions support the welfare of organic mammalian species.
D. Avian Living Conditions (Sec. [thinsp]205.241)
Description of Final Policy
The final rule adds new Sec. 205.241, ``Avian living conditions,''
to the organic regulations. This section includes requirements for all
organic avian species, including but not limited to chickens, turkeys,
geese, quail, pheasants, and any other bird species that are raised for
organic eggs, organic meat, or other organic agricultural products.
Section 205.241(a) establishes general requirements for organic
poultry production and more detailed requirements in paragraphs (b),
(c), and (d). Section 205.241(a) requires organic poultry operations to
establish and maintain living conditions that accommodate the well-
being and natural behaviors of birds. These living conditions include
year-round access to the outdoors, soil, shade, shelter, exercise
areas, fresh air, direct sunlight, clean water for drinking, materials
for dust bathing, and adequate space to escape aggressive behaviors.
Continuous total confinement of animals is prohibited. The living
conditions provided should be appropriate to the species, its stage of
life, the climate, and the environment. These requirements, based upon
a 2009 NOSB recommendation,\69\ are largely identical to previously
established livestock requirements at Sec. 205.239(a)(1), although
they now require materials for dust bathing and adequate outdoor space
to escape aggressive behaviors.
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\69\ https://www.ams.usda.gov/sites/default/files/media/NOP%20Final%20Sunset%20Rec%20Animal%20Welfare.pdf.
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Section 205.241(b) requires that indoor space be sufficiently
spacious to allow all birds to move freely, stretch both wings
simultaneously, stand normally, and engage in natural behaviors. Cages
or environments that limit free movement within the indoor space are
prohibited. In addition, the indoor space must allow birds to engage in
natural behaviors such as dust bathing, scratching, and perching. The
requirements are adopted from a 2009 NOSB recommendation and modify
previously established requirements for organic livestock at Sec.
205.239(a)(4) that required ``shelter designed to allow for . . .
natural maintenance, comfort behaviors, and opportunity to exercise.''
Section 205.241(b)(2) requires producers to monitor ammonia levels
in poultry houses and implement practices to maintain ammonia levels
below 20 ppm. When ammonia levels exceed 20 ppm, producers must
implement additional practices and additional monitoring to reduce
ammonia levels below 20 ppm. Ammonia levels must not exceed 25 ppm.
Ammonia is a natural breakdown product of manure from livestock and is
harmful to birds when inhaled, especially at concentrations above 25
ppm.\70\ Inhalation of high levels of ammonia has a negative impact on
poultry welfare, causing irritation and inflammation, as well as
contributing to negative production outcomes like reduced growth. In
most cases, high levels of ammonia indicate that litter is damp, or
litter management practices require modification. For producers with
more than one poultry house, the producer should monitor ammonia levels
in each house.
---------------------------------------------------------------------------
\70\ ``Ammonia production in the poultry houses and its harmful
effects'' IU Sheikh, SS Nissa, Bushra Zaffer, KH Bulbul, AH Akand,
HA Ahmed, Dilruba Hasin, Isfaqul Hussain and SA Hussain,
International Journal of Veterinary Sciences and Animal Husbandry,
3(4): 30-33, 2018.
---------------------------------------------------------------------------
Section 205.241(b)(3) clarifies the indoor lighting requirements
for organic layers and fully feathered birds. Organic producers may
provide artificial light for up to 16 continuous hours per day (24-hour
period). Operations must provide at least eight hours of
[[Page 75418]]
continuous darkness per day, unless an operation's geographic location
does not allow for eight hours of darkness (for example, an operation
in Alaska during summer months). In that case, an operation should
provide as many dark hours as feasible for the season. The 16-hour
period must be calculated as a single continuous time period rather
than as intermittent periods. Artificial light should be lowered
gradually to encourage hens to move to perches or otherwise settle for
the night. Operations must not manipulate the light spectrum to
increase feed intake or growth rates.
Section 205.241(b)(4) describes requirements for exit areas, or
doors, on shelters so all birds can easily access both indoor and
outdoor areas. Access and utilization of outdoor areas is a core
principle of organic production systems. The organic regulations have
required ``Year-round access for all animals to the outdoors'' since
the organic regulations were established in 2001 (see 7 CFR
205.239(a)(1)). Organic avian systems must be designed so birds have
ready access to outdoor areas and are able to return indoors to roost
in the evening. Producers must provide exit doors of sufficient number
and size to enable all birds to access outdoor and indoor areas. The
standard for exit doors is set at one (1) linear foot of exit area
space for every 360 birds.
If an operation does not provide at least one linear foot of exit
area per 360 birds ratio, the operation may comply with the requirement
if it: (1) describes (in their OSP) their exit areas and how they
enable all birds to access outdoor areas; and (2) demonstrates how
ready access to the outdoors is provided for all birds. In that case,
the certifier must review the description in the OSP and verify that
exit areas meet the standard for outdoor access to determine an
operation complies with the exit area requirement. A certifier could,
for example, review time lapse videos, pictures (with time stamp data),
and/or conduct on-site inspections to verify that exit areas ensure all
birds have ready access to the outdoors.
In any case, a certifier will determine if doors are appropriately
distributed and sized, as required, by assessing if all birds have
ready access to the outdoors. This section also notes that shell egg
producers may be subject to FDA requirements in 21 CFR part 118
intended to prevent Salmonella Enteritidis (SE). Specifically, these
FDA regulations require producers to maintain biosecurity measures that
prevent stray poultry, wild birds, cats, rodents, and other animals
from entering poultry houses. AMS directs producers to consult with the
FDA's August 2022 final guidance on this subject for more information
on how to comply with the requirements while providing access to areas
outside the poultry house.\71\
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\71\ Available at: https://www.fda.gov/regulatory-information/search-fda-guidance-documents/guidance-industry-questions-and-answers-regarding-final-rule-prevention-salmonella-enteritidis-shell-0.
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Section 205.241(b)(5) requires perches for chicken layers at a rate
of six inches per bird for all housing. Perch space may include the
alighting rail in front of nest boxes, but it may not include floors in
houses with slatted floors. Perches are not required for broilers, meat
birds, or layers of species other than Gallus gallus. All layers must
be able to perch at the same time, except in aviary housing (see the
definition of indoor space in Sec. 205.2). Aviary housing is permitted
to have less perch space because birds in aviary housing are also able
to escape aggressive behavior by moving between tiers in the house.
Aviary housing must provide six inches of perch space for 55 percent of
the flock (i.e., 3.3 inches of perch for each bird in the flock). These
requirements are adopted from 2009 and 2011 NOSB recommendations.
Section 205.241(b)(6) specifies indoor requirements to allow for
certain natural behaviors. Except for mobile housing (defined at Sec.
205.2), indoor space must include areas that allow for scratching and
dust bathing. For mobile housing, producers may meet this requirement
by providing scratch areas and dust bathing areas outside of the mobile
housing. In that case, a mobile house may include 100% slatted or mesh
flooring (which do not allow for scratching and dust bathing). For
other types of indoor housing, litter or bedding such as wood shavings
or straw must be provided indoors. If litter or bedding will be
consumed by animals, it must be organic. Manure excreted by birds in a
poultry house alone, without additional litter material, would not be
sufficient to meet this requirement. This section also requires that
litter be maintained in a dry condition, because wet litter can lead to
a variety of problems for birds, including excess ammonia, lameness,
and pest problems.\72\ High moisture content in poultry litter can
cause negative health and welfare outcomes, including foot pad
dermatitis\73\ and increased populations of house fly leading to
disease in the birds.\74\ Wet litter also promotes bacterial growth,
which can further lead to disease and negative health outcomes in
birds.\75\ Litter may be topped off when needed to maintain sufficient
dryness. These requirements are adopted from 2009 and 2011 NOSB
recommendations.
---------------------------------------------------------------------------
\72\ ``Broiler Litter: Odor and Moisture Concerns'', Tom Tabler,
Yi Liang, Jonathan Moon, and Jessica Wells. Mississippi State
University Extension, Publication: P3515, 2020.
\73\ ``Wet litter not only induces footpad dermatitis but also
reduces overall welfare, technical performance, and carcass yield in
broiler chickens'', Ingrid C. de Jong, H. Gunnink and J.van Harn,
Journal of Applied Poultry Research, 23(1): 51-58, 2014.
\74\ ``Pests in Poultry, Poultry Product-Borne Infection and
Future Precautions'', Hongshun Yang, Shuvra K. Dey, Robert Buchanan,
and Debabrata, Biswas Practical Food Safety: Contemporary Issues and
Future Directions, 1, 2014.
\75\ ``Broiler Litter: Odor and Moisture Concerns'', Tom Tabler,
Yi Liang, Jonathan Moon, and Jessica Wells, Mississippi State
University Extension, Publication: P352020.
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Section 205.241(b)(7) includes specific flooring requirements for
non-mobile indoor avian housing with slatted/mesh floors. These houses
must provide at least 15 percent solid flooring to allow birds indoors
to engage in natural behaviors, including scratching and dust bathing,
without crowding. This requirement does not apply to mobile houses
which, by definition (see Sec. 205.2), allow continuous access to
areas outside the structure where birds may scratch and dust bathe. The
requirement is adopted from a 2009 NOSB recommendation.
Sections 205.241(b)(8), (9), and (10) list the required minimum
indoor space for chickens (Gallus gallus) in different types of
housing. These are minimum standards, and organic producers may choose
to provide more indoor space than required. Sections 205.241(b)(8),
(9), and (10) list requirements for layers, pullets, and broilers,
respectively. Indoor space requirements for layers vary by the type of
housing provided. Section 205.2 further defines the types of housing,
including mobile housing, aviary housing, slatted/mesh floor housing,
and floor litter housing. For housing that does not fit into any of
these defined types, producers must comply with standards for ``other
housing'' at Sec. 205.241(b)(8)(v). Pasture pens that are moved
regularly and provide direct access to soil and vegetation are not
considered indoors (see definition of ``outdoors'' in Sec. 205.2). AMS
has adapted these requirements from 2009 and 2011 NOSB recommendations
and in consideration of third-party animal welfare standards.
The rule requires less indoor space per bird in houses that provide
more access to vertical space (e.g., aviary and slatted/mesh floor
housing), as birds have more room to move around in those types of
housing. Housing where birds have more limited access to vertical space
(e.g., floor litter housing)
[[Page 75419]]
must include more indoor space per bird. AMS allows for higher stocking
densities in mobile housing, as birds managed in these systems spend
more time outdoors, and mobile housing must be relatively small and
light, as it is moved frequently.
The final rule expresses the space requirements for birds in two
different ways, and producers may use either metric to demonstrate
compliance with the requirements. In the first metric, producers may
demonstrate compliance with the requirements by using the known weight
of birds in a flock. This metric is expressed as the maximum pounds of
bird allowed per square foot of indoor space. The minimum space
required under this alternative metric depends on the average weight of
birds at that time. All weight references in Sec. Sec. 205.241(b)
refer to the weight of live birds and not the weight of processed
birds. This metric accommodates for differences between different
breeds and also adapts for birds as they age and become heavier. Under
this metric, larger breeds (i.e., heavier individual birds) must be
provided with more indoor space than smaller breeds, on a per bird
basis. For example, Rhode Island Red birds are heavier than White
Leghorns or ISA Browns, and thus cannot be stocked as densely, in terms
of number of birds per unit area.
The second metric is an alternative that establishes the minimum
space that must be provided per animal in square feet per bird. In some
cases, AMS expects this will be a simpler method to calculate the
required space, particularly when individual bird weights differ within
a flock (e.g., because of a mixture of breeds or ages within a flock).
For this method, producers simply multiply the number of birds in a
flock by the space required per bird to obtain the minimum total space
required for the flock. Equivalently, producers can divide the
available area by the required space per bird to arrive at the maximum
number of birds allowed in that area.
To provide additional context, consider the following example of
layers in a floor litter housing system. At 32 weeks of age, these
layers weigh 4.3 pounds each and must be provided with 1.4 square feet
per bird (or 3.0 pounds of bird for each one square foot, as required
at Sec. 205.241(b)(8)(iv)). At 80 weeks of age, each layer weighs 4.5
pounds and the flock would require 1.5 square feet per bird (or 3.0
pounds of bird per square foot). If a producer has 10,000 square feet
available to raise these birds, this producer could stock 6,993 birds
at 32 weeks of age (bird weight of 4.3 pounds) but only 6,667 birds at
80 weeks of age (bird weight of 4.5 pounds). In comparison, a producer
that uses the alternative metric of 2.2 square feet per bird could
stock no more than 4,545 birds in the same 10,000 square foot floor
litter house. A producer with a small number of birds may prefer to use
the alternative metric (square feet per bird), especially when the
space provided easily exceeds the requirements. This eliminates the
need to weigh birds and estimate the average weight per square foot.
When calculating the weight of birds to assess pounds per square
foot, an average weight may be established for the flock by taking
weights of a representative sample of the flock. The space requirement
is not specific to each individual bird in a flock. AMS understands
that many producers already monitor and track bird weight closely
during the production cycle to monitor bird development and health and
calculate feed requirements. However, if weight is not monitored by a
producer, the producer will either need to establish the weight of
birds or comply with the alternative metric (expressed as square feet
per bird).
The weight metric (pounds per square foot) requires the producer to
know the total weight of birds. The simpler alternative method (square
feet per bird) requires the producer to know only the number of birds
in a flock. This simpler alternative method will, in almost all cases,
require more space per bird than the weight metric of pounds per square
foot. Producers may demonstrate compliance by using either metric. A
certifying agent does not need to compare a producer's compliance with
both metrics if compliance with either one can be demonstrated.
Section 205.241(b)(11) specifies how to calculate the area of the
indoor space. Producers must calculate indoor space accurately to
ensure that their housing systems meet the requirements in Sec. Sec.
205.241(b)(8) through (10). The total area of the indoor space is
calculated by including the square footage of all flat areas in a
house, excluding nest boxes (areas provided to layers for laying eggs).
Elevated round perches, for example, are not flat areas and could not
be included as indoor space. Nesting areas are excluded from the
calculation, as they are distinct from useable floor areas of the house
where birds can move around freely. This method of calculation aligns
with the 2009 and 2011 NOSB recommendations.
Section 205.241(b)(12) clarifies that indoor space may include
enclosed porches and lean-to type structures (e.g., screened in,
roofed) provided that the birds always have access to the space,
including during temporary confinement events. If the birds do not have
continuous access to a porch or enclosed structure, including during
temporary confinement events, that space may not be considered indoor
space and may not be included in an operation's indoor space
calculation.
Section 205.241(c) establishes the outdoor space requirements for
organic avian species, including the amount of outdoor space that
operations must provide for the birds. The requirements of Sec.
205.241(c) are adopted or adapted from 2009 and 2011 NOSB
recommendations, third-party animal welfare standards, and existing
organic regulations previously in Sec. 205.239. Section 205.241(c)(1)
requires that operations use outdoor space designed to promote and
encourage daily outdoor access for all birds. Producers must provide
access to the outdoors at an early age. Exit areas are described
previously in Sec. 205.241(b)(4), but this section requires that door
spacing promote and encourage outdoor access and requires that
operations provide outdoor access daily. Outdoor access may only be
temporarily restricted in accordance with Sec. 205.241(d).
Section 205.241(c)(2) requires that outdoor areas for poultry have
a minimum of 75 percent soil and that the soil portion of the outdoor
area must include vegetative cover. Vegetative cover must be maintained
in a manner that does not provide harborage for rodents and other
pests. For example, a producer may mow vegetation to ensure that tall
vegetation does not provide harborage for pests. A maximum of 25
percent of the outdoor area may be gravel, concrete, or surfaces other
than soil. Vegetation is required, as vegetation protects soil and
water quality and allows birds to engage in natural behaviors,
including foraging, pecking, and scratching. The amount of vegetation
present will depend on the season, climate, geography, species, and the
stage of production.
Section 205.241(c)(3) clarifies how producers may provide shade to
meet the general requirements of Sec. 205.241(a). Shade may be
provided in outdoor areas by trees, shade structures, or other
appropriate objects. This section is specific to shade in outdoor
areas; it does not permit structures that do not meet the definition of
``outdoors'' (Sec. 205.2) to be included in calculations of outdoor
space.
Sections 205.241(c)(4) through (6) specify minimum outdoor space
requirements for chickens (Gallus gallus). As described above for the
indoor space requirements (Sec. 205.241(b)), the final rule includes
[[Page 75420]]
two methods for determining compliance with space requirements. One
method relies on bird weights to establish the maximum stocking density
(expressed as maximum pounds of bird per square foot). The other method
requires only knowing the number of birds and the area of the space to
establish the maximum stocking density (expressed as minimum square
feet per bird). Either method is acceptable to demonstrate and evaluate
compliance with the outdoor spacing requirements.
Organic layer producers must provide at least one square foot of
outdoor space for every 2.25 pounds of bird in the flock. For example,
if birds average 4.5 pounds, a producer must provide 2.0 square feet of
outdoor space for each bird in the flock. Alternatively, if bird
weights are not known, a producer may provide at least 3.0 square feet
of outdoor space per layer. Organic pullet producers must provide at
least one square foot of outdoor space for every 3.0 pounds of bird in
the flock. Alternatively, a producer may provide at least 1.7 square
feet of outdoor space per pullet. Organic broiler producers must
provide at least one square foot of outdoor space for every 5.0 pounds
of bird in the flock. Alternatively, a producer may provide at least
2.0 square feet of outdoor space per broiler.
All weight references in Sec. Sec. 205.241(c) refer to the weight
of live birds and not the weight of processed birds. The total outdoor
space that an operation must provide must be calculated based on the
total number of birds in a flock, not the number of birds in outdoor
space at a given moment. Related discussion on this topic can be found
above in the discussion on the indoor space requirements at Sec. Sec.
205.241(b)(8)-(10), such as the calculation of bird weight and the
usefulness of this method to accommodate for differences over the flock
lifespan as birds become heavier.
Section 205.241(c)(7) clarifies that unenclosed roofed areas (i.e.,
having a roof but no walls to contain birds) can be counted as outdoor
space when these areas allow birds to freely move between the roofed
area(s) and other outdoor space. This ensures that enclosed porches are
not counted as outdoor space. If a producer were to modify an enclosed
porch to permanently remove the walls and provide birds with free
access to other outdoor spaces, the area would be considered outdoor
space.
One of the key considerations for distinguishing indoor space from
outdoor space is how the livestock are managed in that space, which may
determine whether the space should be defined as indoors, outdoors, or
neither indoors nor outdoors. As an example, a screened-in and roofed
porch to which the (enclosed) birds always have access, including
during temporary confinement events, would be considered indoor space.
That same porch would be considered neither indoors nor outdoors if the
birds do not have continuous access to the space during temporary
confinement events.
Section 205.241(d) describes the conditions under which organic
avian livestock producers may temporarily confine birds indoors
(``temporary'' and ``temporarily'' are defined at Sec. 205.2).
Producers must document confinement in a manner that demonstrates
compliance with the recordkeeping requirements in Sec. 205.103.
Records should include the reason for the confinement, the duration of
the confinement, and the flocks that were confined. Records should be
sufficient for a certifier to determine if birds were confined in
compliance with this section. The requirements of Sec. 205.241(d) are
adopted or adapted from previously established requirements for organic
livestock at Sec. 205.239(b), and from 2009 and 2011 NOSB
recommendations and third-party animal welfare organization standards.
Section 205.241(d)(1) provides an allowance for temporary
confinement in response to inclement weather, which is defined at Sec.
205.2 as weather that is violent or characterized by temperatures (high
or low) or excessive precipitation that can cause physical harm to
livestock. Inclement weather does not include weather that is sub-
optimal for production, such as weather that may reduce growth rates or
reduce production yields. In addition to specifying ``inclement
weather,'' as defined at Sec. 205.2, the final rule also establishes a
lower (32 degrees Fahrenheit) and upper temperature threshold (90
degrees Fahrenheit) for temporary confinement. Producers may
temporarily confine animals and maintain their organic certification
when animals are temporarily confined for inclement weather. The term
``inclement weather'' is defined at Sec. 205.2 as, ``Weather that is
violent, or characterized by temperatures (high or low), or
characterized by excessive precipitation that can cause physical harm
to a given species of livestock. Production yields or growth rates of
livestock lower than the maximum achievable do not qualify as physical
harm.'' AMS recognizes that a narrower range of temperatures may define
the optimal temperature conditions for birds (of different ages and
species), but Sec. 205.241(d)(1) may not be used as justification for
confinement of birds to the narrow range to maximize growth or
production.
AMS recognizes that some weather may qualify as inclement weather
when temperatures are within the 32- to 90-degree range. For example,
many types of violent weather that may cause physical harm to animals
will occur within this range (e.g., extreme wind, violent
precipitation, etc.). Temporary confinement of animals for these events
is appropriate under this section of the rule. Finally, the rule does
not require that birds be confined when temperatures are below 32
degrees or above 90 degrees Fahrenheit to be in compliance with the
requirement. For example, a sunny 30-degree Fahrenheit day may allow
birds to go outdoors without any harmful effects, and outdoor access
would be acceptable and encouraged. Certifiers will need to evaluate an
operation's practices and temporary confinement records to determine if
an operation complies with the allowance to temporarily confine animals
for inclement weather.
Section 205.241(d)(2) provides an allowance for temporary
confinement indoors due to a bird's stage of life. In this section, AMS
has established specific requirements for confining chicken broilers
and pullets due to their stage of life (``stage of life'' defined at
Sec. 205.2). Additionally, the section includes a general provision
for confining other avian species until fully feathered. Chicken
broilers may be confined through 4 weeks of age and chicken pullets may
be temporarily confined indoors through 16 weeks of age. The NOSB
recommended 16 weeks of age as the age after which outdoor access is
required to provide adequate time for pullets to complete their
vaccination program before exposure to pathogens outdoors. Any
confinement beyond the time when birds are fully feathered must be in
accordance with Sec. 205.241(d).
Section 205.241(d)(3) provides an allowance for temporary indoor
confinement for conditions under which the health, safety, or well-
being of the birds could be jeopardized. Temporary confinement under
this provision must be recorded; records must clearly state the
reason(s) for confinement (per Sec. 205.241(d)(3)), with a detailed
and robust justification demonstrating how the birds' health, safety,
or well-being could be jeopardized. To confine birds under this
provision, a producer must have sufficient justification to demonstrate
that an animal's health, safety, or well-being could be jeopardized by
access to the outdoors. A producer's practices and justification must
be included in their OSP
[[Page 75421]]
(Sec. 205.201), and records must be sufficient to demonstrate
compliance (Sec. 205.103). Certifiers will verify compliance with this
requirement. Producers and certifiers should consult with animal health
officials, as appropriate, to determine when confinement of birds is
warranted to protect the health, safety, or well-being of the birds.
Animal health officials are also encouraged to reach out to certifiers
and to AMS to discuss specific health concerns. AMS will continue to
engage animal health officials, including the USDA's Animal and Plant
Health Inspection Service (APHIS), State Departments of Agriculture and
State Veterinarians, about risks to bird health and provide appropriate
directions to certifiers or producers, as necessary.
AMS recognizes that this section allows operations to temporarily
confine animals for a variety of reasons, but operations may not
justify ongoing or long-term confinement for reasons that do not pose
significant and specific risks to animal health, safety, or well-being.
This section provides an allowance for organic operations to
temporarily confine animals. AMS directs producers and certifiers to
reference Sec. 205.2 (Terms defined) when evaluating confinement under
Sec. 205.241(d)(3), which 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), not permanent or
lasting.'' For example, an operation may not confine birds in an
attempt to avoid any and all predation and bird mortality that may
result from time outdoors. Additionally, an operation may not confine
animals indoors to simply maximize growth and/or production. Access to
the outdoors is a key principle of the organic livestock standards (see
Sec. 205.241(a)). Therefore, AMS expects producers to maximize access
to outdoors to the greatest degree possible to support the health and
natural behavior of poultry and the requirement at Sec. 205.241(a).
Section 205.241(d)(4) provides an allowance for temporary indoor
confinement in the case of risk to soil or water quality. This
provision mirrors an existing allowance at Sec. 205.239 and allows
producers to avoid damage to soil or water quality. This means that an
operation may temporarily confine poultry to prevent damage to soil or
water quality. For example, an operation may choose to temporarily
confine animals after a very heavy rainfall to help minimize soil
erosion and runoff. However, confinement for this reason must be
temporary (see the definition of temporary in Sec. 205.2) and must be
documented so that the certifying agent can assess if the operation's
use of confinement complies with the organic regulations. Frequent or
prolonged confinement to prevent damage to soil or water quality is not
permitted because it is not temporary. The need to frequently confine
animals for long periods to avoid damage to soil and water quality may
also indicate that an operation's outdoor access practices fail to meet
the general requirements to maintain or improve the natural resources
of the operation, including soil and water quality (Sec. 205.200).
This provision is not intended to allow producers to avoid those
requirements and is only allowed to justify temporary (i.e., not
permanent or lasting) confinement.
Section 205.241(d)(5) provides an allowance for indoor confinement
for preventive health care procedures and for the treatment of illness
or injury. Neither life stages nor egg laying are considered an illness
for confinement purposes. For example, this provision allows producers
to briefly confine a flock to administer a vaccine or to confine an
individual animal that requires medical treatment.
Section 205.241(d)(6) provides an allowance for indoor confinement
for sorting, shipping, and poultry sales. Birds must be managed
organically during the entire time of confinement. For example, any
feed provided during confinement must be organic. Confinement must be
no longer than necessary to sort or catch the birds, place them in
shipping containers, and conduct the sale.
Section 205.241(d)(7) provides an allowance for indoor confinement
to train pullets to lay eggs in nest boxes, with a maximum period of
five weeks over the life of the bird allowed for such confinement. The
training period must not be any longer than required to establish the
proper behavior. As soon as the behavior is established, birds must be
provided with access to the outdoors, except when confined in
accordance with other provisions under Sec. 205.241(d).
Section 205.241(d)(8) provides an allowance for indoor confinement
with specified time frames for youth exhibitions, such as with 4-H or
the National FFA Organization. This provision also includes an
exemption to the requirement that a livestock sales facility be
certified as an organic operation. As an example, if a youth exhibition
and sale is held at a livestock sales facility that is not certified
organic, a youth may sell birds there as organic, provided all other
requirements for organic management are met. During the youth event,
the livestock may be temporarily confined indoors. Otherwise, non-
certified sales facilities, such as auction barns, may not sell or
represent livestock as organic. AMS is adding these provisions at Sec.
205.241(d)(8) to encourage the next generation of organic producers.
Section 205.241(e) requires organic poultry producers to manage
manure in a manner that does not contribute to contamination of crops,
soil, or water quality by plant nutrients, heavy metals, or pathogenic
organisms. Organic poultry producers must manage the outdoor space in a
manner that does not put soil or water quality at risk. In addition,
organic poultry producers must comply with all other governmental
agency requirements for environmental quality. The requirements of this
section are adapted from previously established requirements for
organic livestock at section 205.239(e).
Changes From Proposed Rule to Final Rule
AMS has made several revisions to the proposed requirements at
Sec. 205.241 in response to comments and to clarify the requirements.
A brief description of the changes follows; additional discussion can
be found in AMS's responses to comments.
AMS included a prohibition on continuous total
confinement. This requirement has existed in the regulations at Sec.
205.239 but was not included in the proposed rule. It is carried into
the final rule at Sec. 205.241(a).
AMS added a clarification to the final rule that a bird
should be able to stretch both wings simultaneously when indoors (Sec.
205.241(b)(1)). This change elaborates on the proposed requirement that
birds be able to ``stretch wings'' indoors.
AMS revised requirements related to monitoring of ammonia
to increase the frequency of monitoring and raise the action limit from
10 ppm to 20 ppm ammonia, with the maximum level remaining at 25 ppm,
as proposed (Sec. 205.241(b)(2)). The final rule also specifies that
monitoring is to be done at bird head height.
AMS revised the proposed lighting requirements to clarify
that manipulation of artificial light to increase growth is not
permitted and to clarify the length of time that artificial light may
be provided over a 24-hour period (Sec. 205.241(b)(3)).
[[Page 75422]]
In response to public comment, AMS offered greater
specificity on the requirements related to exit doors. The final rule
requires that producers provide one linear foot of exit door space per
360 birds with some flexibility for compliance if an alternative
configuration provides ready access to the outdoors for all birds
(Sec. 205.241(b)(4)).
AMS included additional detail on what may be counted as
perch space. The final rule specifically prohibits counting floor space
as perch space (Sec. 205.241(b)(5)).
AMS reduced the amount of solid flooring required in the
final rule from 30 percent to 15 percent and clarifies that mobile
housing is exempt from this requirement (Sec. 205.241(b)(7)).
AMS added a second method for calculating space
requirements that does not rely on the weight of birds (Sec. Sec.
205.241(b)(7)--(10) and (c)(4)--(c)(6)).
AMS reduced the amount of non-soil ground that may be in
outdoor areas from 50 percent to 25 percent (i.e., 75 percent must be
soil in the final rule), at Sec. 205.241(c)(2).
AMS revised the temperature range included in the proposed
rule related to inclement weather (Sec. 205.241(d)(1)). AMS clarified
that inclement weather for avian species may include temperatures below
32 degrees (rather than 40 degrees as proposed) and above 90 degrees
(unchanged from the proposed rule).
Finally, AMS removed the proposed allowance to temporarily
confine birds to reseed outdoor areas. The final rule allows for
confinement due to risk to soil or water quality (Sec. 205.241(d)(4)).
Responses to Public Comment
General Conditions (Avian)
(Comment) Some comments noted that the proposed rule's section on
avian living conditions did not include the specific phrase,
``Continuous total confinement of any animal indoors is prohibited.''
The commenters noted that the prohibition was included in the section
on mammalian living conditions at Sec. 205.239(a) and requested that
it also be included in the final rule's section on avian living
conditions at Sec. 205.241(a).
(Response) AMS agrees with these comments and has added the phrase,
``Continuous total confinement of any animal indoors is prohibited'' to
the avian living condition requirements at Sec. 205.241(a). Prior to
this final rule, the USDA organic regulations prohibited continuous
total confinement for all organic livestock, and AMS agrees it should
continue to apply to all organic livestock in the final rule.
(Comment) A comment requested that AMS modify the proposed
requirement that birds be able to ``stretch their wings'' indoors to
instead require space that allows birds to ``fully stretch both wings
simultaneously.''
(Response) AMS agrees that this modification better describes the
intent and meaning of the requirement. The final rule, at Sec.
205.241(a)(1), requires that poultry housing be sufficiently spacious
to allow all birds to, ``stretch both wings simultaneously.''
Ammonia
(Comment) AMS received numerous comments on the proposed
requirements related to monitoring ammonia in poultry houses and
ammonia compliance thresholds included in the proposed rule. Comments
argued that monthly ammonia monitoring, as proposed, would not be
sufficient to identify problems and could result in longer-term
exposure to elevated ammonia levels and have harmful effects. Many of
these comments requested weekly (rather than monthly) testing, and that
ammonia monitoring must be done at the height of the birds' heads, to
ensure that testing reflects the birds' actual exposure to ammonia. In
terms of the ammonia thresholds proposed by AMS, many comments
requested that AMS increase the action limit from 10 ppm to 20 ppm or
25 ppm. Comments noted that these higher levels would align with third-
party standards and still support bird health.
(Response) In response to comments, the final rule increases the
frequency of required testing from monthly to weekly and requires that
testing be done at bird head height. AMS expects these revisions to
Sec. 205.241(b)(2) will result in better outcomes for bird health. AMS
has also increased the action limit in the proposed rule of 10 ppm to
20 ppm in the final rule. If ammonia levels exceed 20 ppm, producers
must implement additional practices to reduce ammonia levels below 20
ppm and perform more frequent monitoring. Ammonia levels must not
exceed 25 ppm.
Lighting
(Comment) Several commenters requested that poultry have access to
sufficient natural light indoors, citing animal health and welfare.
Commenters requested natural light be provided during daylight hours
for mature avian species; in cases where this would be difficult to
achieve, commenters requested that lighting must be full spectrum to
mimic a natural system.
(Response) As a general requirement at Sec. 205.241(a), the final
rule requires that birds have year-round access to outdoors and direct
sunlight. AMS finds that these provisions address commenters' concern
for sufficient access to natural light and the expression of natural
behaviors.
(Comment) Commenters asked AMS to require a minimum of eight hours
of continuous light (daylight or artificial) over a 24-hour period.
(Response) AMS finds that artificial light sources can be permitted
to help meet the minimum light intensity during cloudy weather or
darker seasonal conditions but should not prolong daylight more than 16
continuous hours. AMS finds that continuous low level or no light does
not mimic a natural system, nor does it allow birds to express their
natural instincts and thus is not appropriate for organic management.
AMS has decided not to specify a particular amount of required light to
provide operations flexibility for their site-specific conditions.
Further, AMS recognizes that not all organic operations have lighting
systems that allow for gradual lowering of light intensity. Therefore,
AMS clarified that artificial light intensity should (rather than must)
be lowered gradually to encourage hens to move to perches or settle for
the night.
(Comment) Several comments noted that artificial light should be
used only to mimic daylight and encourage natural behaviors, and not to
manipulate weight gain or laying habits.
(Response) AMS agrees that artificial light should be used only to
mimic daylight and encourage natural behaviors. AMS added the statement
at Sec. 205.241(b)(3) that ``Artificial light spectrum may not be
manipulated to increase feed intake and growth rate.''
(Comment) Commenters asked AMS to require a minimum of eight hours
of continuous darkness over a 24-hour period.
(Response) The final rule adds the statement at Sec. 205.241(b)(3)
that operations must provide a minimum of eight hours of continuous
darkness per 24-hour period.
(Comment) Several comments noted that the proposed rule did not
establish a minimum requirement for indoor light intensity. Some
commenters requested a requirement that an inspector be able to read
and write with lights turned off on a sunny day to create a standard of
measurement. Some commenters stated that third-party certifications
require at least one foot candle of light throughout the building.
(Response) AMS determined that it would not be feasible for
inspectors to
[[Page 75423]]
verify a producer's compliance with this requested requirement and has
not included such a requirement in the final rule.
(Comment) Commenters asked AMS to confirm that the proposed
artificial lighting standards at Sec. 205.241(b)(3) covered all types
of fully feathered birds, not just layer chickens.
(Response) The artificial lighting standards at Sec. 205.241(b)(3)
are applicable to the production of all types of fully feathered birds.
AMS updated the regulatory text to clarify this standard applies to all
fully feathered birds.
Exit Areas
(Comment) Stakeholders requested more specificity for exit areas,
arguing the proposed rule does not provide clarity for implementation
to ensure sufficient outdoor access. Comments focused on minimum size,
spacing, and quantity of exit doors. Many comments requested a
requirement that exit areas must be designed so that more than one bird
at a time can pass through each opening. Many comments also suggested
specific sizing and dimensions for exit areas, with most suggesting a
combined exit area length be at least 12 feet per 1,000 square feet of
the house available to the birds. This standard would align with
European Union organic standards (4 m per 100 m\2\). Others suggested a
requirement for at least one exit for every 50 feet (15 meters) along
the two longest sides of the house, while others recommended that exit
doors be placed so any bird could be no farther than 50 feet from an
exit door. This standard would align with Canadian organic standards
and some third-party welfare standards. Other comments also requested
more specificity for how to encourage birds to go outside and to
include a requirement that operations demonstrate that birds access the
outdoors (e.g., demonstrate all birds exit the house within an hour of
opening doors).
(Response) AMS recognizes that exit areas have been unregulated and
that ready access to the outdoors--a primary intent of this rule--has
not always been provided to all certified flocks. AMS also recognizes
the need for a consistent understanding throughout the industry to
support a competitive playing field. The final rule confirms and
clarifies that poultry houses must have sufficient exit areas to allow
birds to access the outdoors. AMS is also making two modifications to
the proposed requirements based on comments. First, AMS is requiring
that exit areas be ``appropriately distributed and sized'' rather than
``appropriately distributed'' in response to comments that the size of
doors (in addition to the distribution of doors) is important for
providing access to the outdoors. For example, a very narrow door might
restrict passage of birds and restrict access to the outdoors.
Second, AMS is referencing a quantitative standard for exit areas
in the final rule, as requested by numerous comments. The final rule
requires producers to provide at least 1 linear foot of exit area per
360 birds, and no less than 1 linear foot for flocks that have fewer
than 360 birds. Theoretically, this quantity of exit area allows all
birds in a house to exit (or enter) a house within one hour (60
minutes), assuming one bird passes through a door every 10 seconds (360
birds x 10 seconds/bird = 3,600 seconds or 60 minutes). This
requirement is comparable to a third-party animal welfare standard that
requires five inches of doorway per 100 hens.\76\
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\76\ Global Animal Partnership standards for laying hens require
8 inches for every 100 hens when doors are only open on one side of
the house. When doors are open on both sides of the house, the
standards require 5 inches for every 100 hens. Available at: https://globalanimalpartnership.org/standards/laying-hen/.
---------------------------------------------------------------------------
While AMS is providing a quantitative requirement in the final
rule, the rule also provides flexibility for operations to provide less
exit space, so long as they and their certifier ensure that exit areas
allow all birds to have ready access to outdoor space. AMS is providing
this flexibility because we understand there might be houses that do
not meet the ratio but can demonstrate all birds have ready access to
the outdoors. Because of the wide variety of housing provided by
poultry producers and possible differences in bird behavior between
farms, AMS believes that compliance is best determined by organic
certifying agents during their annual on-site inspections and reviews
of operations. A specific standard will, however, provide a common
reference point for certifying agents to assess compliance with the
outdoor access requirement.
AMS evaluated the standard proposed by commenters for 12 linear
feet of door per 1,000 square feet of poultry house, but AMS determined
this would not be an appropriate metric. Specifically, this requirement
did not scale appropriately for houses of all sizes (due to a non-
linear relationship between the perimeter of an object and the area of
the object). In other words, a large house would have been required to
have more doors than is practical or feasible. Instead, AMS is adopting
a standard for the final rule that relies only on the number of birds
to calculate the necessary door number.
AMS also considered comments that recommended birds not be farther
than 50 feet from an exit door. AMS chose not to adopt this
recommendation because some poultry houses may only provide doors along
one side of the house, and houses can be 50 feet wide or more.\77\
Ultimately, AMS determined that a standard based on the number of birds
in the house would be the most scale-neutral option across the various
housing types using for organic production. The final rule establishes
a standard of one linear foot of exit area per 360 birds. Together with
the requirement in this section (Sec. 205.241(b)(4)) that exit areas
be appropriately distributed and sized, AMS believes this standard is
an appropriate baseline. In the case a producer can demonstrate an
alternative ratio meets the requirement for ready access to the
outdoors, a producer would be in compliance if the certifier accepts
the deviation.
---------------------------------------------------------------------------
\77\ Available at: https://www.nass.usda.gov/Surveys/Guide_to_NASS_Surveys/Ag_Resource_Management/ARMS_Broiler_Factsheet/Poultry%20Results%20-%20Fact%20Sheet.pdf.
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Flooring and Dust Bathing
(Comment) Many comments requested that AMS revise the amount of
solid floor area required in indoor housing with slatted or mesh
floors. Comments asked AMS to lower the minimum required solid floor
area to 15 percent of total floor space (the proposed rule would have
required 30 percent). Comments acknowledged that the proposed 30
percent minimum was an NOSB recommendation but noted that a 15 percent
minimum would be more consistent with current practice in the organic
industry and more consistent with third-party animal welfare standards.
(Response) Solid floor areas provide birds with a space to dust
bathe and scratch. AMS has reduced the minimum amount of solid floor
space from 30 percent to 15 percent in Sec. 205.241(b)(7). AMS agrees
with comments that 15 percent solid floor area will support animal
welfare and the natural behaviors of scratching and dust bathing. The
final rule not only requires that birds will have access to areas
indoors for these activities but also requires that birds have access
to outdoor areas. These outdoor areas will also be available for birds
to express these natural behaviors and to maintain animal health (by
allowing for dust bathing).
(Comment) One commenter requested a higher indoor stocking density
limit
[[Page 75424]]
for mobile housing that provides year-round access to large amounts of
pasture. This commenter also stated that these types of mobile housing
should not be required to provide indoor areas for dust bathing and
scratching, as the outdoor space provides these areas.
(Response) AMS agrees that outdoor areas can provide sufficient
space for birds to engage in natural behaviors such as dust bathing and
scratching. The final rule in Sec. 205.241(b)(6) exempts mobile
housing from the scratching and dust bathing requirements inside of the
house if there is sufficient outdoor space that can provide area for
these behaviors. AMS elects not to change the stocking density
requirements for mobile housing. The final rule permits a higher indoor
stocking density for mobile housing than it does for other housing
systems, except for aviary housing (which provides access to the
vertical space in a house). The maximum stocking density for mobile
housing already considers that birds have greater access to outdoor
space in these systems, so further reduction of space per bird is not
warranted.
Space Requirements
(Comment) Some comments requested that AMS express space
requirements in terms of square feet per bird rather than maximum
pounds of bird per square foot, as AMS proposed. Comments argued this
method for space calculations aligns better with third-party standards
and that calculations would be simpler under this method. Comments
noted that the proposed method (which relies on bird weight) is more
burdensome, as bird weights constantly change, especially when birds
are young, and some producers do not track the weight of their birds.
Comments also stated that requirements based on the weight of birds
could result in an excessive recordkeeping burden and require
additional time to verify at inspections.
(Response) AMS recognizes that verification of compliance could be
simpler in some cases by expressing the space requirements in terms of
square feet required per bird. This may be especially true in cases
where bird weights are not known, or a producer has variously sized
breeds within the flock. Therefore, the final rule offers an
alternative method for calculating space requirements in terms of
minimum required square feet per bird. These calculations will require
producers and certifying agents to know only the number of birds and
the area of the space (indoor or outdoor).
AMS has established the alternative to be equivalent to the space
required for a heavy bird for the type (layer, broiler, or pullet). For
layer standards, AMS assumed a 6.7 lb. bird; for broilers, a 10.0 lb.
bird; and for pullets, a 5.0 lb. bird.\78\ For example, the alternative
of 1.5 square feet per bird (aviary housing) is equivalent to the
requirements for a 6.7 lb. layer at 4.5 lbs. per square foot. Many
producers will comply with the space requirements expressed in these
terms, even though a higher stocking density would likely be allowed by
calculating the weight of birds per square foot. However, the
alternative will simplify the calculations for some producers,
especially smaller producers, and the addition responds to the many
comments that requested a standard expressed as square feet required
per bird.
---------------------------------------------------------------------------
\78\ AMS established the alternative space requirements
(expressed as square feet per bird) by considering the average
weight of breeds, weight of birds at time of sale, relative use of
breeds in the industry, and the standard deviation of weights by
breed.
---------------------------------------------------------------------------
The final rule also retains the proposed rule's space requirements
that are expressed in terms of maximum pounds of bird per square foot.
Producers and certifiers may use either method to demonstrate
compliance; they need not demonstrate compliance with both methods. AMS
provides more extensive discussion of this topic in the above
subsection titled ``Description of Final Policy.''
(Comment) Some commenters believed that AMS should require more
indoor space per bird to reduce crowding. On the other hand, other
commenters believed that less space should be required indoors,
especially for broilers. Many comments on broiler indoor space
requested that AMS raise the stocking density to a maximum of six
pounds per square foot for broilers, rather than the five pounds per
square foot limit set by the proposed rule. Some of these comments also
requested that if the final rule did adopt a standard of five pounds
per square foot, AMS provide a five-year implementation period instead
of the three-year period discussed in the proposed rule. These comments
stated that five years would be necessary to construct new houses and
avoid supply disruption.
(Response) AMS is maintaining the indoor space requirements for the
various housing types, as proposed. For pullets and layers, the indoor
space requirements largely reflect the current industry standard for
organic producers and various third-party humane and animal care
standards. For broilers, AMS anticipated in the proposed rule that
broilers would need to be provided with more space, and the costs
associated with those changes are described in the Regulatory Impact
Analysis for this rule. In acknowledgement of comments that
construction of new poultry houses will require time, AMS is allowing
five years for compliance with the broiler indoor and outdoor space
requirements in the final rule. AMS believes that the stocking
densities established by this rule balance NOSB recommendations, public
input, and industry best practices to establish a reasonable national
standard for organic production and to assure consumers that
organically produced eggs and broilers meet a consistent standard, as
required by OFPA (7 U.S.C. 6501).
(Comment) Some commenters believed that AMS should require more
outdoor space per bird than proposed, while other commenters believed
that less outdoor space could be required. Comments supporting more
outdoor space noted that international organic standards and third-
party certifications require more space per bird, and they asserted
that more space would be necessary to provide animals with vegetation
in outdoor areas. Comments in favor of less outdoor space noted that
all birds do not go outdoors at once, even if large outdoor areas are
provided.
(Response) The final rule maintains the outdoor stocking densities,
as proposed, and added an alternative method for measuring compliance
based on square feet per bird, which avoids the need to weigh birds.
The stocking densities established by this rule balance NOSB
recommendations, public input, and industry best practices to establish
a reasonable baseline for organic production and, in turn, support the
purposes set forth in OFPA, i.e., to assure consumers that organic
products are produced according to a consistent standard (7 U.S.C.
6501). The new standard represents an upward harmonization of outdoor
space requirements under the organic rule while still providing for a
robust organic poultry market.
(Comment) Some comments requested a revision to AMS's discussion on
how to calculate and verify compliance with indoor and outdoor space
requirements. In the proposed rule, AMS described that a producer could
stock a poultry house to exceed minimum space requirements in
anticipation of mortalities that would reduce the number of birds and
eventually increase the space available per bird. Commenters were
concerned that adopting this approach would lead to houses with higher
stocking densities
[[Page 75425]]
and reduce a certifier's ability to enforce the requirements.
(Response) AMS has reconsidered its position and is adopting the
position that a producer must always comply with the minimum standards
established by the final rule. The final rule establishes minimum space
requirements for chickens based on bird type, age, and housing system,
and producers must meet these standards to comply with the rule.
(Comment) Some comments requested that AMS expand the rule to
include minimum requirements for species other than chickens (Gallus
gallus), including turkeys, ducks, and other animals.
(Response) AMS has not added specific minimum space requirements
for species other than chickens in this final rule. The NOSB did not
finalize recommendations for other avian species and AMS did not
propose any such requirements, so AMS is not including minimum space
requirements for other species in the final rule. However, the final
rule includes many requirements that do apply to all avian species in
Sec. Sec. 205.238, 205.241, and 205.242. Similarly, the final rule
includes many requirements that apply to all mammalian and non-avian
species at Sec. Sec. 205.238, 205.239, and 205.242.
Indoor Conditions (Other)
(Comment) Comments asked AMS to clarify that flooring in slatted/
mesh floor poultry houses cannot be included as perch space for layers.
(Response) The slatted floors of some houses are physically similar
to perches, but floor space may not be counted as perch space. In
response to comments, AMS specifies in the final rule at Sec.
205.241(b)(5) that floors in slatted/mesh floor housing cannot be
counted as perch space. Additionally, the definition of perch at Sec.
205.2 describes that a perch is above the floor or ground to clarify
that flooring is not a perch for the purposes of this rule.
(Comment) Some comments objected to AMS's proposed requirements at
Sec. 205.241(b)(12) and Sec. 205.241(c)(7) that describe what may be
considered indoor space and outdoor space. The proposed rule described
that a porch could be included in the calculation of space available.
Some comments argued that AMS should not allow porches to ever count as
outdoor space and that a prohibition of porches as outdoor space would
better fit with the objective of the rule. Another suggested that these
sections brought more confusion than clarity about what should count as
indoor or outdoor space. Others expressed concern that the proposed
rule might allow a producer to reduce both the indoor and outdoor space
provided to birds by claiming porches as both indoor and outdoor space.
Finally, some comments noted the description could cause interpretation
issues for the organic mammalian standards, as some common mammalian
housing structures are roofed with open sides (such as a freestall
barns for dairy cattle) but are considered indoors.
(Response) AMS has revised Sec. 205.241(c)(7) to further clarify
acceptable types of outdoor space. AMS removed the words ``porches and
lean to type [structures]'' from the paragraph to avoid confusion. The
term ``porch'' is not defined by these regulations, and AMS wants to
avoid inconsistent interpretation of the term. The revised language
focuses on what qualifies a structure as outdoor space: (1) the
structure must be unenclosed; and (2) birds must be able to move freely
from the structure to other outdoor areas. A certifier must assess if
an unenclosed roofed structure may be considered outdoor space. AMS
believes this decision is best left to certifiers working in
conjunction with producers and in evaluation of an operation's
practices related to use of these areas. AMS chose to leave the words
``enclosed porches'' at Sec. 205.241(a)(12) because we believe this is
helpful guidance for the industry: in some cases, an area previously
used as a porch might qualify as indoor space. Finally, AMS has updated
the definition of ``outdoors'' in Sec. 205.2 to clarify that enclosed
structures with open sides, such as the freestall barns and hoop barns
commonly used in non-avian production, do not qualify as outdoors.
Outdoor Conditions (Other)
(Comment) Several comments requested an increase in the percentage
of soil required in outdoor space from 50 to 75 percent, stating that a
higher amount of soil is needed to encourage birds to utilize outdoor
space. Commenters also noted that birds may not use the outdoor space
if much of it is concrete, as it may burn their feet in higher
temperature climates. Other commenters suggested that soil be required
within a certain distance from housing exit areas to encourage the use
of outdoor space by birds. Comments ranged from general guidelines to
more specific requests, such as requiring that vegetated and soil areas
should be no farther than 30 feet away from exit doors.
(Response) AMS has revised the outdoor space soil requirement in
Sec. 205.241(c)(2) to better align with commenter and consumer
expectations. The final rule requires that 75 percent of outdoor space
must be soil. AMS elects not to establish specific regulations for how
far away soil and vegetation should be from exit doors. The increase in
percentage of soil cover will encourage the use of outdoor space by
birds without the need for prescriptive distance requirement. The final
rule continues to allow some outdoor areas to not be soil. AMS believes
this allowance is necessary, as some houses may have adjacent non-soil
areas for drainage or to prevent rodents from entering houses. The
allowance for 25 percent non-soil outdoor area also supports producer
efforts and FDA recommendations for preventing rodents in outdoor
areas, such as a 6-foot strip along the periphery of an outdoor area
that is filled with gravel or another non-soil substance.\79\
---------------------------------------------------------------------------
\79\ ``Prevention of Salmonella Enteritidis in Shell Eggs During
Production, Storage, and Transportation (Layers with Access to Areas
Outside the Poultry House): Questions and Answers Regarding the
Final Rule: Guidance for Industry,'' FDA, Center for Food Safety and
Applied Nutrition, August 2022, https://www.fda.gov/media/86276/download.
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(Comment) Many commenters requested that AMS add a requirement in
Sec. 205.241 that producers include ``suitable enrichments'' in
outdoor areas to encourage birds to utilize outdoor space.
(Response) AMS has not added language requiring ``suitable
enrichments'' to encourage the use of outdoor space. Instead, AMS
increased the required amount of soil in outdoor areas to 75 percent.
This change is meant to encourage greater use of outdoor space. AMS
encourages producers to adopt practices that encourage birds to go
outdoors--see Sec. 205.241(c)(1), which require producers to provide
outdoor access at a young age. AMS determined that a requirement for
``suitable enrichment'' in this rule would be difficult to measure or
enforce and could vary greatly from one operation to another.
(Comment) Several comments requested that the definition of outdoor
space be clarified. Specifically, commenters requested a clear
definition of ``maximal vegetative cover,'' arguing that the term
``maximal'' is subjective and that operations located in drought-prone
or water restricted areas have limited ability to ensure maximal
vegetative cover.
(Response) AMS clarifies the requirements for outdoor space by
removing the term ``maximal vegetative cover'' from the vegetation
requirement at 205.241(c)(2). AMS recognizes that ``maximal''
vegetative cover is not
[[Page 75426]]
defined by the rule and varies based on season, climate, geography,
stage of production, etc. The change allows operations flexibility to
meet the vegetation requirement across various conditions and provides
additional clarity of composition of outdoor space.
(Comment) Many commenters requested that the definition of
``pasture pens'' be revised to clarify that floored (e.g., wire mesh)
structures are prohibited, and that animals should be able to move
around and express natural behaviors when inside of pasture pens.
(Response) The definition of ``pasture pens (avian)'' describes
that pasture pens are floorless pens. In response to public comment,
AMS revises the definition of ``pasture pens'' to note that they allow
birds to express natural behaviors. Birds in pasture pens must have
direct access to the ground without intervening floor, including wire
or mesh, so they can scratch, dust bathe, roost (for pullets and
layers), etc. AMS also clarifies that the definition of pasture pens
applies to avian species, as ruminant producers may also use the term
but with a different meaning.
Confinement
(Comment) AMS received many comments related to temporary
confinement of birds due to outdoor temperatures. The proposed rule
would have allowed producers to confine birds for inclement weather,
including when outdoor temperatures are below 40 degrees Fahrenheit or
above 90 degrees Fahrenheit. Many comments requested that AMS reduce
the lower threshold for confinement from 40 degrees to 32 degrees,
arguing that birds would not be harmed by outdoor temperatures in that
range. Other comments requested AMS narrow the temperature for outdoor
access, so outdoor access would only be required for outdoor
temperatures between 60 degrees and 80 degrees, for example. Comments
in favor of a narrower range for outdoor access noted that opening exit
doors on poultry houses would strain ventilation systems, waste fuel
and electricity, increase the litter moisture content (and thereby
increase ammonia levels), and increase deaths due to severe stress.
(Response) AMS has revised the final rule to reduce the low
temperature threshold from 40 degrees to 32 degrees (F) in Sec.
205.241(d)(1). The lower threshold better describes the conditions that
may qualify as ``inclement weather,'' a term that was added to the
organic regulations by a February 2010 final rule (``Access to Pasture
(Livestock),'' 75 FR 7153). The existing term is defined as weather
``characterized by temperatures (high or low) . . . that can cause
physical harm to livestock,'' but it does not specify thresholds for
high or low temperatures that might cause harm. This final rule
provides temperature ranges for avian (not mammalian or non-avian)
livestock to clarify when temporary confinement of birds for heat or
cold is appropriate. For additional discussion on this requirement
please see the Overview of Policy (Sec. 205.241) section above.
AMS is not adopting recommendations from comments to allow
producers to confine animals if temperatures are outside of a narrower
range (e.g., 60-80 degrees). While AMS recognizes that growth or
production may increase when birds are maintained within a narrower
temperature range, existing regulations (see Sec. 205.239(b)(1) and
the definition of ``inclement weather'' at Sec. 205.2) do not permit
confinement for this reason. The final rule seeks to clarify the bounds
of the term to allow producers to confine animals for dangerous
weather, but not misuse that allowance to confine animals for weather
that is less than ideal for production or growth. Neither existing
requirements nor this final rule permit temporary confinement within a
narrow range of temperatures to maximize production yields or growth
rates. The final rule aligns with AMS's intent when AMS added the term
``inclement weather'' to the organic regulations (75 FR 7159). AMS does
not believe that an allowance to confine animals outside a narrow range
would satisfy consumer expectations.
(Comment) Many comments requested that AMS remove language in Sec.
205.241(d)(4) that would have allowed operations to temporarily confine
birds during reseeding of outdoor areas. Comments expressed concern
that this language may enable prolonged confinement, potentially for
the entire life of the animal. One comment stated that the certifying
agent should have the authority to determine if reseeding is the
appropriate course of action for mitigating soil or water quality
issues.
(Response) AMS has removed the phrase ``including to establish
vegetation by reseeding outdoor space'' from Sec. 205.241(d)(4). This
means that operations may not confine birds solely to reseed and
reestablish vegetation in outdoor access areas. Additionally, this rule
prohibits continuous total confinement of poultry indoors (see the
general requirements for avian living conditions at Sec. 205.241(a)).
The rule does permit operations to temporarily confine birds when there
is a risk to soil and water quality. However, this confinement must be
temporary, must be done only to correct a risk to soil and water
quality, cannot be continuous throughout the life of the birds, and is
subject to the certifying agent's review of the operation's management
of outdoor space.
Additional Animal Welfare Requirements
(Comment) Some comments requested that AMS impose additional animal
welfare requirements for broiler production, such as maximum growth
rates and breed requirements (for use of slower growing breeds).
(Response) AMS has not received recommendations from the NOSB
related to this topic and did not include such restrictions in the
proposed rule; therefore, the final rule adopts no additional
requirements on this subject. However, AMS notes that Sec.
205.238(a)(1) requires selection of species and types of livestock that
are suitable for site-specific conditions and resistant to prevalent
diseases and parasites.
Biosecurity and Food Safety
(Comment) Most commenters who discussed poultry biosecurity stated
that increased outdoor access will have negative health outcomes for
birds. Some commenters argued the rule would contradict the U.S. Food
and Drug Administration's protocols requiring producers to prevent
contact with Salmonella enteritidis. In support of the use of porches,
commenters stated that producers use outdoor porches to both provide
outdoor access under the existing standard and help safeguard flocks
from vermin and indigenous birds that can be vectors for diseases.
Comments cited research suggesting outdoor access can subject poultry
to disease. Additionally, some comments suggested that outdoor access
would jeopardize the organic industry's ability to provide safe food. A
few comments asserted that under-utilized or barren outdoor areas could
have a negative impact on pathogen and disease control. They noted that
bare soil can result in dust containing dried fecal matter, which could
be blown into nearby crops and present food safety concerns.
On the other hand, some commenters found that the proposed rule
would support biosecurity and food safety measures, including organic
producers' ability to mitigate biosecurity risks and prevent disease
outbreaks in their organic flocks. These comments argued the rule
aligns with FDA guidance on the Egg Safety Rule,\80\ and referenced
[[Page 75427]]
research indicating that outdoor access can improve bird and flock
health. They argued that outdoor access is not the determining factor
in disease outbreaks and deaths and found the research and scientific
data on the topic to be inconclusive. One commenter noted that
operations are already successfully managing compliance with
biosecurity, food safety, and egg safety requirements. Another noted
that physical alterations provide one way for organic producers to
maintain proper biosecurity for their flocks.\80\ These comments
concluded that outdoor access is still consistent with the Egg Safety
rule.
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\80\ ``FDA Issues Final Guidance for Shell Egg Producers who
Provide Laying Hens with Access to Areas Outside the Poultry
House,'' U.S. Food & Drug Administration, August 2022, https://www.fda.gov/food/cfsan-constituent-updates/fda-issues-final-guidance-shell-egg-producers-who-provide-laying-hens-access-areas-outside-poultry.
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(Response) AMS recognizes the importance of protective measures to
avoid disease outbreaks and contact with Salmonella enteritidis. The
rule includes provisions for strengthening biosecurity and food safety
measures to ensure that organic poultry operations do not put their
flocks at greater risk for exposure or infection. These include
allowing temporary confinement for conditions under which the ``health,
safety, or well-being of the animal could be jeopardized,'' including
for specific disease outbreaks. The rule also requires producers to
manage vegetative areas to mitigate harborage for rodents and other
pests as well as prevent stray poultry, wild birds, cats, and other
animals from entering poultry houses. It allows fencing, netting, or
other materials over all or part of the outdoor areas (provided the
areas are not ``inside of an enclosed building or housing structure,''
which is the definition in Sec. 205.2 of ``indoor space'') to prevent
predators and other wild birds from entering. AMS understands that
biosecurity response is a comprehensive action.
At this time, AMS finds the research is inconclusive regarding the
correlation between outdoor access and decreased food and animal
safety. AMS receives regular updates from APHIS regarding Highly
Pathogenic Avian Influenza (HPAI) and other potential outbreaks. The
USDA website remains a resource for certifying agents seeking
information on HPAI detection. Additionally, AMS may provide future
guidance to clarify the Agency's expectations in the event of diseases
or threats. Ultimately, AMS recognizes that meaningful outdoor access
is fundamental to the organic regulations and is expected by the
market. This rule allows organically raised birds room to express
natural behaviors and advances OFPA's purpose of creating consistent
organic standards.
E. Transport and Slaughter (Sec. 205.242)
Description of Final Policy
AMS has added a new section to the organic regulations at Sec.
205.242 titled ``Transport and slaughter'' to address the care of
organic animals during transport and throughout the slaughter process,
including care prior to slaughter and methods of slaughter. Section
205.242 is divided into three subsections: transportation, mammalian
slaughter, and avian slaughter.
The changes are made in response to a December 2011 NOSB
recommendation \81\ and public comments received in response to the
August 2022 OLPS proposed rule, under AMS's authority to promulgate
standards ``for the care of livestock'' (7 U.S.C. 6509(d)(2)). AMS
understands that ``care of livestock'' is relevant up to the time of
slaughter and that some practices during transport and/or slaughter
should affect an animal's organic certification. Once an animal is
killed, existing organic regulations for handling organic products
become relevant for the processing, packaging, and sale of organic
animal products. The requirements of this rule apply to the care of
live animals.
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\81\ https://www.ams.usda.gov/sites/default/files/media/NOP%20Livestock%20Final%20Rec%20Animal%20Handling%20and%20Transport%20to%20Slaughter.pdf.
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Transport Requirements (Sec. 205.242(a))
The December 2011 NOSB recommendation noted that additional
regulations for the transport and slaughter of organic animals were
appropriate to assure consumers that animal products sold as organic
are produced with ``a high level of animal welfare'' and organic
operations ``avoid animal mistreatment on the farm, during transport
to, or at the slaughter plant.'' \82\ The NOSB noted that their
recommended regulatory language reflects third-party animal welfare
certification standards and common practices within the industry. The
NOSB also specifically recommended that AMS adopt the ``necessary''
requirements from their recommendation to avoid increasing paperwork
burden or certification costs and to encourage small slaughter plants
to seek or maintain organic certification.
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\82\ Formal Recommendation by the National Organic Standards
Board (NOSB) to the National Organic Program. December 2, 2011.
https://www.ams.usda.gov/sites/default/files/media/NOP%20Livestock%20Final%20Rec%20Animal%20Handling%20and%20Transport%20to%20Slaughter.pdf.
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AMS agrees that additional requirements are appropriate to cover
the time period(s) during which organic livestock are transported and
slaughtered. As noted above, products sold as organic must be managed
and processed in accordance with detailed organic regulations. AMS
believes that it is appropriate to clarify the requirements for
transport and slaughter in the organic regulations. This final rule
seeks to minimize paperwork burden and increases in certification
costs, when possible, by referring to existing regulations and laws
that apply to transport and slaughter. However, some specific
requirements that were recommended by the NOSB and not already detailed
in existing regulations and laws are also included.
Section 205.242(a)(1) requires that organic animals are clearly
identified during transport but provides flexibility on how the
identity is maintained during transport. Section 205.242(a)(2) sets
minimum fitness requirements for livestock to be transported to buyers,
auction facilities, or slaughter facilities. Limiting the scope of the
requirements to these destinations means the regulation does not limit
transport on the farm where the animal is managed. Section
205.242(a)(2)(i) requires that calves have a dry navel cord and the
ability to stand and walk without assistance before they are
transported to buyers, auction facilities, or slaughter facilities.
Section 205.242(a)(2)(ii) prohibits transport of seriously crippled
and non-ambulatory animals to buyers, auction facilities, or slaughter
facilities. These animals must be treated until their health condition
improves and they can walk (i.e., they are ambulatory), or if an
animal's recovery is not possible, it may be euthanized (see also Sec.
205.238(c)(7) and (8), and Sec. 205.238(e)).
Sections 205.242(a)(3) and (4) set minimum standards for the
trailer, truck, shipping container, or other mode used for transporting
organic livestock. The mode of transportation must provide seasonally
appropriate ventilation to protect livestock against cold or heat
stress. This provision requires that air flow be adjusted depending on
the season and temperature. In addition, bedding is required to be
provided on trailer floors and in holding pens as needed to keep
livestock clean, dry, and comfortable. AMS recognizes that in some
cases keeping clean and dry bedding is impossible or even unsafe;
therefore, use of bedding must be appropriate to the species and type
of transport. If
[[Page 75428]]
roughage is used as bedding, the bedding needs to be organically
produced and handled. Bedding is not required for poultry crates.
Section 205.242(a)(5) requires an operation to describe how organic
management and animal welfare will be maintained for transport that
exceeds eight hours, measured from the time all animals are loaded onto
a vehicle until the vehicle arrives at its final destination. This may
include arrangement for water and organic feed. AMS also finds that an
eight-hour transportation threshold better aligns with transportation
time limits established by third-party animal welfare standards.
Section 205.242(a)(6) requires that operations transporting
livestock to sale or slaughter have emergency plans in place that
adequately address problems reasonably possible during transport. Such
emergency plans could include how animal welfare would be maintained,
what to do if livestock escape during transport, or how to euthanize an
animal injured during transport. Shipping and/or receiving operations
are also required to include these plans in their OSPs.
Slaughter and the Handling of Livestock in Connection With Slaughter
(Sec. 205.242(b))
The requirements regarding slaughter and the handling of livestock
in connection with slaughter are governed by separate authority
applicable to both certified organic and non-organic livestock
products. This final rule reiterates that compliance with these
regulations, as determined by FSIS, is required for certified organic
livestock operations. The requirements defer, in large part, to
existing regulations and law while also aiming to ensure that USDA-
accredited certifying agents have access to relevant records. The rule
seeks to avoid undue burden on certified organic slaughter facilities,
as undue burden could have the effect of reducing the availability of
certified organic slaughter facilities. Section 205.242(b) regarding
mammalian slaughter clarifies the authority of AMS, certifying agents,
and State organic programs to review records related to humane handling
and slaughter issued by the controlling national, federal, or state
authority, and records of any required corrective actions if certified
operations are found to have violated FSIS regulations governing the
humane handling of mammalian livestock in connection with slaughter.
(Note that AMS has separated mammalian from avian slaughter
requirements due to the differences in how they are handled and
slaughtered). This new subsection (Sec. 205.242(b)), titled
``Mammalian slaughter,'' governs mammals defined as ``livestock'' or
``exotic animals'' under the FSIS regulations. Under the FSIS
regulations, ``livestock'' are cattle, sheep, swine, goat, horse, mule,
or other equines. ``Exotic animals'' include antelope, bison, buffalo,
cattalo, deer, elk, reindeer, and water buffalo. These regulations
govern the handling and slaughter of most mammalian animals used for
food in the United States and apply to all operations that slaughter
these animals.
Section 205.242(b)(1) requires certified organic slaughter
facilities to be in full compliance, as determined by FSIS, with the
Humane Methods of Slaughter Act (HMSA) of 1978 (7 U.S.C. 1901 et seq.)
and FSIS's implementing regulations. The HMSA requires that humane
methods be used for handling and slaughtering livestock and defines
humane methods of slaughter. In the HMSA, Congress found ``that the use
of humane methods in the slaughter of livestock prevents needless
suffering; results in safer and better working conditions for persons
engaged in the slaughtering industry; brings about improvement of
products and economies in slaughtering operations; and produces other
benefits for producers, processors, and consumers which tend to
expedite an orderly flow of livestock and livestock products in
interstate and foreign commerce'' (7 U.S.C. 1901). The HMSA is
referenced in the Federal Meat Inspection Act (FMIA) at 21 U.S.C. 603
and 21 U.S.C. 610(b), and is implemented by FSIS humane handling and
slaughter regulations found at 9 CFR parts 309 and 313. The FMIA
provides that, for the purposes of preventing inhumane slaughter of
livestock, the Secretary of Agriculture will assign inspectors to
examine and inspect the methods by which livestock are slaughtered and
handled in connection with slaughter in slaughtering establishments
subject to inspection (21 U.S.C. 603(b)).
All establishments that slaughter livestock, which include any
certified organic operations that slaughter livestock, must meet the
humane handling and slaughter requirements the entire time they hold
livestock in connection with slaughter. FSIS provides for continuous
inspection in livestock slaughter establishments, and inspection
program personnel verify compliance with the humane handling
regulations during each shift that animals are slaughtered, or when
animals are on site, even during a processing-only shift. The
regulations at 9 CFR part 313 govern the maintenance of pens,
driveways, and ramps; the handling of livestock, focusing on their
movement from pens to slaughter; and the use of different stunning and
slaughter methods. Notably, FSIS inspection program personnel verify
compliance with the regulations at 9 CFR part 313 through the
monitoring of many of the same parameters proposed by the NOSB in 2011,
including prod use, slips and falls, stunning effectiveness, and
incidents of egregious inhumane handling.\83\ The regulations at 9 CFR
part 309 govern ante-mortem inspection and ensure that only healthy
ambulatory animals are slaughtered, and that non-ambulatory animals are
euthanized and disposed of promptly. FSIS has a range of enforcement
actions available regarding violations of the humane slaughter
requirements for livestock, including noncompliance records, regulatory
control actions, and suspensions of inspection.
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\83\ FSIS Directive 6900.2, Revision 2, Humane Handling and the
Slaughter of Livestock, August 15, 2011.
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Further, FSIS encourages livestock slaughter establishments to use
a systematic approach to humane handling and slaughter to best ensure
that they meet the requirements of the HMSA, FMIA, and implementing
regulations.\84\ With a systematic approach, establishments focus on
treating livestock in such a manner as to minimize excitement,
discomfort, and accidental injury the entire time they hold livestock
in connection with slaughter. Establishments may develop written animal
handling plans and share them with FSIS inspection program personnel.
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\84\ Humane Handling and Slaughter Requirements and the Merits
of a Systematic Approach to Meet Such Requirements, FSIS, 69 FR
54625, September 9, 2004.
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AMS added a new section (Sec. 205.242(b)(2)) for those certified
organic facilities that slaughter exotic animals and voluntarily
request FSIS inspection. FSIS also provides, upon request, voluntary
inspection of certain exotic animal species on a fee-for-service basis
under the authority of the Agricultural Marketing Act of 1946. FSIS
regulates the humane handling of the slaughter of exotic animals under
the regulations at 9 CFR 352.10, which require that exotic animals be
slaughtered and handled in connection with slaughter in accordance with
the requirements for livestock at 9 CFR part 309 and 9 CFR part 313.
Violation of these regulations can result in a denial of service by
FSIS.
Section 205.242(b)(3) requires that all certified organic slaughter
facilities provide any FSIS noncompliance
[[Page 75429]]
records or corrective action records relating to humane handling and
slaughter to certifying agents during inspections or upon request. Not
all violations of FSIS regulations result in a suspension of FSIS
inspection services. In some cases, FSIS will issue a noncompliance
record, and the slaughter facility must perform corrective actions to
bring the slaughter facility back into compliance. Operations must
provide these records to certifying agents during inspection or upon
request so that the certifying agent may verify that the slaughter
facility is in compliance and has taken all corrective actions. If
records reveal that an organic operation had not taken corrective
actions required by FSIS within the time period allowed by FSIS, the
certifying agent may initiate actions to suspend the facility's organic
certification. While this action would be separate from any FSIS
actions, it would impact the facility's capacity to handle organic
animals.
In addition, AMS recognizes that in the United States, some
slaughter facilities are regulated by the State for intra-state meat
sales. In foreign countries, foreign governments may be the appropriate
regulatory authority for humane slaughter inspections. In all cases,
operations must provide the relevant humane slaughter noncompliance
records and corrective action records to certifying agents during the
inspections or upon request.
Slaughter and the Handling of Poultry in Connection With Slaughter
(Sec. 205.242(c))
The final rule addresses avian slaughter facilities at Sec.
205.242(c). Section 205.242(c)(1) clarifies the authority of AMS,
certifying agents, and State organic programs to review noncompliance
records related to the use of good commercial practices in connection
with slaughter issued by the controlling national, federal, or state
authority, and records of subsequent corrective action if certified
operations are found to have violated the Poultry Products Inspection
Act (PPIA) requirements regarding poultry slaughter, violated the FSIS
regulations regarding the slaughter of poultry, or failed to use good
commercial practices in the slaughter of poultry, as determined by
FSIS. Under the PPIA and the FSIS regulations, poultry are defined as
chickens, turkeys, ducks, geese, guineas, ratites, and squabs. These
species constitute most avian species slaughtered for human food in the
United States. However, the organic standards for avian slaughter apply
to all species biologically considered avian or birds. The NOSB did not
directly address avian slaughter requirements. However, AMS added avian
slaughter requirements for consistency with the new mammalian slaughter
requirements and to provide consistent slaughter requirements for
certified organic operations.
While the HMSA does not apply to poultry, under the PPIA at 21
U.S.C. 453(g)(5), a poultry product is considered adulterated if it is
in whole, or in part, the product of any poultry that has died by means
other than slaughter. FSIS regulations, in turn, require that poultry
be slaughtered in accordance with good commercial practices in a manner
that will result in thorough bleeding of the poultry carcass and will
ensure that breathing has stopped before scalding (9 CFR 381.65(b)).
Compliance with applicable FSIS Directives, as determined by FSIS, are
required under the rule.
In a 2005 Federal Register Notice, FSIS reminded all poultry
slaughter establishments that live poultry,
. . . must be handled in a manner that is consistent with good
commercial practices, which means they should be treated humanely.
Although there is no specific federal humane handling and slaughter
statute for poultry, under the PPIA, poultry products are more likely
to be adulterated if, among other circumstances, they are produced from
birds that have not been treated humanely, because such birds are more
likely to be bruised or to die other than by slaughter.\85\
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\85\ Treatment of Live Poultry before Slaughter, FSIS, 70 FR
56624, September 28, 2005.
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FSIS also suggested in this Notice that poultry slaughter
establishments consider a systematic approach to handling poultry in
connection with slaughter. FSIS defined a systematic approach as one in
which establishments focus on treating poultry in such a manner as to
minimize excitement, discomfort, and accidental injury the entire time
that live poultry is held in connection with slaughter. Although the
adoption of such an approach is voluntary, it would likely better
ensure that poultry carcasses are unadulterated.
FSIS inspection program personnel verify that poultry slaughter is
conducted in accordance with good commercial practices in the pre-scald
area of slaughter establishments, where they observe whether
establishment employees are mistreating birds or handling them in a way
that will cause death or injury, prevent thorough bleeding, or result
in excessive bruising. Examples of noncompliant mistreatment could
include breaking the legs of birds to hold the birds in the shackle,
birds suffering or dying from heat exhaustion, and breathing birds
entering the scalder.\86\ Also, in 2015, FSIS issued specific
instructions to inspection program personnel for recording
noncompliance with the requirement for the use of good commercial
practices in poultry slaughter.\87\
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\86\ FSIS Directive 6100.3, Revision 1, Ante-Mortem and Post-
Mortem Poultry Inspection, April 30, 2009.
\87\ FSIS Notice 07-15, Instructions for Writing Poultry Good
Commercial Practices Noncompliance Records and Memorandum of
Interview Letters for Poultry Mistreatment, January 21, 2015.
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Section 205.242(c)(2) requires that all certified organic slaughter
facilities provide, during the annual organic inspection, any FSIS
noncompliance records and corrective action records related to the use
of good commercial practices in the handling and slaughter of poultry
in order to determine that slaughter facilities have addressed any
outstanding FSIS noncompliances and are in good standing with FSIS. Not
all violations of FSIS regulations result in a suspension of inspection
services. In some cases, FSIS will issue a noncompliance record, and
the slaughter facility must perform corrective actions to bring the
slaughter facility back into compliance. The operation must provide
these records to the certifying agent at inspection or upon request so
that the certifying agent may verify that the slaughter facility is
operating in compliance with FSIS regulations and is addressing/has
addressed all corrective actions. If records revealed that an organic
operation had not taken corrective actions required by FSIS within the
time period allowed by FSIS, the certifying agent could initiate
actions to suspend the facility's organic certification. While this
action would be separate from any FSIS actions, it would impact the
facility's capacity to handle organic animals. In addition, AMS
recognizes that some poultry slaughter facilities in the United States
are regulated by the State for intra-state poultry sales. In foreign
countries, foreign governments may be the appropriate regulatory
authority for poultry slaughter inspections. In all cases, operations
must provide the relevant noncompliance records and corrective action
records to the certifying agent during inspections or upon request.
Exemptions from poultry slaughter inspection exist for some poultry
that is going to be sold to the public. The PPIA exempts from
continuous inspection some establishments that slaughter poultry based
on various factors, such as
[[Page 75430]]
volume of slaughter and the nature of operations and sales. This
includes persons custom slaughtering and distributing from their own
premises directly to household consumers, restaurants, hotels, and
boarding houses, for use in their own dining rooms, or in compliance
with religious dietary laws (21 U.S.C. chapter 10).
AMS added handling and slaughter standards for such poultry that is
either exempt from or not covered by the inspection requirement of the
PPIA. These requirements serve to establish a consistent and basic
standard for the humane handling of organic poultry, regardless of an
operation's size or method of sales. Specifically, Sec.
205.242(c)(3)(i) prohibits hanging, carrying, or shackling any lame
birds by their legs. Birds with broken legs or injured feet may suffer
needlessly if carried or hung by their legs. Such birds are required to
either be euthanized or made insensible before being shackled. AMS also
added Sec. 205.242(c)(3)(ii) to require that all birds hung or
shackled on a chain or automated slaughter system must be stunned prior
to exsanguination (bleeding). This requirement for stunning prior to
exsanguination only applies to producers who shackle birds on a chain
or automated system; therefore, it does not prohibit the practice more
common among small-scale producers of placing the birds in killing
cones before bleeding them without stunning. Additionally, this
requirement does not apply to religious slaughter establishments (e.g.,
Kosher or Halal slaughter facilities), who are required to meet all the
humane handling regulatory requirements except stunning prior to
shackling, hoisting, throwing, cutting, or casting. Finally, Sec.
205.242(c)(3)(iii) requires that all birds be irreversibly insensible
prior to being placed in the scalding tank.
Changes From Proposed to Final Rule
AMS has made several changes to the regulatory text of the OLPS
proposed rule when writing this final rule. Changes to the final rule
are discussed below and are followed by specific topics and themes from
public comment.
In the transport fitness requirements in Sec.
205.242(a)(2)(ii), AMS added that ``seriously crippled'' animals, in
addition to ``non-ambulatory'' animals, must not be transported for
sale or slaughter. This language is commonly used by the industry and
prevents the inhumane and potentially unsafe slaughter of unwell
animals that are still able to move.
To provide greater flexibility in transport, AMS added to
Sec. 205.242(a)(4) that ``Use of bedding must be appropriate to the
species and type of transport.'' This change addresses public comment
concerns about keeping clean, dry bedding and potential animal safety
concerns.
AMS removed the requirement to always provide feed and
water after 12 hours of transport. The final rule includes a general
requirement that operations must describe how they maintain organic
management and animal welfare when transport time exceeds 8 hours. This
time period better aligns with third-party animal welfare
certifications. Additionally, AMS added the phrase ``measured from the
time all animals are loaded onto a vehicle until the vehicle arrives as
its final destination'' to clarify that transport time does not include
onloading and offloading, which commenters noted could take three to
four hours.
AMS removed specific reference to FSIS Directives 6100.3
and 6910.1 at Sec. 205.242(c)(1), as newer versions of these
Directives could someday supersede these Directives. Instead, the final
rule requires that slaughter operations comply with ``applicable FSIS
Directives.''
In response to public comment, AMS replaced in Sec.
205.242(c)(3)(ii) the term ``ritual slaughter'' with ``religious (or
ritual) slaughter'' and exempted this method of slaughter from some
requirements.
Responses to Public Comment
AMS received many public comments from stakeholders across the
organic industry discussing this section of the proposed rule. The
majority of comments generally supported AMS's proposed revisions. Many
commenters requested further clarification of the proposed changes,
particularly regarding the requirement for feed and water after 12
hours of transport and verification of compliance with slaughter
requirements.
Transport Time and Water and Organic Feed Requirements
(Comment) AMS received many comments stating that it would be very
difficult to meet the proposed requirement to provide water and organic
feed if transport time exceeded 12 hours. Commenters noted that
transport times could exceed 12 hours due to unforeseen circumstances
such as weather, natural disasters, traffic, and equipment breakdown.
Comments discussed the practical challenges of stopping and offloading
animals to provide them with water and feed en route to a destination.
For example, these comments noted the challenge of locating and
accessing a certified organic stopping point to unload and feed
livestock. They also noted that offloading animals after crossing state
lines would activate other federal requirements such as FSIS testing.
Commenters also discussed the potential added stress that stopping and
unloading (and reloading) could cause animals compared to continuous
transportation to the destination. Other comments noted that loading
and unloading could take up to four hours and that a 12-hour limit
would only allow for 8 hours of transport. Some commenters recommended
changing the time threshold to align with the standards of third-party
certification labels while others requested a prohibition on all
transport beyond a specific time cap.
Another comment stated that the time restriction would result in
sourcing lesser quality pullets for their operation, which could
potentially reduce production and/or increase costs. Some commenters
stated that this requirement could disproportionately impact small-
scale producers and would not be neutral in terms of scale or
geographic location. Comments also noted that the 12-hour feed
requirement would conflict with slaughter requirements to not feed 24
hours prior to slaughter. Several comments from certifiers, organic
livestock producers, and a trade association requested that the rule
not prescribe feed and water during transport but require operations to
demonstrate organic management and animal welfare, which may include
feed and water.
(Response) AMS agrees that the proposed water and organic feed
requirement may be difficult for some operations to meet. To provide
greater flexibility for certified operations, the final rule removes
the specific requirement in Sec. 205.242(a)(5) for water and organic
feed when transportation exceeds 12 hours. Instead, livestock
operations must explain in their OSP how they will maintain organic
management and animal welfare if transport time exceeds eight hours.
AMS agrees with commenters that this eight-hour threshold better aligns
with existing third-party animal welfare standards. To address
commenters' concerns about loading time, AMS has also clarified that
transport time is measured from the time all animals are loaded onto a
vehicle until the vehicle arrives at its final destination. AMS
understands that some certifying agents already require livestock
operators to explain in their OSP how they will
[[Page 75431]]
provide feed and water if traveling over 12 hours. Under this rule, AMS
expects operators to explain in their OSP how they will maintain
organic management and animal welfare, which may include descriptions
of access to feed and water. Certifying agents and inspectors may use
this information to assess whether the management plans satisfy this
rule's requirements to maintain animal welfare during transport. AMS
agrees with commenters that providing feed and water are examples of
how an operation may maintain animal welfare, but the rule does not
explicitly require the provision of feed and water to alleviate the
challenges described above.
(Comment) Some commenters noted that day-old chicks, which do not
require additional feed since they have an absorbed yolk sac, often
travel more than 12 hours from the hatchery to the final destination.
Furthermore, commenters stated that providing chicks feed and water
would be especially burdensome as well as time-consuming and requested
AMS exempt day-old chicks from the requirement.
(Response) AMS acknowledges that day-old chicks are sustained by
their yolk sac and do not require feed or water for extended time
periods. While most day-old chicks are not organic (organic management
of poultry is required no later than the second day-of-life at Sec.
205.236), AMS recognizes that some chicks are certified organic and can
travel for 12 hours or more without feed and water. The final rule does
not require feed or water during transport. Instead, operations must
``describe how organic management and animal welfare will be
maintained'' during transport. As for all species and types of
livestock, an operation should describe in its OSP how it ensures the
welfare of day-old chicks during transport, which may include feed and
water.
Fitness for Transport
(Comment) Several comments requested clarification and additional
criteria regarding an animal's fitness for transport. They asked AMS to
add categories of animals that should not be transported, such as
newborn, pregnant, and recently calved animals. Others asked AMS to
align the rule with international transport fitness standards or third-
party animal welfare standards.
(Response) AMS recognizes commenters' request for additional
clarify on an animal's fitness for transport. The final rule states
that ``all livestock must be fit for transport.'' The rule also
addresses transport of young or newborn calves in at Sec.
205.242(a)(2)(i): ``calves must have a dry navel cord and be able to
stand and walk without human assistance.'' Additionally, AMS added the
term ``seriously crippled'' to Sec. 205.242(a)(2)(ii) to clarify that
seriously crippled and non-ambulatory animals must not be transported
for sale or slaughter. Seriously crippled is a commonly used and
understood industry term that will help operations and certifying
agents understand the scope of fitness for transport. AMS acknowledges
some commenters' desire for the rule to align with more prescriptive
third-party animal welfare standards. However, AMS believes that the
current regulatory text is sufficient to ensure the humane transport of
organic livestock, while also providing operations with necessary
flexibility to meet the standard.
Bedding in Transport
(Comment) Several comments discussed the proposed rule's
requirement to use bedding during transport. Some comments expressed
concern that it may be difficult, impossible, or even dangerous (e.g.,
slip risk for livestock) to provide bedding in some situations. Others
pointed out that operations need flexibility to use bedding in a way
that is appropriate to the type of livestock and transport. Others
mentioned that ``clean'' bedding is subjective and may not be necessary
or feasible given the variability of transport time, transport type,
and number and type of livestock.
(Response) AMS recognizes that in certain circumstances, bedding is
not ideal for trailer transport and that, in some cases, keeping clean,
dry bedding is impossible or even unsafe (e.g., slip risk for certain
animals). Therefore, the final rule allows for flexibility by requiring
that bedding must be provided ``as needed'' and ``as appropriate to the
species and type of transport.'' This will allow operations to provide
bedding that is beneficial to animal welfare but also appropriate to
the type of livestock and transport, reducing undue burden and possible
risk to livestock.
Emergency Plans
(Comment) A few comments requested clarification on the conditions
under which an emergency plan is required and how certifying agents
should evaluate such plans.
(Response) The final rule requires emergency plans to address
animal welfare problems that may occur during transport. Such emergency
plans must describe how animal welfare will be maintained in
emergencies, such as what to do if livestock escape during transport,
or how to euthanize an animal injured during transport. Shipping and/or
receiving operations must also have these emergency plans. Like all
other applicable production and handling requirements in subpart C of
the organic regulation, operations should describe their emergency
plans in their OSP. To evaluate if an operation's emergency plans
comply with the rule, certifying agents should review this part of the
OSP and verify its use during on-site inspection.
Identification of Livestock in Transport
(Comment) Several commenters noted that some operations may not
currently meet the proposed requirement in Sec. 205.242(a)(1) that
animals be clearly identified during transport and asked AMS to
consider removing this requirement.
(Response) AMS is retaining this requirement in the final rule
because identification and traceability of all organic agricultural
products, including livestock, is necessary to maintain traceability
within supply chains and demonstrate organic integrity. The organic
regulations require all certified operations to include audit trail
documentation for the organic products they handle (Sec.
205.103(b)(3)). Audit trail documentation includes records that are
``sufficient to determine the source, transfer of ownership, and
transportation of any agricultural product labeled as [organic]'' (see
definition of audit trail at Sec. 205.2).
Additionally, operations are already required to ``maintain records
sufficient to preserve the identity of all organically managed animals,
including . . . transitioned animals'' (Sec. 205.236(c)). This
includes preserving the identity of organic livestock during transport.
Therefore, this rule's requirement to clearly identify and trace
organic livestock during transport reinforces existing recordkeeping
and traceability requirements, which are vitally important to
maintaining and demonstrating the integrity of organic livestock.
Recordkeeping and Compliance
(Comment) One commenter argued that it is difficult to precisely
track and record exact times that livestock spend in transit and that
it is burdensome for livestock transporters to complete additional
recordkeeping to verify that animals have been in transit for less than
12 hours.
(Response) AMS revised Sec. 205.242(a)(5) to no longer require
feed and water when transport time exceeds 12 hours. Instead, this
section requires that operations describe in their OSP how organic
management and animal welfare will be maintained during
[[Page 75432]]
transport that is longer than eight hours. Because this change requires
operations to plan and prepare for long transport times, rather than
precisely track and record transport times, AMS does not believe this
requirement will add repetitive recordkeeping burden for operations or
transporters.
(Comment) Several commenters were concerned that the rule's limit
on transport times may conflict with U.S. Department of Transportation
(DOT) Federal Motor Carrier Safety Administration's ``hours of
service'' regulations and/or the Twenty-Eight Hour Law, which requires
that animals transported for 28 consecutive hours must be offloaded for
at least five consecutive hours to get feed, water, and rest.\88\
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\88\ 49 U.S.C. 80502.
---------------------------------------------------------------------------
(Response) After reviewing the appropriate DOT regulations and law,
AMS does not believe that the rule's requirements conflict with other
statutes or regulations pertaining to transport of organic livestock.
The rule requires that operations describe in their OSP how organic
management and animal welfare are maintained when transport time
exceeds eight hours. Because the rule requires operations to plan and
prepare for long transport times, rather than precisely track and
adhere to transport times, this requirement does not pose a compliance
conflict with the Twenty-Eight Hour Law and does not interfere with a
driver's ability to comply with the DOT Hours of Service regulations.
Operations transporting organic livestock must still comply with the
Twenty-Eight Hour Law and any other applicable livestock transport
statute or regulation.
Other Statutory and Regulatory Slaughter Requirements
(Comment) Several comments expressed concern that the rule's
reference to other statutes and regulations in Sec. 205.242(b) and (c)
would require certifying agents to verify and enforce requirements
beyond the scope of organic production and handling. Other commenters
asked how certifying agents should initiate actions to suspend a
facility's organic certification if slaughter records reveal that an
operation has not taken corrective actions required by FSIS.
(Response) The rule requires that operations comply with other
statutory and regulatory requirements related to the humane slaughter
of livestock. AMS chose to reference these existing requirements
because operations are already following these requirements. This
prevents undue burden for operations to understand and comply with
additional slaughter requirements unique to organic production and
handling.
Certifying agents and organic inspectors are not expected to
determine an organic slaughter facility's compliance with these laws
and regulations, as that is the responsibility of government regulatory
authorities such as FSIS. However, organic slaughter facilities must
provide records of noncompliance and corrective actions that resulted
from FSIS regulatory and enforcement action. These FSIS records are a
valuable source of additional information that certifying agents can
use to determine an operation's compliance with the organic regulation
and this rule's animal welfare requirements.
Medical Treatment and Humane Euthanasia Linked To Transport and
Slaughter
(Comment) One comment noted that Sec. 205.242(a)(2)(ii) requires
medical treatment or euthanasia prior to transport but does not
explicitly require this upon arrival at a slaughter facility.
(Response) Although the rule does not explicitly require medical
treatment and euthanasia at this point, the rule more generally
requires that certified operations provide humane medical treatment and
appropriate use of euthanasia at all times (see Sec. 205.238(a), (b),
and (e)). In this case, the certified slaughter facility, upon
receiving a sick or injured animal, is responsible for that animal's
welfare and must provide the appropriate medical treatment or humanely
euthanize the animal.
F. Implementation and Compliance Dates for the Final Rule
In the proposed rule, AMS requested public comments on the most
appropriate and feasible implementation approach for the final rule.
AMS also proposed timeframes for various aspects of the rule and
specifically requested comments on two implementation options, namely 5
years or 15 years, for the outdoor space requirements for layer
operations. AMS also invited comments on implementation timelines other
than those proposed by AMS.
For the final rule, AMS selected an implementation approach that
requires compliance with the final rule as described below.
Implementation or compliance dates are calculated from the effective
date of the final rule; the specific dates that correspond with the
descriptions below are listed in the DATES section at the beginning of
this document.
Certified operations must comply with the requirements of the final
rule within one (1) year from the effective date, except:
(a) Organic broiler operations already certified or certified
within one year following the effective date of the final rule have an
additional four years (i.e., five years from the effective date) to
comply with the indoor and outdoor stocking density requirements for
broilers in Sec. Sec. 205.241(b)(10) and (c)(6), and the outdoor space
requirements related to soil and vegetation in Sec. 205.241(c)(2).
(b) Organic layer operations already certified or certified within
one year following the effective date of the final rule have an
additional four years (i.e., five years from the effective date) to
comply with the outdoor space requirements for layers concerning
outdoor stocking density, soil, and vegetation in Sec. Sec.
205.241(c)(2) and (4)-(5).
(c) Organic avian operations already certified or certified within
one year following the effective date of the final rule have an
additional four years (i.e., five years from the effective date) to
comply with the applicable exit area requirements for avian operations
in Sec. 205.241(b)(4).
Operations applying for organic certification more than one year
after the rule's effective date will need to comply with all the rule's
requirements to become certified organic. AMS discusses and responds to
public comments received on implementation of the final rule below.
Response to Public Comment: Implementation for Layer Operations
(Comment) AMS received many public comments about the
implementation timeline for the outdoor requirements for layer
operations, including many that supported alternative implementation
timeframes (not Option 1 or Option 2 proposed by AMS). The majority of
those commenters requested the shortest timeline possible--either an
immediate implementation or a one-year implementation period. Nearly
all comments argued that 15 years would be an excessively long
implementation period for the final rule. Commenters stated that
producers are already familiar with the proposed requirements and that
consumers should not need to wait for products to meet their
expectations. Commenters pointed out that many organic producers
already comply with OLPS's outdoor access standards, as they have
understood those standards to be what was intended in the existing
organic regulations. They
[[Page 75433]]
felt it would be unfair to allow non-compliant producers 15 more years
to benefit from cheaper production systems. Other comments noted that
producers should have expected the requirements because of the
regulatory history of the rule. Comments also emphasized the widespread
support of the proposed rule and noted an immediate need to remedy the
imbalance in the marketplace.
Several comments wrote in support of the five-year implementation
option (Option 1) for outdoor requirements for layer operations. These
comments generally supported swift implementation, with many indicating
that five years should be the maximum amount of time that AMS allows
for producers to comply with the final rule. Many comments also stated
that extending implementation of this rule past five years would erode
trust in the organic label and contribute to further market failure.
(Response) Despite the broad popularity of an implementation period
shorter than Option 1 (e.g., immediate or one-year period), AMS has
determined that the most appropriate implementation period for the
outdoor space requirements for layer operations is five years. The
Regulatory Impact Analysis that accompanies this final rule reflects
this timeframe for the purposes of calculating the costs and benefits
of this rule. AMS recognizes that a very brief implementation period
would most quickly resolve the widely divergent outdoor layer practices
that currently exist among organic layer operations. However, some
currently certified organic operations will need to acquire land, build
new facilities, and transition nonorganic land to organic production to
meet the requirements of the final rule. Many of the comments favoring
longer implementation periods highlighted these costs or the ability to
recoup costs as a reason to allow for more time.\89\ AMS estimates that
up to 70% of production will need to modify facilities or exit.\90\
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\89\ For example see: https://www.regulations.gov/comment/AMS-NOP-21-0073-29374; https://www.regulations.gov/comment/AMS-NOP-21-0073-27673.
\90\ Because larger operations, like aviaries, tend to use
porches, the level of production using porches is higher than the
number of producers. Originally AMS had estimated this to be
approximately 90%, but industry feedback during the OLPP rulemaking
process stated that it was closer to 70% with the three other
practices being about equal in the marketplace. However, during the
OLPS Proposed Rule comment period, the only information AMS
identified related to the number of operations with porches would
indicate less than 37.7% of production has porches. See: https://www.regulations.gov/comment/AMS-NOP-21-0073-39082.
See the RIA for more information.
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Because of these costs, AMS has determined that allowing currently
certified organic layer operations (and operations obtaining
certification within one year of the effective date) five years from
the effective date to comply with the final rule is warranted and
appropriate and would not cause excess burden. AMS also recognizes that
some businesses will require capital to meet the requirements of the
final rule, and time is required to adjust business and operational
practices. The final rule adopts a five-year implementation for layer
operations because AMS believes it fulfills the OFPA's purpose to
ensure consistency in standards in a timely manner, while also
providing sufficient time for operations to complete activities to
remain in compliance with outdoor space requirements. With five years
to implement the outdoor requirements, layer operations will have
sufficient time to acquire and transition land for outdoor areas (land
requires a minimum of three years to transition to organic) and to
build or modify facilities to meet the new requirements. If an
operation chooses not to meet the requirements after five years, it may
stop operating as organic or switch to another market.
In response to comments that organic operations should have been
aware of possible changes to the requirements (and should require less
time to comply), AMS recognizes there is a lengthy regulatory history
associated with this rule, as evidenced by the NOSB recommendations on
these topics starting as early as 2009. However, AMS does not expect
that producers should have anticipated the requirements in this final
rule and modified their practices, nor could they have known the
specific requirements of this final rule. Therefore, AMS believes that
the five-year implementation period for the final rule is both
appropriate and reasonable.
(Comment) Many comments suggested that three years would be
sufficient for existing organic layer operations to come into
compliance with the rule without undue hardship. Comments noted that
three years is the typical transition timeframe for operations to make
capital and management investments to become certified organic. Some
comments asked that AMS allow currently certified operations three
years to comply, as this aligns with the three-year transition period
for an operation transitioning to organic production. These commenters
stated that existing organic layer operations should be treated the
same as any new operation that seeks certification. A related comment
suggested that AMS set a three-year compliance date, but allow an
additional fourth year only for operations that could demonstrate they
had made capital purchases and had been actively seeking certification
prior to the final rule's effective date.
(Response) AMS recognizes that transition of land (for outdoor
access) only requires three years and that some operations may be able
to comply with this final rule within three years. Additionally, AMS
recognizes that many organic operations have made significant
investments in facilities that are currently certified by USDA-
accredited certifying agents as meeting the current requirements. While
three years may be sufficient for some operations to meet the
requirements of the final rule, other operations could require more
than three years to comply with the final rule. For example, operations
may need to identify and acquire land, research, plan, build
facilities, transition land for three years (for outdoor space), and
secure certification. In consideration of the time required to complete
these activities, AMS is providing for a five-year implementation
period to allow layer operations to comply with the outdoor space
requirements in this final rule.
(Comment) Very few commenters wrote in support of a 15-year
implementation for the outdoor requirements for layer operations. These
commenters argued that this timeframe would better coincide with the
15-year IRS depreciation schedule for single-purpose agricultural
buildings (i.e., facilities that provide outdoor access via porches).
They argued that operations built their facilities in ``good faith''
and should be able to realize the benefits of those investments. AMS
also received comments suggesting a slightly shorter implementation
timeline of 12.5 years. Similarly, these comments stated that some
producers have made significant investments in systems that were
permitted under previous policy interpretations and that the timeframe
would allow producers to depreciate the value of existing facilities
according to IRS depreciation schedules.
On the other hand, most comments were strongly opposed to AMS
adopting a 15-year implementation for the final rule. Comments noted
that a 15-year implementation period would perpetuate the existing
double standard, further erode consumer trust in the organic label, and
make the work of organic certifiers difficult. AMS believes this length
of implementation would
[[Page 75434]]
contradict OFPA's purpose to assure consumers that organic products
meet a consistent standard. Another noted that a 15-year implementation
period would be exceedingly long and be at odds with the purpose of the
statute. Others noted that the long timeframe would extend the economic
burden and costs incurred by producers that already comply with the
requirements in the final rule. These costs include costs of obtaining
extra labels (e.g., third-party animal welfare certifications), extra
advertising and marketing expenses (to differentiate their eggs under
the same label), and extra expenses on the production level (such as
the cost of maintaining appropriate outdoor pasture). Others argued
that organic certification is a voluntary program, and that AMS should
not allow additional time to operations that cannot meet the
requirements that consumers expect. As noted by a commenter, it is a
privilege afforded by the organic label's robust standards and
certification, not a right, to sell into the organic market.
(Response) AMS has chosen not to adopt a 15-year or a 12.5-year
implementation period for layer requirements in the final rule.
Instead, AMS is providing five years for layer operations to comply
with outdoor space requirements. AMS recognizes that a five-year
implementation may not allow some operations to fully depreciate the
value of their facilities. However, AMS is addressing several concerns
by issuing this final rule, and mitigation of economic impacts to
operations certified prior to the effective date of this final rule is
only one of AMS's objectives. AMS is also seeking to balance any
impacts with an implementation timeframe(s) that will remedy the
inconsistent interpretation and enforcement of the organic regulations.
AMS appreciates that a long implementation timeframe would be least
impactful for some operations, but AMS is not selecting this approach
because it would likely undermine AMS's other objectives in this final
rule. Specifically, this option would pose a continued risk to consumer
confidence in the organic label.
Response to Public Comments: Implementation for Broilers and New
Entrants, Exit Areas
(Comment) Several comments from broiler operations stated that if
AMS adopted a space requirement for broilers of 5.0 lbs. per square
foot that they would need more than three years to comply with the
requirement, which is the timeframe in the proposed rule. These
commenters noted that a 5.0 lbs. per square foot stocking density is
less than the current industry standard, and currently certified
operations would need to build new poultry houses to produce at the
same level and meet the requirement. Commenters were not necessarily
opposed to the proposed requirement but requested five years to comply
with the requirement rather than the three years proposed.
(Response) The final rule provides five years for broiler
operations to comply. AMS considered this rule comprehensively and
determined that a stocking density of 5 lbs. per square foot is
preferred over alternatives. See additional discussion on this topic in
the ``Responses to public comment'' section of Section D, ``Avian
Living Conditions.'' AMS recognizes that broiler operations will likely
require five years to comply with the final rule's stocking density
requirements, as comments indicate that current practices exceed the
maximum stocking rate required by this final rule. In response to
comments, AMS is providing five years for broiler operations to comply
with the indoor and outdoor stocking density requirements of the final
rule. AMS expects this timeframe will give operations time to source,
acquire, and potentially transition new land (a three-year process).
Further, while not the primary reason for AMS selecting this timeframe,
the timeframe aligns that for broilers with that of layer operations,
and in turn, simplifies the certifying agents' implementation of the
rule.
Additionally, new entrants that become certified within one year of
the final rule's effective date will have until five years after the
effective date to comply with all requirements. AMS is providing this
additional flexibility in recognition of operations that may have
started the process to become certified organic before publication of
this final rule. The implementation timelines for broiler operations
will allow operations to adjust practices to meet the requirements
without causing disruption to the market.
(Comment) Some comments supported the general timeline for allowing
five years for implementation but requested that AMS provide less
flexibility for new entrants. These commenters generally suggested that
operations certified any later than one year after the final rule's
effective date should be required to comply with all the requirements
to achieve certification. In the proposed rule, AMS described one
implementation schedule that would have required new entrants in the
first three years (after the effective date of the final rule) to
comply with the final rule in five years from the effective date.
(Response) As suggested by many comments, the final rule provides
new entrants certified within the first year of the final rule's
effective date with five years (from the effective date) to comply.
Operations certified any time after one year following the rule's
effective date will need to comply with the final rule to achieve
certification. AMS believes that this timeline for new entrants is
reasonable, as it should allow operations that have been planning to
become certified (but are not yet certified) with an extended period to
comply with the final rule. At the same time, a one-year period (rather
than a three-year period) may reduce the amount of organic product on
the market that does not comply with all requirements in the final
rule, and better reflects AMS's objective to assure consumers that
organic products meet a consistent standard.
(Comment) Some comments on implementation timeframes indicated that
the requirements for exit areas should also be on a delayed
implementation schedule, along with outdoor space requirements.
(Response) AMS is clarifying that avian producers will have five
years to comply with the requirements related to indoor space
requirements related to exit areas at Sec. 205.241(b)(4). See a
discussion of this requirement in the AVIAN LIVING CONDITIONS section
above. The requirements for exit areas at Sec. 205.241(b) are included
within ``indoor space requirements'' in the organization of the rule,
but AMS recognizes these requirements are inseparable from outdoor
space requirements (Sec. 205.241(c)), which may be implemented over a
five-year period for layer and broiler operations. AMS is providing
operations with five years to implement the exit area requirements at
Sec. 205.241(b). This time should allow the necessary time for
certifying agents to assess operations for compliance with the
requirement and allow the necessary time for operations to modify
practices and facilities, as necessary, to meet the requirement. Within
one year of the effective date of the final rule, all operations,
except for layer operations (which have a five-year implementation
period for outdoor space requirements), must still comply with
requirements described at Sec. 205.241(c)(1) that require access to
outdoor space and door spacing that promotes and encourages outside
access for all birds on a daily basis.
[[Page 75435]]
G. Severability
In this final rule, we adopt additional organic standards for
livestock. The constituent elements each operate independently to
ensure consistent organic livestock standards. Were any element of this
scheme stayed or invalidated by a reviewing court, the elements that
remained in effect would continue to provide consistent organic
livestock standards. For instance, organic consumers have long
benefitted from Organic Rules governing organic production and
handling. The provisions we adopt today would continue to ensure that
organic products meet a consistent standard even if they did not extend
to all organic livestock sectors. Similarly, the different livestock
care practices regulated under this rule each pose distinct concerns
for different aspects of organic livestock production. Finally, the
benefit of the provisions for customers of any organic livestock
product does not hinge on the same standards applying to other organic
livestock products. Accordingly, we consider each of the provisions
adopted in this final rule to be severable, both internally and from
other provisions at 7 CFR part 205. In the event of a stay or
invalidation of any part of any provision, or of any provision as it
applies to certain organic livestock handling or production practices,
USDA's intent is to otherwise preserve the rule to the fullest possible
extent.
Accordingly, AMS has added a severability provision in Sec.
[thinsp]205.391 of 7 CFR part 205.
V. Regulatory Analyses
A. Summary of Economic Analyses
Pursuant to Subtitle E of the Small Business Regulatory Enforcement
Fairness Act of 1996 (the Congressional Review Act), the Office of
Information and Regulatory Affairs has determined that this action
meets the criteria set forth in 5 U.S.C. 804(2).
Executive Orders 12866 and 13563 direct agencies to assess all
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). Executive
Order 13563 emphasizes the importance of quantifying both costs and
benefits, reducing costs, harmonizing rules, and promoting flexibility.
This rule has been designated as a significant regulatory action (Sec.
3(f))(1) under Executive Order 12866, as updated by Executive Order
14094, and therefore, has been reviewed by OMB.
The Regulatory Flexibility Act (5 U.S.C. 601-612) requires agencies
to consider the economic impact of each rule on small entities and
evaluate alternatives that would accomplish the objectives of the rule
without unduly burdening small entities or erecting barriers that would
restrict their ability to compete in the market.
AMS has prepared a Regulatory Impact Analysis (RIA) and Regulatory
Flexibility Analysis (RFA) to address these objectives. The following
discussion summarizes the economic analysis AMS performed to estimate
the impact of this rule. A complete economic analysis is available at
https://www.regulations.gov/. You can access the economic analysis by
searching for document number AMS-NOP-21-0073.
Regulatory Impact Analysis
AMS's economic impact analysis describes the benefits and costs of
the rule, with a focus on organic egg and broiler production, which AMS
determined will drive the benefits and costs of this rule. We
anticipate many of these producers will face additional production
costs in acquiring outdoor space for layers and indoor space for
broilers and will likewise generate benefits through increased consumer
willingness to pay for these newly acquired organic poultry attributes.
As stated above in the EXECUTIVE SUMMARY, AMS anticipates the
annualized 20-year net benefit of this rule will be $59.1-$78.1
million. The following section will summarize some of the assumptions
and methods of our analysis. For more detail, see the Regulatory Impact
Analysis.
To calculate benefits and costs in the organic egg market, AMS
assessed producers' current conditions and considered how producers may
respond to the requirements. For organic layers, the key factor
affecting compliance is the availability of land to accommodate all the
birds at the required stocking density. Producers that are not already
in compliance with the rule's requirements are most likely to either
acquire land or exit the organic market. (They could reduce flock size
to accommodate the new spacing requirements or cease production, but
AMS considers these outcomes unlikely as they are less profitable than
either of the alternatives.)
AMS used research that estimated consumers' willingness to pay for
layers' outdoor access between $0.16 and $0.25 per dozen eggs.\91\ By
multiplying the midpoint of the low ($0.16) and high ($0.25) points of
that range by the projected number (in dozens) of organic eggs produced
by layers that are estimated to newly have outdoor access as a result
of this rule, AMS estimates that the 20-year annualized benefits for
layer operations will range between $76.6-89.6 million.
---------------------------------------------------------------------------
\91\ Yan Heng, et al., (2013). Consumer Attitudes toward Farm-
Animal Welfare: The Case of Laying Hens. Journal of Agricultural and
Resource Economics 38(3):418-434.
---------------------------------------------------------------------------
We estimate the annual costs for organic egg production are $28.1-
$32.9 million (discounted annualized value) if 50% of egg production in
2023 transitions to the cage-free egg market by the 5-year compliance
date, with an additional temporary economic welfare loss of $8.7-$16.0
million.
Table 3--Executive Summary: Unit Costs and Benefits for Eggs and
Broilers
------------------------------------------------------------------------
Eggs dozen Broilers
------------------------------------------------------------------------
Unit Benefits and Costs
------------------------------------------------------------------------
Avg. Benefit Per Unit (Consumer 0.205 0.14/lb
Willingness to Pay) *..................
Cost Change in Average Total Cost of 0.06 0.02/lb
Production Per Unit....................
[[Page 75436]]
Net Benefit per Unit Gaining Outdoor 0.145 0.16/lb
Access.................................
------------------------------------------------------------------------
Total Annualized Benefits and Costs
------------------------------------------------------------------------
20-Year Annualized Discounted Benefits $89,564 $35,641
(3%) ($1,000) *........................
20-Year Annualized Discounted Benefits 76,641 31,467
(7%) (1,000) *.........................
20-Year Annualized Discounted Costs (3%) 32,893 5,491
(1,000)................................
20-Year Annualized Discounted Costs (7%) 28,147 4,848
(1,000)................................
20-Year Annualized Discounted Economic 8,709 0
Welfare Loss (3%) (1,000)..............
20-Year Annualized Discounted Economic 16,046 0
Welfare Loss (7%) (1,000)..............
------------------------------------------------------------------------
Total Annualized Net Benefits
------------------------------------------------------------------------
20-Year Annualized Discounted Net $47,962 $30,149
Benefits (3%) ($1,000).................
20-Year Annualized Discounted Net 32,448 26,619
Benefits (7%) (1,000)..................
------------------------------------------------------------------------
One-time Domestic Information Collection Cost (1,000) 4,930
------------------------------------------------------------------------
* Layer benefit reports the mid-point benefits of the two estimates
($0.16/dz. and $0.25/dz.).
In the organic broiler industry, AMS assumes that organic broiler
producers will build enough new facilities to comply with the stocking
density requirements and remain in the organic market at their current
production level.
To calculate the benefits for broilers, AMS reviewed relevant
research and established a willingness to pay of $0.14 per pound of
chicken from birds with more indoor space.\92\ Based on this, AMS
estimates that the annual discounted benefits for broiler operations
will range between $31.5-$35.6 million. We estimate the annual costs
for organic broiler production at $4.8-$5.5 million. This reflects the
costs of building additional housing to meet the indoor stocking
density requirement. AMS considered several alternatives to this final
rule, including different spacing and density requirements and
alternatives to rulemaking altogether. These alternatives are discussed
in more detail in the rule's Regulatory Impact Analysis, but briefly,
they are:
---------------------------------------------------------------------------
\92\ Mulder, M., & Zomer, S. (2017). Dutch consumers'
willingness to pay for broiler welfare. Journal of Applied Animal
Welfare Science, 20(2), 137-154. This estimate is adjusted for the
context and reduced by the average observed premium difference
between American and European consumers across all sustainable food
products from Li, S., & Kallas, Z. (2021). Meta-analysis of
consumers' willingness to pay for sustainable food products.
Appetite, 163, 105239.
---------------------------------------------------------------------------
Guidance to the industry as an alternative to
regulations--Based on public comments to draft guidance that AMS
published regarding outdoor access for poultry, AMS has determined the
organic poultry market needs more prescriptive guidelines to clarify
the intent of the outdoor access requirements in the organic
regulations.\93\
---------------------------------------------------------------------------
\93\ On October 13, 2010, AMS published a Notice of Availability
of Draft Guidance and Request for Comments in the Federal Register
(75 FR 62693). See Section D, ``Organic Livestock Regulatory
History,'' for more detail.
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Consumer education in lieu of rulemaking--AMS has
determined that a campaign to educate consumers would have limited
effectiveness and would not fulfill NOP's mandate under OFPA to assure
consumers that organic products meet a consistent standard.
Alternative space and density requirements--AMS considered
a range of indoor stocking densities and outdoor space requirements. We
compared NOSB recommendations with the standards of third-party animal
welfare certifications and major organic trade partners like Canada and
the European Union. We also considered the current operating conditions
of organic producers and the risk of market disruptions if too many
producers were forced out of the organic market. AMS balanced these
competing interests in setting the standards for this final rule.
Implementation timeline--AMS compared the costs and
benefits of the two implementation options (5 years and 15 years). We
determined that the 5-year option, despite slightly higher costs,
resulted in greater net benefit annualized over 20 years than the 15-
year option. Additionally, nearly all public comments found the 15-year
option less preferable, with many stating that long implementation
would erode their trust in the organic label. This public response
indicates a financial risk that although we did not quantify, we did
consider. AMS concluded that a 5-year implementation is the most
beneficial option.
AMS's Regulatory Impact Analysis concludes that this rule is
reasonably expected to provide a net benefit to the organic market. In
addition, its provisions will ensure consistent standards as directed
by OFPA and benefit consumers by reducing consumer welfare loss (i.e.,
the difference in value between attributes--such as outdoor access--
consumers think they are paying for and those they are actually
receiving). Furthermore, these provisions help minimize the risk to
consumer confidence in the organic label, which affects all organic
markets, not just eggs and chicken. For further information on AMS's
economic analysis, see the Regulatory Impact Analysis for this rule.
Regulatory Flexibility Analysis
AMS also performed additional analysis to determine the rule's
impact to domestic small businesses including avian and mammalian
livestock producers and slaughter facilities that currently hold or are
pursuing USDA organic certification, as well as organic certifying
agents. This analysis revealed that the cost of implementing this rule
will fall on certified organic egg and broiler producers. AMS finds
that these requirements will not add significant costs to other organic
livestock sectors because these requirements seek to codify existing
industry practices. AMS expects that most organic layer operations
affected by this rule and about one third of all organic broiler
operations are small businesses as defined by Small Business
Administration criteria. AMS expects that the costs to comply with the
outdoor space requirements will be
[[Page 75437]]
more burdensome for larger organic layer producers and they are more
likely to transition to a cage-free label. These operations will
require significantly more land and will be less likely to have that
area available for expansion. For small egg producers, business
revenues would need to be less than $137,195 to $154,922 per firm for
the rule to cost more than 3% of revenue. For small broiler producers,
business revenues would need to be less than $117,456 to $132,632 per
firm for the rule to cost more than 3% of revenue. AMS also expects
that organic producers may have some increased costs to meet the
reporting and recordkeeping requirements that will be associated with
this rule. These are described in the Paperwork Reduction Act section.
Additionally, while certifying agents are small entities that will be
affected by this rule, AMS does not expect these certifying agents to
incur substantial costs as a result of this action.
A complete economic analysis of this rule is available at https://www.regulations.gov/. You can access this rule and the economic
analysis by searching for document number AMS-NOP-21-0073.
B. Executive Order 12988
Executive Order 12988 instructs each executive agency to adhere to
certain requirements in the development of new and revised regulations
to avoid unduly burdening the court system. This rule cannot be applied
retroactively. States and local jurisdictions are preempted under OFPA
from creating programs of accreditation for private persons or state
officials who want to become certifying agents of organic farms or
handling operations. A governing state official would have to apply to
USDA to be accredited as a certifying agent, as described in sec.
6514(b) of OFPA. States are also preempted under secs. 6503 through
6507 of OFPA from creating certification programs to certify organic
farms or handling operations unless the state programs have been
submitted to, and approved by, the Secretary as meeting the
requirements of OFPA.
Pursuant to sec. 6507(b)(2) of OFPA, a state organic certification
program that has been approved by the Secretary may contain additional
requirements for the production and handling of agricultural products
organically produced in the state and for the certification of organic
farm and handling operations located within the state under certain
circumstances. Such additional requirements must (a) further the
purposes of OFPA, (b) not be inconsistent with OFPA, (c) not be
discriminatory toward agricultural commodities organically produced in
other States, and (d) not be effective until approved by the Secretary.
In addition, pursuant to sec. 6519(c)(6) of OFPA, this rulemaking
does not supersede or alter the authority of the Secretary under the
Federal Meat Inspection Act (21 U.S.C. 601-624), the Poultry Products
Inspection Act (21 U.S.C. 451-471), or the Egg Products Inspection Act
(21 U.S.C. 1031-1056), concerning meat, poultry, and egg products,
respectively, nor any of the authorities of the Secretary of Health and
Human Services under the Federal Food, Drug and Cosmetic Act (21 U.S.C.
301-399), nor the authority of the Administrator of the Environmental
Protection Agency under the Federal Insecticide, Fungicide and
Rodenticide Act (7 U.S.C. 136-136(y)).
OFPA at 7 U.S.C. 6520 provides for the Secretary to establish an
expedited administrative appeals procedure under which persons may
appeal an action of the Secretary, the applicable governing State
official, or a certifying agent under this title that adversely affects
such person or is inconsistent with the organic certification program
established under this title. OFPA also provides that the U.S. District
Court for the district in which a person is located has jurisdiction to
review the Secretary's decision.
C. Executive Order 13132
Executive Order (E.O.) 13132 mandates that federal agencies
consider how their policymaking and regulatory activities impact the
policymaking discretion of States and local officials and how well such
efforts conform to the principles of federalism defined in said order.
This executive order only pertains to regulations with clear federalism
implications.
AMS has determined that this rulemaking conforms with the
principles of federalism described in E.O. 13132. The rule does not
impose substantial direct costs or effects on States, does not alter
the relationship between States and the federal government, and does
not alter the distribution of powers and responsibilities among the
various levels of government. States had the opportunity to comment on
the proposed rule. No States provided public comment on the federalism
implications of this rule. Therefore, AMS has concluded that this
rulemaking does not have federalism implications.
D. Executive Order 13175
This final rule has been reviewed in accordance with the
requirements of E.O. 13175, ``Consultation and Coordination with Indian
Tribal Governments.'' E.O. 13175 requires Federal agencies to consult
and coordinate with Tribes on a government-to-government basis on
policies that have Tribal implications, including regulations,
legislative comments or proposed legislation, and other policy
statements or actions that have substantial direct effects on one or
more Indian Tribes, the relationship between the Federal Government and
Indian Tribes, or on the distribution of power and responsibilities
between the Federal Government and Indian Tribes.
AMS has determined that the targeted scope of this final rule does
not have substantial direct effects on one or more Tribes; however, AMS
continues to seek opportunities engaging Tribal nations on new
rulemaking. Accordingly, AMS hosted a virtual Tribal consultation
meeting on September 9, 2021, where the draft proposed rule was
discussed with Tribal leaders. No questions or concerns were brought to
AMS's attention about the proposed rule by any Tribal leaders at the
meeting. Additionally, no public comments or form letter campaigns were
received from Tribes expressing concern over Tribal implications of
this rule. If a Tribe requests consultation in the future, AMS will
work with the Office of Tribal Relations to ensure meaningful
consultation is provided.
E. Civil Rights Impact Analysis
AMS has reviewed this rulemaking in accordance with the Department
Regulation 4300-4, Civil Rights Impact Analysis, to address any major
civil rights impacts the rule might have on minorities, women, and
persons with disabilities. This rule will affect organic livestock
producers; AMS determined that this rule has no potential for affecting
organic livestock producers in protected groups differently than the
general population of organic livestock producers.
Protected individuals have the same opportunity to participate in
NOP as non-protected individuals. USDA organic regulations prohibit
discrimination by certifying agents. Specifically, Sec.
[thinsp]205.501(d) of the current regulations for accreditation of
certifying agents provides that ``No private or governmental entity
accredited as a certifying agent under this subpart shall exclude from
participation in or deny the benefits of NOP to any person due to
[[Page 75438]]
discrimination because of race, color, national origin, gender,
religion, age, disability, political beliefs, sexual orientation, or
marital or family status.'' Section 205.501(a)(2) requires ``certifying
agents to demonstrate the ability to fully comply with the requirements
for accreditation set forth in this subpart'' including the prohibition
on discrimination. The granting of accreditation to certifying agents
under Sec. [thinsp]205.506 requires the review of information
submitted by the certifying agent and an on-site review of the
certifying agent's client operation. Further, if certification is
denied, Sec. [thinsp]205.405(d) requires that the certifying agent
notify the applicant of their right to file an appeal to the AMS
Administrator in accordance with Sec. [thinsp]205.681.
These regulations provide protections against discrimination,
thereby permitting all producers, regardless of race, color, national
origin, gender, religion, age, disability, political beliefs, sexual
orientation, or marital or family status, who voluntarily choose to
adhere to the rule and qualify, to be certified as meeting NOP
requirements by an accredited certifying agent. This action in no way
changes any of these protections against discrimination.
F. Paperwork Reduction Act
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C.
3501-3520) (PRA), AMS is requesting Office of Management and Budget
(OMB) review and approval for a new information collection totaling
101,110 hours for the reporting and recordkeeping requirements
contained in this final rule. OMB previously approved information
collection requests associated with the NOP as OMB control number 0581-
0191. With OMB approval, AMS intends to merge this new information
collection (OMB control number 0591-0293) request into the previously
approved NOP information collection request (OMB control number 0581-
0191). Presented in the proposed rule (87 FR 48562, August 09, 2022)
and reiterated below, AMS describes and estimates the annual burden
(i.e., the amount of time and cost of labor) for entities to prepare
and maintain information to participate in this voluntary labeling
program (USDA organic certification). OFPA provides authority for this
action.\94\
---------------------------------------------------------------------------
\94\ USDA OFPA: The Organic Foods Production Act of 1990 (OFPA),
7 U.S.C. 6501-6524, is the statute from which the Agricultural
Marketing Service (AMS) derives authority to administer the National
Organic Program (NOP), and authority to amend the regulations as
described in this rulemaking. https://uscode.house.gov/view.xhtml?path=/prelim@title7/chapter94&edition=prelim.
---------------------------------------------------------------------------
Title: National Organic Program: Organic Livestock and Poultry
Standards.
OMB Control Number: 0581-0293.
Expiration Date of Approval: Three years from OMB date of approval.
Type of Request: New collection.
Abstract
Information collection and recordkeeping are necessary to implement
reporting and recordkeeping necessitated by amendments to standards for
organic livestock and poultry production under the USDA organic
regulations (Sec. Sec. 205.238, 205.239, 205.241, and 205.242). This
final rule clarifies and expands on existing USDA organic requirements
to support consistent interpretation and enforcement of organic
livestock standards. By doing so, it supports the purposes of OFPA,
``to assure consumers that organically produced products meet a
consistent standard'' and to ``establish national standards'' for
products marketed as organic, and to further facilitate interstate
commerce of organic products (7 U.S.C. 6501). Additional information on
the purpose and need for this rule is included in the BACKGROUND
section of this rule.
Overview
All certified organic operations must develop and maintain an
organic system plan (OSP) to comply with the USDA organic regulations
(Sec. 205.201). The OSP must include a description of practices and
procedures to be performed and maintained, including the frequency with
which they will be performed. Under this final rule, organic livestock
and poultry operations are subject to additional reporting
requirements. The amendments to Sec. Sec. 205.238, 205.239, 205.241,
and 205.242 require livestock and poultry operations to provide
specific documentation as a part of the OSP related to their production
practices--including minimum space requirements, outdoor access,
preventive health care practices (e.g., physical alterations,
euthanasia, parasite prevention plans), and humane transportation and
slaughter practices. This documentation will enable certifying agents
to make consistent certification decisions and facilitate fairness and
transparency for the organic producers and consumers that participate
in this market.
The PRA requires AMS to estimate the reporting and recordkeeping
burden of rulemaking. Per Sec. 205.103 of the USDA organic
regulations, operations must maintain and make available upon request
such records as are necessary to demonstrate compliance. Sections
205.501(a)(9) and 205.510(b) also require that accredited certifying
agents must maintain and make available upon request records that are
necessary to verify compliance and maintain accreditation.
In response to overall public comments, and discussed in the
overview of the rule above, AMS modified some reporting and
recordkeeping requirements in this final rule. The final rule:
1. Removes the requirement for certified operations to record
lameness in livestock.
2. Changes the ammonia monitoring requirements for poultry
operations. Instead of recording ammonia levels monthly, operations
must record ammonia levels weekly.
AMS expects that most of the reporting and recordkeeping burden for
this rule will occur in the first year after the rule's effective date.
During this time, new operations, existing operations, exempt
operations, inspectors, certifying agents, and State Organic Programs
will implement the new reporting and recordkeeping requirements. The
estimated reporting and recordkeeping burden is described in sections
Summary of Reporting Burden and Summary of Recordkeeping Burden.
AMS expects ammonia monitoring to be the only increase in reporting
and recordkeeping burden related to this rule for operations beyond the
first year. Other reporting and recordkeeping requirements of this
rulemaking would become routine to maintain after the first year and
fall under existing reporting and recordkeeping burdens described in
the NOP's previously approved information collection request (OMB
control number 0581-0191). Going forward, weekly ammonia monitoring
will become a new routine activity that is not currently identified in
the NOP's approved information collection request. The new information
that certified operations will be required to record and report for
certification will assist certifying agents and inspectors with
evaluating operations' compliance with the USDA organic regulations.
Beyond the first year, AMS expects no increase in reporting and
recordkeeping burden for inspectors and certifying agents currently
involved in livestock certification, as certifying agents are required
to observe the same reporting and recordkeeping requirements to
maintain accreditation. These current reporting and recordkeeping
requirements are routine activities that
[[Page 75439]]
are currently identified in the NOP's approved information collection
request.
AMS expects this rule will impose only minor reporting and
recordkeeping burden on exempt operations or State Organic Programs in
the first year (see Table 4). Under the USDA organic regulations, some
types of organic operations are exempt from the requirement for
certification. This may include operations that sell less than $5,000
in organic products annually. However, these exempt operations must
maintain records of organic management to support their organic claims
(Sec. 205.101(i)). State Organic Programs enforce OFPA in their state
under the authority of AMS and must observe the same reporting and
recordkeeping requirements to maintain this authority. The current
reporting and recordkeeping requirements for exempt operations and
State Organic Programs are routine activities that are currently
identified in the NOP's approved information collection request.
Recording and reporting information is essential to the integrity
of the USDA organic industry. A record trail is a critical tool that
inspectors, certifying agents, State Organic Programs, and AMS use to
verify that organic management practices meet the requirements of OFPA
and its regulations. The collected information also supports AMS'
mission, program objectives, and management needs by enabling AMS to
assess the efficiency and effectiveness of the NOP. This information
informs AMS decisions when evaluating compliance with OFPA and the USDA
organic regulations, administering the NOP, and establishing the cost
of the USDA organic program. Finally, this information supports AMS's
direct enforcement and response to noncompliances with the USDA organic
regulations.
Responses to Public Comment
In the proposed rule (87 FR 48562, August 09, 2022), AMS invited
comments from the public on the estimated reporting and recordkeeping
burden required because of this rulemaking. Public comments relating to
the paperwork burden generally indicated that the reporting and
recordkeeping burdens were low and that the proposed changes should be
implemented.
AMS's responses to comments on five specific questions posed by AMS
follow. First, AMS sought comments on:
Whether the proposed collection of information is necessary for
the proper performance of the functions of the agency, including
whether the information would have practical utility.
(Comment) Two commenters indicated that the paperwork requirement
associated with verifying transport times would be excessively
burdensome for operations and also questioned if AMS had considered
Department of Transportation (DOT) Hours of Service (HOS) regulations
(49 CFR 385.1(k)(1)). AMS's complete response to this comment is
discussed in more detail in TRANSPORT AND SLAUGHTER.
(Response) In the final rule, AMS removed a proposed requirement
for organic food and water after more than 12 hours of transport.
Instead, the final rule requires that operations describe how animal
welfare is maintained if transport time exceeds eight hours. The final
rule continues to require that operations keep records of transport
times. AMS disagrees with comments that claimed transport records would
be excessively burdensome. Long transport times for animals can
negatively impact animal health and welfare if proper measures are not
taken, and records are essential for certifiers to assess transport
times. Furthermore, the rule does not specify or require an exact form
or format for these records, to provide flexibility and reduce burden
for producers to meet the requirement.
AMS also requested comments on:
The accuracy of the agency's estimate of the burden of the
proposed collection of information, including the validity of the
methodology and assumptions used.
(Comment) A commenter indicated that implementation of the new
requirements of this rulemaking will take longer than one year. AMS's
response to this comment and other comments regarding the
implementation timeline for this rulemaking is discussed in section
IV.F, IMPLEMENTATION AND COMPLIANCE DATES. This commenter also
indicated that the cost of this new burden will be higher than what was
estimated in the proposed rule. They stated that this is because
livestock inspectors collect more than the $30.70 per hour rate
reported in the proposed rule. Finally, the commenter indicated that
additional reporting and recording at annual organic inspections was
not fully accounted for, implying that inspections will take longer
than AMS estimated.
(Response) In the proposed rule, AMS estimated inspector wages and
benefits by referencing data from the U.S. Bureau of Labor Statistics
on Agricultural Inspectors (Standard Occupational Classification (SOC)
code 45-2011), and average civilian employer compensation
costs.95 96 The commenter did not propose a different wage
rate for inspectors that AMS could verify, nor did they suggest a
different estimate of how long inspections will take to account for the
new requirements. Therefore, AMS has not changed the methods used to
estimate wages and benefits. However, in this final rule, AMS has
updated the wages, benefits, and data on the number of operations (new,
existing, and exempt), certifying agents, and inspectors to update the
reporting and recordkeeping burden. The estimates of reporting and
recordkeeping burden are discussed in sections Summary of Reporting
Burden and Summary of Recordkeeping Burden.
---------------------------------------------------------------------------
\95\ U.S. BLS Inspectors: Bureau of Labor Statistics. Mean
hourly wage for Agricultural Inspectors (Standard Occupational
Classification (SOC) code 45-2011) was $22.80. Occupational
Employment and Wage Statistics. ``May 2021 National Occupational
Employment and Wage Estimates United States.'' Published May 2021.
https://www.bls.gov/oes/current/oes_nat.htm#top.
\96\ U.S. BLS Benefits: Bureau of Labor Statistics. Domestic
benefits were reported at 31 percent of total average civilian
employer compensation costs. Economic News Release. Employer Costs
for Employee Compensation Summary. ``Employer Costs for Employee
Compensation December 2022.'' USDL-23-0488. Published March 17,
2023. https://www.bls.gov/news.release/ecec.nr0.htm.
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Additionally, AMS asked for comments on, ``Ways to enhance the
quality, utility, and clarity of the information to be collected.''
(Comment) A commenter stated that AMS should reduce the paperwork
burden on organic operations in areas where the reduction would not
negatively impact animal welfare or overall compliance with the USDA
organic regulations. The commenter did not state what portion(s) of the
proposed reporting and recordkeeping requirements were unnecessary.
(Response) Under the PRA (44 U.S.C. 3501-3520) and in response to
the comment, AMS has sought regulatory options that minimize paperwork
burden. For example, AMS removed a specific requirement that would have
required producers to keep detailed records related to lameness in a
herd.
AMS also sought comments on:
Ways to minimize the burden of the collection of information on
those who are to respond, including the use of appropriate
automated, electronic, mechanical, or other technological collection
techniques or other forms of information technology.
(Comment) A commenter stated that poultry stocking density
definitions and standards should refer to the number of animals in
addition to the weight. Other commenters also stated that requiring
slaughter facilities to provide AMS with
[[Page 75440]]
any noncompliance records or corrective actions issued by the USDA Food
Safety and Inspection Service (FSIS) would be duplicative and
unnecessary. They stated that FSIS inspectors are specifically trained
to understand the Poultry Products Inspection Act (PPIA) and the
Verification of Good Commercial Practices for Poultry, and therefore,
FSIS should continue to oversee poultry slaughter, not AMS. Finally,
they stated that requiring operations to report this information would
possibly create jurisdictional issues between FSIS and AMS.
(Response) Organic slaughter requirements and AMS's justification
for these regulatory changes are described in Section IV.E, TRANSPORT
AND SLAUGHTER. As described in that section, organic certifying agents
and inspectors are not expected to determine an organic slaughter
facility's compliance with these laws and regulations, as that is the
responsibility of other government regulatory authorities (such as
FSIS). However, organic slaughter facilities must provide records of
noncompliance and corrective actions that resulted from FSIS regulatory
and enforcement action. These FSIS records are a valuable source of
information that certifying agents can use to determine an operation's
compliance with the organic regulation and this rule's animal welfare
requirements. AMS has not changed the estimation of reporting and
recordkeeping burden for the new information collection requirements of
this rulemaking based on these comments.
Finally, AMS requested comments on its estimates and assumptions:
AMS estimates that the total number of certified organic
operations will grow by 5.6% annually, based on the increase in
operations recorded in INTEGRITY during the last 12 months. Is this
a reasonable and accurate projection of future growth, given the
additional burdens imposed by this proposed rulemaking?
(Comment) A few commenters expressed concern with the estimated
future growth presented in the proposed rule. One stated that the
proposed changes will impose additional financial burdens with little
benefits to organic poultry operations. Commenters expressed concern
that the number of organic operations would decrease rather than
increase.
(Response) AMS disagrees with the comment that this rulemaking will
have little benefit on organic poultry operations. This rule clarifies
and expands on regulations to support consistent interpretation and
enforcement of organic livestock and poultry standards. The final rule
specifies requirements for outdoor space (per bird), access to outdoor
space from poultry houses (exit areas), and indoor thresholds for
ammonia gas. The rule also elaborates on the current standards (7 CFR
205.239) related to situations that warrant temporary confinement of
animals, among other requirements.
AMS investigated the concern that organic operations will decrease
and reevaluated the data used to estimate the growth of the organic
livestock industry. In the proposed rule, data on overall organic
operations was used to calculate an estimated growth rate. In response
to comments, AMS refines the data in this final rule to focus on
organic livestock operations. AMS searched organic livestock operations
listed in the Organic Integrity Database on January 01, 2022, and
January 01, 2023.\97\ Based on this data--5,445 certified livestock
operations in 2022 and 5,883 certified livestock operations in 2023--
AMS changes the estimated future growth of organic livestock operations
to eight percent (8%). AMS has updated the estimated reporting and
recordkeeping burden accordingly. The estimated reporting and
recordkeeping burden is discussed in Sections Summary of Reporting
Burden and Summary of Recordkeeping Burden.
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\97\ USDA NOP OID: Organic Integrity Database, https://organic.ams.usda.gov/integrity/.
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Public Comments Conclusion
The estimated reporting and recordkeeping burden for the new
information collection requirements of this rulemaking are summarized
in the Sections Summary of Reporting Burden and Summary of
Recordkeeping Burden below. In general, public comment received did not
dispute AMS's estimate of the information collection reporting and
recordkeeping burden presented in the proposed rule.
In the proposed rule, AMS estimated that new and current organic
operations would need four hours to incorporate the new reporting and
recordkeeping requirements of this rulemaking into their OSPs
(including one-time preparation of all practices, procedures, and
information necessary to comply with these new requirements). AMS made
changes in this final rule that decrease required reporting and/or
recordkeeping related to lameness and increased the frequency of
ammonia monitoring (see sections on Livestock Care and Production
Practices Standard and Avian Living Conditions). However, AMS does not
believe these changes will substantially affect the time operations
will require to incorporate the new requirements into their OSPs. Table
4 describes the reporting and recordkeeping burden in more detail.
AMS has updated the following data used to estimate reporting and
recordkeeping burden:
1. Wage and benefit data from the U.S. Bureau of Labor Statistics,
Organization for Economic Co-Operation and Development (OECD), and the
World Bank.98 99 100
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\98\ U.S. Bureau of Labor Statistics, https://www.bls.gov.
\99\ Organization for Economic Co-Operation and Development
(OECD), https://www.oecd.org/.
\100\ The World Bank, https://data.worldbank.org/.
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2. Number of new, existing, and exempt organic
operations.101 102
---------------------------------------------------------------------------
\101\ USDA NOP OID: Organic Integrity Database, https://organic.ams.usda.gov/integrity/.
\102\ USDA NASS: Surveys of organic operations report that
operations exempt from certification make up 11.5% of certified
organic operations. Census of Agriculture, 2014 Organic Survey.
Updated April 2016. https://agcensus.library.cornell.edu/wp-content/uploads/2012-Organic-Survey-ORGANICS.pdf.
---------------------------------------------------------------------------
3. Number of domestic and foreign livestock inspectors and
certifying agents.\103\
---------------------------------------------------------------------------
\103\ USDA NOP OID: Organic Integrity Database, https://organic.ams.usda.gov/integrity/.
---------------------------------------------------------------------------
The estimated reporting and recordkeeping burden is discussed in
Sections Summary of Reporting Burden and Summary of Recordkeeping
Burden.
Calculating Reporting and Recordkeeping Burden
AMS identifies four types of entities (respondents) that will need
to submit and maintain information to participate in organic livestock
and poultry certification:
1. Organic livestock and poultry operations.
2. Accredited certifying agents.
3. Inspectors.
4. State Organic Programs.
To understand the reporting and recordkeeping costs of this
rulemaking more precisely, AMS calculated the potential impacts
utilizing domestic and foreign labor rates (per hour) plus benefits.
AMS calculates the time burden of the new reporting and
recordkeeping requirements of this rulemaking by estimating the
following:
1. The number of respondents.
2. Frequency of response.
3. Total number of burden hours per year.
The number of respondents is based on operation, certifier,
inspector, and State Organic Program data from the Organic Integrity
Database.\104\ The frequency of responses is estimated to
[[Page 75441]]
be the total annual responses and the number of responses per
respondent in twelve months. The total number of burden hours per year
is estimated to be the total annual responses multiplied by the number
of hours per response.
---------------------------------------------------------------------------
\104\ USDA NOP OID: Organic Integrity Database, https://organic.ams.usda.gov/integrity/.
---------------------------------------------------------------------------
AMS estimates the cost (financial) burden of the new reporting and
recordkeeping requirements of this rulemaking by estimating the
following:
1. Total hours per respondent.
2. Total hours for all respondents.
3. Capital and other non-labor costs per respondent.
4. Total capital and other non-labor costs for all respondents.
The total hours per respondent and for all respondents were
estimated based on the number of respondents and the amount of time AMS
estimates will be needed to report and record new information based on
this rulemaking. Unchanged from the proposed rule, AMS describes in
Table 4a and 4b the hours necessary for respondents to report and
record new information required by this rulemaking.
Table 4--Estimated Hours for Respondents To Report and Record New Information
----------------------------------------------------------------------------------------------------------------
Number of Annual
reporting Reporting recordkeeping
Reporting or recordkeeping requirement description responses per hours per hours per
respondent response recordkeeper
----------------------------------------------------------------------------------------------------------------
Operations
----------------------------------------------------------------------------------------------------------------
Subpart B--Applicability exempt producers and handlers (11.5% of 0 0 1
current total certified that are exempt from organic
certification) document compliance and maintain records for not
less than 3 yrs..................................................
Certified operators maintain records for not less than 5 years.... 0 0 2
New operations submit their initial organic system plan (OSP): 1 6 0
including one-time reading of the rule's applicable regulatory
requirements and preparation of all practices, procedures, and
information necessary to comply with new livestock and poultry
requirements.....................................................
Current certified operations submit updated OSP: including one- 1 6 0
time reading of the rule's applicable regulatory requirements and
preparation of all practices, procedures, and information
necessary to comply with new livestock and poultry requirements..
Livestock and poultry operations' first on-site inspection that 1 2 0
includes new livestock and poultry practices and procedures......
----------------------------------------------------------------------------------------------------------------
Certifying Agents
----------------------------------------------------------------------------------------------------------------
Review of Application/Updates: agents review and process OSP 108 2 1
applications/updates from livestock and poultry operations in
compliance with new requirements for the first time and maintain
records..........................................................
Provide information and training to operations regarding livestock 1 3 n/a
and poultry requirements.........................................
Accreditation of Certifying Agents--Form TM-10CG--Provide 1 2 1
Policies, Procedures, Evidence of Expertise and Ability, describe
organizational units, primary location, areas of certification
(crops, livestock, and handling), States & foreign countries
where they operate, lists of currently certified operations,
conduct & provide results of performance evaluations of personnel
& inspectors, conduct program evaluations of their certification
activities, provide procedures for residue testing, and other
information that will assist in evaluating their application, and
comply with any other requirements. Includes one-time preparation
of practices and procedures necessary to comply with new
livestock and poultry practice requirements......................
Provide training to Certification Review Personnel and Inspectors 2 5 n/a
regarding new livestock and poultry practices....................
Certification Review Personnel receive training regarding new 1 5 n/a
livestock and poultry practices..................................
----------------------------------------------------------------------------------------------------------------
Inspectors
----------------------------------------------------------------------------------------------------------------
Inspectors provide on-site inspection reports addressing new 33 2 n/a
requirements for livestock and poultry operations to the
certifying agent.................................................
Inspectors receive 5 hours of training per new livestock and 1 5 n/a
poultry practices................................................
----------------------------------------------------------------------------------------------------------------
State Organic Programs
----------------------------------------------------------------------------------------------------------------
State Organic Programs: States submit proposed State Organic n/a n/a n/a
Program to Secretary.............................................
States update State Organic Program to the Secretary.............. 1 2 1
----------------------------------------------------------------------------------------------------------------
To estimate the capital and other non-labor costs of the reporting
and recordkeeping requirements per respondent and on all respondents,
AMS uses data on prevailing domestic and foreign wages and
benefits.105 106 107
---------------------------------------------------------------------------
\105\ U.S. BLS Benefits: Bureau of Labor Statistics. Domestic
benefits were reported at 31 percent of total average civilian
employer compensation costs. Economic News Release. Employer Costs
for Employee Compensation Summary. ``EMPLOYER COSTS FOR EMPLOYEE
COMPENSATION--December 2022.'' USDL-23-0488. Published March 17,
2023. https://www.bls.gov/news.release/ecec.nr0.htm.
\106\ World Bank--Foreign wages: The data reports that GDP per
capita for OECD member countries is 70.1% of U.S. GDP in 2021.
Accessed March 22, 2023. https://data.worldbank.org/indicator/NY.GDP.PCAP.PP.CD.
\107\ OECD--Foreign benefits: The source of foreign benefit
rates is based on the average Organization for Economic Co-Operation
and Development (OECD) member countries tax wedge rate of 34.58% in
2021. Accessed March 22, 2023. https://stats.oecd.org/Index.aspx?DataSetCode=AWCOMP.
---------------------------------------------------------------------------
The estimated reporting and recordkeeping burden is discussed in
Sections Summary of Reporting Burden and Summary of Recordkeeping
Burden.
Total (Domestic and Foreign) Information Collection Cost (Reporting
and Recordkeeping) of Rulemaking: $4,929,563.
AMS estimated a total of 7,346 reporting and recordkeeping
respondents, with 40,348 total responses (in the first year of
implementing the new reporting and recordkeeping requirements, after
which there are no additional responses), and an overall total burden
of 113,934 hours. This total hourly burden averages 16 hours per
respondent, $671 per respondent, and $4,929,563 for all respondents.
The data used to estimate reporting and recordkeeping burden is
displayed in more detail in Table 5 and Table 6.
1. Organic Livestock and Poultry Operations
AMS estimated a total of 7,095 reporting and recordkeeping
respondents, with 12,824 total responses (in the first year of
implementing the new reporting and recordkeeping requirements, after
which
[[Page 75442]]
there are no additional responses), and an overall burden of 64,802
hours.
Based on eight percent (8%) projected growth in livestock
operations, AMS expects to add 475 operations to the 5,937 operations
currently certified for the livestock scope.\108\ In addition, AMS
estimates that 683 exempt livestock operations will be impacted by the
new recordkeeping requirements.\109\
---------------------------------------------------------------------------
\108\ USDA NOP OID: Organic Integrity Database, https://organic.ams.usda.gov/integrity/.
\109\ USDA NASS: Surveys of organic operations report that
operations exempt from certification make up 11.5% of certified
organic operations. Census of Agriculture, 2014 Organic Survey.
Updated April 2016. https://agcensus.library.cornell.edu/wp-content/uploads/2012-Organic-Survey-ORGANICS.pdf.
---------------------------------------------------------------------------
AMS estimated nine burden hours per respondent, costing $430 per
respondent, and $3,052,383 for all respondents. The data used to
estimate reporting and recordkeeping burden is displayed in more detail
in Table 5 and Table 6.
2. Accredited Certifying Agents
AMS estimated a total of 58 reporting and recordkeeping
respondents, with 13,766 total responses (in the first year of
implementing the new reporting and recordkeeping requirements, after
which there are no additional responses), and an overall burden of
35,345 hours. AMS estimated 609 burden hours per respondent, costing
$26,013 per respondent, and $1,508,729 for all respondents. The data
used to estimate reporting and recordkeeping burden is displayed in
more detail in Table 5 and Table 6.
3. Inspectors
AMS estimated a total of 192 reporting and recordkeeping
respondents, with 6,604 responses (in the first year of implementing
the new reporting and recordkeeping requirements, after which there are
no additional responses), and an overall burden of 13,784 hours. AMS
estimated 72 burden hours per respondent, costing $1,919 per
respondent, and $368,308 for all respondents. The data used to estimate
reporting and recordkeeping burden is displayed in more detail in Table
5 and Table 6. Inspectors do not have recordkeeping obligations, as
certifying agents maintain the records of inspection reports, so
inspectors are not included in Table 5.
4. State Organic Programs
AMS estimated a total of one reporting and recordkeeping
respondent, with one response (in the first year of implementing the
new reporting and recordkeeping requirements, after which there are no
additional responses), an overall burden of three hours, costing the
respondent $143. The data used to estimate reporting and recordkeeping
burden is displayed in more detail in Table 5 and Table 6.
Summary of Reporting Burden
Total All Reporting Burden Cost: $4,827,105.
Estimate of Burden: Public reporting burden for this collection of
information is estimated to average 15 hours per respondent.
Respondents: New and existing certified organic and applicant
livestock and poultry operations, certifying agents, inspectors, and
State Organic Programs.
Estimated Number of Reporting Respondents: 6,663.
Estimated Number of Reporting Responses: 33,194.
Estimated Total Reporting Burden on Respondents: 100,310 hours.
Estimated Total Reporting Responses per Reporting Respondents: Five
reporting responses per reporting respondent.
AMS estimated a total of 6,663 reporting respondents, with 33,194
total responses (in the first year of implementing the new reporting
requirements, after which there are no additional responses), and an
overall burden of 100,310 reporting hours. AMS estimated 15 burden
hours per respondent, costing $643 per respondent and $4,287,105 for
all respondents. The data used to estimate reporting burden is
displayed in more detail in Table 5.
1. Organic Livestock and Poultry Operations
AMS estimated a total of 6,412 reporting respondents, with 12,824
total responses (in the first year of implementing the new reporting
requirements, after which there are no additional responses), and an
overall burden of 38,472 reporting hours. AMS estimated six burden
hours per respondent, costing $282 per respondent, and $1,811,193 for
all respondents. The data used to estimate reporting burden is
displayed in more detail in Table 5.
2. Accredited Certifying Agents
AMS estimated a total of 58 reporting respondents, with 13,766
total responses (in the first year of implementing the new reporting
requirements, after which there are no additional responses), and an
overall burden of 35,229 hours. AMS estimated 607 burden hours per
respondent, costing $25,927 per respondent and $1,503,778 for all
respondents. The data used to estimate reporting burden is displayed in
more detail in Table 5.
3. Inspectors
AMS estimated a total of 192 reporting respondents, with 6,604
total responses (in the first year of implementing the new reporting
requirements, after which there are no additional responses), and an
overall burden of 13,784 hours. AMS estimated 72 burden hours per
respondent, costing $1,919 per respondent, and $368,308 for all
respondents. The data used to estimate reporting burden is displayed in
more detail in Table 5.
4. State Organic Programs
AMS estimated a total of one reporting respondent, with one
response (in the first year of implementing the new reporting
requirements, after which there are no additional responses), an
overall burden of two hours, resulting in a total cost of $95 to the
respondent. The data used to estimate reporting burden is displayed in
more detail in Table 5.
Table 5--Summary of Reporting Burden
--------------------------------------------------------------------------------------------------------------------------------------------------------
Total Average Average Total
Organic operations reporting burden Number of respondents reporting respondent Wage + benefits \112\ respondent reporting
\110\ \111\ hours hours \96\ \113\ \114\ costs costs
--------------------------------------------------------------------------------------------------------------------------------------------------------
Certified livestock operations--new and existing-- 5,334 42,673 6 $49.40 $395 $1,581,036
Domestic............................................
Certified livestock operations--new and existing-- 1,078 8,623 6 35.59 285 230,156
Foreign.............................................
--------------------------------------------------------------------------------------------------
[[Page 75443]]
Operations total................................. 6,412 51,296 6 ....................... 377 2,414,924
--------------------------------------------------------------------------------------------------------------------------------------------------------
USDA accredited certifiers reporting burden
--------------------------------------------------------------------------------------------------------------------------------------------------------
Certifiers--Domestic................................. 36 21,866 607 47.75 29,003 1,044,101
Certifiers--Foreign.................................. 22 13,363 607 34.40 20,894 459,677
--------------------------------------------------------------------------------------------------
Certifiers total................................. 58 35,229 607 ....................... 25,927 1,503,778
--------------------------------------------------------------------------------------------------------------------------------------------------------
Inspectors reporting burden
--------------------------------------------------------------------------------------------------------------------------------------------------------
Inspectors--Domestic................................. 113 8,555 76 29.87 2,257 255,529
Inspectors--Foreign.................................. 79 5,228 66 21.57 1,433 112,778
--------------------------------------------------------------------------------------------------
Inspectors total................................. 192 13,784 72 ....................... 1,919 368,308
--------------------------------------------------------------------------------------------------------------------------------------------------------
State Organic Programs reporting burden
--------------------------------------------------------------------------------------------------------------------------------------------------------
State Organic Programs............................... 1 2 2 47.75 95 95
--------------------------------------------------------------------------------------------------
State Organic Programs total..................... 1 2 2 ....................... 95 95
--------------------------------------------------------------------------------------------------
Total reporting burden--all respondents...... 6,663 100,310 15 ....................... 643 4,287,105
--------------------------------------------------------------------------------------------------------------------------------------------------------
Summary of Recordkeeping Burden
---------------------------------------------------------------------------
\110\ USDA NOP OID: Organic Integrity Database, https://organic.ams.usda.gov/integrity/.
\111\ USDA NASS: Surveys of organic operations report that
operations exempt from certification make up 11.5% of certified
organic operations. Census of Agriculture, 2014 Organic Survey.
Updated April 2016. https://agcensus.library.cornell.edu/wp-content/uploads/2012-Organic-Survey-ORGANICS.pdf.
\112\ U.S. BLS Inspectors: Bureau of Labor Statistics. Mean
hourly wage for Agricultural Inspectors (Standard Occupational
Classification (SOC) code 45-2011) was $22.80. Occupational
Employment and Wage Statistics. ``May 2021 National Occupational
Employment and Wage Estimates United States.'' Published May 2021.
https://www.bls.gov/oes/current/oes_nat.htm#top.
\113\ U.S. BLS Operations: Bureau of Labor Statistics. Mean
hourly wage for Farmers, Ranchers, and Other Agricultural Managers
(Standard Occupational Classification (SOC) code 11-9013) was
$37.71. Occupational Employment and Wage Statistics. ``May 2021
National Occupational Employment and Wage Estimates United States.''
Published May 2021. https://www.bls.gov/oes/current/oes_nat.htm#top.
\114\ U.S. BLS Certifiers and State Organic Programs (SOP):
Bureau of Labor Statistics. Mean hourly wage for Compliance Officers
(Standard Occupational Classification (SOC) code 13-1041) was
$36.45. Occupational Employment and Wage Statistics. ``May 2021
National Occupational Employment and Wage Estimates United States.''
Published May 2021. https://www.bls.gov/oes/current/oes_nat.htm#top.
---------------------------------------------------------------------------
Total All Recordkeeping Burden Cost: $642,458.
Estimate of Burden: Public recordkeeping burden for this collection
of information is estimated to average two hours per respondent.
Respondents: New and existing certified operations, exempt
operations, certifying agents, and State Organic Programs.
Estimated Number of Recordkeeping Respondents: 7,154 respondents.
Estimated Total Recordkeeping Burden on Respondents: 13,624 hours.
AMS estimated a total of 7,154 recordkeeping respondents (in the
first year of implementing the new recordkeeping requirements, after
which there are no additional responses). AMS estimated two burden
hours per respondent and 13,624 total burden hours for all respondents,
costing $90 per respondent and $642,458 for all respondents. The data
used to estimate the recordkeeping burden is displayed in more detail
in Table 6.
1. Organic Livestock and Poultry Operations
AMS estimated a total of 7,095 recordkeeping respondents (in the
first year of implementing the new recordkeeping requirements, after
which there is no additional recordkeeping). AMS estimated two burden
hours per respondent and 13,507 total burden hours for all respondents,
costing $90 per respondent and $637,459 for all respondents. The data
used to estimate the recordkeeping burden is displayed in more detail
in Table 6.
2. Accredited Certifying Agents
AMS estimated a total of 58 recordkeeping respondents (in the first
year of implementing the new recordkeeping requirements, after which
there are no additional responses) AMS estimated two burden hours per
respondent and 116 total burden hours for all respondents, costing $85
per respondent and $4,952 for all respondents. The data used to
estimate the recordkeeping burden is displayed in more detail in Table
6.
3. State Organic Programs
AMS estimated a total of one recordkeeping respondent (in the first
year of implementing the new recordkeeping requirements, after which
there are no additional responses), an overall burden of one hour,
resulting in a total cost of $48 to the respondent. The data used to
estimate the recordkeeping burden is displayed in more detail in Table
6.
Table 6--Summary of Recordkeeping Burdens
--------------------------------------------------------------------------------------------------------------------------------------------------------
Total Average Average Total
Organic operations recordkeeping burden Number of respondents recordkeeping respondent Wage + benefits \117\ respondent recordkeeping
\115\ \116\ hours hours \96\ \118\ \119\ costs costs
--------------------------------------------------------------------------------------------------------------------------------------------------------
Certified livestock operations--new and 5,334 10,668 2 $49.40 $99 $527,012
existing--Domestic.........................
Certified livestock operations--new and 1,078 2,156 2 35.59 71 76,719
existing--Foreign..........................
[[Page 75444]]
Exempt livestock operations (11.5% of 683 683 1 49.40 49 33,728
certified).................................
-----------------------------------------------------------------------------------------------------------
Operations total........................ 7095 13,507 2 ....................... 90 637,459
--------------------------------------------------------------------------------------------------------------------------------------------------------
USDA-accredited certifiers recordkeeping burden
--------------------------------------------------------------------------------------------------------------------------------------------------------
Certifiers--Domestic........................ 36 72 2 47.75 95 3,438
Certifiers--Foreign......................... 22 44 2 34.40 69 1,514
-----------------------------------------------------------------------------------------------------------
Certifiers total........................ 58 116 2 ....................... 85 4,952
--------------------------------------------------------------------------------------------------------------------------------------------------------
State Organic Programs recordkeeping burden
--------------------------------------------------------------------------------------------------------------------------------------------------------
State Organic Programs...................... 1 1 1 47.75 48 48
-----------------------------------------------------------------------------------------------------------
State Organic Programs total............ 1 1 1 ....................... 48 48
--------------------------------------------------------------------------------------------------------------------------------------------------------
Total recordkeeping burden--all 7,154 13,624 2 ....................... 90 642,458
respondents........................
--------------------------------------------------------------------------------------------------------------------------------------------------------
G. Related Documents
---------------------------------------------------------------------------
\115\ USDA NOP OID: Organic Integrity Database, https://organic.ams.usda.gov/integrity/.
\116\ USDA NASS: Surveys of organic operations report that
operations exempt from certification make up 11.5% of certified
organic operations. Census of Agriculture, 2014 Organic Survey.
Updated April 2016. https://agcensus.library.cornell.edu/wp-content/uploads/2012-Organic-Survey-ORGANICS.pdf.
\117\ U.S. BLS Inspectors: Bureau of Labor Statistics. Mean
hourly wage for Agricultural Inspectors (Standard Occupational
Classification (SOC) code 45-2011) was $22.80. Occupational
Employment and Wage Statistics. ``May 2021 National Occupational
Employment and Wage Estimates United States.'' Published May 2021.
https://www.bls.gov/oes/current/oes_nat.htm#top.
\118\ U.S. BLS Operations: Bureau of Labor Statistics. Mean
hourly wage for Farmers, Ranchers, and Other Agricultural Managers
(Standard Occupational Classification (SOC) code 11-9013) was
$37.71. Occupational Employment and Wage Statistics. ``May 2021
National Occupational Employment and Wage Estimates United States.''
Published May 2021. https://www.bls.gov/oes/current/oes_nat.htm#top.
\119\ U.S. BLS Certifiers and State Organic Programs (SOP):
Bureau of Labor Statistics. Mean hourly wage for Compliance Officers
(Standard Occupational Classification (SOC) code 13-1041) was
$36.45. Occupational Employment and Wage Statistics. ``May 2021
National Occupational Employment and Wage Estimates United States.''
Published May 2021. https://www.bls.gov/oes/current/oes_nat.htm#top.
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Documents related to this final rule include the Organic Foods
Production Act of 1990, as amended, (7 U.S.C. 6501-6524) and its
implementing regulations (7 CFR part 205). The NOSB deliberated and
made the recommendations described in this final rule at public
meetings announced in the following Federal Register notices: 67 FR
19375 (April 19, 2002); 74 FR 46411 (September 9, 2009); 75 FR 57194
(September 20, 2010); and 76 FR 62336 (October 7, 2011). NOSB meetings
are open to the public and allow for public participation.
AMS published a series of past proposed rules that addressed, in
part, the organic livestock requirements at: 62 FR 65850 (December 16,
1997); 65 FR 13512 (March 13, 2000); 71 FR 24820 (April 27, 2006); 73
FR 63584 (October 24, 2008), and 81 FR 21956 (April 13, 2016). Past
final rules relevant to this topic were published at: 65 FR 80548
(December 21, 2000); 71 FR 32803 (June 7, 2006); 75 FR 7154 (February
17, 2010); and 87 FR 19740 (April 5, 2022). AMS activities and
documents that followed publication of the January 19, 2017 OLPP final
rule (82 FR 7042) are detailed above in Section II.D., Organic
Livestock Regulatory History.
On August 9, 2022, AMS published the OLPS proposed rule (87 FR
48562) to notify the public of the proposed changes to the organic
livestock standards and to request comments on the proposed changes.
List of Subjects in 7 CFR Part 205
Administrative practice and procedure, Agricultural commodities,
Agriculture, Animals, Archives and records, Fees, Imports, Labeling,
Livestock, Organically produced products, Plants, Reporting and
recordkeeping requirements, Seals and insignia, Soil conservation.
For the reasons stated in the preamble, the Agricultural Marketing
Service amends 7 CFR part 205 as follows:
PART 205--NATIONAL ORGANIC PROGRAM
0
1. The authority citation for part 205 continues to read as follows:
Authority: 7 U.S.C. 6501-6524.
0
2. Amend Sec. 205.2 by adding definitions for ``Beak trimming'',
``Caponization'', ``Cattle wattling'', ``De-beaking'', ``De-snooding'',
``Dubbing'', ``Indoors or indoor space'', ``Induced molting'',
``Mulesing'', ``Non-ambulatory'', ``Outdoors or outdoor space'',
``Perch'', ``Pullets'', ``Religious (or ritual) slaughter'', ``Stocking
density'', ``Toe clipping'', and ``Vegetation'' in alphabetical order
to read as follows:
Sec. 205.2 Terms defined.
* * * * *
Beak trimming. The removal of not more than one-quarter to one-
third of the upper beak or the removal of one-quarter to one-third of
both the upper and lower beaks of a bird in order to control injurious
pecking and cannibalism.
* * * * *
Caponization. Castration of chickens, turkeys, pheasants, and other
avian species.
Cattle wattling. The surgical separation of two layers of the skin
from the connective tissue for along a 2-to-4-inch path on the dewlap,
neck, or shoulders used for ownership identification.
* * * * *
De-beaking. The removal of more than one-third of the upper beak or
removal of more than one-third of both the upper and lower beaks of a
bird.
De-snooding. The removal of the turkey snood (a fleshy protuberance
on the forehead of male turkeys).
* * * * *
Dubbing. The removal of poultry combs and wattles.
* * * * *
[[Page 75445]]
Indoors or indoor space. The space inside of an enclosed building
or housing structure available to livestock. Indoor space for avian
species includes, but is not limited to:
(1) Mobile housing. A mobile structure for avian species with solid
or perforated flooring that is moved regularly and allows birds to
continuously access areas outside the structure during daytime hours.
(2) Aviary housing. A fixed structure for avian species that has
multiple tiers or levels.
(3) Slatted/mesh floor housing. A fixed structure for avian species
that has both: a slatted floor where perches, feed, and water are
provided over a pit or belt for manure collection; and litter covering
the remaining solid floor.
(4) Floor litter housing. A fixed structure for avian species that
has absorbent litter covering the entire floor.
Induced molting. Molting that is artificially initiated.
* * * * *
Mulesing. The removal of skin from the buttocks of sheep,
approximately 2 to 4 inches wide and running away from the anus to the
hock to prevent fly strike.
* * * * *
Non-ambulatory. As defined in 9 CFR 309.2(b).
* * * * *
Outdoors or outdoor space. Any area outside an enclosed building or
enclosed housing structure. Enclosed housing structures with open sides
(e.g., open-sided freestall barns) are not to be considered outdoors or
outdoor space. Outdoor space for avian species includes, but is not
limited to:
(1) Pasture pens (avian). Floorless pens, with full or partial
roofing, that are moved regularly, provide direct access to soil and
vegetation, and allow birds to express natural behaviors.
(2) Shade structures that are not enclosed.
* * * * *
Perch. A rod- or branch-type structure above the floor or ground
that accommodates roosting and allows birds to utilize vertical space.
* * * * *
Pullets. Female chickens or other avian species being raised for
egg production that have not yet started to lay eggs.
* * * * *
Religious (or ritual) slaughter. Slaughtering in accordance with
the ritual requirements of any religious faith that prescribes a method
of slaughter whereby the animal suffers loss of consciousness by anemia
of the brain caused by the simultaneous and instantaneous severance of
the carotid arteries with a sharp instrument and handling in connection
with such slaughtering.
* * * * *
Stocking density. The liveweight or number of animals on a given
area or unit of land.
* * * * *
Toe clipping. The removal of the nail and distal joint of the back
two toes of a bird.
* * * * *
Vegetation. Living plant matter that is anchored in the soil by
roots and provides ground cover.
* * * * *
0
3. Revise Sec. 205.238 to read as follows:
Sec. 205.238 Livestock care and production practices standard.
(a) Preventive health care practices. The producer must establish
and maintain preventive health care practices, including:
(1) Selection of species and types of livestock with regard to
suitability for site-specific conditions and resistance to prevalent
diseases and parasites.
(2) Provision of a feed ration sufficient to meet nutritional
requirements of the animal, including vitamins, minerals, proteins and/
or amino acids, fatty acids, energy sources, and fiber (ruminants).
(3) Establishment of appropriate housing, pasture conditions, and
sanitation practices to minimize the occurrence and spread of diseases
and parasites.
(4) Provision of conditions which allow for exercise, freedom of
movement, and reduction of stress appropriate to the species.
(5) Physical alterations may be performed for identification
purposes or the safety of the animal. Physical alterations must be
performed: at a young age for the species, in a manner that minimizes
stress and pain, and by a person that is capable of performing the
physical alteration in a manner that minimizes stress and pain.
(i) The following practices may not be routinely used and must be
used only with documentation that alternative methods to prevent harm
failed: needle teeth clipping (no more than top one-third of the tooth)
in pigs and tail docking in pigs.
(ii) The following practices are prohibited: de-beaking, de-
snooding, caponization, dubbing, toe clipping of chickens, toe clipping
of turkeys unless with infra-red at hatchery, beak trimming after 10
days of age, tail docking of cattle, wattling of cattle, face branding
of cattle, tail docking of sheep shorter than the distal end of the
caudal fold, and mulesing of sheep.
(6) Administration of vaccines and other veterinary biologics.
(7) All surgical procedures necessary to treat an illness or injury
shall be undertaken in a manner that employs best management practices
to promote the animal's wellbeing and to minimize pain, stress, and
suffering, with the use of allowed anesthetics, analgesics, and
sedatives, as appropriate.
(8) Monitoring of lameness; timely and appropriate treatment of
lameness for the species; and mitigation of the causes of lameness.
(b) Preventive medicines and parasiticides. Producers may
administer medications that are allowed under Sec. 205.603 of this
part to alleviate pain or suffering, and when preventive practices and
veterinary biologics are inadequate to prevent sickness. Parasiticides
allowed under Sec. 205.603 of this part may be used on:
(1) Breeder stock, when used prior to the last third of gestation
but not during lactation for progeny that are to be sold, labeled, or
represented as organically produced; and
(2) Dairy animals, as allowed under Sec. 205.603 of this part.
(3) Fiber bearing animals, as allowed under Sec. 205.603 of this
part.
(c) Prohibited practices. An organic livestock operation must not:
(1) Sell, label, or represent as organic any animal or product
derived from any animal treated with antibiotics, any substance that
contains a synthetic substance not allowed under Sec. 205.603 of this
part, or any substance that contains a non-synthetic substance
prohibited in Sec. 205.604 of this part. Milk from animals undergoing
treatment with synthetic substances that are allowed under Sec.
205.603 of this part but have associated withdrawal periods cannot be
sold, labeled, or represented as organic during the withdrawal period
but may be fed to calves on the same operation. Milk from animals
undergoing treatment with prohibited substances cannot be sold,
labeled, or represented as organic or fed to organic livestock.
(2) Administer synthetic medications unless:
(i) In the presence of illness or to alleviate pain and suffering,
and
(ii) That such medications are allowed under Sec. 205.603 of this
part.
(3) Administer hormones for growth promotion, production, or
reproduction, except as provided in Sec. 205.603 of this part.
(4) Administer synthetic parasiticides on a routine basis.
[[Page 75446]]
(5) Administer synthetic parasiticides to slaughter stock.
(6) Administer animal drugs in violation of the Federal Food, Drug,
and Cosmetic Act; or
(7) Withhold medical treatment from a sick animal in an effort to
preserve its organic status. All appropriate medications must be used
to restore an animal to health when methods acceptable to organic
production fail. Livestock treated with a prohibited substance must be
clearly identified and neither the animal nor its products shall be
sold, labeled, or represented as organically produced.
(8) Withhold individual treatment designed to minimize pain and
suffering for injured, diseased, or sick animals, which may include
forms of euthanasia as recommended by the American Veterinary Medical
Association.
(9) Neglect to identify and record treatment of sick and injured
animals in animal health records.
(10) Practice induced molting.
(d) Parasite control plans. (1) Organic livestock operations must
have comprehensive plans to minimize internal parasite problems in
livestock, including preventive measures such as pasture management,
fecal monitoring, and emergency measures in the event of a parasite
outbreak.
(2) [Reserved]
(e) Euthanasia. (1) Organic livestock operations must have written
plans for prompt, humane euthanasia for sick or injured livestock
suffering from irreversible disease or injury.
(2) The following methods of euthanasia are not permitted:
suffocation; manual blow to the head by blunt instrument or manual
blunt force trauma; and the use of equipment that crushes the neck,
including killing pliers or Burdizzo clamps.
(3) Following a euthanasia procedure, livestock must be carefully
examined to ensure that they are dead.
0
4. Revise Sec. 205.239 to read as follows:
Sec. 205.239 Mammalian and non-avian livestock living conditions.
(a) The producer of an organic livestock operation must establish
and maintain year-round livestock living conditions, which accommodate
the wellbeing and natural behavior of animals, including:
(1) Year-round access for all animals to the outdoors, shade,
shelter, exercise areas, fresh air, clean water for drinking, and
direct sunlight, suitable to the species, its stage of life, the
climate, and the environment: Except, that, animals may be temporarily
denied access to the outdoors in accordance with paragraphs (b) and (c)
of this section. Yards, feeding pads, and feedlots may be used to
provide ruminants with access to the outdoors during the non-grazing
season and supplemental feeding during the grazing season. Yards,
feeding pads, and feedlots shall be large enough to allow all ruminant
livestock occupying the yard, feeding pad, or feedlot to feed without
competition for food. Continuous total confinement of any animal
indoors is prohibited. Continuous total confinement of ruminants in
yards, feeding pads, and feedlots is prohibited.
(2) For all ruminants, management on pasture and daily grazing
throughout the grazing season(s) to meet the requirements of Sec.
205.237 of this part, except as provided for in paragraphs (b), (c),
and (d) of this section.
(3) Appropriate clean, dry bedding. When roughages are used as
bedding, they shall have been organically produced in accordance with
this part by an operation certified under this part, except as provided
in Sec. 205.236(a)(2)(iii) of this part, and, if applicable,
organically handled by operations certified under this part.
(4) Shelter designed to allow for:
(i) Over a 24-hour period, sufficient space and freedom to lie
down, turn around, stand up, fully stretch their limbs, and express
normal patterns of behavior;
(ii) Temperature level, ventilation, and air circulation suitable
to the species;
(iii) Reduction of potential for livestock injury; and
(iv) Indoor housing must have areas for bedding and resting that
are sufficiently large, solidly built, and comfortable so that animals
are kept clean and dry, as appropriate for the species, and free of
lesions.
(5) The use of yards, feeding pads, feedlots and laneways that
shall be well-drained, kept in good condition (including frequent
removal of wastes), and managed to prevent runoff of wastes and
contaminated waters to adjoining or nearby surface water and across
property boundaries.
(6) Housing, pens, runs, equipment, and utensils shall be properly
cleaned and disinfected as needed to prevent cross-infection and build-
up of disease-carrying organisms.
(7) Dairy young stock may be housed in individual pens until
completion of the weaning process, provided that they have enough room
to turn around, lie down, stretch out when lying down, get up, rest,
and groom themselves; individual animal pens shall be designed and
located so that each animal can see, smell, and hear other animals.
(8) Swine must be housed in a group, except:
(i) Sows may be housed individually at farrowing and during the
suckling period; gestation and farrowing crates are prohibited;
(ii) Boars; and
(iii) Swine with multiple documented instances of aggression or for
recovery from an illness.
(9) Piglets shall not be kept on flat decks or in piglet cages.
(10) For swine, rooting materials must be provided, except during
the farrowing and suckling period.
(11) In confined housing with stalls for mammalian livestock,
enough stalls must be present to provide for the natural behaviors of
the animals. A cage must not be called a stall. For group-housed swine,
the number of individual feeding stalls may be less than the number of
animals, as long as all animals are fed routinely over a 24-hour
period. For group-housed cattle, bedded packs, compost packs, tie-
stalls, free-stalls, and stanchion barns are all acceptable housing as
part of an overall organic system plan.
(12) Outdoor space must be provided year-round. When the outdoor
space includes soil, vegetative cover must be maintained as appropriate
for the season, climate, geography, species of livestock, and stage of
production.
(b) The producer of an organic livestock operation may provide
temporary confinement or shelter for an animal because of:
(1) Inclement weather;
(2) The animal's stage of life, however, lactation is not a stage
of life that would exempt ruminants from any of the mandates set forth
in this part;
(3) Conditions under which the health, safety, or well-being of the
animal could be jeopardized;
(4) Risk to soil or water quality;
(5) Preventive healthcare procedures or for the treatment of
illness or injury (neither the various life stages nor lactation is an
illness or injury);
(6) Sorting or shipping animals and livestock sales, provided that
the animals shall be maintained under continuous organic management,
including organic feed, throughout the extent of their allowed
confinement;
(7) Breeding: Except, that, animals shall not be confined any
longer than necessary for natural breeding or to perform artificial
insemination. Animals may not be confined to observe estrus, and
animals may not be confined after breeding to confirm pregnancy; and
(8) 4-H, National FFA Organization, and other youth projects, for
no more than one week prior to a fair or other demonstration, through
the event, and
[[Page 75447]]
up to 24 hours after the animals have arrived home at the conclusion of
the event. These animals must have been maintained under continuous
organic management, including organic feed, during the extent of their
allowed confinement for the event. Notwithstanding the requirements in
paragraph (b)(6) of this section, facilities where 4-H, National FFA
Organization, and other youth events are held are not required to be
certified organic for the participating animals to be sold as organic,
provided all other organic management practices are followed.
(c) The producer of an organic livestock operation may, in addition
to the times permitted under paragraph (b) of this section, temporarily
deny a ruminant animal pasture or outdoor access under the following
conditions:
(1) One week at the end of a lactation for dry off (for denial of
access to pasture only), three weeks prior to parturition (birthing),
parturition, and up to one week after parturition;
(2) In the case of newborn dairy cattle, for up to six months,
after which they must be on pasture during the grazing season and may
no longer be individually housed: Except, That, any animal shall not be
confined or tethered in a way that prevents the animal from lying down,
standing up, fully extending its limbs, and moving about freely;
(3) In the case of fiber bearing animals, for short periods for
shearing; and
(4) 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 of at least 30
percent DMI from grazing throughout the grazing season. Milking
frequencies or duration practices cannot be used to deny dairy animals
pasture.
(d) Ruminant slaughter stock, typically grain finished, shall be
maintained on pasture for each day that the finishing period
corresponds with the grazing season for the geographical location.
Yards, feeding pads, or feedlots may be used to provide finish feeding
rations. During the finishing period, ruminant slaughter stock shall be
exempt from the minimum 30 percent DMI requirement from grazing. Yards,
feeding pads, or feedlots used to provide finish feeding rations shall
be large enough to allow all ruminant slaughter stock occupying the
yard, feeding pad, or feed lot to feed without crowding and without
competition for food. The finishing period shall not exceed one-fifth
(\1/5\) of the animal's total life or 120 days, whichever is shorter.
(e) The producer of an organic livestock operation must manage
manure in a manner that does not contribute to contamination of crops,
soil, or water by plant nutrients, heavy metals, or pathogenic
organisms and optimizes recycling of nutrients and must manage pastures
and other outdoor access areas in a manner that does not put soil or
water quality at risk.
0
5. Add Sec. 205.241 to read as follows:
Sec. 205.241 Avian living conditions.
(a) Avian year-round living conditions. The producer of an organic
poultry operation must establish and maintain year-round poultry living
conditions that accommodate the health and natural behavior of poultry,
including: year-round access to outdoors; shade; shelter; exercise
areas; fresh air; direct sunlight; clean water for drinking; materials
for dust bathing; and adequate outdoor space to escape aggressive
behaviors suitable to the species, its stage of life, the climate, and
environment. Poultry may be temporarily denied access to the outdoors
in accordance with paragraph (d) of this section. Continuous total
confinement of poultry indoors is prohibited.
(b) Indoor space requirements. (1) Poultry housing must be
sufficiently spacious to allow all birds to move freely, stretch both
wings simultaneously, stand normally, and engage in natural behaviors.
(2) Producers must monitor ammonia levels at least weekly by taking
measurements at the height of the birds' heads and implement practices
to maintain ammonia levels below 20 ppm. When ammonia levels exceed 20
ppm, producers must implement additional practices and additional
monitoring to reduce ammonia levels below 20 ppm. Ammonia levels must
not exceed 25 ppm.
(3) For layers and all other fully feathered birds, artificial
light may be used to prolong the day length, to provide up to 16 hours
of continuous light per 24-hour period (i.e., minimum of 8 hours of
continuous darkness per 24-hour period). Artificial light intensity
should be lowered gradually to encourage hens to move to perches or
settle for the night. Artificial light spectrum may not be manipulated
to increase feed intake and growth rate.
(4) Exit areas--poultry houses must have at least 1 linear foot of
exit area for every 360 birds, measured across the base of the exit,
but no less than one linear foot of exit area for flocks with fewer
than 360 birds. Exit areas must be appropriately distributed and sized
to ensure that all birds have ready access to the outdoors;
(i) If exit areas are not provided at a ratio of at least 1 linear
foot per 360 birds, a certifier may approve practices that provide less
than 1 linear feet per 360 birds only if an operation describes its
practices (in the organic system plan) and demonstrates that ready
access to the outdoors is provided for all birds;
(ii) Producers subject to requirements in 21 CFR part 118--
Production, Storage, and Transportation of Shell Eggs, must take steps
to prevent stray poultry, wild birds, cats, and other animals from
entering poultry houses.
(5) Perches--for layers (Gallus gallus), six inches of perch space
must be provided per bird. Perch space may include the alighting rail
in front of the nest boxes. All layers must be able to perch at the
same time except for aviary housing, in which 55 percent of layers must
be able to perch at the same time. Floors in slatted/mesh floor housing
cannot be counted as perch space.
(6) All birds must have access to areas in the house that allow for
scratching and dust bathing, except, that mobile housing may meet this
requirement when paired with outdoor space that provides birds with
areas for scratching and dust bathing. Litter must be provided and
maintained in a dry condition in the house.
(7) Non-mobile houses with slatted/mesh floors must have 15 percent
minimum of solid floor area available with sufficient litter available
for dust baths so that birds may freely dust bathe without crowding.
(8) For layers (Gallus gallus), indoor stocking density must meet
one or both of the following rates, expressed in different terms.
(i) Mobile housing: not to exceed 4.5 pounds per square foot; or,
alternatively, a rate of at least 1.5 square feet per bird will comply
with the requirement.
(ii) Aviary housing: not to exceed 4.5 pounds per square foot; or,
alternatively, a rate of at least 1.5 square feet per bird will comply
with the requirement.
(iii) Slatted/mesh floor housing: not to exceed 3.75 pounds per
square foot; or, alternatively, a rate of at least 1.8 square feet per
bird will comply with the requirement.
(iv) Floor litter housing: not to exceed 3.0 pounds per square
foot; or, alternatively, a rate of at least 2.2 square feet per bird
will comply with the requirement.
(v) Other housing: not to exceed 2.25 pounds per square foot; or,
alternatively, a rate of at least 3.0 square feet per bird will comply
with the requirement.
(9) For pullets (Gallus gallus), indoor stocking density must not
exceed 3.0
[[Page 75448]]
pounds of bird per square foot; or, alternatively, a rate of at least
1.7 square feet per bird will comply with the requirement.
(10) For broilers (Gallus gallus), indoor stocking density must not
exceed 5.0 pounds of bird per square foot; or, alternatively, a rate of
at least 2.0 square feet per bird will comply with the requirement.
(11) Indoor space includes flat areas available to birds, excluding
nest boxes.
(12) Indoor space may include enclosed porches and lean-to type
structures (e.g., screened in, roofed) as long as the birds always have
access to the space, including during temporary confinement events. If
birds do not have continuous access to the porch during temporary
confinement events, this space must not be considered indoors.
(c) Outdoor space requirements. (1) Access to outdoor space and
door spacing must be designed to promote and encourage outside access
for all birds on a daily basis. Producers must provide access to the
outdoors at an early age to encourage (i.e., train) birds to go
outdoors. Birds may be temporarily denied access to the outdoors in
accordance with paragraph (d) of this section.
(2) At least 75 percent of outdoor space must be soil. Outdoor
space with soil must include vegetative cover appropriate for the
season, climate, geography, species of livestock, and stage of
production. Vegetative cover must be maintained in a manner that does
not provide harborage for rodents and other pests.
(3) Shade may be provided by structures, trees, or other objects in
the outdoor area.
(4) For layers (Gallus gallus), outdoor space must be provided at a
rate of no less than one square foot for every 2.25 pounds of bird in
the flock; or, alternatively, a rate of at least 3.0 square feet per
bird will comply with the requirement.
(5) For pullets (Gallus gallus), outdoor space must be provided at
a rate of no less than one square foot for every 3.0 pounds of bird in
the flock; or, alternatively, a rate of at least 1.7 square feet per
bird will comply with the requirement.
(6) For broilers (Gallus gallus), outdoor space must be provided at
a rate of no less than one square foot for every 5.0 pounds of bird in
the flock; or, alternatively, a rate of at least 2.0 square feet per
bird will comply with the requirement.
(7) Outdoor space may include structures that are not enclosed
(e.g., with roof but no walls) and allow birds to freely access other
outdoor space.
(d) Temporary confinement. The producer of an organic poultry
operation may temporarily confine birds. Confinement must be recorded.
Operations may temporarily confine birds when one of the following
circumstances exists:
(1) Inclement weather, including when air temperatures are under 32
degrees F or above 90 degrees F.
(2) The animal's stage of life, including:
(i) The first 4 weeks of life for broilers (Gallus gallus);
(ii) The first 16 weeks of life for pullets (Gallus gallus); and
(iii) Until fully feathered for bird species other than Gallus
gallus.
(3) Conditions under which the health, safety, or well-being of the
animal could be jeopardized.
(4) Risk to soil or water quality.
(5) Preventive healthcare procedures or for the treatment of
illness or injury (neither various life stages nor egg laying is an
illness or injury).
(6) Sorting or shipping birds and poultry sales, provided that the
birds are maintained under continuous organic management, throughout
the extent of their allowed confinement.
(7) For nest box training, provided that birds shall not be
confined any longer than required to establish the proper behavior.
Confinement for nest box training must not exceed five weeks over the
life of the bird.
(8) For 4-H, National FFA Organization, and other youth projects,
provided that temporary confinement for no more than one week prior to
a fair or other demonstration, through the event, and up to 24 hours
after the birds have arrived home at the conclusion of the event.
During temporary confinement, birds must be under continuous organic
management, including organic feed, for the duration of confinement.
Notwithstanding the requirements in paragraph (d)(6) of this section,
facilities where 4-H, National FFA Organization, and other youth events
are held are not required to be certified organic for the participating
birds to be sold as organic, provided all other organic management
practices are followed.
(e) Manure management. The producer of an organic poultry operation
must manage manure in a manner that does not contribute to
contamination of crops, soil, or water by plant nutrients, heavy
metals, or pathogenic organisms. The producer must also optimize
recycling of nutrients and must manage outdoor access areas in a manner
that does not put soil or water quality at risk.
0
6. Add Sec. 205.242 to read as follows:
Sec. 205.242 Transport and slaughter.
(a) Transportation. (1) Certified organic livestock must be clearly
identified as organic, and this identity must be traceable for the
duration of transport.
(2) All livestock must be fit for transport to buyers, auction or
slaughter facilities.
(i) Calves must have a dry navel cord and be able to stand and walk
without human assistance.
(ii) Seriously crippled and non-ambulatory animals must not be
transported for sale or slaughter. Such animals may be medically
treated or euthanized.
(3) Adequate and season-appropriate ventilation is required for all
livestock trailers, shipping containers, and any other mode of
transportation used to protect animals against cold and heat stresses.
(4) During any transport and prior to slaughter, bedding must be
provided on trailer floors and in holding pens, as needed, to keep
livestock clean, dry, and comfortable. Use of bedding must be
appropriate to the species and type of transport. Bedding is not
required in poultry crates. When roughages are used for bedding, they
must be certified organic.
(5) For transport that exceeds eight hours, measured from the time
all animals are loaded onto a vehicle until the vehicle arrives at its
final destination, the operation must describe how organic management
and animal welfare will be maintained.
(i) The producer or handler of an organic livestock operation, who
is responsible for overseeing the transport of organic livestock, must
provide records to certifying agents during inspections or upon request
that demonstrate that transport times for organic livestock are not
detrimental to the welfare of the animals and meet the requirements of
paragraph (a)(5) of this section.
(ii) [Reserved]
(6) Organic producers and handlers, who are responsible for
overseeing the transport of organic livestock, must have emergency
plans in place that adequately address possible animal welfare problems
that might occur during transport.
(b) Mammalian slaughter. (1) Producers and handlers who slaughter
organic livestock must be in compliance, as determined by FSIS, with
the Federal Meat Inspection Act (21 U.S.C. 603(b) and 21 U.S.C.
610(b)), the regulations at 9 CFR part 313 regarding humane handling
and slaughter of livestock, and the
[[Page 75449]]
regulations of 9 CFR part 309 regarding ante-mortem inspection.
(2) Producers and handlers who slaughter organic exotic animals
must be in compliance with the Agricultural Marketing Act of 1946 (7
U.S.C. 1621, et seq.), the regulations at 9 CFR parts 313 and 352
regarding the humane handling and slaughter of exotic animals, and the
regulations of 9 CFR part 309 regarding ante-mortem inspection.
(3) Producers and handlers who slaughter organic livestock or
exotic animals must provide all noncompliance records related to humane
handling and slaughter issued by the controlling national, federal, or
state authority and all records of subsequent corrective actions to
certifying agents during inspections or upon request.
(c) Avian slaughter. (1) Producers and handlers who slaughter
organic poultry must be in compliance, as determined by FSIS, with the
Poultry Products Inspection Act requirements (21 U.S.C. 453(g)(5)); the
regulations at paragraph (v) of the definition of ``Adulterated'' in 9
CFR 381.1(b), and 9 CFR 381.90, and 381.65(b)); and applicable FSIS
Directives.
(2) Producers and handlers who slaughter organic poultry must
provide all noncompliance records related to the use of good commercial
practices in connection with slaughter issued by the controlling
national, federal, or state authority and all records of subsequent
corrective actions to the certifying agent at inspection or upon
request.
(3) Producers and handlers who slaughter organic poultry, but are
exempt from or not covered by the requirements of the Poultry Products
Inspection Act, must ensure that:
(i) No lame birds may be shackled, hung, or carried by their legs;
(ii) All birds shackled on a chain or automated system must be
stunned prior to exsanguination, with the exception of religious
slaughter; and
(iii) All birds must be irreversibly insensible prior to being
placed in the scalding tank.
0
7. Add Sec. 205.691 to read as follows:
Sec. 205.691 Severability.
If any provision of any subpart is declared invalid or the
applicability thereof to any person or circumstance is held invalid,
the validity of the remainder of any subpart or the applicability
thereof to other persons or circumstances shall not be affected
thereby.
Erin Morris,
Associate Administrator, Agricultural Marketing Service.
[FR Doc. 2023-23726 Filed 11-1-23; 8:45 am]
BILLING CODE 3410-02-P