National Organic Program (NOP); Organic Livestock and Poultry Practices

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 205

[Document Number AMS-NOP-15-0012; NOP-15-06FR]

RIN 0581-AD44

National Organic Program (NOP); Organic Livestock and Poultry Practices

AGENCY:

Agricultural Marketing Service, USDA.

ACTION:

Final rule.

SUMMARY:

The United States Department of Agriculture's (USDA) Agricultural Marketing Service (AMS) is amending the organic livestock and poultry production requirements by adding new provisions for livestock handling and transport for slaughter and avian living conditions; and expanding and clarifying existing requirements covering livestock care and production practices and mammalian living conditions.

DATES:

Effective Date:

This rule becomes effective March 20, 2017.

Implementation Dates:

This rule will be fully implemented March 20, 2018. There are two exceptions:

(1) Organic egg operations that are certified before March 20, 2020 need to implement the outdoor access requirements by March 21, 2022. Organic egg operations that become certified after March 20, 2020 need to comply with the outdoor access requirements in order to obtain certification.

(2) Organic broiler operations must fully implement the indoor space requirements by March 20, 2020.

FOR FURTHER INFORMATION CONTACT:

Paul Lewis, Ph.D., Director of Standards Division, Telephone: (202) 720-3252; Fax: (202) 260-9151.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Executive Summary

A. Purpose of the Final Rule

B. Summary of Provisions

C. Costs and Benefits

II. General Information

A. Does this Action Apply to Me?

III. Background

IV. Comments Received

A. Regulatory Authority of the Final Rule

B. Regulatory Clarity of the Final Rule

C. Consumer Education and Outreach

D. International Trade Agreements

E. Meat and Poultry Imports

V. Related Documents.

VI. Definitions (§ 205.2)

A. Description of Regulations

B. Discussion of Comments Received

VII. Livestock Health Care Practices (§ 205.238)

A. Description of Regulations

B. Discussion of Comments Received

VIII. Mammalian Living Conditions (§ 205.39)

A. Description of Regulations

B. Discussion of Comments Received

IX. Avian Living Conditions (§ 205.241)

A. Description of Regulations

B. Discussion of Comments Received

X. Transport (§ 205.242(a))

A. Description of the Final Rule

B. Discussion of Comments Received

XI. Slaughter (§ 205.242(b) and (c))

A. Description of Regulations

B. Discussion of Comments Received

XII. Executive Orders 12866 and 13563—Executive Summary

XIII. Retrospective Analysis

XIV. Executive Order 12988

XV. Executive Order 13175

XVI. Paperwork Reduction Act

A. Summary

B. Discussion of Comments Received

XVII. Civil Rights Impact Analysis

List of Subjects in 7 CFR Part 205

I. Executive Summary

A. Purpose of the Final Rule

This final rule creates greater consistency in organic livestock and poultry practice standards. Based on recommendations from the Office of Inspector General and the National Organic Standards Board, AMS determined that the current USDA organic regulations (7 CFR part 205) covering livestock care and production practices and living conditions needed additional specificity and clarity to better ensure consistent compliance by certified organic operations and to provide for more effective administration of the National Organic Program (NOP) by AMS. One purpose of the Organic Foods Production Act of 1990 (OFPA) (7 U.S.C. 6501-6522) is to assure consumers that organically produced products meet a consistent and uniform standard (7 U.S.C. 6501).

B. Summary of Provisions

Specifically, this final rule:

1. Clarifies how producers and handlers participating in the NOP must treat livestock and poultry to ensure their wellbeing.

2. Clarifies when and how certain physical alterations may be performed on organic livestock and poultry in order to minimize stress. Additionally, some forms of physical alterations are prohibited.

3. Sets maximum indoor and outdoor stocking densities for organic chickens, which vary depending on the type of production and stage of life.

4. Defines outdoor space and requires that outdoor spaces for organic poultry include soil and vegetation.

5. Adds new requirements for transporting organic livestock and poultry to sale or slaughter.

6. Clarifies the application of USDA Food Safety and Inspection Service (FSIS) requirements regarding the handling of livestock and poultry in connection with slaughter to certified organic livestock and poultry establishments and provides for the enforcement of USDA organic regulations based on FSIS inspection findings.

7. AMS has only established indoor space requirements for chickens in this final rule. AMS may propose space requirements for other avian species in the future. Other avian species must meet all other indoor requirements including exit doors, ammonia levels, and lighting.

C. Costs and Benefits

AMS estimates the following costs and benefits for this final rule.

Assumed conditions

Affected population

Costs,

millions

a

Benefits,

millions

Transfers,

millions

All producers remain in organic market; Organic layer and broiler populations continue historical growth rates after rule

Organic layer and organic broiler production at full implementation of rule, i.e., 2022 for layers; 2020 for broilers

$28.7-$31.0

$16.3-$49.5

N/A

50% of organic layer production in year 6 (2022), moves to the cage-free market. Organic layer and broiler populations continue historical growth rates after rule

Organic layer and organic broiler production at full implementation of rule, i.e., 2022 for layers; 2020 for broilers

$11.7-$12.0

$4.5-$13.8

$79.5-$86.3

50% of current organic layer production moves to the cage-free market in year 6 (2022). There are no new entrants after publication of this rule that cannot comply

Current organic layer production; organic broiler production at full implementation of rule in 2020

$8.2

$4.1-$12.4

$45.6-$49.5

Other impacts: Estimated paperwork burden: $3.9 million

a

All values in the costs, benefits and transfer columns of this table are annualized and discounted at 3% and 7% rates.

II. General Information

A. 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. 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.

• 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 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 under

FOR FURTHER INFORMATION CONTACT

.

III Background

This final rule addresses care and production practices, transport, slaughter, and living conditions for organic livestock and poultry.

1

The provisions in this rule on outdoor access for organic poultry have a significant history of AMS actions that are based on National Organic Standards Board (the NOSB) recommendations. Outdoor access is a prominent issue in this final rule. Poultry practices for outdoor access currently vary, especially practices implemented for layer operations. Some organic poultry operations provide large, open-air outdoor areas, while other operations provide minimal outdoor space or use screened and covered enclosures commonly called “porches” to meet outdoor access requirements. In a 2010 audit, the USDA Office of Inspector General identified inconsistencies in how accredited certifying agents (or “certifiers”) consider porches under outdoor access while implementing certification of organic poultry operations. AMS initially responded to this audit finding by publishing draft guidance on outdoor access for organic poultry. However, after receiving public comment on the draft guidance, AMS determined that rulemaking was necessary to reduce the variation in outdoor access practices for organic poultry; therefore, AMS did not finalize the draft guidance. To assist with this rulemaking, the NOSB developed a series of recommendations to further clarify organic livestock and poultry care and production practices, transport, slaughter, and living conditions, including outdoor access for poultry. The NOSB deliberations on these recommendations revealed that there is considerable support for these recommendations within the organic community and consumers have specific expectations for organic livestock care, which includes outdoor access for poultry.

1

As defined in § 205.2, the term “livestock” includes any cattle, sheep, goats, swine, poultry, or equine animals used for food or in the production of food, fiber, feed, or other agricultural-based consumer products. In this final rule, the terms “livestock” and “livestock and poultry” are used throughout the preamble. Unless otherwise specified, the term “livestock” refers to both mammalian livestock and avian livestock.

On April 13, 2016 AMS issued a proposed rule to amend organic livestock and poultry practices. Background on current organic livestock standards, NOSB recommendations contributing toward the development of the proposed rule, AMS policy, and related issues are described in preamble of that action.

2

2

https://www.federalregister.gov/documents/2016/04/13/2016-08023/national-organic-program-organic-livestock-and-poultry-practices.

IV. Comments Received

In response to AMS's request for comments on the proposed rule, a total of 6,675 written comments were received. Approximately 78 percent of the submitted comments—or 5,182 comments—consisted of form letters. There were 1,493 individual comments on the proposed rule. Comments were received from 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. AMS analysis and response to comments is described in the following preamble sections of the final rule.

A. Regulatory Authority of the Final Rule

(Comment) Several comments argued that USDA does not have sufficient regulatory authority under OFPA to publish final rules for livestock living conditions and animal welfare as described in the proposed rule. They argued that the livestock section of OFPA only provides authority to prepare regulations regarding feeds and animal health care issues.

(Response) AMS affirms that USDA has the authority to conduct this rulemaking; this action falls within our purview to implement the Organic Foods Production Act. AMS is issuing these regulations to strengthen the USDA organic livestock production regulations with clear provisions to fulfill one purpose of OFPA: to assure consumers that organically-produced products meet a consistent and uniform standard (7 U.S.C. 6501). In accordance with OFPA, this action will clarify USDA statutory and regulatory mandates and establish consistent, transparent, and enforceable requirements. Two provisions within OFPA convey the intent for the USDA to develop more specific standards for organic livestock production; that purpose was also explained in the accompanying Senate Committee report.

3

Section 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. Further, section 6509(g) directs the Secretary to develop detailed regulations through notice and comment rulemaking to implement livestock production standards. AMS has already exercised this authority to implement additional regulations regarding feed and living conditions for organic livestock (see Access to Pasture, 75 FR 7154 (February 17, 2010)). Therefore, the statute contemplated that the assurance of organic integrity for livestock products would require more specific guidelines and provided the authority for that future regulatory activity.

3

The Senate report that accompanied the OFPA legislation set the expectation for greater specificity in the future for organic livestock standards as the industry matured: “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.” Senate Committee on Agriculture, Forestry and Nutrition,

Report of the Committee on Agriculture, Forestry and Nutrition to Accompany S. 2830 Together with Additional and Minority Views, 101st Congress,

S. REP. NO. 101-357, at 289 (1990).

This rule would continue the process initiated with the Access to Pasture rulemaking to establish clear and comprehensive requirements for all organic livestock, consistent with recommendations provided by USDA's Office of Inspector General and nine separate recommendations from the NOSB. Further, it will align regulatory language and intent to enable producers and consumers to readily discern the required practices for organic poultry production and to differentiate the products in the marketplace.

B. Regulatory Clarity of the Final Rule

(Comment) The proposed rule sought comments on the clarity of the proposed requirements by posing the following specific question: “Can farmers, handlers, and certifying agents readily determine how to comply with the proposed regulations?”

Though they did not directly answer the question posed in the proposed rule, a few comments nevertheless commented more generally on the clarity of the proposed rule. Speaking specifically of the revisions to mammalian living conditions, one comment indicated that the proposed rule was needed as a means to strengthen vague organic livestock standards. This comment did, however, highlight areas that continue to be unclear, claiming inconsistencies in the interpretation of standards upon implementation of the rule. Another commenter provided general support for the proposed rule, as rulemaking clarity will lead to consistent compliance by certified operations while addressing consumer expectations and demand. In contrast, one comment stated that that rule is confusing specifically addressing mammals and avian species. Another comment stated that only organic certifiers with limited livestock experience will find the current the organic regulations clear and concise in contrast to the more seasoned organic inspector community. This commenter further stated that those experienced in the organic industry realize the challenge to promulgate universal standards. The comment also asserted that creating new standards will make it difficult for certifiers to be effective in their work.

(Response) Where appropriate, AMS has amended sections of the final rule to clarify the requirements based on comments, with the goal of making the requirements readily understandable for organic stakeholders.

C. Consumer Education and Outreach

(Comment) A few comments stated that USDA should do more to inform consumers about what organic means and doesn't mean, and that educating consumers about the existing standards would be better than changing the regulations.

(Response) AMS agrees that consumer education is important to ensure that organic consumers understand the limitations of the existing organic regulations. However, numerous comments and the NOSB have requested that AMS clarify the current regulatory text and add sufficient detail in support of consistent enforcement of the USDA organic regulations that affect the welfare of organic livestock and poultry. Therefore, AMS has opted to proceed with this rulemaking. AMS received a number of comments which addressed how the variability in outdoor access practices among organic producers threatens consumer confidence in the organic label. This is discussed more fully in the Executive Orders 12866 and 13563 section—see Impact of Consumer Confusion.

D. International Trade Agreements

(Comment) A number of comments asked how the final rule would impact existing organic trade agreements, such as equivalency agreements and recognition agreements. For example, some comments highlighted where specific standards in the proposed rule differ from existing standards in specific countries. It was also asked whether existing equivalency agreements would require renegotiation as a result of a final rule.

(Response) When the USDA organic regulations are amended, the USDA notifies the trading partner in accordance with the terms established in the international organic equivalency arrangement. In addition, the proposed regulations are shared with the World Trade Obligations (WTO) pursuant to the WTO Agreement on Technical Barriers to Trade. Under the current organic equivalency arrangements, the USDA notifies the trading partner in advance of any final USDA organic regulation that may affect the terms of the existing equivalency determination. The foreign country reviews the information, and may initiate discussion to determine whether a renegotiation of the equivalence arrangement is needed. With recognition arrangements, the certification bodies in the foreign country are accredited by the recognized foreign government authority to certify operations under the USDA organic regulations. As a result, the USDA notifies the foreign government of the final USDA organic regulation, and the foreign government authority informs its accredited certification bodies of the final regulation. AMS will provide training and technical assistance during the implementation period to assist foreign governments and accredited certification bodies.

E. Meat and Poultry Imports

(Comment) USDA received comments regarding meat and poultry imports and how AMS will regulate livestock slaughter by certified operations in foreign countries. One comment provided country-specific recommendations regarding cattle to stipulate that while cattle are in Australia, “they must abide by the standards and guidelines prescribed in the Australian Animal Welfare Standards for the Land Transport of Livestock (The Standards).” Additionally, a comment indicated that U.S. certifiers are currently unequipped to verify compliance with these other rules/laws for producers outside of the U.S.

(Response) Products certified under the USDA organic regulations must first comply with the requirements of the Food and Drug Administration (FDA) and Food Safety and Inspection Service (FSIS). In other countries, FSIS has memorandums of understanding that recognize other countries' processes for safe and humane livestock handling and slaughter. Generally, USDA organic requirements go beyond minimum regulatory requirements for humane handling and slaughter. For NOP requirements, certifiers must ensure inspectors are qualified to evaluate compliance of applicants for organic certification. Certifiers are not responsible for verifying compliance

with regulations other than those for organic certification. AMS did not amend the proposed rule based on these comments.

V. Related Documents

Documents related to this final rule include the Organic Foods Production Act of 1990, as amended, (7 U.S.C. 6501-6522) and its implementing regulations (7 CFR part 205). The NOSB deliberated and made the recommendations described in this proposal 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); and 73 FR 63584 (October 24, 2008). Past final rules relevant to this topic were published at: 65 FR 80548 (December 21, 2000); 71 FR 32803 (June 7, 2006); and 75 FR 7154 (February 17, 2010). AMS published the most recent proposed rule at 81 FR 21956 (April 13, 2016).

VI. Definitions (§ 205.2)

A. Description of Regulations

1. Summary of the Final Rule

This final rule adds sixteen new terms to § 205.2: beak trimming, caponization, cattle wattling, de-beaking, de-snooding, dubbing, indoors or indoor space, mulesing, non-ambulatory, outdoors or outdoor space, perch, pullet, ritual slaughter, soil, toe clipping, and vegetation. Six of these terms—caponization, cattle wattling, de-snooding, dubbing, mulesing, and soil—remain unchanged from the proposed rule. The definitions of seven additional terms were revised in response to comments: beak trimming, de-beaking, indoors or indoor space, outdoors or outdoor space, perch, pullets, and toe clipping. The term roost, which was included in the proposed rule, has been removed from the final rule in response to comments. Three terms that were not included in the proposed rule, non-ambulatory, ritual slaughter, and vegetation, have been added to the final rule.

Physical Alterations

The final rule prohibits several physical alterations on organic livestock. Eight terms related to these physical alterations are defined in the final rule so that certifying agents and producers may ensure that they do not inadvertently perform a prohibited physical alteration which may be known by a different name locally.

Indoors or Indoor Space

The final rule defines “indoors or indoor space” as the space inside of an enclosed building or housing structure that has a solid, slatted, or perforated floor. The term “indoors” from the proposed rule was modified to include “or indoor space” because both of these terms are used interchangeably throughout the rule. While all organic livestock must be provided with species-appropriate shelter, structures providing indoor space are not required. If indoor spaces are provided to organic livestock, then species-specific requirements for the indoor space must be met. Indoor spaces are differentiated from outdoor spaces based upon the structure being enclosed so that livestock may be confined within the footprint of the building.

Indoor space is enclosed so that livestock may be confined within the building or housing structure; outdoor space is the area outside of the enclosed building or enclosed housing structure, but includes roofed areas that are not enclosed. One of the key considerations distinguishing indoor space from outdoor space is how the livestock are managed in that space. How livestock are managed may determine whether space is considered 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 did not have continuous access to the space during temporary confinement events. If the screens were removed from that porch so that the birds could freely access other outdoor space, then the porch would be considered outdoor space (see “Outdoors or outdoor space,” below). These distinctions provide flexibility for producers to work with their certifying agents when developing their organic system plans (OSPs), yet still aligns with the position that enclosed porches are not considered to be outdoor space.

The final rule defines four types of avian indoor space. These indoor housing types are defined because each housing type has a differing indoor space requirement. AMS continues to include an indoor space requirement at § 205.241(b)(8)(v) for housing that does not fit within one of the types defined in § 205.2.

The final rule further clarifies the requirements for avian species indoor space requirements by defining the term “perch” as a rod or branch type structure or flat space above the floor of the house that accommodates roosting, allowing birds to utilize vertical space in the house.

Outdoors or Outdoor Space

The final rule defines “outdoors or outdoor space” to clarify the meaning of outdoor areas for mammalian and avian species. The term “outdoors” from the proposed rule was modified to include “or outdoor space” because these two terms are used interchangeably throughout the rule. “Outdoors or outdoor space” is defined as any area outside of an enclosed building or enclosed housing structure, but including roofed areas that are not enclosed. In this definition, “outdoors or outdoor space” includes all of 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.

The outdoor space has species-specific requirements. For example, this rule sets the requirement that 50 percent of the outdoor space for avian species must be soil-based and that the soil be maximally covered with vegetation. Vegetative cover must be maintained in a manner that does not provide harborage for rodents and other pests. For avian species, the definition of outdoors has been revised to include pasture pens, which are floorless pens that are moved regularly and provide direct access to soil and vegetation. These pens may consist of solid roofing over all or part of the pen to provide shelter for the birds. For further discussion see “Pasture Pens vs. Other Mobile Housing” in section IX. Avian Living Conditions.

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 the outdoor area. Many producers also use portable or permanent shade structures throughout their pastures. Structures for shade are also permitted in the outdoor space. For example, the area within a standalone, roofed shade structure could be included as outdoor space area. Areas under the eaves or the awning of a building, with a roof attached to the outer wall of the indoor space structure,

can also be considered outdoors. While these areas may have solid roofs overhead, they can offer the same quality of outdoor space as uncovered outdoor areas, including natural ventilation/open air, direct sunlight, soil, vegetation, and open access to uncovered areas beyond.

The final rule defines “soil” as the outermost layer of the earth comprised of minerals, water, air, organic matter, fungi, and bacteria, in which plants may grow roots. Soil is defined to distinguish these areas from impervious areas such as concrete or pavement. Soil may consist of bare ground but is generally covered with vegetation. As described in the mammalian and avian living condition sections, maximum vegetative cover should be maintained on the soil as appropriate for the species, season, geography, and climate. Designated sacrifice areas or dry lots are permitted. Outdoor areas must be maintained in a manner that maintains or improves natural resources, including soil and water quality. Temporary confinement may be provided to protect soil and water quality.

Non-Ambulatory

The final rule adds the term “non-ambulatory” and references the definition in 9 CFR 309.2(b). FSIS defines 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.” 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.

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 final 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” does not describe young broilers used for meat production.

Stocking Density

The final rule defines “stocking density” as the weight 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, the final rule establishes maximum stocking densities for avian species, and the producer must ensure that the area provided is large enough to not exceed the established maximum stocking density when all birds in the flock are on the given area (

i.e.,

indoors) or unit of land.

Ritual Slaughter

The final rule adds the term “ritual slaughter” and references the definition in the Humane Methods of Slaughter Act (7 U.S.C. 1902(b)). This Act defines ritual slaughter as “slaughtering in accordance with the ritual requirements of the Jewish faith or any other 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.”

Organic livestock and handling operations may use ritual slaughter to convert their livestock to meat or poultry without loss of organic status.

Vegetation

The final 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 of grazing, rooting, nesting, etc., which require vegetation.

B. Discussion of Comments Received

1. Definition of Beak Trimming

(Comment) The term beak trimming was included in the proposed rule and was defined as the removal of the curved tip of the beak. Many comments expressed that the definition for this term was vague and that the difference between beak trimming and de-beaking was unclear. Comments also shared that it is common within the industry to use the terms beak trimming and de-beaking interchangeably and that a more quantitative measure should be included if the intent of the rule is to control the amount of beak trimmed. One comment requested additional clarification with regards to trimming the bottom of the beak. Some comments suggested revisions to the definition to provide clarity, including the American Veterinary Medical Association (AVMA) which recommended the following definition: “Beak trimming (formerly de-beaking) is the removal of approximately one-quarter to one-third of the upper beak, or both upper and lower beak, of a bird in order to control injurious pecking and cannibalism.” Four comments suggested that the proposed definition be revised to specify the anatomical name of the portion of the beak that is removed in beak trimming. Other comments stated that the definition should specify the age at which beak trimming can be performed.

(Response) AMS agrees with the majority of comments which expressed that the definition of beak trimming should be clarified. We have replaced the definition from the proposed rule with a definition similar to the one provided by AMVA which specifies that beak trimming is “the removal of approximately one-quarter to one-third of the upper beak, or both upper and lower beak”. For the purposes of these regulations, AMS modified the AVMA definition to replace the word “approximately” with “not more than” in order to ensure that beak trimming is clearly distinguished from de-beaking. We believe that this definition adequately addresses the comments received and is both accurate and clear without being overly prescriptive. AMS does not believe that it is necessary to refer to anatomical names for portions of the beak in this definition since these terms are not used in the regulatory text. Other comments in response to the age at which beak trimming can be done are addressed in the avian living conditions section of the final rule.

2. Definition of De-Beaking

(Comment) The term de-beaking was included in the proposed rule and was defined as “the removal of more than the beak tip.” The comments received regarding the term beak trimming also addressed de-beaking, expressing that the proposed definition was vague and that the distinction between beak trimming and de-beaking was not clear. One comment requested that the definition of de-beaking be removed entirely as the industry has taken steps to eliminate this practice.

(Response) In response to comments, AMS amended the definition of de-beaking in the final rule to make it more specific. AMS believes that it is important to define de-beaking in order to differentiate it from beak trimming. Comments did not provide a suggested definition for the term, and as a result AMS decided to define de-beaking as anything that goes beyond what is defined in this rule as beak trimming.

Thus, the amended definition of de-beaking clarifies that it is the removal of more than one-third of the upper beak, or more than one-third of both the upper and lower beaks of a bird.

3. Definition of Caponization

(Comment) AMS received two comments stating that the definition for “caponization” should not be included in the final rule. Comments stated that it is unnecessary for AMS to define “caponization” because it beyond the purview of the AMS.

(Response) This final rule prohibits caponization, as defined, based upon a recommendation from the NOSB. Thus, it is within AMS's purview. AMS believes that, because caponization is prohibited, it is necessary to clearly define what it is so that certifying agents and producers can ensure that they do not inadvertently perform this physical alteration.

4. Definition of Indoors

(Comment) AMS received a range of comments on the proposed definition of indoors. A number of comments suggested that the term “indoors” be replaced by the term “indoors for avian species” since the definition of the term is specifically related to avian living spaces. Other comments recommended changing the term “pasture housing” to “mobile housing.” These comments pointed out that there are fixed housing systems that offer pasture to birds. They also noted that the term “pasture-raised” is defined by other third-party animal welfare standards, and those standards allow fixed housing to be used in combination with a spoke-and-wheel pasture rotation for pasture-raised poultry. Thus, they felt that the term “mobile housing” is more accurate based on the type of housing that AMS intended to describe in the proposed definition.

Two comments recommended that the reference to 70% perforated flooring be removed from the description of pasture housing since this requirement is restrictive when considering that different types of pasture housing (or mobile housing) vary in design. These comments suggested that the definition instead focus on the mobility of the housing and its frequent movement.

Various comments expressed that more clarity is needed in the definition of “indoors” in order to define exactly what counts as indoors and outdoors for the various types of pasture-based systems used. These comments recommended that definitions for “moveable pasture pen” and “day range system” be added in order to provide additional clarity and to better represent the actual types of pasture housing used in pastured-poultry operations. Commenters used “Salatin” style housing, “Prairie Schooners,” and simple hoop structures as examples of moveable pasture pens. The comments described these systems as providing direct access to soil and vegetation; having walls and roofs made of mesh, plastic, wood, and other materials; and having mobility. Birds in these systems are on pasture 24 hours per day, while roofing on all or part of the structure provides shade and protection. These commenters argued that these systems are unique, provide access to the soil and vegetation, and allow birds to exhibit natural behavior, and should be specifically permitted and addressed in the requirements.

(Response) AMS agrees that the proposed definition for indoors focuses specifically on describing what qualifies as indoor areas for avian species. Rather than creating a new term, “indoors for avian species,” AMS determined that it would be best to define indoors more broadly, and provide a separate sub-category of terms that define what is indoors specifically for avian species. Having a broadly applicable definition of indoors helps to clearly distinguish it from the meaning of outdoors. Further defining indoor areas for avian species within the definition of indoors allows AMS to provide more specificity where it is needed. As a result, AMS revised the basic definition of indoors to define it as the space inside of an enclosed building or housing structure with solid, slatted, or perforated flooring.

AMS also agrees with comment that stated that the term “mobile housing” is more appropriate to describe pasture housing that is regularly moved to provide birds with access to new pasture. In various situations, the term “pasture housing” may be applied to stationary housing that provides access to pasture, and this could cause confusion for producers, certifying agents, and inspectors. In response to comments, AMS replaced the term “pasture housing” with “mobile housing” in the final rule.

Additionally, AMS removed the reference to 70% perforated flooring from the definition of mobile housing. AMS agrees with comments that defining mobile housing without specifying what its flooring is made of is more applicable given the diversity of structures used in mobile housing systems.

AMS made several revisions in the final rule in response to comments requesting more clarity around the definitions of indoors and outdoors as they apply to pasture-based systems. AMS agrees with comments that the proposed definitions for these terms did not adequately consider pastured poultry systems where birds are contained within a lightweight, floorless enclosure such as a pen that provides the birds in the pen with direct contact to soil and vegetation. As such, these systems did not clearly fall under either definition that AMS proposed for indoors or outdoors. AMS has clarified that pasture pens are outdoors or outdoor space by revising the definition in section 205.2. For further discussion of this topic, see section IX. Avian Living Conditions, “Pasture Pens vs. Other Mobile Housing.”

Organic livestock must be provided with outdoor space as the default living space, along with shelter. Organic producers may choose to provide indoor covered, enclosed and floored space as shelter if needed for the health and wellbeing of the birds, but it is not required. In addition to revising the broad definition of indoors, AMS responded to these comments by providing a separate definition of pasture pens under the definition of outdoors at section 205.2. The definition of outdoors, similar to the definition of indoors, defines pasture pens in a sub-category of terms describing outdoors for avian species.

Nest Box Areas and Other Indoors Comments

(Comment) A small number of comments stated that it was unclear from the proposed rule whether accessible nest box areas could be included in indoor space calculations. These comments suggested adding “and accessible nest boxes” to the first sentence of the definition for indoors. Some comments requested that the definition of indoors clarify that the term includes porches and lean-to type structures attached to the building or housing structure. One comment questioned the reference to feed and water on each level in the description of aviary housing. This comment noted that it is not necessary to include this specific requirement in case producers prefer to keep food and water on the main level of housing to encourage birds to move around and go outdoors. One comment suggested a new definition for “indoors” as: “The flat space or platform areas which are under a solid roof and contained within a solid wall.” Another comment that the definition for indoors specify that it may not contain prohibited materials.

(Response) AMS did not add “accessible nest boxes” to the definition of indoors as some comments requested. Most third-party animal welfare

standards consider nest boxes to be distinct from usable floor areas of the house where birds can move around freely. These third-party standards use indoor space calculation methods that do not include nest boxes. AMS believes that aligning with other third-party animal welfare standards by excluding nest boxes from indoor space calculations is the most sensible approach. Since many organic egg producers participate in other third-party verified animal welfare programs, this approach avoids creating separate requirements for producers which could be confusing and burdensome.

4

In addition, AMS' approach aligns with the NOSB's 2011 recommendation stating that nest boxes cannot be included in the calculation of indoor space.

5

Therefore, AMS did not change the definition of “indoors” to include nest boxes. AMS also clarified in § 205.241(b)(7) that nest boxes cannot be included in indoor space calculations.

4

United Egg Producers:

http://www.unitedegg.org/information/pdf/UEP-Animal-Welfare-Guidelines2016.pdf.

Humane Farm Animal Care:

http://certifiedhumane.org/wp-content/uploads/2014/01/Std14.Layers.6A.pdf.

Global Animal Partnership:

http://gapstaging.blob.core.windows.net/standards/DRAFT%205-Step%20Animal%20Welfare%20Rating%20Pilot%20Standards%20for%20Laying%20Hens.pdf.

American Humane Certified:

http://www.humaneheartland.org/index.php?option=com_content&view=article&id=3&Itemid=106&jsmallfib=1&dir=JSROOT/Animal+Welfare+Full+Standards+%2B+Supplements.

5

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

.

AMS determined that a specific reference to porches and enclosed lean-to type structures is not necessary in the definition of “indoors.” AMS believes that the definition adequately covers these types of structures and that including them in a broader list of housing categories would be confusing. However, AMS does provide clarification in the regulatory text under Avian Living Conditions (§ 205.241) that these structures can be counted as indoor space provided that they are fully accessible to birds at all times, including during temporary confinement.

AMS removed “feed and water on each level” from the definition of aviary housing in the definition of “indoors or indoor space” at § 205.2. Not all avian housing is designed this way, and this revision allows producers to work with their certifying agents to determine the best location for food and water depending on their housing system.

5. Definition of Outdoors

Soil/Vegetation Requirement

(Comment) Many comments stated that the definition of outdoors should include a requirement for vegetation instead of soil. These comments expressed concern about soil and water quality in the absence of vegetation in outdoor areas used by livestock. Many also felt that vegetation is important for animal health and natural behaviors. Other comments requested that the 50 percent soil requirement in the definition of outdoors should be removed. These comments felt that this reference contradicted the use of feeding pads and feeding yards, which are specifically allowed under the rule. They also expressed concern that including a requirement specifically for 50 percent soil in the definition of outdoors could negatively impact soil and water quality during winter or dry months.

Various comments questioned the statement in the proposed definition indicating that areas with solid walls or a solid roof attached to the outer wall of an indoor living space cannot be considered outdoors. Comments questioned how these areas (such as eaves or awnings) are different from an outdoor space that has a solid roof and no walls and is not connected to the structure providing the indoor space. They reasoned that these areas provide the same quality of outdoor space and are important for providing shade and protection. Other comments stated that allowing areas under the eaves of buildings and awnings to be counted as outdoors would simplify outdoor space calculations.

Some comments stated that porches should be included in the definition of outdoors. They cited the need to calculate porches as outdoor space due to producer costs, biosecurity concerns, mortality rates, and environmental concerns.

(Response) AMS agrees with comments that it is important that outdoor areas for livestock include vegetation to protect soil and water quality and promote animal health and natural behaviors. AMS is also in agreement with comments that requested that the reference to soil be removed from the definition of outdoors. In response to these comments, AMS in conjunction with Natural Resource Conservation Service, determined that requirements for soil and vegetation in outdoor access areas should be included in the sections of the final rule that address mammalian and poultry living conditions rather than in the definition of outdoors. Including a requirement for vegetation in the definition for outdoors may make it difficult for some producers to meet outdoor access requirements during certain times of the year (

i.e.

winter months, dry seasons), in certain regions, or for certain species.

AMS agrees that outdoor areas that are partially covered, such as areas under the eaves or the awning of a building, can be considered outdoors. These areas can offer the same qualities of outdoor space (such as natural ventilation, soil, vegetation, and open access to uncovered outdoor areas) as independent shade structures. In response to comments, AMS revised the definition of outdoors to remove the statement that disqualifies areas where there is a solid wall or roof attached to the indoor living space. This revision is intended specifically to accommodate for features of an avian housing structure that may provide cover but are in areas that are truly outdoors. In these areas, birds have access to soil and vegetation, natural ventilation, and open access to uncovered outdoor areas beyond. AMS considers these areas as distinct from porches specifically because they are not fully enclosed.

For further discussion about porches see “Porches” in the Discussion of Comments Received, section IX. Avian Living Conditions.

6. Definition of Perch and Roost

(Comment) AMS received a number of comments about the proposed definitions of the terms “perch” and “roost.” Comments stated that the terms in the proposed rule were confusing and are used interchangeably within the proposed rule and within the industry. Some comments suggested replacing the word roost with the word slats, to refer to raised slats positioned over a manure pit. Other comments stated that the reference to manure pit(s) should be removed from the definition of roost entirely, as not all roosts are located over one.

(Response) AMS recognizes that using both terms “perch” and “roost” could be confusing, as the terms can be used interchangeably by producers and industry. AMS determined that it is only necessary to include the term “perch” in the final rule. As defined, this term is intended to refer to various features in poultry housing, such as rods, branch type structures, and flat roost slats that accommodate roosting and are elevated to allow birds to stay off the floor of the house. Perches may be over a manure pit but this is not a requirement. AMS also removed “roost” from the definitions section and regulatory text section based on

comment feedback that the term was not necessary.

7. Definition of Soil

(Comment) A small number of comments expressed confusion over the proposed definition of soil and asked whether soil, as defined, is required to be bare since the definition did not include a reference to vegetation. One of these comments suggested revising the definition to add “which may be bare or vegetated” in order to provide clarification. Another comment requested that the definition of soil be revised to describe it as being vegetated, citing soil and water quality concerns. Other comments expressed concern about conflicts with other definitions of soil currently in use. One of these comments suggested replacing the proposed definition of “soil” with a more technical definition from the Natural Resources Conservation Service (NRCS), while another comment suggested using the term “certified ground.” A separate commenter thought that the impact of the proposed rule was limited without an adequate definition of soil that clearly states the quality, depth, and presence of vegetation.

(Response) After considering the comments received, we have retained the definition of soil from the proposed rule because we believe that it is an accurate and a commonly understood description of the term. AMS believes that a more complex or overly technical definition of soil is unnecessary and could contribute to confusion. However, AMS recognizes that the intent of some comments was to avoid circumstances in which animals on bare soil could create soil or water quality problems, and the Agency agrees that avoiding such an outcome is paramount. The final rule provides additional clarification in the avian and mammalian living conditions sections regarding the various requirements for soil and vegetation in outdoor areas to differentiate between the needs and management of avian and mammalian species.

8. Definition of Stocking Density

(Comment) AMS received various comments identifying that the reference to “unit of land” in the definition for stocking density is limiting, since it applies to both outdoor and indoor space. Comments suggested that the definition refer to “area of space” instead of to “unit of land.” One comment suggested that AMS also remove the phrase “at any one time” from the definition of stocking density. The comment stated that this phrase could be interpreted to allow space requirements to be calculated by applying the stocking density to a percentage of animals that might be in an area at a point in time, rather than applying the stocking density to the total flock.

(Response) In the final rule, AMS has removed the phrase “at any one time” from the definition to reduce the chance of confusion over the intended meaning and application of the term. AMS has also revised the term to include “given area” in response to comments that the term is used for both indoor and outdoor areas.

For further discussion about space calculations, please see AMS's response to comments in Avian Living Conditions.

9. Definition of Toe Clipping

(Comment) AMS received various comments questioning whether toe clipping is the same as toe trimming. Toe clipping was a new term defined and used in the proposed rule. Toe trimming, a similar term, was also used in various places throughout the proposed rule and brought forth questions about interchangeability between the terms.

A number of comments also pointed out that toe clipping can be performed on both male and female birds. These comments said that the definition of the term would be more accurate if the specific reference to a male bird was removed.

(Response) AMS recognizes that the proposed rule defined toe clipping and used the term toe trimming in the proposed rule. AMS also recognizes that toe clipping can be done on both male and female birds. In response to comments, the final rule defines toe clipping as the removal of the nail and distal joint of the back two toes of a bird without reference to the sex of the bird. Additionally, the term “toe clipping” is used consistently throughout the final rule and “toe trimming” has been removed.

10. Miscellaneous Comments

Scratch Area

Two comments asked for clarification about of the definition and composition of a scratch area. AMS has removed the term “scratch area” from the regulatory text. Since the term “scratch area” is not included in the regulatory text, AMS sees no need to define the term.

Enrichment/Suitable Enrichment

A small number of comments asked AMS to define the term enrichment or the phrase suitable enrichment. AMS has not defined the term, as we have removed the requirement for suitable enrichment in the final rule. For further discussion, see AMS's response to comments in the section on FDA regulations and food safety.

Willful Acts of Abuse

One comment requested that the rule provide a definition of “willful acts of abuse.” The comment noted that this definition was included in the NOSB's 2011 recommendation on transport and slaughter. Since the term “willful acts of abuse” is not included in the regulatory text, AMS sees no need to define the term.

Litter

One comment requested that AMS include a definition of litter in the rule. This comment stated that it is unclear if litter is intended to mean bedding or if it can consist solely of dehydrated manure. AMS determined that the term “litter” is commonly used by avian producers to describe substrates used to absorb moisture and dilute manure, as well as to provide birds the opportunity to express natural behaviors such as foraging and dust bathing. AMS did not provide a definition for litter in the final rule. Instead, litter is described in more detail in the avian living section of the rule.

Dubbing

Four comments stated that the definition of dubbing does not include the removal of the wattles. AMS reviewed the uses of the term dubbing and found some references that included the removal of wattles and others that only referred to combs. Other sources refer to the practices separately as “wattle trimming” and “comb trimming.” AMS retained the definition of dubbing in the final rule to include the removal of both combs and wattles.

Swine Aggression

One comment requested that the final rule define “swine aggression” to prevent unnecessary confinement of pigs. This commenter stated that without a definition for the term, the provision of the rule allowing for individual housing for swine in cases where aggression is documented could be used for unnecessary confinement of pigs. AMS determined that it would be challenging to develop a definition for “swine aggression” that would be applicable across stages of production, and the diverse realities that exist on each farm. Instead, producers should work with their certifying agents to describe the types of aggression that would warrant individual housing on their operation as they develop an OSP.

VII. Livestock Health Care Practices (§ 205.238)

A. Description of Regulations.

1. Summary of the Final Rule

AMS amended current provisions and added new provisions to the organic livestock care and production practice standards. The amendment to § 205.238(a)(2) specifies that the sufficiency of the feed ration be demonstrated by appropriate body condition of the livestock. Livestock producers are required to monitor their animals to ensure body condition is being maintained. In addition, certifying agents need to verify the nutritional adequacy of the animals' diet by assessing the body condition of organic livestock during inspection. Suitable body condition varies between species, between breeds, and between production types; for example, a suitable condition for dairy cattle may be considered too thin in beef cattle. AMS plans to publish guidance to assist certifying agents, inspectors, and producers in assessing body condition for different species.

AMS revised § 205.238(a)(5) to clarify the conditions under which physical alterations may be performed on livestock. Physical alterations may only be performed for an animal's welfare, identification, or safety. Alterations must be done at a reasonably young age with minimal pain or stress to the animal, and may only be performed by a person who can competently perform the procedure. Competency in performing physical alterations may be demonstrated by appropriate training or experience of the person.

A 2009 NOSB recommendation allowed teeth clipping and tail docking in piglets, but this revision was retracted in the 2011 NOSB recommendation. In this final rule, AMS added § 205.238(a)(5)(i), which restricts needle teeth clipping and tail docking in pigs. These two types of physical alterations may not be performed on a routine basis, but may be performed as needed to improve animal welfare, as listed below.

Needle teeth clipping and tail docking in pigs may only be performed in response to documented animal welfare reasons after alternative steps to prevent harm fail. Teeth clipping, if performed, is limited to the top third of each needle tooth. 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. Swine producers would also need to 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.

AMS is finalizing § 205.238(a)(5)(ii) to list the physical alterations that are prohibited in an organic operation. Based on the 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 added a new § 205.238(a)(7) which specifies that surgical procedures on livestock to treat an illness 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, and only with the use of anesthetics, analgesics, and sedatives as listed in §§ 205.603(a) and 205.603(b).

AMS added a new § 205.238(a)(8) that requires organic producers to actively monitor and document lameness within the herd or flock. Lameness can be an issue in various livestock species, including broilers, sheep, and dairy cattle. The requirement for producers to create a plan for monitoring and recording instances of lameness in the organic system plan enables organic livestock producers to identify and address potential problems among animals before they become widespread. In addition, documentation of lameness will provide an auditable trail for certifying agents to verify that livestock producers are monitoring these potential causes of animal suffering.

AMS revised § 205.238(b) to state that synthetic medications allowed under § 205.603 may be administered to alleviate pain or suffering. In addition, synthetic medications allowed under § 205.603 may be administered when preventative practices and veterinary biologics are inadequate to prevent sickness.

AMS amended § 205.238(c)(1) to clarify that milk from an animal treated with an allowed substance in § 205.603, which has a withholding time, may not be sold, labeled, or represented as organic during that holding time. However, organic animals or breeder stock may continue to provide milk for organic calves on the same operation during the withholding time. 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 time would not lose organic status. For example, if an organic beef cow was nursing her organic calf and the cow became injured, her calf could continue to nurse the cow even during the seven-day withholding period if lidocaine was used to minimize pain and stress during her treatment. In this scenario, the calf would not lose organic status.

AMS revised § 205.238(c)(2) to clarify that other veterinary biologics, in addition to vaccines, are exempt from the prohibition on administering animal drugs in the absence of illness. The USDA Center for Veterinary Biologics (CVB) regulates vaccines and all other veterinary biologics. While vaccines are commonly referred to as veterinary biologics, the CVB also categorizes bacterins and toxoids as biologics. This change is consistent with the definition for biologics in § 205.2 and supports § 205.238(a)(6), which identifies the use of vaccines and other veterinary biologics as a required practice to improve animal health.

AMS revised § 205.238(c)(3) to clarify that organic livestock producers are prohibited from administering synthetic or nonsynthetic hormones to promote growth, or for production and reproductive purposes. However, hormones listed in § 205.603 (

e.g.,

oxytocin) may continue to be used to treat illnesses. Stakeholders have noted that the USDA organic regulations do not mention the use of hormones to stimulate production or for reproductive purposes. This addition clarifies that all hormones—unless used to treat an illness—are prohibited in organic production.

AMS added a new § 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. However, if no appropriate medication is allowed for

organic production, organic livestock producers are required to administer treatment even if the animals subsequently lose their organic status. Furthermore, as recommended by the American Veterinary Medical Association, some forms of euthanasia may be an acceptable practice for minimizing pain and suffering.

AMS added a new § 205.238(c)(9) that 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 will enhance the overall health of the livestock on that operation.

AMS added a new § 205.238(c)(10) that prohibits the practice of forced molting in poultry. Section 205.238(a)(2) of this final rule requires a nutritionally sufficient feed ration for livestock. Forced molting, a practice in which feed is severely restricted for a period of time in order to rejuvenate egg production, runs counter to this provision. The new 205.238(c)(10) was added to be consistent with the NOSB recommendation.

AMS added a new § 205.238(d) that requires organic livestock operations to minimize internal parasite problems in livestock. The plan to minimize internal parasites must include preventative measures such as pasture management, fecal monitoring, and emergency measures in the event of a parasite outbreak. Livestock producers must also work with their certifying agents to approve a parasite control plan.

In certain cases, livestock may suffer from an illness or injury from which recovery is unlikely. AMS added a new § 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. 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 will not lose organic certification or face other penalties for the use of non-organic methods 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 producer adoption of these techniques. Therefore, AMS allows organic livestock producers to use any method of euthanasia except for those prohibited in section 205.238(e)(2). The list of prohibited methods could be amended to include other techniques, if needed, through future rulemaking. AMS added a new § 205.238(e)(3) which states that after the euthanasia procedure, livestock must be examined to ensure that they are dead.

B. Discussion of Comments Received

1. Selection of Breeds

(Comment) AMS received one comment requesting that we prohibit selective breeding of livestock and poultry for characteristics that may compromise their health and natural behaviors. The comment stated that some chicken breeds that are bred for increased white meat may have difficulty walking due to the size of their breasts relative to the strength/size of their legs.

(Response) Animal breeding is frequently conducted on non-certified operations, outside the scope of organic certification. Day-old birds are often selected and purchased by organic producers before the animals are brought into organic management. Selection of species and types of livestock with regard to suitability for site-specific conditions and resistance to prevalent diseases and parasites is a requirement under § 205.238(a). Some species or types of livestock or poultry may not be suitable for organic production. Under existing regulations, certifying agents should verify that producers have selected breeds that are suitable for their site-specific conditions and that are resistant to prevalent diseases and parasites.

2. Provision of Feed Ration Resulting in Appropriate Body Condition

(Comment) One comment stated that the language proposed at § 205.238(a)(2) “. . . resulting in appropriate body condition” should be the sole indicator of the sufficiency of feed rations. Other comments, while expressing support for the inclusion of this additional language, argued that “appropriate body condition” is difficult to quantify. One comment requested that body condition standards be specified in the final rule. Other comments requested that body condition assessment guidance accompany the final rule.

(Response) Livestock body condition may vary greatly depending on the livestock breed, age, season of the year, or stage of production. The primary requirement under this section is to require livestock to receive a feed ration that is sufficient to meet nutritional requirements. This would generally be verified by comparing the net energy and other nutrient requirements for the animal with the diet provided. AMS has added “. . . resulting in appropriate body condition” as a secondary assessment factor within the regulations for inspectors to use to gauge the nutritional status of an individual animal or group of animals. Because qualified organic inspectors should have sufficient livestock experience to evaluate the nutritional condition of livestock as part of their qualifications to inspect an organic livestock operation, we agree that guidance on how to assess appropriate body condition by species would be helpful for training purposes. AMS will provide such guidance after publication of the final rule.

3. Physical Alterations—General, Surgeries, and Pain Management

AMS received a number of comments requesting specific changes in words and phrases regarding the first part of § 205.238(a)(5): Physical alterations may be performed to benefit the welfare or hygiene of the animals, for identification purposes or safety. Physical alterations must be performed on livestock at a reasonably young age, with minimal stress and pain and by a competent person. These specific comments will be addressed one by one in the following discussion of comments.

(Comment) AMS received many comments proposing that the word “hygiene” be removed from § 205.238(a)(5). Comments believed that a broad interpretation of hygiene could create conflict among regulatory provisions, resulting in a loophole where farmers could seek to justify physical alterations even when prohibited under proposed § 205.238(a)(5)(ii). For example, hygiene is the main reason the tails of cows are docked on dairy farms, and thus hygiene should not be a justification for physical alterations.

(Response) AMS agrees that the term hygiene could be used to justify physical alterations otherwise prohibited, and has removed hygiene from this section of the final rule.

(Comment) AMS received comments that “reasonably young age” in § 205.238(a)(5) was too vague. These comments requested that we provide target ages for all physical alterations for all livestock.

(Response) The appropriate age of animals for performing alterations may depend on several factors, such as the nature of the physical alteration, temperature, season, species breed, and

health and condition of the animal. Certifying agents will need to work with producers on a case-by-case basis to assess the specific issues, needs, and justifications related to physical alterations on their operation by species and breed for inclusion in their organic system plans within the parameters provided in the final rule. Identifying target ages on every species for every possible physical alteration would be overly prescriptive and would unnecessarily impede operators in the humane management of their livestock. Therefore, AMS has not made changes in the final rule based on this comment.

(Comment) AMS received comments that “by a competent person” is too subjective to evaluate and should be removed from § 205.238(a)(5). Comments requested further that “competent person” be replaced with “licensed veterinarian.”

(Response) While AMS did not define a “competent person,” AMS will rely on certifying agents to assess the requisite expertise of the individual. Most routine physical alterations, such as dehorning, castration, and beak clipping are not conducted by licensed veterinarians. Livestock operators perform these operations, often on a daily basis. Requiring all physical alterations to be conducted by a licensed veterinarian would result in significant expense and inconvenience to an organic livestock operator. The proposed rule requires that physical alterations be conducted by a “competent person.” This would generally be understood to be someone who has the education, training, and experience necessary to conduct physical operations quickly and easily, with minimal stress and pain for the animal. Certifying agents will assess the competence of personnel conducting physical operations and determine if they have the necessary competencies based on the complexity of the alteration to be performed. AMS has not made any changes in the final rule based on this comment.

(Comment) For § 205.238(a)(5), AMS received many comments that the phrase “minimal stress and pain” was not an explicit enough description of how physical alterations must be performed on livestock. These comments requested that the use of synthetic pain medications allowed on § 205.603 be mandatory. Similar comments were made regarding the language at § 205.238(a)(7). Again, comments requested that USDA organic regulations mandate the use of synthetic pain medication rather than simply allow them.

(Response) AMS agrees that, in many situations, pain medications may be the best way to minimize stress and pain. While certified operations are permitted to use pain medications to treat or prevent pain caused by performing allowed physical alterations, pain medications may not be necessary for some allowed physical alterations. Therefore, AMS has not made any changes based on these comments.

(Comment) AMS received one comment requesting that we add “where effective non-physical methods are not available” to § 205.238(a)(5).

(Response) Under this final rule, physical alterations may be performed to benefit the welfare of the animals, for identification purposes, or for safety purposes. This comment suggests an additional broad requirement that a producer would need to provide justifications for routine, allowed physical alterations, which were not recommended by the NOSB and were not presented for public comment in the proposed rule. Therefore, AMS has not made any changes based on this comment.

4. Physical Alterations—Swine

(Comment) Many comments requested a complete prohibition of needle teeth clipping and tail docking in swine. Some comments supported the principle that needle teeth clipping and tail docking in pigs should not be routinely used, but could be permitted with documentation that alternative methods to prevent harm failed, as proposed in § 205.238(a)(5)(i). One comment supported the provisions regarding tail docking and needle teeth clipping in swine but requested clarification as to whether proof was required at the operation level or on a by litter basis. This comment felt that requiring proof to be provided at a by litter basis seemed excessive and potentially harmful to the welfare of the sows in that operation.

(Response) AMS does not agree with a complete prohibition of needle teeth clipping and tail docking in swine due to possible animal welfare impacts. AMS is retaining this provision based on consideration of recommendations by the NOSB. AMS will allow certifying agents to determine whether the specific need for physical alterations are sufficiently justified by producers on an operation, litter, or individual animal basis in their organic system plans.

5. Physical Alterations—Specific Prohibitions

(Comment) AMS received several comments regarding both the proposed language at § 205.238(a)(5)(ii) and the specific physical alterations proposed as prohibited for livestock and poultry. Many comments were supportive of the physical alterations proposed as prohibited, with some comments offering refinements or requesting clarification. Many comments requested that additional practices be prohibited, and other comments argued that some of the practices that were proposed as prohibited should be allowed.

AMS received comments that the opening sentence of § 205.238(a)(5)(ii), “The following practices must not be performed on a certified operation,” creates a loophole in which practices can be performed during the one-year transition of a dairy animal.

(Response) AMS has clarified the regulatory text in the final rule to state:

“The following practices are prohibited . . .” The discussion of comments on the specific physical alterations proposed as prohibited is divided into avian and mammalian sections.

Avian Physical Alteration Prohibitions

(Comment) AMS received comments identifying that we used the terms “toe clipping” and “toe trimming” interchangeably and inconsistently in reference to altering the toes of male turkeys in the proposed rule. These comments also said that the proposed rule incorrectly defined this physical alteration practice as applying only to the toes of male turkeys, rather than all turkeys, in § 205.2 and § 205.238(a)(5)(ii) of the rule text. Another comment stated that toe trimming, toe cutting, and de-clawing are all essentially the same toe treatment. AMS also received a separate comment requesting that we prohibit toe clipping in turkeys, or only permit the use of infra-red, rather than a hot blade or electric cauterization.

(Response) The definition of “toe clipping” is addressed in this final rule in the Discussion of Comments Received for § 205.2. To be consistent with the changes made to the definition of “toe clipping” in § 205.2, the rule text at § 205.238(a)(5)(ii) “. . . toe clipping of male turkeys unless with infra-red at hatchery . . .” has been changed to “. . . toe clipping of turkeys unless with infra-red at hatchery . . .” AMS received an NOSB recommendation advising the complete prohibition of toe clipping for chickens. Turkeys or other poultry were not included in this prohibition of toe clipping. Methods of both toe clipping and beak clipping are addressed together in a separate discussion following the below discussion of comments regarding beak clipping.

(Comment) AMS received various comments on beak trimming. Many

comments requested that all beak trimming be prohibited, one requested that we only allow infra-red beak treatments, and another comment asked if re-trimming of beaks would be allowed. One comment suggested that AMS limit beak trimming to no more than the thickness of a dime. Some comments were opposed to the prohibition on de-beaking.

(Response) AMS is not completely prohibiting beak trimming in poultry in the final rule due to animal welfare and economic impacts to poultry producers. This physical alteration is allowed at up to 10 days of age. Re-trimming of beaks is allowed at up to 10 days of age, but is not permitted after 10 days of age. In addition, beak trimming cannot be limited to a specific measurement because of the wide variability in beaks of bird species and breeds. Therefore, AMS is retaining the definition of beak trimming in § 205.2 as the removal of the curved tip of the beak as recommended by the NOSB. AMS is also retaining de-beaking as defined in § 205.2, and de-beaking remains prohibited in § 205.238(a)(5)(ii) of the final rule as recommended by the NOSB. AMS received many requests about the methods of beak trimming, toe clipping, and toe cutting, which are addressed immediately below.

Methods of Beak Trimming, Toe Clipping, and Toe Cutting

(Comment) A few comments inquired about various methods of beak clipping, toe trimming, and toe clipping, including the use of traditional mechanical devices, such as knives or scissors, and more modern methods, such as electric cauterization (also called a cautery knife), the hot blade, and infra-red. Some comments stated that the use of infra-red is less invasive and painful, causes less tissue damage, and results in fewer chronic pain issues compared with other methods of poultry beak trimming, toe trimming, and toe clipping. One comment stated that all forms of beak trimming, toe trimming, and toe clipping are inhumane. Other comments asked for guidance on methods of beak trimming.

(Response) Following a review of recent poultry periodicals and literature, AMS notes that infra-red is the newest technology being used for beak trimming, toe clipping, and toe cutting. Articles report that infra-red appears to be more humane and is gradually being adopted over electric cauterization and the hot blade.

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The final rule does not require all beak trimming and toe clipping to use only the infra-red method since AMS did not include this restriction in the proposed rule and AMS does not know the availability, cost, or impact of only allowing infra-red technology in organic production systems. AMS may request that NOSB provide additional advice and recommendations on methods of poultry beak trimming, toe clipping, and toe cutting if conditions warrant in the future.

6

American Veterinary Medical Association, Literature Review on the Welfare Implications of Beak Trimming, February 2010.

https://www.avma.org/KB/Resources/LiteratureReviews/Documents/beak_trimming_bgnd.pdf

.

(Comment) AMS received two comments requesting that the final rule exclude wattles from the definition of dubbing in § 205.2. They also asked that we remove the prohibition of dubbing in § 205.238(a)(5)(ii). One comment reported that dubbing is used in research to mitigate comb injuries, and is not currently used by the layer industry. This comment stated that with the push for outdoor access in regions where cold weather is a certainty, dubbing may be needed to stop frostbite and other comb injuries that could occur when birds are outdoors.

(Response) AMS disagrees with the comment and is retaining the definition of dubbing that includes both wattles and combs in § 205.2 along with the prohibition of dubbing in § 205.238(a)(5)(ii) of the final rule. Dubbing is the practice of cutting off the comb, wattle and earlobes of chickens. The practice of dubbing, sometimes carried out by poultry operators without anaesthetic, is a cause of pain and distress. Blood circulating from the comb to the wattles helps the bird to regulate its body temperature during hot weather. Removing either wattle or comb provides no benefit to the bird.

Mammalian Physical Alteration Prohibitions

(Comment) AMS received various comments regarding prohibiting the use of some physical alterations of livestock and mandating pain-relieving medications for other physical alterations. Many comments requested that the final rule prohibit or restrict de-horning, yet allow disbudding of cattle. Some comments supported the allowance of dehorning or disbudding, but only if performed by a licensed veterinarian and with pain relief mandated. One comment noted that while caponization was prohibited in poultry, castration of cattle, sheep, pigs, or other animals was not mentioned. This comment requested that castrations be performed by licensed veterinarians with pain relief mandated. Another comment proposed that castration be prohibited after two months of age.

(Response) Dehorning and castration of livestock are important practices for animal welfare and farm management. For example, dehorned livestock are easier and less dangerous to handle and transport; can present a lower risk of interference from dominant animals at feeding time; and can pose a reduced risk of injury to udders, flanks, and eyes of other animals. Castration is also an important practice from a safe handling and product quality perspective. Castrated male cattle (steers) are less aggressive, are easier to handle, and yield better marbled, more tender beef. Therefore, AMS is not prohibiting these practices in the final rule.

While best management practices suggest that dehorning and castration should be done at the earliest age practical to minimize pain and suffering,

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this suggestion is vague and, as such, would be difficult to enforce. Further, requiring alterations to be performed before a specific age may unnecessarily exclude some animals from further management as organic if alterations were delayed for reasons beyond a certified operation's control. Therefore, AMS did not make these changes in the final rule.

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American Veterinary Medical Association, Castration and Dehorning of Cattle.

https://www.avma.org/KB/Policies/Pages/Castration-and-Dehorning-of-Cattle.aspx

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While the final rule does not mandate the use of allowed synthetics to manage pain, it does not prohibit the use of pain medications when performing allowed physical alterations. The final rule allows operations to work with their certifying agents to agree on a physical alteration process that uses medications, as needed, to meet the regulatory requirement to perform alterations while minimizing pain and stress.

(Comment) AMS received one comment seeking to prohibit all branding, and not just face branding. This same comment offered that there are many alternative animal identification methods such as ear tags, ear notches, back tags, neck chains, tail tags, freeze brands, tattoos, paint marks, leg bands, and electronic identification methods (

e.g.,

electronic ear tags, microchips, electronic collars). Another comment stated that our prohibition of face branding would place operations at odds in states with regulations that require face branding of steers from Mexico. Nevada was provided as the example.

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8

Nevada State regulations, Chapter 571—Diseased Animals; NAC 571.040 Cattle and bison,

2. (e) (1)

http://www.leg.state.nv.us/NAC/NAC-571.html#NAC571Sec002

.

(Response) In its recommendation on animal welfare, the NOSB recommended a prohibition specific to face branding. Therefore, the scope of the proposed rule submitted for public comment was limited to that aspect. AMS did not make changes based on this comment. In the future, if the NOSB recommends a prohibition on all branding, we will consider that aspect for proposed rulemaking, with opportunity for public comment.

With consideration to the comment regarding state requirements for face branding of imported cattle, AMS has considered this comment and has amended the final rule to provide an exception for these state requirements. We have amended paragraph 205.238(a)(5)(ii) to prohibit face branding, except as required by state or federal law.

6. Monitoring and Recordkeeping Regarding Lameness and Treatment

(Comment) AMS received various comments on the proposed new section § 205.238(a)(8) that requires organic producers to actively monitor lameness within the herd or flock, to document cases and causes of lameness, and to describe how they were managed or treated. One comment from the dairy industry remarked that we do not provide a definition or a consistent system for identifying and assessing the degree and severity of lameness, and as a result, producer observations and recordkeeping will not be universal or consistent. For example, some operations may appear to have more cases because they are addressing a potentially worsening condition at an earlier stage, while less observant and less aggressively managed operations may not be as effective at identifying lameness. This comment described a private industry example of a system that offers consistency with a 5-point locomotion scoring (LS) scale in which an animal with a normal walk and no sign of lameness scores as one (1) with the scale progressing to a score of five (5) as a `severely lame' cow.

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9

Zinpro Performance Minerals, Locomotion Scoring of Dairy Cattle,

www.zinpro.com/lameness/dairy/locomotion-scoring

.

A few comments suggested that we develop thresholds to assist producers with developing plans to reduce the incidence of lameness. As an example, one comment suggested that if greater than 10% of a herd or flock for more than two years experienced lameness, the producer must implement a plan to reduce the incidence of lameness. Another comment suggested we collect data to establish the average percentage of lameness by species and then require producers to stay below that percentage.

Some comments expressed opposition to this proposed requirement. One comment reported that certifying agents are not trained or qualified to “identify a particular disease or ailment” and that this requirement would violate the certifying agents' prohibition on consulting. Other comments stated that USDA organic regulations already require livestock producers to maintain treatment records for sick and injured animals per the requirements of § 205.103, and that adding this additional record-keeping requirement was too prescriptive and would do little to “lead to effective prevention or treatment.”

(Response) AMS included this new requirement in response to an NOSB recommendation, and it will be retained in the final rule. AMS agrees that a species-based system for scoring lameness will follow the final rule as guidance. AMS agrees with comments that establishing a percentage of herd or flock lameness threshold connected to species averages could be valuable, and we will consider requesting that the NOSB provide additional advice and recommendations on herd or flock lameness thresholds.

7. Ammonia Levels in Poultry Houses

(Comment) AMS received comments that it was redundant to include ammonia requirements in both § 205.238 and § 205.241, and comments recommended we keep the requirement in only one section. Other comments suggested we make the requirement in § 205.238 apply to all types of livestock production rather than limit the requirement to poultry production.

(Response) AMS agrees it is not necessary to include both sections as proposed. In the final rule, we have retained the requirement in § 205.241 and removed the requirement in § 205.238.

With regard to ammonia levels in other types of operations, the NOSB recommendations and subsequent proposed rule focused primarily on the ammonia levels in poultry houses. While AMS recognizes that ammonia levels may be relevant for other types of livestock production, we have not broadened the requirement to cover other types of operations in this final rule. AMS may consider future rulemaking to establish ammonia-level action thresholds if recommended by the NOSB and supported by public comment and available evidence.

The remaining discussion of comments regarding ammonia can be found in the discussion of comments in Avian Living Conditions at § 205.241.

8. Use of Milk From Animals Undergoing Treatments

(Comment) AMS received comments on the use of milk from animals undergoing treatment with allowed medications on the National List in § 205.603. Some of these comments asked if milk from cows treated with synthetic parasiticides could be provided to a cow's calf or other young calves in the same operation. One comment requested that the USDA organic regulations include nonsynthetic substances not prohibited on § 205.604 but require an FDA withholding period for milk when these substances are administered. A few comments did not want the milk from treated animals fed to any calf.

In addition, another comment requested the removal of the word “edible” from § 205.238(c)(1). This comment argued that including this word could allow the sale of fiber products as organic from animals that have been treated with antibiotics or other prohibited substances.

(Response) AMS concurs with the comments on allowing milk from animals treated with synthetic substances that are included on the National List in § 205.603 to be fed to a treated cow's calf or to other calves in the same operation. AMS also agrees with the comment indicating that the word “edible” may provide a loophole in the regulations that would allow the sale of fiber products as organic from animals that have been treated with antibiotics or other prohibited substances. The word “edible” has been removed from this regulation in the final rule.

AMS does not agree with comments on restricting the sale of milk from animals treated with nonsynthetic substances that are not included on the National List in § 205.604 but have an FDA-required withholding period. AMS is not aware of any nonsynthetic substance that is categorized as a drug with a required withholding period. The USDA organic regulations, in § 205.105(b), prohibit the use of nonsynthetic substances that are on the National List in § 205.604. Currently, under USDA organic regulations, if a nonsynthetic substance is not listed in § 205.604, it may be used in organic livestock production, provided its use complies with all regulation requirements that supersede the USDA organic regulations. Since USDA organic regulations require prohibited nonsynthetic substances to be listed in § 205.604, AMS cannot include a

prohibition of nonsynthetic substances not listed in § 205.604 under § 205.238(c)(1).

Accordingly, § 205.238(c)(1) in the final rule prohibits an operation to “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 § 205.603, or any substance that contains a nonsynthetic substance prohibited in § 205.604.” Milk from animals undergoing treatment with synthetic substances allowed under § 205.603 cannot be sold as organic but may be fed to a treated animal's calf or to calves on the same operation. Milk from animals undergoing treatment with prohibited substances cannot be sold as organic or fed to organic livestock.

9. Administering Synthetic Medications for Disease

(Comment) AMS received comments on the rule revisions proposed for § 205.238(b). Some of these comments argued that the addition of § 205.238(b)(3), regarding regulation requirements for the use of parasiticides, created confusion. Other comments addressed concerns for physical alterations and surgical procedures and requested that AMS mandate, rather than simply allow, the use of pain medications to relieve pain. One comment requested that AMS add the term “injury” to the conditions for which administering synthetic medications is allowed in organic livestock production under § 205.603.

A few comments addressed the prohibition on administering animal drugs in the absence of illness since the scope of the phrase “animal drug” as defined by the FDA includes preventative procedures or products. These comments argued that the USDA organic regulations prohibit producers from utilizing drugs that are designed to keep animals healthy and prevent illness. One comment asked if antibiotics could be used to treat pain.

(Response) AMS agrees with the comments that stated that the amendment to § 205.238(b), as proposed, is confusing and should be clarified. In the final rule, § 205.238(b)(3) has been deleted and the requirements for this provision have been incorporated under § 205.238(b). Producers may administer medications that are allowed under § 205.603 to alleviate pain or suffering and when preventive practices and veterinary biologics are inadequate to prevent sickness. This amendment to § 205.238(b) includes allowing the administration of synthetic medications when animals are injured or undergo surgery. The requirements for the use of parasiticides under § 205.238(b) is not changed in the final rule; parasiticides allowed under § 205.603 may be used on: (1) breeder stock, when used prior to the last one-third of gestation but not during lactation for progeny that are to be sold, labeled, or represented as organically produced; and (2) dairy stock, when used a minimum of 90 days prior to the production of milk or milk products that are to be sold, labeled, or represented as organic. AMS does not agree with comments that addressed the prohibition on administering animal drugs, including antibiotics, in the absence of illness to keep animals healthy and prevent illness. Under the USDA organic regulations, a livestock producer must establish and maintain preventive health care practices as prescribed in § 205.238(a). This requirement has been included within the USDA organic regulations since these regulations were published on December 21, 2000. This final rule has not changed this requirement. When preventive practices have been inadequate to prevent illness, a producer may administer synthetic medications that are listed in § 205.603. The USDA organic regulations do allow synthetic medications listed in § 205.603 to be used during surgery for the animal's welfare.

(Comment) One comment stated that it is inconsistent and confusing to allow other veterinary biologics, in addition to vaccines, to be exempt from the prohibition on administering animal drugs in the absence of illness. This comment argued that many vaccines contain compounded drugs, which may include prohibited chemicals such as hormones or anti-inflammatories.

(Response) AMS disagrees with this comment. The final rule does not add any new substances to the National List of Allowed and Prohibited Substances. Currently, vaccines are the only synthetic biologic substance on the National List. All other synthetic biologics are prohibited. Additionally, the USDA organic regulations require synthetic animal drugs that are allowed for use in organic livestock production to be manufactured with excipients (non-active drug ingredients) according to regulation requirements described under § 205.603(f).

(Comment) AMS received comments indicating that the requirements for use of synthetic medications allowed in § 205.238(c)(2) should be the same as the requirements for use of synthetic medications allowed in § 205.238(b)(3). These comments argued that the language in these regulation sections should be consistent because they both address circumstances in which synthetic medications can and cannot be administered.

(Response) AMS agrees with these comments and has amended the final rule by inserting changes into § 205.238(b) to clarify when synthetic medications can be administered in organic livestock production. AMS also revised § 205.238(c)(2) to be consistent with paragraph (b) in this section and to describe the exceptions under which the use of synthetic medications are permitted.

10. Prohibitions on the Use of Hormones

(Comment) AMS received comments asking if the new regulations in § 205.238(c)(3), which prohibit the administration of hormones for growth promotion, production, or reproduction, include oxytocin, which may be used in postparturition therapeutic applications. Comments expressed concern that the addition of the terms “production” and “reproduction” may cause confusion with the allowed use of oxytocin as a medical treatment in aiding cows after calving.

(Response) AMS agrees with comments about the potential for confusion when producers or certifying agents interpret the terms “production” and “reproduction” in applications of oxytocin for therapeutic use following calving. In the final rule, AMS amended § 205.238(c)(3) to provide clarification on the allowed use of oxytocin by adding the condition, “except as provided in § 205.603.” The inclusion of this condition clarifies the allowed use of oxytocin in organic livestock production for therapeutic applications.

11. Prohibition on Withholding Treatment To Minimize Pain and Suffering

(Comment) AMS received comments on § 205.238(c)(7) recommending that the USDA organic regulations require livestock producers to have a written marketing plan for diverted animals that have been treated with antibiotics or other prohibited substances. These comments added that such marketing plans might encourage medical treatment of illness or injury. A comment from a certifying agent proposed that § 205.238(c)(7) be amended to state that operations cannot: “Withhold medical treatment designed to minimize pain and suffering from an ill or injured 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 and products

from livestock treated with a prohibited substance must be clearly identified and shall not be sold, labeled, or represented as organically produced.”

(Response) AMS disagrees with these comments and did not add the requirement for a written marketing plan for diverted animals to § 205.238(c)(7). Under OFPA, AMS does not have the authority to require this type of marketing plan. AMS recognizes that a written marketing plan for diverted animals treated with prohibited substances would be a beneficial component of an organic system plan for producers and certifying agents. Certifying agents can encourage producers to include a component for marketing diverted animals in their organic system plan, however this is not required under USDA organic regulations. Organic livestock producers should clearly identify and separate any animal that has been treated with a prohibited substance. Products from livestock treated with a prohibited substance must be clearly identified and shall not be sold, labeled, or represented as organic. In addition, AMS has determined that § 205.238(c)(7), as described in the proposed rule, requires producers to apply all appropriate medications to restore an animal to health when methods acceptable to organic production fail. The amendment proposed by the certifying agent requiring producers to use all appropriate medications to restore an animal to health when methods acceptable to organic production fail is adequately addressed within § 205.238(c)(7).

12. Prohibition on Forced Molting

(Comment) AMS received comments indicating that § 205.238(c)(10), which prohibits the “practice of forced molting or withdrawal of feed to induce molting,” is too general. Some comments proposed details and definitions about humane methods of molting to better manage the natural molting behaviors of a flock. A certifying agent suggested that AMS add the following language: “. . . or other interventions” to § 205.238(c)(10). This comment indicated that including this phrase would clarify that the USDA organic regulations prohibit all forms of induced or forced molting. An additional comment suggested that forced molting be defined as the starvation of laying hens to make them enter the next laying cycle.

(Response) AMS disagrees with comments proposing that additional language is needed to indicate that all procedures of forced molting are prohibited under § 205.238(c)(10). This regulation specifies that organic producers must not practice forced molting or withdrawal of feed to induce molting. Forced molting practices, including but not limited to the starvation of laying hens, not allowing birds to exercise full range of motion, or the disposal of male chicks or live unhatched eggs by suffocation, are prohibited under § 205.238(c)(10). Because the regulation under § 205.238(c)(10) already includes the prohibition of forced molting or the withdrawal of feed to induce molting, AMS does not agree that additional language is needed to clarify this regulation.

13. Comprehensive Parasite Management Plan

(Comment) AMS received a number of comments in support of the requirement that producers have a comprehensive parasite management plan as required in § 205.238(d). A certifying agent commented in support of the internal parasite management plan, but argued that requiring producers to create a separate plan would be redundant and burdensome to producers. One comment stressed that a parasite management plan should be developed in conjunction with a comprehensive pest management plan.

(Response) AMS agrees with comments in support of a comprehensive pest management plan in livestock and poultry operations that also addresses management of all vectors of internal parasites, illness, and disease. Livestock producers should describe their comprehensive parasite management plan within their overall organic system plan. Under § 205.238(d), livestock producers would describe their parasite management plan as an integral component of comprehensive plans for mammalian living condition practices in § 205.239, or avian living condition practices in § 205.241.

AMS disagrees with comments indicating that a comprehensive plan to minimize internal parasites requires livestock producers to create a separate plan from their organic system plan, which would be redundant and burdensome. The USDA organic regulations do not require producers to create a separate plan, outside of their organic system plan, for comprehensive parasite management.

14. Humane Euthanasia Plan and Prohibited Methods

(Comment) AMS received comments that were in support of the new regulations on humane and prohibited methods of euthanasia described under § 205.238(e). Some comments also sought more details and clarification on methods of euthanasia. The USDA organic regulations specify only three euthanasia methods as prohibited in § 205.238(e)(2) and provide no other parameters for selecting an appropriate euthanasia method. In their comment on the proposed rule, the American Veterinary Medical Association (AVMA) indicated that organic livestock operations culling livestock should implement euthanasia methods according to the most recent edition of the AVMA Guidelines for the Euthanasia of Animals. AVMA argued that the guidelines are widely accepted scientific and ethical standard for euthanasia. Other comments included a request that the USDA organic regulations prohibit the practice of euthanizing piglets by manual blunt force trauma. Another comment asked that we reconsider the banning of Burdizzo devices for emergency euthanasia if other methods are not available. This comment indicated that properly used Burdizzo devices are effective as an emergency euthanasia device for larger animals. One comment requested that we clarify whether poultry operations who cull flocks using onsite euthanasia must adhere to the euthanasia requirements, and requested that we consider developing guidance on culling poultry flocks.

(Response) This final rule specifies, under § 205.238(e)(2), that the following methods of euthanasia are not permitted for use in organic livestock production: suffocation, manual blow to the head by blunt instrument or manual blunt force trauma, and use of equipment that crushes the neck, including killing pliers or Burdizzo clamps. Blow(s) to the head by blunt instrument as prohibited at § 205.238(e)(2) does apply to piglets. AMS disagrees with the comment to allow Burdizzo clamps and retains the prohibition of these clamps under § 205.238(e)(2). AMS agrees with the AVMA comment on euthanasia methods. The final rule, in § 205.238(c)(8), references the AVMA guidelines on euthanasia.

15. Out of Scope Comments

Disposal of Male Chicks or Live Unhatched Eggs by Suffocation

(Comment) One comment asked if we could prohibit the common practice of the disposal of male chicks or live unhatched eggs by suffocation.

(Response) Under the USDA organic regulations, poultry or edible poultry products must be sourced from poultry that has been under continuous organic management beginning no later than the

second day of life. Male chicks or live unhatched eggs that are under continuous organic management can only be euthanized by methods described in § 205.238(e).

VIII. Mammalian Living Conditions (§ 205.39)

A. Description of Regulations

1. Summary of the Final Rule

AMS separated mammalian living conditions from avian living conditions due to the different physiology and husbandry practices for birds and mammals. As a result, AMS revised the title of § 205.239 from “Livestock Living Conditions” to “Mammalian Livestock Living Conditions.” By creating clear requirements for mammalian livestock and avian livestock, animal wellbeing can be enhanced and consumers can be assured of the integrity of the USDA organic seal. Information regarding avian living conditions are addressed in new § 205.241.

The final rule revised § 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 animals at all times though they may not feed at the exact same time. Self-feeding and creep-feeding provide organic ruminant producers with more flexibility and options to manage their farm and livestock in farm-specific methods.

AMS is maintaining the current § 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.

AMS revised § 205.239(a)(4)(i) to specify that shelter must be designed to accommodate natural behaviors over every 24-hour period. 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. AMS recognizes that there are times when animals will be constrained for livestock handling or management purposes. An animal may be limited in its freedom of movement during parts of the day for a variety of reasons, including milking, feeding, or other handling purposes. Animals may be constrained for limited amounts of time to ensure hygiene and wellbeing of the 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 organic system plan 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 or other confinement systems in which swine would be housed individually in stalls for months at a time. However, if livestock are temporarily confined indoors as permitted in § 205.239(b), livestock must be able to move around, turn around, and stretch their limbs indoors for part of the day. Operations will need to fully describe the use of any stalls, methods used in stall management, and how livestock are able to express their normal patterns of behavior.

AMS added § 205.239(a)(4)(iv) to set requirements for an indoor space for bedding and resting that is sufficiently large and comfortable to keep the animals clean, dry, and free of lesions, with the exception of animals raised on pasture or range. Because livestock on pasture or range may not have access to traditional barns or bedded areas, AMS recognizes that while livestock do need to be provided with shelter (defined in § 205.2), livestock do not need to be provided with indoor space. These types of operations may use windbreaks or other methods to provide shelter for the livestock. Additionally, not all man-made shelters are designed to hold bedding; for example, a shelter designed to provide shade may be portable and thus incompatible with holding bedding. Operations need to describe in their OSP how they will provide shelter to their livestock in a manner suitable for the species, stage of production, and environment.

AMS added new requirements in § 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 but no longer than six months, 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, the individual housing of young stock needs to be designed so that animals can see, smell, and hear other animals.

AMS added three new provisions in § 205.239(a)(8) to require the group housing of swine, with three listed exceptions: § 205.239(a)(8)(i) allows for sows to be individually housed at farrowing and during the suckling period; § 205.239(a)(8)(ii) allows for boars to be individually housed to reduce the likelihood of fights and injuries; and § 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.

AMS added two new provisions in §§ 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. In addition, § 205.239(a)(10) requires that both indoor and outdoor areas for swine have some space that permits rooting. Rooting is a natural behavior that must be accommodated by organic swine producers and could be done in soil, deep packed straw, or other materials. Organic swine producers must also demonstrate how swine will be allowed to root during temporary confinement periods.

AMS added a new provision in § 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, then there must be a sufficient number of stalls that allow for the natural behavior of the animals. In no case may a cage be considered a stall. One exception is provided for this provision: In the case of group-housed swine, more animals than feeding stalls may be allowed as long as all animals are fed routinely every day. AMS is aware of some enhanced swine welfare systems, in which animals are robotically fed once they enter an individual feeding stall; once finished, the animal may leave the stall and another animal may enter for its specific quantity of feed. AMS does not intend to prohibit such systems, which enhance the wellbeing of organic animals. AMS also added specific allowances for a variety of cattle barns, including tie stall barns, stanchion barns, and free stall barns. While these barns can all be suitable for organic certification systems, the specific procedures used by producers with these barns may be incompatible with organic production. If a producer provides too few stalls in a free stall barn or leaves an animal tied up for 24 hours per day in a tie stall barn, these methods would not be permitted under USDA organic regulations.

AMS added a new requirement for outdoor access in § 205.239(a)(12). Organic livestock are required to have unencumbered access to the outdoors year-round, unless temporary confinement is justified under a specific

reason described in the regulations (

e.g.,

nighttime confinement for protection from predators). When the outdoor space includes soil, then maximal vegetative cover must be maintained as appropriate for the season, climate, geography, species of livestock, and stage of production. Ruminants must have access to graze during the growing season. Swine are not required to have access to the 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 as much vegetative cover as possible given the natural behavior of swine to root, the season, and local environmental conditions.

AMS revised § 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 or artificial breeding. A group of livestock may be confined before the procedures and while the various individuals are bred; afterward, the group shall be returned to living spaces that allow outdoor access. Livestock may not be confined indoors to observe estrus or until they are determined to be pregnant. Section 205.239(c)(1) describes the time when ruminants may be denied access to pasture, but not access to the outdoors, before and after a breeding attempt.

AMS revised § 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 revised provision includes an exemption to the § 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 youth may sell the organic animal as an organic animal, provided all other requirements for the organic management of livestock are met. During the youth event, the livestock may be temporarily confined indoors. Otherwise, non-certified sales facilities, such as auction barns or fairgrounds, may not sell or represent livestock as organic. AMS provided this exception to encourage the next generation of organic farmers.

AMS revised § 205.239(d) to reflect the similar proposed changes in § 205.239(a)(1). AMS removed the phrase requiring that all ruminants be able to feed simultaneously. This change would allow the use of self-feeding and creep-feeding so that the ruminants would have access to feed continuously over a 24-hour period.

B. Discussion of Comments Received

1. Opposition To Changes in the Mammalian Living Conditions Section/Make No Changes for Ruminants

(Comment) A number of comments were opposed any changes to the mammalian living conditions section. Some comments indicated that current organic regulations were sufficient and no more were needed. Other comments noted that the sections pertaining to ruminants were sufficient and that no changes needed to be made to them.

(Response) AMS revised the mammalian living conditions sections to clarify a number of provisions for mammals, including ruminants. These changes were recommended by the NOSB through an open public comment process. In addition, livestock living conditions have always been a part of the USDA organic regulations. AMS received many questions from certifying agents and organic producers concerning livestock living conditions that needed clarification in the regulatory text. Due to the NOSB recommendations and the need to clarify livestock living condition requirements, AMS believes that the changes are needed.

2. Outdoor Area Requirements

Many comments were opposed to requiring soil as part of the outdoor access requirement for all mammals. These comments provided many reasons for excluding soil from the outdoor requirement, including environmental, soil quality, animal health, and disease transmission concerns. Commenters opposed soil for dairy animals during the non-growing season and for swine at any time, though some commenters supported soil for swine. Comments opposing soil as a requirement of outdoor access came from producers, certifying agents, trade associations, and others.

Environmental Concerns

(Comment) Comments showed concern that dairy cattle during the non-growing season or during times when the cattle could be temporarily confined during the grazing season would cause environmental damage to the soil and surrounding waters if dairy cattle were required to be on the soil. Comments cited a variety of conditions (

e.g.,

during winter when the ground may become very muddy). Cattle walking and standing on the soil would destroy any vegetation and cause the soil to wash away during subsequent rain events. Comments cited that USDA NRCS provided funding to build hardened outdoor spaces for dairy cattle to use so as to prevent damage to soil and prevent nutrients in the soil being washed into streams and rivers. These comments already noted that in the pasture rule response to comments, AMS recognized that sacrifice areas (soil-based areas that are designed for livestock to be held in during wet or winter conditions) are not possible in all regions and thus cannot be required.

Some comments were also concerned about the environmental damage that swine could do if the outdoor area included access to soil. Natural behavior of swine includes rooting of the soil, which destroys the vegetation and root structure of the vegetation. If swine are left too long on the land, the land loses vegetation and runoff could occur.

Other comments called for minimum outdoor space allowance for swine in order to protect the soil. These comments noted that if there was sufficient space, a minimum vegetative cover could be maintained, which would minimize or prevent any environmental damage the swine may cause. These comments suggested that the NOSB evaluate how much space is required for swine outdoors and then pass a recommendation that AMS could act upon. Other comments suggested that AMS use a space allowance that the NOSB livestock subcommittee had discussed but which had never been passed by the full board.

(Response) USDA organic regulations prohibit organic producers from reducing soil and water quality. The regulations also provide for temporary confinement of livestock to protect soil and water quality. AMS agrees with comments that livestock should be kept off of soil-covered areas during times of the year when livestock could damage soil and vegetation. In response to comments and consultation with NRCS regarding best practices, AMS removed “soil” as part of the outdoor requirements but requires that ruminants have access to pasture during the grazing season. However, outside of the grazing season, soil based outdoor areas are not required. Operations must provide year-round outdoor access, using either hardened surfaces or soil based areas unless the livestock are temporarily confined indoors.

AMS also agrees with some comments that thought the NOSB should reevaluate swine living conditions and determine minimum outdoor space requirements. AMS recognizes that if swine are placed in too small of an area

with soil, environmental problems may occur. AMS is including this topic area in the list of issues that the NOSB may address in a future recommendation.

Health Concerns

(Comment) Some comments expressed concern regarding health implications for swine if soil access was required as part of the outdoor space requirements. These comments noted that a number of diseases that had been eradicated in domestic swine, such as pseudorabies, were still present in feral swine. With outdoor space that requires soil access, domestic swine are more likely to come in contact with feral swine and contract one of these diseases. In the event that these diseases are detected in the domestic swine herd, there would be trade implications as countries may close their markets to U.S. pork.

These comments also discussed health concerns related to consumer safety. Trichinosis, a parasite in pork, has essentially been eradicated in the domestic swine herd. Comments expressed concerns that with outdoor access, swine could become infected with this parasite and could then infect consumers of this pork with this painful condition.

(Response) AMS also agrees with some comments that thought the NOSB should reevaluate swine living conditions and determine minimum outdoor space requirements. Therefore, the final rule requires year-round outdoor access for swine but does not require access to soil-covered areas. AMS recognizes that if swine are placed in too small of an area with soil, environmental problems may occur. AMS is including this topic area in the list of issues that the NOSB may address in a future recommendation. As part of the review process, the NOSB can take into consideration the presence of diseases in the soil or in feral hog populations, which if transmitted to domestic swine, may cause loss of foreign markets to organic and conventional pork producers.

3. Indoor Housing Requirements

Comments expressed concern with several topics regarding indoor housing for mammalian species, including stalls, space for natural behaviors, space for young dairy animals, swine confinement, the requirement that all mammals have access to indoors, and the use of bedding.

(Comment) Comments noted opposition to the proposed requirement that livestock be able to lie down in full lateral recumbence, turn around, and fully stretch their limbs. These comments stated that most dairy producers use a type of stall housing—whether free stall, tie stall, or stanchion barns—that would not provide the indoor space for a dairy cow to lie down in full lateral recumbence. Most comments wanted organic dairy producers to have the flexibility to use their existing barns and structures as part of an organic system plan approved by their certifying agent. These comments explained that cattle rarely lie down in that manner and usually only do so to sun themselves in a pasture. Many comments preferred the current language for natural maintenance, comfort behaviors, and an opportunity to exercise.

(Comment) Comments also showed concern with the proposed requirements for dairy young stock. Comments agreed with the description of the housing for dairy young stock, but these comments differed on the timing of when dairy young stock must be group-housed. Some comments wanted the dairy young stock to be group-housed by eight weeks of age while others wanted group housing to occur at six months of age. Those preferring a lower age for group housing cited EU organic standards, which include lower age requirements. The comments preferring six months of age discussed how weaning—the removal of milk from the diet of a young animal—is not a good stopping point as calves may retain the suckling impulse. Comments described how a calf can ruin the udder of a heifer by suckling on her in response to the suckling impulse, and these comments tended to prefer six months as the cutoff for group housing, which coincides with when dairy young stock must be provided with pasture or outdoor access if outside the growing season.

(Comment) Comments also addressed indoor housing for swine. Many comments were opposed to the use of farrowing crates or stalls and called for AMS to specifically prohibit their use. These comments wanted to ensure that swine had the opportunity to turn around, lie down, and move around, even during the farrowing period. Other comments were concerned that producers would individually house swine after documented cases of aggression. These comments requested that AMS define aggression so producers did not individually house swine unnecessarily. Comments were split on the requirement for bedding or rooting materials during the farrowing period. Some wanted to require rooting and nesting materials specifically during that time frame while others wanted to remove the requirement for bedding or rooting materials during the farrowing period to reduce disease and maintain cleanliness of the hogs.

(Comment) Comments were split on the issue of a cleanliness standard. Some comments supported such a standard if appropriate guidance was issued. Other comments opposed a cleanliness standard based on the rationale that during certain stages of production—such as ruminants on early spring pastures or swine with access to the soil during rainy periods—animals will be healthy yet also be dirty with manure or mud. Comments that opposed this standard preferred the requirement for clean, dry bedding to be provided. One comment was concerned about the requirement for a shelter that can hold bedding. This comment noted that many cattle are raised in pasture or range conditions that would not include access to the indoors, though may include shade and windbreaks for animal wellbeing.

(Response) AMS agrees with the comments that indicated that indoor space requirements to allow for full lateral recumbence and turning around without touching the enclosure may negatively affect many current producers without enhancing animal well-being. To clarify this issue, AMS revised the standard to specifically state that over a 24-hour period, mammalian livestock must have the opportunity to move, turn around, and exhibit natural behaviors.

AMS also stated that tie stalls, free stalls, stanchion barns, compost pack, and bed pack barns are all suitable facilities for cattle and can be used as part of an Organic System Plan. As part of the OSP, mammalian livestock producers must describe how livestock, over a 24-hour period of time, will be able to turn around, move, lie down, and exhibit natural behaviors. AMS recognizes that certain stall facilities designed for animal comfort and cleanliness purposefully minimize the ability of the animal to turn around. Livestock cannot be confined to these stalls all day, even if the animal may be temporarily confined indoors. As an example, if during the winter, livestock are temporarily confined indoors in a tie stall barn due to a snow storm, the livestock must have the opportunity to move around, turn around, and exhibit natural behaviors.

AMS has declined to clarify individual housing in response to swine aggression. The threshold for aggression to allow for individual housing may differ depending on the facilities, the operation, the producer, and the breeds of swine involved. Swine producers must describe their response to aggression in their OSP, which must be

approved by their certifying agent. AMS chooses to provide flexibility to organic swine producers to work with their certifying agents to develop a plan for when swine may be individually housed due to aggression.

AMS has chosen to keep the requirement for rooting materials but has removed the requirement that rooting must be available in exercise areas. Rooting is a natural behavior for swine and must be provided by organic swine producers. However, AMS agreed with the comments that requested that bedding and rooting material not be required during the farrowing period when swine may be individually housed. Swine producers may choose to use bedding and rooting material during the farrowing period, but it is not required.

AMS is clarifying that the USDA organic regulations for livestock require outdoor space as the default living space. Indoor space may be provided as a type of shelter, but it does not have to be provided to organic livestock. If indoor space is provided, then the structure must include space for appropriate bedding. However, in range or pasture conditions where no indoor space is required, the requirements for the indoor space do not apply, and bedding does not need to be provided. This does not allow producers to deny livestock access to the indoors if required by law or if it is necessary for the welfare of the animals. However, AMS recognizes that in many production systems, beef cattle, sheep, and some dairy animals may be routinely raised outdoors without indoor spaces. Shade and shelter must be provided based on what is appropriate for the animal species, season, and environmental condition.

IX. Avian Living Conditions (§ 205.241)

A. Description of Regulations

1. Summary of the Final Rule

The new § 205.241, entitled “Avian living conditions,” includes requirements for all organic avian (“bird” or “poultry”) species, including but not limited to, chickens, turkeys, geese, quail, pheasant, and any other species that are raised for organic eggs, organic meat, or other organic agricultural products.

New § 205.241(a) establishes general requirements for organic poultry production. These general principles are further clarified in §§ 205.241(b), (c), and (d). Section 205.241(a) requires organic poultry operations to establish and maintain living conditions that accommodate the wellbeing and natural behaviors of the 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. 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,

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are largely identical to previously established livestock requirements at § 205.239(a)(1), although AMS has added requirements for materials for dust bathing and for adequate outdoor space to escape aggressive behaviors.

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New § 205.241(b) specifies the indoor space requirements for avian species. While shelter must always be provided to birds, indoor space is not a requirement. If indoor space is provided to the birds, then the indoor space requirement must be followed. New § 205.241(b)(1) requires that indoor space be sufficiently spacious to allow all birds to move freely, stretch their wings, 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 § 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 at least monthly and implement practices to maintain ammonia levels below 10 ppm. When ammonia levels exceed 10 ppm, producers must implement additional practices and additional monitoring to reduce ammonia levels below 10 ppm. Ammonia levels above 25 ppm are not in compliance with organic avian living conditions. Ammonia is a natural breakdown product of manure from livestock and is harmful to birds when inhaled, especially at concentrations above 25 ppm. In most cases, high levels of ammonia indicate that litter is damp or litter management practices require modification.

New § 205.241(b)(3) clarifies the lighting requirements for organic layers and fully feathered birds. Organic producers may use artificial light for up to 16 hours per day (24-hour period). The 16-hour period must be calculated as a single continuous time period. Artificial light must be lowered gradually to encourage hens to move to perches or otherwise settle for the night. Producers must design indoor spaces with access to natural light so that, on sunny days, inspectors can read and write when the lights are turned off. This requirement sets forth a performance-based standard that facilitates inspection, provides for enough lighting to accommodate natural avian behavior, and allows flexibility to operations in determining how to design their facilities for compliance.

Section 205.241(b)(4) describes the required exit areas, or doors, on shelters so that the birds can easily access both indoor and outdoor areas. Access and utilization of outdoor areas is a core principle of organic production systems. Organic avian systems must be designed so birds have ready access to outdoor areas and so birds are able to return indoors to roost in the evening. Producers must provide exit doors and door sizes to enable all birds to access outdoor and indoor areas. Door size and appropriate placement must provide meaningful outdoor access to the birds. Exit doors must be designed and managed in a manner that prevents movement of wild birds, rodents, and other animals into the poultry house.

New § 205.241(b)(5) requires perches for chicken layers at a rate of six inches per bird for all housing, with the exception of aviary housing. Perch space may include the alighting rail in front of nest boxes. Perches are not required for broilers, meat birds, or layers of non-

Gallus gallus

species. 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 flock). Perch requirements for aviary housing have been adjusted, as birds in aviary housing are also able to escape aggressive behavior by moving between tiers in the house. These requirements are adopted from 2009 and 2011 NOSB recommendations.

New § 205.241(b)(6) specifies indoor requirements to allow for certain natural behaviors. Indoor space must include areas that allow for scratching and dust bathing. Litter (

i.e.,

bedding), such as wood shavings or straw, must be provided indoors. Manure excreted by birds in a poultry house alone, without additional litter, would not be sufficient to meet this requirement. This section also requires that litter be maintained in a dry manner. Wet litter can lead to a variety of problems for birds, including excess ammonia, lameness, and pest problems. Litter may be topped off

when needed to maintain sufficient dryness. The requirements are adopted from 2009 and 2011 NOSB recommendations.

Section 205.241(b)(7) includes specific flooring requirements for indoor avian housing with slatted/mesh floors. These houses must provide at least 30 percent solid flooring to allow birds indoors to engage in natural behaviors, including scratching and dust bathing, without crowding. The requirement is adopted from a 2009 NOSB recommendation.

New §§ 205.241(b)(8), 205.241(b)(9), and 205.241(b)(10) list the required minimum indoor space requirements for different types of housing. These are minimum standards, and organic producers may choose to provide more indoor space than required. The indoor space requirements apply to chickens (

Gallus gallus

), with layer requirements at § 205.241(b)(8), pullet requirements at § 205.241(b)(9), and broiler requirements at § 205.241(b)(10). Indoor space requirements for layers vary by the type of housing provided. The types of housing are further defined in § 205.2 and include: Mobile housing, aviary housing, slatted/mesh floor housing, and floor litter housing. For housing that does not fit into any of these defined types, the indoor space requirement is no more than 2.25 pounds of hen per square foot. Pasture pens that are moved regularly and provide direct access to soil and vegetation are not considered indoors (see definition of “outdoors” in § 205.2). These requirements are adapted from 2009 and 2011 NOSB recommendations, and made in consideration of third-party animal welfare standards.

AMS has established indoor space requirements for common types of poultry housing. Less indoor space is required per bird in houses that provide more access to vertical space in the house, as birds have more room to move around (

e.g.,

aviary and slatted/mesh floor housing). Housing where birds have more limited access to vertical space (

e.g.,

floor litter housing) must provide more indoor space per bird. AMS has also allowed 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.

AMS has only established indoor space requirements for chickens in this final rule. AMS may propose space requirements for other avian species in the future. Other avian species must meet all other indoor requirements including exit doors, ammonia levels, and lighting.

AMS is using pounds of bird per square foot to establish space requirements. In other words, the minimum space that must be provided depends on the average weight of birds at that time. All weight references in §§ 205.241(b) and (c) refer to the weight of live birds and not the weight of processed birds, for example. By stating the requirement in pounds per square foot, the application of the space requirement is more consistent between breeds, where the average weight per bird can vary significantly. This unit of measurement (pounds per square foot) was recommended by the NOSB in 2011 for pullets and broilers, and AMS is extending this same unit of measurement to layers. Under this final rule, larger breeds (

i.e.,

heavier on a per bird basis) must be provided with more indoor space than smaller birds, 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.

For example, a layer in a floor litter housing system that is 32 weeks of age and weighs 4.3 pounds must be provided with 1.43 square feet per bird (equivalent to 3.0 pounds of bird for each one square foot); however, at 80 weeks of age and a weight of 4.5 pounds, each bird must be provided with 1.5 square feet per bird (3.0 pounds of bird for each one square foot). In other words, for each 10,000 square feet, a 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). Although older and heavier birds require more space, natural mortalities over time may result in compliance with the space requirements over a production cycle. To calculate the weight of birds, an average weight may be established for the flock by taking weights of a representative sample of the flock. The 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 need to establish the weight of birds based on objective criteria to determine the space required indoors and outdoors. Certifiers may also weigh birds at inspections to verify compliance with the requirements.

New § 205.241(b)(11) specifies how the area of the indoor space is calculated. Indoor space must be calculated to ensure that birds are provided with adequate indoor space to meet the space requirements at §§ 205.241(b)(8) through (10). The total size of the indoor space is calculated by including all flat areas in a house, excluding nest boxes. Elevated round perches, for example, are not flat areas and could not be included as indoor space. These requirements match various third-party animal welfare standards, which consider nest boxes to be distinct from useable floor areas of the house where birds can move around freely. They also align with the 2009 and 2011 NOSB recommendations.

New § 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. The same porch must not be counted as indoor space if the birds do not have continued access to the space during temporary confinement events. This ensures that enclosed porches that are not fully accessible to birds are not counted in indoor space calculations.

Section 205.241(c) establishes the requirements for outdoor areas for organic avian species, including the amount of outdoor space that must be provided to organic avian species. The requirements of section 205.241(c) are adopted or adapted from previously established requirements at section 205.239, 2009 and 2011 NOSB recommendations, and third-party animal welfare organization standards. Section 205.241(c)(1) requires that the outdoor space be designed to promote and encourage outdoor access for all birds. Producers are required to provide access to the outdoors at an early age. This section requires door spacing to be designed to promote and encourage outdoor access and requires outdoor access to be provided on a daily basis (further described at § 205.241(b)(4)). Outdoor access may only be temporarily restricted in accordance with § 205.241(d).

Section 205.241(c)(2) requires outdoor areas for poultry to have a minimum of 50 percent soil and that the soil portion of the outdoor area include maximal 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 50 percent of the outdoor area may be gravel, concrete, or surfaces other than soil or soil with vegetative cover. Maximal 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 § 205.241(a). Shade may be provided in outdoor areas by trees, shade structures, or other appropriate objects. This section addresses shade in outdoor areas; it does not permit structures that do not meet the definition of “outdoors” (§ 205.2) to be included in calculations of outdoor space.

New §§ 205.241(c)(4) through (6) specify minimum outdoor space requirements for chickens (

Gallus gallus

). AMS has only established outdoor stocking densities for chickens in this final rule. AMS may propose space requirements for other species in the future.

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. Organic pullet producers must provide at least one square foot of outdoor space for every 3.0 pounds of bird in the flock. Organic broiler producers must provide at least one square foot of outdoor space for every 5.0 pounds of bird in the flock. Outdoor space must be provided for all birds in the flock (

i.e.,

a producer must assume that all birds are outdoors at once to calculate the outdoor space that must be provided). All weight references in §§ 205.241(b) and (c) refer to the weight of live birds and not the weight of processed birds.

New § 205.241(c)(7) clarifies that porches and lean-to type structures that are not enclosed (

e.g.

with a roof, but with screens removed) and allow birds to freely access other outdoor areas can be counted as outdoor space. This ensures that enclosed porches are not counted as outdoor space, while providing flexibility for producers to use modified porches as outdoor space when they are open to larger outdoor areas that the birds can access.

New § 205.241(d) describes the conditions under which organic avian livestock producers may temporarily confine birds indoors (“temporary” and “temporarily” further defined at § 205.2). Producers must record confinement, and should do so in a manner that will demonstrate compliance with the regulations (also see § 205.103). Records could 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 section 205.241(d) are adopted or adapted from previously established requirements for organic livestock at section 205.239(b), 2009 and 2011 NOSB recommendations, and third-party animal welfare organization standards.

New § 205.241(d)(1) provides an allowance for temporary confinement in response to inclement weather, which is defined at § 205.2. In addition, this provision allows birds to be confined indoors when the temperature does not exceed 40 °F. It also allows birds to be denied outdoor access or be brought inside when the daytime temperature exceeds 90 °F. In this case, producers have to provide outdoor access during parts of the day when temperatures are between 40-90 °F, unless other forms of inclement weather occur. Weather may still qualify as inclement weather (§ 205.2) within the 40-90 °F temperature range. For example, excessive precipitation and very violent weather can occur when temperatures are within 40 °F and 90 °F. Likewise, weather may meet the definition of inclement weather within the range of 40 °F and 90 °F if the relative humidity is very high and the air temperature is nearing 90 °F, or under extremely windy conditions. As inclement weather is defined, in part, as weather than can cause physical harm to a species, a producer would still be in compliance with § 205.241(d)(1) if birds were confined at temperatures that did not exceed 90 °F, if the weather could cause physical harm.

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 chicken pullets due to their stage of life (“stage of life” previously defined at § 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 § 205.241(d).

New § 205.241(d)(3) provides an allowance for temporary indoor confinement under conditions in which the health, safety, or well-being of the birds could be jeopardized. Temporary confinement must be recorded, and 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. 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 State Departments of Agriculture and State Veterinarians, about risks to bird health and provide appropriate guidance to certifiers or producers, as necessary.

New § 205.241(d)(4) provides an allowance for indoor confinement to prevent risk to soil or water quality. This provision allows for confinement of birds when the outdoor area is being managed to reestablish vegetation. As outdoor areas must be maximally vegetated, producers may need to occasionally confine birds to meet the vegetation requirement at § 205.241(c)(2).

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.

New § 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 the birds or to catch the birds, place them in shipping containers, and conduct the sale.

New § 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 allowed for 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 § 205.241(d).

Section 205.241(d)(8) provides an allowance for indoor confinement 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 § 205.241(d)(8) to encourage the next generation of organic producers.

New § 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).

B. Discussion of Comments Received

1. Ammonia Levels

(Comment) AMS received several comments noting that it was redundant to include ammonia requirements in both § 205.238 and § 205.241, and recommending that we keep the requirement in only one section. Other comments suggested we make the requirement in § 205.238 apply to all types of livestock production rather than limit the requirement to poultry production.

(Response) AMS agrees it is not necessary to include both sections as proposed. In the final rule, we have retained the requirement in § 205.241(b)(2) and removed the requirement in § 205.238. AMS recognizes that ammonia levels may be relevant for other types of livestock production, but we have not broadened the requirement in the final rule. AMS may seek the NOSB's recommendation on this topic at a later date.

(Comment) We received comments that it was not clear if AMS was establishing a maximum ammonia limit of 10 ppm or 25 ppm. These comments noted that the consequences of exceeding 25 ppm were not clearly different than the consequences for exceeding 10 ppm. Other comments stated that birds could be continuously exposed to ammonia levels in excess of 10 ppm but below 25 ppm without any consequences, limiting the benefits to animal welfare from this requirement.

(Response) The final rule is modified to clarify that producers must implement practices to maintain ammonia levels below 10 ppm. The 10 ppm level is established so that organic birds live in an indoor environment without excessive ammonia levels, which can be harmful to bird health. If required monthly monitoring indicates ammonia levels are above 10 ppm, then the producer must conduct additional monitoring and implement additional practices to bring ammonia levels to below 10 ppm.

The rule also establishes a maximum ammonia level of 25 ppm. Ammonia levels above 25 ppm would be a violation of the organic requirements and lead to appropriate compliance actions, including potential loss of organic certification. The ammonia levels described in the final rule are consistent with the NOSB's recommendation and the thresholds established by a number of animal welfare standards.

(Comment) We received some comments that a maximum ammonia level of 25 ppm was too high and that AMS should revise the upper limit to 20 ppm to better protect animal health.

(Response) AMS has not revised the requirement in the final rule because the 25 ppm level limit was established based on NOSB's recommendation. This limit is also consistent with various third-party animal welfare standards. Furthermore, AMS notes that a producer is required to implement additional practices to reduce ammonia levels when levels exceed 10 ppm. With this 10 ppm action level, AMS does not think it is necessary to reduce the upper limit to be below 25 ppm.

(Comment) We received comments related to the monitoring and measurement of ammonia levels. One comment argued that measurement of ammonia with an objective tool such as test strips or meters should not be required and that the rule should allow for subjective measures (

e.g.,

a smell test). Another comment noted that the human nose cannot reliably or accurately detect levels of ammonia and recommended AMS clarify that subjective measurement is not sufficient to determine ammonia levels. We also received comments that monthly testing may not be adequate to verify compliance with the limits proposed.

(Response) In the final rule, AMS has not specified how ammonia levels are to be measured. Producers and certifiers may use a number of methods to measure ammonia levels, including test strips, continuous monitoring devices, or handheld meters. Given the minimal cost of the simplest methods to test ammonia levels and that action is required by producers at a relatively low level (above 10 ppm), producers must use a non-subjective method to measure ammonia levels.

AMS agrees that monthly monitoring may not be sufficient when ammonia levels exceed 10 ppm. AMS has revised the final rule at § 205.241(b)(2) to specify that additional monitoring is required when ammonia levels exceed 10 ppm. The additional requirement is included to ensure that the additional practices implemented by the producer lower ammonia levels below 10 ppm. A producer may return to monthly ammonia monitoring when ammonia levels fall below 10 ppm.

2. Lighting

(Comment) AMS received many form letter comments stating that the regulations should require 8 hours of continuous darkness each day for all birds. The comments appear to prefer this to the language proposed at § 205.241(b)(3) that states, “artificial light may be used to prolong the day length up to 16 hours.” Comments suggested the rule as proposed would not ensure a period of darkness.

(Response) AMS has revised the final rule to state, “artificial light may be used to prolong the day length, to provide up to 16 hours of continuous light.” AMS has included the word “continuous” to ensure that layers and mature birds are not subjected to multiple periods of light and dark over the course of a 24-hour day. In most locations, except for locations in extreme latitudes during summer months, this requirement ensures that birds are provided with an 8-hour period of continuous darkness per day, as requested by comments. Producers located in extreme latitudes are not required by the final rule to provide 8 hours of total darkness.

(Comment) Several comments requested clarification about whether the time period for dimming artificial light is to be included in the 16-hour time period described in § 205.241(b)(3).

(Response) Artificial light may be used to provide up to 16 hours of

continuous light. The rule does not allow for additional use of artificial light outside of this continuous 16-hour time period. If artificial lights are dimmed, the time that artificial lights are on (dim or not) must be included within the allowed 16-hour time period.

(Comment) Several comments noted that the method for evaluating the level of natural light in a poultry house (§ 205.241(b)(3)) was overly subjective, including a comment that different inspectors may require different light levels to read and write. Comments suggested that the requirement could be difficult to enforce or that differences between inspectors could lead to inconsistent enforcement of the requirement. Several comments requested we set a specific light requirement that could be verified with a light meter.

(Response) AMS considered alternatives to the requirement as proposed, including a requirement to measure light

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