# National Organic Program (NOP); Organic Livestock and Poultry Standards

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/fr%3A2022-16980

## Record

- **Collection:** Federal Register
- **Document type:** Proposed Rule
- **Published:** August 9, 2022
- **Citation:** 87 FR 48562

## Text

DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 205
[Doc. No. AMS-NOP-21-0073]
RIN 0581-AE06
National Organic Program (NOP); Organic Livestock and Poultry Standards

AGENCY:

Agricultural Marketing Service, USDA.

ACTION:

Proposed rule.

SUMMARY:

The United States Department of Agriculture's (USDA) Agricultural Marketing Service (AMS) proposes to amend 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:

Comments must be received by October 11, 2022.

AMS will host a virtual listening session on August 19, 2022, from 12:00 p.m. to approximately 2:00 p.m. Eastern Time (ET) to hear comments regarding this proposed rule. The deadline to register for oral comment is 11:59 p.m. ET, August 15, 2022. Access information will be published on the AMS website prior to the listening session at
https://www.ams.usda.gov/event/listening-session-organic-livestock-and-poultry-standards.

ADDRESSES:

Interested persons may comment on this proposed rule using one of the following methods:

Oral Comments:
Each commenter wishing to address AMS must pre-register by 11:59 p.m. ET on August 15, 2022. Each commenter will be allotted a speaking slot during the virtual listening session. Instructions for registering for the listening session can be found at
https://www.ams.usda.gov/event/listening-session-organic-livestock-and-poultry-standards.

Federal eRulemaking Portal: https://www.regulations.gov.
Follow the instructions for submitting written comments. The deadline to submit written comments is 11:59 p.m. ET, October 11, 2022.

Mail:
AMS strongly prefers comments be submitted electronically. However, written comments may be submitted (
i.e.,
postmarked) via mail to Erin Healy, MPH., Director Standards Division, National Organic Program, USDA-AMS-NOP, Room 2646-So., Ag Stop 0268, 1400 Independence Ave. SW, Washington, DC 20250-0268. Mailed comments must be postmarked by October 11, 2022.

Transcript:
The listening session will be recorded, and a transcript will be posted on the AMS website and on
https://www.regulations.gov
(search for docket “AMS-NOP-21-0073”) following the session.

Meeting Accommodations:
The listening session will be held virtually. If you are a person requiring a reasonable accommodation, please make requests by the registration deadline (which is 11:59 p.m. ET on August 15, 2022) for sign language interpretation or other reasonable accommodation to the person listed under
FOR FURTHER INFORMATION CONTACT
. Determinations for a reasonable accommodation will be made on a case-by-case basis.

Instructions:
All submissions received must include the agency name and docket number or Regulatory Information Number (RIN) for this rulemaking. All comments received will be posted without change to
https://www.regulations.gov,
including any personal information provided. For detailed instructions on sending comments and additional information on the rulemaking process, see the “What Should I Consider as I Prepare My Comments for AMS?” heading of the
SUPPLEMENTARY INFORMATION
section of this document.

Docket:
For access to the docket, including background documents and comments received, go to
https://www.regulations.gov
(search for docket “AMS-NOP-21-0073”). Comments submitted in response to this proposed rule will also be available for viewing in person at USDA-AMS, National Organic Program, Room 2646-South Building, 1400 Independence Ave. SW, Washington, DC, from 9 a.m. to 12 noon and from 1 p.m. to 4 p.m., Monday through Friday (except official Federal holidays). Persons wanting to visit the USDA South Building to view comments received in response to this proposed rule are requested to make an appointment in advance by calling (202) 720-3252.

FOR FURTHER INFORMATION CONTACT:

Erin Healy, MPH, Director of Standards Division, Telephone: (202) 720-3252; Email:
erin.healy@usda.gov.

Executive Summary

A. Purpose of the Proposed Rule

AMS is writing this proposed rule to clarify and ensure consistent application of the USDA organic standards and therefore mitigate information asymmetries and associated costs amongst certifying agents, producers, and consumers. This action will augment the USDA organic livestock production regulations with clear provisions to fulfill the purposes of the Organic Foods Production Act (OFPA) (7 U.S.C. 6501-6524): to assure consumers that organically produced products meet a consistent, uniform standard and to further facilitate interstate commerce of organic products. OFPA mandates that detailed livestock regulations be developed through notice and comment rulemaking (7 U.S.C. 6509(g)) and USDA did so when it published the final rule on the National Organic Program (65 FR 80547; December 21, 2000). In 2010, AMS published a final rule (75 FR 7154; February 17, 2010) clarifying the pasture and grazing requirements for organic ruminant livestock. This proposed rule would provide clarity for the production of organic livestock and poultry, consistent with recommendations provided by USDA's Office of Inspector General and nine separate recommendations from the National Organic Standards Board (NOSB).

B. Summary of Provisions

This proposed rule would update the USDA organic regulations for livestock production. The proposed changes would address a range of topics related to the care of organic livestock, including:

Livestock health care practices
—the proposed rule would specify which physical alteration procedures are prohibited or restricted for use on organic livestock. The proposed livestock health care practice standards include requirements for euthanasia to reduce suffering of any sick or disabled livestock;

Living conditions
—this proposed rule would set separate standards for mammalian and avian livestock living conditions to better reflect the needs and behaviors of the different species, as well as related consumer expectations. The proposed mammalian livestock standards would cover both ruminants and swine. The proposed avian livestock living standards would set maximum indoor and outdoor stocking densities to ensure the birds have sufficient space to engage in natural behaviors;

Transport of animals
—this proposed rule would add new requirements on the transport of organic livestock to sale or slaughter;

Slaughter
—this proposed rule would add a new section to clarify how organic slaughter facility practices and USDA Food Safety and Inspection Service

(FSIS) regulations work together to support animal welfare.

C. Costs and Benefits

Much of the proposed rule focuses on clarifying and codifying existing practices, and AMS assumes no costs or benefits are accumulated for those changes. We do expect costs and benefits to occur in broiler production through increased indoor space for broilers and in egg production through increased outdoor access for layers. In summary, AMS estimates that the rule would increase discounted net benefits between $99 million and $119 million annually. This range spans three producer response scenarios, two implementation periods for the outdoor space requirements, and a no-rule scenario (see Table 1, Table 2, and Table 3).

Table 1—Executive Summary: Costs and Benefits for Eggs and Broilers

Proposed rule
(5-year compliance—No Growth)

Proposed rule
(5-year compliance—Growth)

Proposed rule
(15-year compliance)

Proposed rule

Eggs
(per dozen)

Eggs
(per dozen)

Eggs
(per dozen)

Broilers
(per pound)

Benefits (Consumer Willingness to Pay)
0.21
0.21
0.21
0.34

Benefits with 80% Breaker Egg Adjustment
0.16
0.16
0.16

Cost (Change in Average Total Cost of Production)
0.05
0.05
0.05
0.02

Net Benefit per Unit
0.11
0.11
0.11
0.32

20-Year Annualized Net Benefits (3%) ($1,000)
10,429
18,757
10,278
101,011

20-Year Annualized Net Benefits (7%) ($1,000)
9,236
16,132
8,027
91,418

Average Discounted Domestic Information Collection Cost

$194,777

AMS estimates that the discounted costs for layer operations would range between $3.6 million and $8.4 million annually. To monetize the benefits of this rule, AMS used research that measured consumers' willingness-to-pay for outdoor access at a premium of between $0.16 and $0.25 per dozen eggs, controlling for other factors, including the organic label. Based on this, AMS estimates the annually discounted benefits falling between $11.6 million to $27.1 million.
1

1
These ranges capture the discounted high and low estimates across all three layer scenarios, which vary in use of growth and implementation time. All three of the layer models account for approximately 50% of initial production leaving due to difficulty for some pit-litter and aviary houses to comply with the proposed requirements, if finalized.

Table 2—Executive Summary of Annualized Discounted Net Benefits for Eggs
[Thousands of $]

Discount rate
No rule
3%
7%

Growth prevented and exit in year 6
(5-year co-proposal)

3%
7%

Growth and exit in year 6
(5-year co-proposal)

3%
7%

Growth and exit in year 16
(15-year co-proposal)

3%
7%

Annualized Benefits
$0.00
$0.00
$15,651
$13,860
$27,110
$23,315
$14,858
$11,605

Annualized Costs
0.00
0.00
5,222
4,625
8,352
7,183
4,580
3,578

Annualized Net Benefits
0.00
0.00
10,429
9,236
18,757
16,132
10,278
8,027

AMS estimates that the total annual discounted costs for broiler compliance would be between $5.7 million and $6.3 million. The benefits for broilers are calculated using a willingness-to-pay at a premium of $0.34/lb. With this willingness-to-pay, the annual discounted benefits range between $97 million and $107 million.
2

2
The broiler model assumes that all broiler production is able to comply with the rule because of the prevalence of single story housing and existing land near production houses. Therefore, exiting is not considered in the broiler model and a standard 3-year compliance is used with growth continuing at the historic average.

Table 3—Executive Summary of Annualized Discounted Net Benefits for Broilers
[Thousands of $]

Discount rate
Broiler
No rule
3%
7%
With rule
3%
7%

Annualized Discounted Values:

Benefits
$0.00
$0.00
$107,295
$97,105

Costs
0.00
0.00
6,284
5,687

Net Benefits
0.00
0.00
101,011
91,418

SUPPLEMENTARY INFORMATION:

Table of Contents

I. General Information

A. Does this proposed action apply to me?

B. What should I consider as I prepare my comments for AMS?

II. Background

A. Current Organic Livestock Standards

B. NOSB Recommendations

C. AMS Policy, Regulatory History, and Withdrawal

D. Related Issues

III. Overview of Proposed Amendments

A. Definitions

B. Livestock Care and Production Practices Standard

C. Mammalian Livestock Living Conditions

D. Avian Living Conditions

E. Transport and Slaughter

F. Slaughter Requirements

IV. Related Documents

V. Executive Orders 12866 and 13563—Executive Summary

VI. Executive Order 12988

VII. Executive Order 13175

VIII. Paperwork Reduction Act

IX. Civil Rights Impact Analysis

List of Subjects in 7 CFR Part 205

I. General Information

A. Does this proposed action apply to me?

You may be affected by the proposed action if you are engaged in the meat, egg, poultry, dairy, or animal fiber industries. Potentially affected entities may include, but are not limited to:

• Individuals or business entities that are considering organic certification for a new or existing livestock farm or slaughter facility;

• Existing livestock farms and slaughter facilities that are currently certified organic under the USDA organic regulations; and

• Certifying agents accredited by USDA to certify organic livestock operations and organic livestock handling operations.

This listing is not intended to be exhaustive, but identifies key entities likely to be affected by this action. Other types of entities could also be affected. To determine whether you or your business may be affected by this action, you should carefully examine the proposed 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
.

B. What should I consider as I prepare my comments for AMS?

Specifically, AMS seeks comment on the following topics:

1. Do the proposed amendments provide enough clarity to farmers, handlers, and certifying agents to be able to comply with the proposed requirements?

2. Do the assumptions and estimates outlined in the Regulatory Impact Analysis and Regulatory Flexibility Analysis accurately reflect the current practices and production rates among organic poultry and egg producers? Specifically, to what degree do the proposed requirements align with third-party animal welfare certification programs and current industry practices? Are assumptions about welfare surplus valid? Is the period of analysis and the estimates about the useful life of a poultry house appropriate? Are AMS's benefit estimates for broilers appropriate? Are AMS's cost estimates for small producers accurate? Are AMS's estimates for the paperwork burden accurate?

3. Do the proposed amendments to § 205.239 related to mammalian livestock reflect current practices among organic mammalian livestock producers or impose new requirements on these operations?

4. What is an appropriate and feasible implementation timeframe for the proposed changes? Specifically, AMS seeks comment on the following implementation approach and timeframes:

(a) One year for all proposed changes, except for the indoor space requirements for broiler operations and the outdoor space requirements for layer operations;

(b) Three years for the indoor space requirements for broilers; and

(c) Outdoor space requirements for layers (three options):

Option 1:
Layer operations certified at the time of the rule's effective date (typically 60 days after publication) or within three years of the effective date will have five years to comply with the rule's outdoor space requirements concerning stocking density, exit doors, soil, and vegetation. Those operations certified more than three years after the rule's effective date will need to comply with all of the rule's outdoor access requirements immediately; or

Option 2:
Layer operations certified at the time of the rule's effective date will have 15 years to comply with the rule's outdoor space requirements concerning stocking density, exit doors, soil, and vegetation. Fifteen years was selected in order to allow previously built facilities to fully depreciate under the Internal Revenue Service (IRS) depreciation schedule. New entrants certified within three years of the rule being effective must comply with the outdoor space requirements within five years of the effective date. Those operations certified more than three years after the rule's effective date will need to comply with all of the rule's outdoor access requirements immediately.

Option 3:
AMS seeks comments on alterative timeframes to those presented above for the outdoor space requirements for layer operations, including justification for alternatives and data on the costs and benefits.

These options and their costs and benefits are discussed below in Section V (“Executive Orders 12866 and 13563—Executive Summary”). Detailed information can be found in the Regulatory Impact Analysis for this proposed rule.

II. Background

This proposed rule addresses health care, transport, slaughter, and living conditions for organic livestock. Furthermore, the provisions for outdoor access for poultry have a long history of agency and NOSB actions and are a focal issue in this proposed rule. Outdoor access practices, particularly for organic layers, vary among certified operations: some operations provide large, open-air outdoor areas, while other operations provide minimal outdoor space or use screened, covered enclosures commonly called “porches” to provide outdoor space. An audit conducted by the USDA Office of the Inspector General (OIG) identified inconsistencies in certification practices regarding the use of porches as outdoor space.
3

To address this finding, AMS issued draft guidance
4

but determined that rulemaking was preferable to resolve the divergent outdoor access practices for organic poultry. To assist with the rulemaking, the NOSB developed a series of recommendations to clarify organic livestock health care, transport, slaughter, and living conditions, including outdoor access for poultry. The NOSB deliberation process revealed broad support within the organic community and consumer expectations for specific guidelines for meaningful outdoor access for organically-produced poultry.

3
USDA, Office of the Inspector General. March 2010. Audit Report 01601-03-Hy, Oversight of the National Organic Program. Copies may be available at
https://www.usda.gov/oig/reports/audit-reports
or by contacting the Office at
https://www.usda.gov/oig/foia.
A copy of the report is also available in the docket for this proposed rule and can be found be searching for the docket number “AMS-NOP-21-0073” at
https://www.regulations.gov/.

4
On October 13, 2010, AMS published a Notice of Availability of Draft Guidance and Request for Comments in the
Federal Register
(75 FR 62693).

A. Current Organic Livestock Standards

The purpose of the OFPA, 7 U.S.C. 6501
et seq.,
is to “to establish national

standards governing the marketing of certain agricultural products as organically produced products”; “assure consumers that organically produced products meet a consistent standard”; and “facilitate interstate commerce in fresh and processed food that is organically produced.” 7 U.S.C. 6501. To that end, Congress broadly authorized the Secretary of Agriculture to promulgate and implement regulations related to the national organic program. 7 U.S.C. 6506(a)(11).

AMS administers the National Organic Program (NOP), which oversees the development and implementation of the national standards for the production, handling, and marketing of organically produced agricultural products. OFPA at 7 U.S.C. 6509, among other sections, authorizes the USDA to develop and implement regulations regarding standards for organic livestock products. 7 U.S.C. 6509(g). Furthermore, OFPA authorizes the creation of the NOSB to advise USDA about the implementation of standards and practices for organic production. 7 U.S.C. 6518.

The NOSB is a 15-member Federal Advisory Board appointed by the Secretary of Agriculture that meets in public twice annually. OFPA specifies the composition of the NOSB and reserves four NOSB seats for producers/growers and two seats for handlers/processors. The NOSB solicits public comment on topics related to the USDA organic regulations to inform its public deliberations and decision making at public meetings. If AMS agrees with an NOSB recommendation, a recommendation to amend the USDA organic regulations must be implemented through the notice-and-comment rulemaking process. A summary of the NOSB recommendations on livestock production practices follows in the NOSB RECOMMENDATIONS section.

Consistent with the Secretary's authority to promulgate regulations for organic livestock products, 7 U.S.C. 6509, USDA organic regulations include broad and general requirements for ensuring the living conditions associated with certified organic livestock. For example, the USDA organic regulations currently require organic producers to provide year-round access to the outdoors, shade, shelter, exercise areas, fresh air, clean drinking water, and direct sunlight (7 CFR 205.239(a)(1)). For all livestock, the regulations also require: (1) An environment that allows animals to express natural behaviors; (2) preventive health care to reduce the likelihood of illness; and (3) protection from conditions that jeopardize an animal's well-being, such as predators and adverse weather.

USDA-accredited certifying agents inspect organic operations and decide whether the operation's practices comply with the USDA organic regulations. Certifying agents must consider site-specific conditions, including prevalent pests and diseases, weather, and natural resources of the operation when determining the acceptability of a particular management practice. Certifying agents must also determine if organic operations provide “access to the outdoors” in a manner that meets the current requirements. 7 CFR 205.239(a)(1). This flexibility results in significant variation in the manner by which producers meet the requirements. For example, in organic poultry production, producers meet the requirement for outdoor access by providing animals with extensive pasture and also by providing a small roofed enclosure (including porches with no access to soil or vegetation). To complicate the assessment of access to the outdoors, a certifying agent generally only inspects an organic operation during limited and discrete periods of time.

The disparities in amount and quality of outdoor access have economic implications for producers. This disparity also increases consumer search costs and has been identified by USDA as a possible consumer welfare loss.
5

Consumer welfare loss could result in reduced confidence in and demand for organic eggs, as the organic label may inconsistently signal its attributes and provide less-consistent value. This may create additional search costs as consumers seek to understand and choose the marketing claim or label that most closely matches their preferences. In addition, a growing body of research shows that outdoor and pasture access encourages foraging and supports the natural behaviors of livestock and poultry. These behaviors may be positively associated with improved health and well-being, may be better for the environment, and may result in healthier livestock products for human consumption and poultry.
6 7

5
Mojduszka, Eliza M. (2018) “An Analysis of the Specialty Egg Market: Hedonic Price with Fixed Brand Effects vs. Random Coefficient Discrete Choice Model.”
https://www.usda.gov/sites/default/files/documents/Mojduszka%202018%20An%20Analysis%20of%20the%20Specialty%20Egg%20Market.pdf.

6
Is Grassfed Meat and Dairy Better for Human and Environmental Health? Frederick D. Provenza, Scott L. Kronberg, and Pablo Gregorini, Front Nutr. 2019; 6: 26.
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6434678/.

7
Phillips HN, Heins BJ. Effects of Outdoor Stocking Density on Growth, Feather Damage and Behavior of Slow-Growing Free-Range Broilers.
Animals (Basel).
2021;11(3):688.
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7998225/.

To resolve the divergence in practices under the organic label, the NOSB, organic trade groups, and consumer groups have asked AMS through multiple public meetings and public comment periods to revise the organic regulations.

The organic regulations also include more specific requirements for livestock production. These have existed since publication of the USDA organic regulations in December 2000 (65 FR 80547) and have been revised intermittently. Additional specificity was added by a 2010 final rule (75 FR 7153; 76 FR 26927) to require that ruminants, specifically, graze at least 120 days per year and receive 30 percent of dry matter intake from grazing (7 CFR 205.239) and to describe situations that warrant denying ruminants access to pasture or the outdoors (
e.g.,
for newborn dairy cattle up to six months) (7 CFR 205.239(c)(2)). This proposed rule seeks to similarly elaborate on the current regulations, especially for avian species and mammalian, non-ruminant livestock. For example, the proposed rule elaborates on the current requirements for year-round access to the outdoors, fresh air, and direct sunlight by including requirements for outdoor space (per bird), establishing thresholds for ammonia gas, and requiring doors in poultry houses to ensure all birds may access the outdoors. The proposed rule also elaborates on current standards (7 CFR 205.239) related to situations that may warrant temporary confinement of animals.

B. Prior NOSB Recommendations

Between 1994 and 2011, the NOSB made nine recommendations regarding livestock health care and welfare in organic production. Between 1997 and 2000, AMS issued two proposed rules and a final rule regarding national standards for the production and handling of organic products, including livestock and their products. The NOSB, as well as members of the public, commented on these rules with regard to the health care and welfare of livestock. The key actions from that period that have led to the development of the existing standards on organic livestock are summarized below.

(1) In June 1994, the NOSB recommended a series of provisions to address the care and handling of livestock on organic farms. Within this recommendation, the NOSB developed

much of the framework for organic health care and welfare of livestock, including health care standards, living conditions, and transportation of livestock practices.

(2) In April and October 1995, the NOSB made a series of recommendations as addendums to the June 1994 recommendations. These recommendations further addressed various health care practices, a requirement for outside access, and the use of vaccines.

(3) On December 16, 1997, AMS responded to the 1994 and 1995 NOSB recommendations in a proposed rule to establish the NOP (62 FR 65850). Consistent with the NOSB's recommendation, the proposed language would have required that organic livestock producers develop a preventive health care plan and use synthetic drugs only if preventive measures failed. The 1997 proposed rule also included standards for livestock living conditions, including when livestock would be permitted to be confined. This proposed rule was not finalized.

(4) In March 1998, the NOSB reaffirmed its earlier recommendations on livestock health care and living conditions. The 1998 NOSB recommendation also stressed the importance of treating sick livestock by recommending that any organic producer who did not take specified actions to provide care for a diseased animal would lose certification. This recommendation also included provisions to clarify when livestock could be confined indoors and defined “outdoors” as having direct access to sunshine.

(5) On March 13, 2000, AMS published a second proposed rule to establish the National Organic Program (65 FR 13512). AMS responded to the NOSB's March 1998 recommendation on livestock health care and living conditions in this proposed rule. AMS proposed that organic producers must use disease prevention practices first, then approved synthetic medications only if preventive measures failed. However, a producer would need to use all appropriate measures to save the animal even if the animal lost organic status. In addition, AMS proposed that the living conditions for organic livestock must maintain the health of the animals and allow for natural behaviors, including access to the outdoors.

(6) On December 21, 2000, AMS published a final rule establishing the USDA organic regulations (65 FR 80548) (“NOP Rule”). Through this action, AMS finalized the standards for health care practices and livestock living conditions. This rule addressed a range of matters related to organic livestock production, including organic feed; use of hormones and supplements; measures to avoid disease and illness; veterinary biologics, medications, synthetic parasiticides, and other drugs; and general principles governing housing, pasture conditions, sanitation practices, and physical alterations. The Rule also generally required producers to provide organic livestock with “access to the outdoors, shade, shelter, exercise areas, fresh air, and direct sunlight suitable to the species, its stage of production, the climate, and the environment,” but allowed producers to satisfy those baseline criteria in different ways. That rule became effective on February 20, 2001, and was fully implemented on October 21, 2002.

(7) In May 2002, the NOSB again addressed outdoor access, stating this should include open air and direct access to sunshine.
8

In addition, the May 2002 recommendation stated that bare surfaces other than soil do not meet the NOP Rule's intent of outdoor access for poultry. This recommendation also included clarifications as to when livestock could be temporarily confined.

8
NOSB, 2002. Recommendation Access to Outdoors for Poultry. Available at:
http://www.ams.usda.gov/rules-regulations/organic/nosb/recommendations.

(8) In March 2005, the NOSB recommended that the temporary confinement provision for “stage of production” be changed to “stage of life.”
9

The NOSB reasoned that confinement for a “stage of life” would limit producers from confining animals for long periods, such as confinement during the entire period that a dairy animal is lactating. “Stage of life” was reasoned to be more specific than “stage of production.”

9
NOSB, 2005. Formal Recommendation by the NOSB to NOP. NOSB recommendation for Rule change—“Stage of Production” to “Stage of Life.” Available at:
http://www.ams.usda.gov/rules-regulations/organic/nosb/recommendations.

(9) On October 24, 2008, AMS published a proposed rule on access to pasture for ruminant livestock (73 FR 63584). AMS published the final rule, Access to Pasture (Livestock) on February 17, 2010 (75 FR 7154). This rule was based on several NOSB recommendations regarding ruminant livestock feed and living conditions. This rule set a requirement that ruminants obtain a minimum of 30 percent dry matter intake from grazing during the grazing season (7 CFR 205.237(c)).

(10) Between 2009 and 2011, the NOSB issued a series of recommendations on livestock welfare. These were intended to incorporate prior NOSB recommendations that AMS had not addressed. The November 2009 recommendation suggested revisions and additions to the livestock health care practice standards and living conditions standards.
10

The NOSB recommended banning or restricting certain physical alterations and requiring organic producers to keep records on livestock that were lame and/or sick and how they were treated. This recommendation proposed to separate mammalian living conditions from avian living conditions sections of the USDA organic regulations so that the provisions could be more directly tailored to various livestock species. In the mammalian section, the NOSB proposed mandatory group housing of swine and a requirement for rooting materials for swine. In the avian section, the NOSB proposed a variety of provisions, including maximum ammonia levels, perch space requirements and outdoor access clarifications.

10
NOSB, 2009. Formal Recommendation by the NOSB to the NOP, Animal Welfare. Available at:
http://www.ams.usda.gov/rules-regulations/organic/nosb/recommendations.

(11) In October 2010, the NOSB passed a recommendation on the use of drugs for pain relief.
11

The NOSB recommended changing the health care practice standards to allow the administration of drugs in the absence of illness to prevent disease or alleviate pain. The NOSB stated that such a change would improve the welfare of organic livestock.

11
NOSB, 2010. Formal Recommendation by the NOSB to the NOP, Clarification of 205.238(c)(2). Available at:
http://www.ams.usda.gov/rules-regulations/organic/nosb/recommendations.

(12) In December 2011, the NOSB passed an additional livestock welfare recommendation.
12

The 2011 recommendation added definitions for terms related to livestock production and provisions for health care standard and living conditions. The NOSB also revised its prior recommendation on physical alterations to provide a more inclusive list of prohibited procedures. In the mammalian living conditions section, the NOSB recommended that outdoor access for swine include a minimum of 25 percent vegetative cover at all times. For avian species, the NOSB recommended specific indoor and outdoor space requirements,
e.g.,
stocking densities, among other provisions for living conditions specific to poultry. For layers, the NOSB

recommended a minimum of 2.0 ft
2
per bird indoors and outdoors.

12
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.

(13) In December 2011, the NOSB passed a separate recommendation to add standards for transportation of livestock to slaughter facilities and the slaughter process.
13

The NOSB's recommendation for transport included provisions for veal calves and the trailers/trucks used to transport animals to ensure continuous organic management. The NOSB recommended that slaughter facilities must meet certain performance-based standards assessed via observations of animal handling and any slips, falls or vocalizations before and during slaughter.

13
NOSB, 2011. Formal Recommendation by the NOSB to the NOP, Animal Handling and Transport to Slaughter. Available at:
http://www.ams.usda.gov/rules-regulations/organic/nosb/recommendations.

C. AMS Policy, Regulatory History, and Withdrawal of OLPP

(1) AMS Policy Regarding Animal Welfare

On October 29, 2002, AMS issued a memorandum to clarify outdoor access and temporary confinement requirements for livestock under the USDA organic regulations.
14

The memorandum stated that producers are required to balance accommodations for an animal's health and natural behavior with measures to ensure an animal's safety and well-being. The memorandum further explained that the USDA organic regulations do not specify an outdoor space allowance or stocking rate, nor do they require that all animals in the herd or flock have access to the outdoors at the same time. This memorandum explained how producers could provide evidence of compliance to support temporary confinement. This memorandum was incorporated into the NOP Handbook (as “PM 11-5”) on January 31, 2011, and is retained as current policy.

14
National Organic Program, 2002. Access to the Outdoors for Livestock. Retained as Policy Memo 11-5. Available in the NOP Handbook:
https://www.ams.usda.gov/sites/default/files/media/Program%20Handbk_TOC.pdf
.

On February 17, 2010, AMS published a final rule on Access to Pasture (Livestock). The final rule was in response to the 2005 NOSB recommendation and extensive public input requesting clear outdoor access requirements for ruminant livestock. The Access to Pasture Rule adopted new provisions relating to organic livestock production, addressing such matters as animal feed; dry matter intake; access to and management of pasture as an organic crop; organic bedding; and use and management of feeding yards, feeding pads, and feedlots. The Access to Pasture Rule also clarified that the requirements for outdoor access and species-appropriate access to shade, shelter, exercise, fresh air, and direct sunlight required by the NOP Rule must be provided for all organic livestock, including poultry, on a year-round basis. The final rule established that ruminant livestock obtain at least 30 percent dry matter intake from grazing during the grazing season (7 CFR 205.237(c)). The rule provided clarity to correct inconsistent application and enforcement of the outdoor access provisions for ruminant livestock. While AMS was able to rely on stakeholder feedback about consistent application of regulations to inform this proposed rule, AMS was unable to look at regulatory impacts from the rule like production levels because USDA's Economic Research Service stopped releasing that data in 2011, and available data sources would not be sufficient to estimate any causality or impact.

In March 2010, the USDA Office of the Inspector General (OIG) issued a report concerning, in part, AMS guidance on outdoor access for organic livestock.
15

The OIG found inconsistent certification practices regarding outdoor access for poultry. The OIG recommended that AMS issue guidance on outdoor access for livestock.

15
USDA, Office of the Inspector General. March 2010. Audit Report 01601-03-Hy, Oversight of the National Organic Program. Available at:
http://www.usda.gov/oig/rptsauditsams.htm.

On October 13, 2010, AMS published draft guidance, Outdoor Access for Organic Poultry, for public comment.
16

The draft guidance advised certifying agents to use the 2002 and 2009 NOSB recommendations as the basis for certification decisions regarding outdoor access for poultry.
17

The draft guidance informed certifying agents and producers that maintaining poultry on soil or outdoor runs would demonstrate compliance with the outdoor access requirement in 7 CFR 205.239. Comments received by AMS on the draft guidance are summarized below. Given the comments and the request that USDA address this issue through the rulemaking process, AMS determined to pursue rulemaking to clarify outdoor access for poultry and did not finalize the draft guidance.

16
On October 13, 2010, AMS also published a Notice of Availability of Draft Guidance and Request for Comments in the
Federal Register
(75 FR 62693).

17
The 2002 and 2009 NOSB recommendations included daily outdoor access from an early age and access to direct sunlight, open air and soil.

AMS received 69 comments on the draft guidance. Comments varied widely. Some supported more specific and stringent stocking densities and soil-based outdoor access, citing animal health and environmental benefits. Other comments favored maintaining an allowance for porches as acceptable outdoor access, citing biosecurity and animal health concerns.

Furthermore, commenters stated that the draft guidance was unenforceable and would not ensure year-round outside access for poultry. These commenters suggested a minimum stocking rate of 1.75 square feet per bird in henhouses that also provide access to perches, with an additional 5 square feet per bird available in vegetated outdoor runs, which should be accessible to all birds at the same time. Some comments from poultry producers supported outdoor access on pasture or other vegetation and described health benefits and protection of the environment that a pasture or other vegetated outdoor access area would afford. A number of commenters, including organic poultry producers, requested a change to the draft guidance language to say that poultry, when outdoors, should be maintained on soil.

One trade association, some organic egg producers, and consultants described the use of production systems that limit outdoor access via the use of enclosed porches, so that poultry are not in contact with soil or pasture. These commenters described the benefits of these systems: protection from predation, pathogens that cause food safety problems, exposure to parasites, and contact with wild birds that could carry diseases. The commenters asserted that these systems are consistent with the 2002 NOSB recommendation. They noted that organic egg producers have made substantial investments in facilities with porches. Some also expressed concerns that placing birds on soil would affect their ability to comply with the Food and Drug Administration's
Salmonella
prevention food safety regulations (21 CFR part 118). Several producers expressed concern with the 2009 NOSB recommendation that pullets be given outdoor access at 6 weeks of age, because layers are not fully immunized (including for protection against
Salmonella
) until 16 weeks of age and should not be exposed to uncontrolled environments until that time.

(2) Regulatory History of the OLPP Rule

A proposed rule that incorporated NOSB recommendations was then published in April 2016. The proposed rule included provisions related to health care practices, such as physical alteration procedures, euthanasia, and

treatment of sick animals. It also addressed living conditions for mammalian and avian livestock, including minimum indoor and outdoor space requirements for avian livestock. Finally, the rule addressed requirements for transport and for slaughter practices. It received 6,675 written comments during the 90-day comment period. There were nearly 1,500 individual comments on the proposed rule, excluding form letters and signatures on petitions (numbering in the tens of thousands). 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. Comments provided insight on the public's questions about regulatory authority, import impact, trade agreements, and educational avenues. Additionally, comments about the clarity of the rule generally found it beneficial for the industry and its impact on the label but acknowledged some challenges with universal standards.

AMS made a number of changes to this proposed rule based on comments in order to mitigate impacts and improve the clarity of the requirements. AMS published the Organic Livestock and Poultry Practices final rule (OLPP Rule) on January 19, 2017 (82 FR 7042). Prior to the OLPP Rule becoming effective, USDA decided to delay that date to allow the new Administration to review the Rule.

(3) Withdrawal of OLPP Final Rule

After delaying the effective date of the final rule,
18

AMS proposed withdrawing the OLPP rule because of its emergent view that the agency lacked the legal authority for the rulemaking, substantive errors in the economic analysis for the rule, and a lack of market failure (82 FR 59988, December 18, 2017). On March 13, 2018, AMS published a final rule (Withdraw Rule) withdrawing the OLPP Rule for those reasons (83 FR 10775). After discovering additional errors in the economic analysis for the OLPP Rule and the Withdraw Rule, AMS published the Organic Livestock and Poultry Practice Economic Analysis Report on April 23, 2020, to describe all the errors and sought comment on the Report (85 FR 22664). After considering the comments, AMS published the Final Decision on Organic Livestock and Poultry Practices Rule and Summary of Comments on the Economic Analysis Report on September 17, 2020 (85 FR 57937). In the Final Decision, AMS concluded that “[t]o the extent the Withdrawal Rule formed an assessment of the likely costs and benefits of the OLPP Rule based on that flawed analysis, AMS hereby modifies that assessment and concludes simply that the Final RIA does not support promulgation of the OLPP Rule in light of its significant flaws.” AMS further concluded that “[i]mplementing the OLPP Rule based on such a flawed economic analysis is not in the public interest[]” and decided not to take any further regulatory action with respect to the OLPP Rule (85 FR 57944).

18

See
82 FR 9967 (February 9, 2017); 82 FR 21677 (May 19, 2017); and 82 FR 52643 (November 14, 2017).

In June 2021, Secretary Vilsack announced that USDA would “reconsider the prior Administration's interpretation that [OFPA] does not authorize USDA to regulate the practices that were the subject of the [OLPP Rule].” He further directed NOP “to begin a rulemaking to address this statutory interpretation and to include a proposal to disallow the use of porches as outdoor space in organic production over time and on other topics that were the subject of the OLPP final rule.”

(a) Economic Analysis

In the Economic Analysis Report, AMS described the three errors that had been identified in the economic analysis of the Withdraw Rule: (1) the incorrect application of the discounting formula; (2) the use of an incorrect willingness to pay value for eggs produced under the new open access requirements; and (3) the incorrect application of a depreciation treatment to the benefit calculations. The Report explained that although the economic analysis of the Withdraw Rule correctly identified these errors and properly addressed the first two errors (incorrect discounting methodology and willingness-to-pay values), it had not fully removed the incorrect depreciation treatment from the cost and benefit calculations, which erroneously reduced the calculation of both costs and benefits.

The Report went on to identify and discuss four categories of additional errors in the economic analysis of the OLPP Rule that were previously undetected and therefore inadvertently carried forward to the economic analysis of the Withdraw Rule. These were: (1) inconsistent or incorrect documentation of key calculation variables; (2) an error in the volume specification affecting benefits calculations in two of three scenarios considered; (3) the incorrect use of production values in the benefits calculations that do not account for projected increased mortality loss; and (4) aspects of the cost calculations that resulted in certain costs being ignored, underreported, or inconsistently applied. In addition, the Report described certain minor errors that did not have a material impact on the cost and benefit calculations (85 FR 57938).

In this proposed rule, AMS worked to ensure that the RIA for the proposed rule addressed these concerns. Some of the mathematical or descriptive concerns were addressed with rewriting the proposed rule. AMS specifically addressed issues with discounting and depreciation in the analysis and fixed various errors found by the report. Additionally, AMS adjusted the willingness to pay for outdoor access in eggs to the more precise measure suggested by the economic analysis report. While AMS maintains the use of enterprise budgets in the original rule to model costs, we updated costs to the extent possible based on data availability and believe these models are appropriate, as they provide the most detailed estimates for the organic industry and USDA ERS has shown that both feed and land costs have remained approximately steady since their development.
19 20

19
USDA ERS. Farmland Value.
https://www.ers.usda.gov/topics/farm-economy/land-use-land-value-tenure/farmland-value/.

20
USDA NASS. Paid Indexes by Farm Origin and Month, Feed and Livestock & Poultry.
https://www.nass.usda.gov/Charts_and_Maps/Agricultural_Prices/prod3.php
.

(b) Market Failure

The Withdraw Rule said that the OLPP Rule failed to meet the requirements of Executive Order 12866, that the agency “propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify its costs” and that there was no clear market failure for the need for the rule as referenced in Executive Order 13563. Although it is not necessary for rulemaking, AMS is reconsidering this rationale in the Withdraw Rule.

In reviewing the available information, AMS does believe a market failure exists in the organic label. Specifically, consumers have varying understanding of the degree to which the organic label requires indoor/outdoor space, health, and welfare provisions for animals used in organic production. Specifically, space and outdoor access are required in 7 CFR 205.239(a)(1), but this requirement has been interpreted by producers and certifying agents in different ways, allowing producers to provide indoor space and outdoor access through

several different metrics and methods. While different practices are not inherently a market failure—and in many markets a sign of healthy market innovation—in a marketing label, varying practices can create inefficient outcomes if they allow for producers to benefit from information failures.

Consumers are increasingly interested in the treatment of animals raised for food, as evidenced by the proliferation of animal welfare certification labeling claims. These animal welfare certification programs have varying requirements, even within individual programs, creating a range of standards in the marketplace.
21

For example, these programs may include standards for pastured, cage-free and free-range production. High participation rates among organic livestock and poultry producers in these third-party animal welfare certification programs indicates that the organic label does not provide the level of information consumers need to assess whether a specific brand meets their expectations for animal welfare practices. Consumers who purchase these doubly certified products would likely not be satisfied with private animal welfare certification alone because organic certification addresses other unique attributes they seek,
e.g.,
animals receive only organic feed. While the proliferation of ecolabels may not dilute the value of the organic label, literature shows consumer confusion may be associated with ecolabel proliferation.
22

21
The Humane Farm Animal Care program has compiled a table comparing the requirements of selected third-party animal welfare certification programs for laying hens. This includes stocking density and outdoor standards. The comparison table is available at:
http://certifiedhumane.org/how-we-work/fact-sheet/.

22
Magali A. Delmas, Olivier Gergaud, Sustainable practices and product quality: Is there value in eco-label certification? The case of wine, Ecological Economics, Volume 183, 2021,
https://doi.org/10.1016/j.ecolecon.2021.106953.

The various production practices used to meet requirements like outdoor access have allowed producers that use lower-cost and less-stringent practices to benefit from the same organic labeling and premium as producers than use more costly or robust practices. Through public comment and literature reviews outlined in the RIA, AMS has observed that consumers need to expend additional effort and seek out additional label information if they wish to purchase animal products with outdoor access to soil and flora. AMS seeks comment on this analysis that market failure exists.

(c) Statutory Authority

In 2018, AMS withdrew the OLPP Rule, in part, based on its view that the OFPA did not provide authority for the OLPP Rule. AMS stated that the statutory authority for the OLPP Rule was insufficient because the “reference in 7 U.S.C. 6509(d)(2) to additional regulatory standards `for the care' of organically produced livestock does not encompass stand-alone concerns about animal welfare, but rather is limited to practices that are similar to those specified by Congress in the statute”—
e.g.,
restrictions on the use of antibiotics, synthetic internal parasiticides, administration of medication, and certain feed substances and practices—“and necessary to meet congressional objectives outlined in” section 6501.
Id.
at 10,776. AMS further stated that “standards promulgated pursuant to section 6509(d)(2) and section 6509(g) must be relevant to ensuring that livestock is `organically produced.' ”
Id.
USDA reasoned that dictionary definitions of the word “organic” generally relate to the use of “artificial chemicals in the growing of plan[t]s and animals for food and other products,” and that “[t]he surrounding provisions in section 6509 demonstrate that Congress had a similar understanding of the term `organic.' ”
Id.
Based on this analysis, AMS concluded that “the authority granted in section 6509(d)(2) and section 6509(g) for the Secretary to issue additional [livestock care] regulations fairly extends only to those [regulations] that . . . relate to the ingestion or administration of non-organic substances, thus tracking the purposes of the OFPA[.]”
Id.
at 10776-77. AMS determined that “stand-alone concerns about animal welfare” did not meet this standard.
Id.
at 10,776. In so concluding, USDA explained that it would not “regulate outside the boundaries of legislative text,”
id.
at 10,776, such that even if the OFPA were “silent or ambiguous with respect to the authority issue,” it believed that its interpretation was a “permissible” one.
Id.
at 10,777;
see also id.
at 10,778 (referring to agency's “interpretation of the scope of its statutory authority” as “permissible”).

This aspect of the Withdraw Rule was in tension with the USDA's view of its authority in issuing the OLPP Rule, as well as the regulatory authority USDA has traditionally exercised in this area. With this rulemaking action, AMS is reconsidering the determination in the Withdraw Rule. Based on the analysis below, the agency is proposing to adopt the position that OFPA does provide the requisite authority for regulations regarding livestock and poultry health care practices and living conditions, including regulations regarding animal welfare.

OFPA at 7 U.S.C. 6509 addresses practices and materials that may be used in organic livestock production. Subsection (c) of that provision, entitled “Practices,” requires producers to use organic feed, prohibits certain types of feed, such as plastic pellets and manure refeeding, and prohibits the use of growth promoters and hormones. Subsection (d), entitled “Health care,” restricts the use of subtherapeutic doses of antibiotics, the routine use of synthetic internal parasiticides, and the administration of medication absent illness.
Id.
§ 6509(d)(1). In addition, subsection (d)(2) requires the NOSB to “recommend to the Secretary standards in addition to those [specified in subsection (d)(1)] for the care of livestock to ensure that such livestock is organically produced.” 7 U.S.C. 6509(d)(2).

While 7 U.S.C. 6509 addresses specific animal production practices for the organic program, OFPA does not prohibit the Secretary from adopting additional requirements about practices used in raising organic livestock. For example, much of Section 6509 dictates what organic producers “shall not” do and contains prohibitions of specific livestock production practices while not limiting the Secretary's authority to promulgate regulations about how organic livestock shall be “raised.”
See, e.g.,
7 U.S.C. 6509(a) (“Any livestock that is to be slaughtered and sold or labeled as organically produced shall be raised in accordance with this chapter.”). Indeed, Section 6509(d)(2) recognizes that the NOSB will recommend standards “in addition” to the practices specified in subsection (d) “for the care of livestock.”

In addition to the specific authority regarding livestock in section 6509, Congress also provided the Secretary with broad rulemaking authority to “require such other terms and conditions” for the organic program that he may deem necessary. 7 U.S.C. 6506(a)(11). This section, along with section 6509(g)'s charge to the Secretary to “develop detailed regulations . . . to guide the implementation of the standards for livestock products provided under this section,” would provide ample authority for the detailed requirements in this proposed rule.

In any event, even if the statutory text were ambiguous, USDA's interpretation is reasonable because the proposed rule would be consistent with the purposes of the OFPA. Commenters noted in the OLPP Rule that it would be reasonable

for AMS to adopt regulations that address animal welfare as part of OFPA's overall design.
23

Consistent with this design, AMS has promulgated regulations addressing livestock production and living conditions that affect the health and welfare of livestock, including measures to avoid disease and illness; provisions about feed; principles governing housing, pasture conditions, and sanitations practices; and requirements for access to the outdoors and an the natural environment.

23
Comments for all OLPP rulemaking can be found at
https://www.regulations.gov/docket/AMS-NOP-15-0012/document.

Over the years since OFPA was enacted, animal welfare has become an integral part of organic production as evidenced by the hundreds of thousands of public comments that USDA has received on this topic over the years as well as an emerging body of research on the motivations that drive consumers to buy organic livestock products. Several studies point to animal welfare concerns as significant or even primary drivers for organic consumers,
24

and likewise that non-organic consumers perceive organic livestock to be raised according to higher animal welfare standards than non-organic livestock.
25

Literature also suggest state sponsored ecolabels provide the highest levels of consumer confidence.
26

24
Alonso, Marta E.; González-Montaña, José R.; and Lomillos, Juan M. (2020) “Consumers' Concerns and Perceptions of Farm Animal Welfare,”
Animals,
Vol. 10, pp. 385-397. McEachern, M.G.; Willock, J. (2004) “Producers and consumers of organic meat: A focus on attitudes and motivations.”
British Food Journal,
Vol. 106, pp.534-552.

25
Harper, Gemma C; Makatouni, Aikaterini (2002) “Consumer perception of organic food production and farm animal welfare.”
British Food Journal;
Vol. 104, Iss. 3-5, pp. 287-299.

26
Kim Mannemar SÃnderskov, and Carsten Daugbjerg. “The State and Consumer Confidence In Eco-labeling: Organic Labeling In Denmark, Sweden, The United Kingdom and The United States.” Agriculture and human values, v. 28, .4 pp. 507-517. doi: 10.1007/s10460-010-9295-5

Notably, many in the contemporary organic industry do not view animal welfare as distinct from the concerns expressly reflected in the statutory text of OFPA. For example, by promoting animal natural behaviors and practices that maximize the health and welfare of organic livestock, producers reduce the need for antibiotics and other medications that section 6509(d) expressly limits.
27

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.”
28

27
Wemette, M., Safi, A. G., Wolverton, A. K., Beauvais, W., Shapiro, M., Moroni, P., . . . & Ivanek, R. (2021). Public perceptions of antibiotic use on dairy farms in the United States. Journal of Dairy Science, 104(3), 2807-2821
https://pubmed.ncbi.nlm.nih.gov/33455793/

28
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).

In addition, a growing body of research is showing that livestock and poultry with access to pasture and the outdoors forage and engage in natural behaviors, which may be positively associated with their improved health and well-being, be better for the environment, and result in healthier livestock and poultry
29

products for human consumption.
30

AMS believes that promoting animal welfare through the practices addressed in the OLPS Rule, and particularly with respect to outdoor access, would contribute to cycling of resources and ecological balance values reflected in the regulation.

29
Is Grassfed Meat and Dairy Better for Human and Environmental Health? Frederick D. Provenza, Scott L. Kronberg, and Pablo Gregorini, Front Nutr. 2019; 6: 26.
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6434678/

30
Palupi, Eny; Jayanegara, Anuraga; Ploegera, Angelika and Kahla, Johannes (2012) “Comparison of nutritional quality between conventional and organic dairy products: a meta-analysis,
” Journal of the Science of Food and Agriculture,
Vol. 92, pp. 2774-2781.
https://pubmed.ncbi.nlm.nih.gov/22430502/

Additionally, as the USDA Office of the Inspector General noted, certifiers have been inconsistent in their application of livestock access to outdoor space, a requirement stemming from the 2010 Access to Pasture Rule. This proposed rule would address the inconsistent application of the requirement by specifying a minimum size for outdoor access areas, clarifying circumstances when animals do not require outdoor access, and specifying records that operations must keep to disclose their activities, including records of temporary confinement from the outdoors.

In sum, USDA believes that, as a policy matter, regulation is warranted. USDA is also proposing to determine, for the reasons identified above, that it may exercise this authority under the OFPA. USDA is requesting comment on the identified disagreement over whether OFPA authorizes regulations on animal welfare and livestock production practices that are part of this proposed rule.

D. Related Issues

If finalized, this rule would supersede the appeal decision described below and impose the requirements set out in a final rule with respect to avian living conditions.

On July 15, 2002, an operation applied for organic certification of its egg laying operation with a USDA-accredited certifying agent. As part of the application, the operation's Organic System Plan (OSP) stated that outdoor access would be provided through covered and screened “porches.” Porches are elevated areas (with solid or slatted floors) that have access to/from the poultry house and do not typically provide any means for birds to descend to ground level. The certifying agent denied certification for failure to provide hens with access to the outdoors. The certifying agent stated that a porch did not provide outdoor access as required by the USDA organic regulations. The operation appealed the Denial of Certification to the AMS Administrator on October 22, 2002. The Administrator sustained the appeal on October 25, 2002, and directed the certifying agent to grant organic certification to the operation retroactively to October 21, 2002.

The certifying agent objected to the Administrator's decision and appealed to the USDA Office of the Administrative Law Judge (ALJ). On November 4, 2003, the USDA ALJ dismissed the appeal. On December 11, 2003, the certifying agent appealed to the USDA Judicial Officer. On April 21, 2004, the USDA Judicial Officer dismissed the appeal. On September 27, 2005, the certifying agent filed an appeal with the U.S. District Court, District of Massachusetts. On March 30, 2007, the U.S. District Court granted USDA's motion to dismiss the case (
Massachusetts Independent Certification, Inc.
v.
Johanns,
486 F.Supp.2d 105).

As a result of these adjudications, use of porches to meet the requirement in the USDA organic regulations for outdoor access expanded, and certain producers have settled on production practices that rely on porches, leading to inconsistencies with producers that offer animals access to outdoor spaces with soil, vegetation, direct sunlight, and considerable space per animal.

III. Overview of Proposed Amendments

Below AMS provides a summary and discussion of all proposed changes in

the proposed rule. The proposed regulatory text, in its entirety, can be found at the end of this document. The proposed changes in this rule are similar to requirements included in the OLPP Rule, except AMS removed a provision related to natural light in poultry houses that required an inspector to be able to read and write with lights turned off on a sunny day (see additional discussion below in the section on avian living conditions at § 205.241), as well as made edits for clarity. Below we summarize areas of the proposed rule.

A. Definitions (§ 205.2)

This proposed rule would add seventeen new terms to 7 CFR 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, stocking density, toe clipping, and vegetation. The proposed definitions are discussed below.

1. Eight New Terms To Define Prohibited Physical Alterations

Current organic regulations permit “physical alterations” of animals “as needed to promote the animal's welfare and in a manner that minimizes pain and stress” (7 CFR 205.238(a)). The proposed rule would elaborate on this requirement and prohibit some specific types of physical alterations. These physical alterations would be defined in the regulations to support common understanding of the meaning of the terms, as some terms could otherwise be interpreted in various ways (
e.g.,
“caponization” may be referred to as “castrating” in some regions). These alterations are not understood to promote animal welfare or may be overly painful or stressful without a corresponding benefit to animal welfare. The prohibition of specific physical alterations was recommended by the NOSB in 2009.

The following terms are defined in this proposed rule: “beak trimming,” “caponization,” “cattle wattling,” “de-beaking,” “de-snooding,” “dubbing,” “mulesing,” and “toe clipping.”

2. Indoors or Indoor Space

The proposed rule would define “indoors or indoor space” as the space inside of an enclosed building or housing structure that is available to livestock. The proposed definition includes four examples of structures that are commonly used in poultry production. These indoor housing types would be defined, in part, because the proposed space requirements are based on the housing type. AMS also includes an indoor space requirement at § 205.241(b)(8)(v) for housing that does not fit within one of the specific types defined in § 205.2. While all organic livestock would need to be provided with species-appropriate shelter, structures providing indoor space would not be required. For example, beef cattle raised on pasture or range in mild climates may not be provided with indoor space.

The proposal relies on the term “enclosed” to establish if a space should be considered indoors or outdoors. Under the proposed definition, the space within the building or structure that can be enclosed would be considered the indoor space. The proposed rule defines “outdoors or outdoor space” separately (see discussion below). AMS welcomes public comment on whether the proposed definitions clearly and adequately distinguish the two types of spaces.

Specifically, AMS seeks comments on whether the proposed definitions sufficiently address spaces that may be enclosed by fences and/or overhead netting. The definition of “indoors or indoor space” is not intended, as proposed, to include fenced areas outside of a building or structure or to include fenced outdoor areas that may also have overhead netting. AMS recognizes that, in most cases, animals are also “enclosed” within outdoor spaces by fencing and/or overhead netting, and AMS seeks comments on whether the proposed definitions would allow for consistent implementation of the indoor and outdoor space requirements.

One of the key considerations for distinguishing indoor space from outdoor space would be how the livestock are managed in that space, which may determine whether the space could be defined as indoors, outdoors, or neither indoors nor outdoors. As an example, a screened-in and roofed porch to which the (enclosed) birds always have access, including during temporary confinement events, would be considered indoor space. That same porch would be considered neither indoors nor outdoors if the birds do not have continuous access to the space during temporary confinement events. 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 “in section III.A.3). These distinctions would 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 proposed rule would also define the term “perch” as a rod- or branch-type structure above the floor of the house that accommodates roosting, allowing birds to utilize vertical space in the house.

3. Outdoors or Outdoor Space

The proposed rule would define “outdoors or outdoor space” to clarify the meaning of outdoor areas for mammalian and avian species. “Outdoors or outdoor space” would be defined as any area outside of an enclosed building or enclosed housing structure, but including roofed areas that are not enclosed. For example, a screened poultry “porch,” enclosed by wire on the sides, would not be considered outdoors. In this definition, “outdoors or outdoor space” would include 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. For avian species, the proposed definition includes pasture pens, which are floorless pens that are moved regularly and provide direct access to soil and vegetation. These pens (also referred to as “chicken tractors”) may consist of solid roofing over all or part of the pen to provide shelter for the birds.

The outdoor space would have species-specific requirements. For example, this proposed 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 appropriate to the specific local conditions. Depending on the outdoor space and local conditions, a producer could rotate poultry around outdoor areas to allow vegetation to recover, or a producer might need to periodically reseed an outdoor area. Vegetative cover would need to be maintained in a manner that would not provide harborage for rodents and other pests. For additional description of the proposed requirements, see section below “Avian Living Conditions.”

The proposed rule would define “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 would be 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 would be permitted. Outdoor areas would need to be maintained in a manner that maintains or improves natural resources, including soil and water quality (7 CFR 205.200). Temporary confinement may be provided to protect soil and water quality.

To assist with the mitigation of biosecurity and predation risks, fencing, netting, or other materials would be 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 would also be permitted in the outdoor space. For example, the area within a stand-alone, 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.

4. Non-ambulatory

The proposed rule would add 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 would need to be medically treated, even if the treatment causes the livestock to lose organic status or be humanely euthanized.

5. 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 proposed rule would define “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” would not describe young broilers used for meat production.

6. Stocking Density

The proposed rule would define “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 proposed rule would establish maximum stocking densities for avian species, and the producer would need to 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.

7. Ritual Slaughter

The proposed rule would add 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 any religious faith that prescribes a method of slaughter whereby the animal suffers loss of consciousness by anemia of the brain caused by the simultaneous and instantaneous severance of the carotid arteries with a sharp instrument and handling in connection with such slaughtering.”

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

8. Vegetation

The proposed rule would add 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. Livestock Care and Production Practices Standard (§ 205.238)

AMS proposes to amend current provisions and add new provisions to the organic livestock care and production practice standards. The proposed 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 would be required to monitor their animals to ensure body condition is being maintained. In addition, certifying agents would 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 proposes to revise § 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 an individual who can competently perform the procedure. Competency in performing physical alterations may be demonstrated by appropriate training or experience of the individual.

A 2009 NOSB recommendation allowed teeth clipping and tail docking in piglets, but this revision was retracted in the 2011 NOSB recommendation.
31

This proposed rule would add § 205.238(a)(5)(i), which would restrict 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 livestock welfare, as listed below.

31
Available at
https://www.ams.usda.gov/rules-regulations/organic/nosb/recommendations.

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 proposes to add a new § 205.238(a)(5)(ii) to list the physical alterations that would be prohibited in an organic operation. Based on the 2011 NOSB recommendations, the following

physical alterations to avian species would be 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 would be 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 proposes to add new requirements at § 205.238(a)(7) to specify 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 (b).

AMS is proposing a new § 205.238(a)(8) that would require 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. This proposed requirement for producers to create a plan for monitoring and recording instances of lameness in the organic system plan would enable organic livestock producers to identify and address potential problems among animals before they become widespread. In addition, documentation of lameness would provide an auditable trail for certifying agents to verify that livestock producers are monitoring these potential causes of animal suffering.

AMS proposes to add § 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 preventive practices and veterinary biologics are inadequate to prevent sickness.

AMS proposes to amend § 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 withholding 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 proposes to revise § 205.238(c)(2) to clarify that other veterinary biologics, in addition to vaccines, would be exempt from the prohibition on administering animal drugs in the absence of illness. This change would be 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 proposes to revise § 205.238(c)(3) to clarify that organic livestock producers would be prohibited from administering synthetic or non-synthetic hormones to promote growth, or for production or reproductive purposes. Hormones listed in § 205.603 could be used as medical treatments (
e.g.,
oxytocin). Stakeholders have noted that the USDA organic regulations fail to address use of hormones to stimulate production or for reproductive purposes. AMS is not aware of any hormones used by organic producers for these purposes (and none are included on the National List for these uses). The proposed changes would maintain the status quo; however, the proposed changes affirm and support the current prohibition on hormones in organic production. This addition would clarify that all hormones—unless used as medical treatments—are prohibited in organic production.

AMS proposes to add a new § 205.238(c)(8) that would 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 would be 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 proposes to add a new § 205.238(c)(9) that would require 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 would enhance the overall health of the livestock on that operation.

AMS proposes to add a new § 205.238(c)(10) that would prohibit the practice of forced molting in poultry. Section 205.238(a)(2) of this proposed 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 proposed addition. The proposed new § 205.238(c)(10) would be consistent with the fall 2009 NOSB recommendation.
32

32
Available at
https://www.ams.usda.gov/rules-regulations/organic/nosb/recommendations.

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

In certain cases, livestock may suffer from an illness or injury where recovery is unlikely. AMS proposes to add a new § 205.238(e) to address euthanasia based on the 2011 NOSB recommendations. Proposed § 205.238(e)(1) would require livestock producers to maintain written plans for euthanizing sick or injured livestock. Proposed § 205.238(e)(2) would prohibit the following methods of euthanasia: suffocation, manual blows to the head by blunt instrument or manual blunt force trauma, and use of equipment that crushes the neck (
e.g.,
killing pliers or Burdizzo clamps). In the event of an emergency situation where a local, State, or Federal government agency requires the use of a non-organic method of euthanasia, organic livestock operations would not lose organic certification or face other penalties for 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 producers from using these techniques. AMS proposes to direct

organic livestock producers to use methods of euthanasia consistent with the most recent editions of the American Veterinary Medical Association (AVMA) Guidelines for the Euthanasia of Animals.
33

The list of specifically prohibited methods could be amended to include other techniques, if needed, through future rulemaking. AMS also proposes to add a new § 205.238(e)(3), which would require organic producers to examine livestock to ensure they are dead following a euthanasia procedure.

33

https://www.avma.org/resources-tools/avma-policies/avma-guidelines-euthanasia-animals.

C. Mammalian Livestock Living Conditions (§ 205.239)

AMS is proposing to separate the mammalian living conditions section from avian living conditions section due to the different physiology and husbandry practices for birds and mammals. As a result, AMS proposes revising the title of § 205.239 from “Livestock Living Conditions” to “Mammalian Livestock Living Conditions.” By creating clear living condition requirements for mammalian livestock and avian livestock, organic operations and certifying agents are better equipped to implement the USDA organic regulations in a consistent manner. Information regarding avian living conditions is addressed in new § 205.241.

AMS proposes to revise § 205.239(a)(1) to remove the requirement that all ruminant livestock must be able to feed simultaneously. One method of feeding livestock, including ruminants, is the use of a self-feeder or a creep-feeder. With creep-feeding and self-feeding, feed is accessible to all livestock at all times though they may not feed at the exact same time. Allowing self-feeding and creep-feeding systems would provide organic ruminant producers with more flexibility and options to manage their farm and livestock in farm-specific methods.

AMS proposes to maintain 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 that may provide crops and forage from land included in the organic system plan of the dairy farm that is in the third year of organic management during the 12-month period immediately prior to the sale of organic milk and milk products (7 CFR 205.236(a)(2)(i)).

AMS proposes to revise § 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. Livestock 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 would 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 proposes to add § 205.239(a)(4)(iv) to set requirements for an indoor space for bedding and resting that is sufficiently large and comfortable to keep livestock clean, dry, and free of lesions, with the exception of animals raised on pasture or range. AMS recognizes that while livestock do need to be provided with shelter (defined in § 205.2), livestock on pasture or range may not have access to traditional barns or bedded areas and therefore may not be provided with indoor space. These types of operations may use windbreaks or other methods to provide shelter for the livestock. Additionally, not all manufactured 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 proposes to add new requirements in § 205.239(a)(7) concerning the individual housing of dairy young stock. Section 205.239(a)(7) would allow 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 would need to be designed so that animals can see, smell, and hear other animals.

AMS proposes to add three new provisions in § 205.239(a)(8) to require the group housing of swine, with three listed exceptions: (1) § 205.239(a)(8)(i) would allow for sows to be individually housed at farrowing and during the suckling period; (2) § 205.239(a)(8)(ii) would allow for boars to be individually housed to reduce the likelihood of fights and injuries; and (3) § 205.239(a)(8)(iii) would allow 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 proposes to add two new provisions in § 205.239(a)(9) and (10) concerning swine housing. Section 205.239(a)(9) would prohibit the use of flat decks or piglet cages. This provision would prohibit the stacking of piglets in flat decks in multiple layers. AMS is not aware of any organic producers currently using these methods for organic production. AMS is proposing specific language to prohibit the practices and affirm that these systems do not and cannot meet the living conditions requirements of the organic regulations. In addition, § 205.239(a)(10) would require both indoor and outdoor areas for swine to include space for the livestock to root. 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 would also be required to update their OSP to address how swine will be allowed to root during temporary confinement periods.

AMS proposes to add 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, this structure must have a sufficient number of stalls to allow for the natural behaviors of the animals. A cage would not be

considered a stall. AMS is aware that some operations use systems that robotically feed animals that take turns entering an individual feeding stall. AMS does not intend to prohibit such systems since they could enhance the wellbeing of organic livestock. Therefore, the proposed § 205.239(a)(11) would provide an exception for this type of system: more animals than feeding stalls may be allowed for group-housed swine as long as all animals are fed routinely every day. AMS also proposes to add specific allowances for a variety of cattle barns, including tie stall barns, stanchion barns, and free stall barns. However, 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. For example, it would not be permitted for a producer to leave an animal tied up for 24 hours per day in a tie stall barn.

AMS proposes to add a new requirement for outdoor access in § 205.239(a)(12). Organic livestock would be required to have unencumbered access to the outdoors year-round, unless temporary confinement is justified under a specific reason described in the USDA organic 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 proposes to revise § 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. This provision would prohibit livestock from being confined indoors to observe estrus, or until they are determined to be pregnant. Proposed § 205.239(c)(1) further describes the time when ruminants may be denied access to pasture, but not access to the outdoors, before and after a breeding attempt.

AMS proposes to revise § 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 proposed revision includes an exemption to the proposed § 205.239(b)(6) requirement that a livestock sales facility be certified as an organic operation. As an example, if a youth exhibition and sale is held at a livestock sales facility that is not certified organic, the livestock may be temporarily confined indoors during the event. In this case, the youth could still sell the organic animal as an organic animal, provided all other requirements for the organic management of livestock are met. Otherwise, non-certified sales facilities, such as auction barns or fairgrounds, may not sell or represent livestock as organic. AMS proposes to include this exception to encourage the next generation of organic farmers.

AMS proposes to revise § 205.239(d) to reflect the similar proposed changes in § 205.239(a)(1). Use of self-feeding and creep-feeding would be allowed to provide ruminants with access to feed continuously over a 24-hour period.

D. Avian Living Conditions (§ 205.241)

AMS is proposing to add a new section to the organic regulations, § 205.241, entitled “Avian living conditions,” which 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.

Section 205.241(a) proposes to establish general requirements for organic poultry production. These general principles are further clarified in § 205.241(b), (c), and (d). Section 205.241(a) would require 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 proposed requirements are based upon a 2009 NOSB recommendation
34

and are largely identical to previously established livestock requirements at § 205.239(a)(1), although AMS proposes to add additional requirements, including materials for dust bathing and adequate outdoor space to escape aggressive behaviors. These additional requirements are necessary to provide for the basic needs of poultry.

34
2009 NOSB Sunset Recommendation:
https://www.ams.usda.gov/sites/default/files/media/NOP%20Final%20Sunset%20Rec%20Animal%20Welfare.pdf.

Section 205.241(b) proposes to specify the indoor space requirements for avian species. This proposed provision would require operations to provide shelter to birds, and if an operation provides indoor space to birds, this space would need to meet the proposed indoor space requirements. Proposed § 205.241(b)(1) would require 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 would be prohibited. In addition, the indoor space must allow birds to engage in natural behaviors such as dust bathing, scratching, and perching. These proposed requirements are adopted from a 2009 NOSB recommendation and modify previously established requirements for organic livestock at § 205.239(a)(4)(i) that required, “shelter designed to allow for. . .natural maintenance, comfort behaviors, and opportunity to exercise.”

AMS proposes to add a new § 205.241(b)(2) to require producers to monitor ammonia levels at least monthly and implement practices to maintain ammonia levels below 10 ppm. Should ammonia levels exceed 10 ppm, producers would be required to implement additional practices and additional monitoring to reduce ammonia levels below 10 ppm. Ammonia levels above 25 ppm would not comply with the requirements. Ammonia is a natural breakdown product of manure from livestock and is harmful to birds when inhaled, especially at concentrations above 25 ppm.
35

Inhalation of high levels of ammonia has a negative impact on welfare in poultry, causing irritation and inflammation, as well as contributing to negative production outcomes like reduced growth. In most

cases, high levels of ammonia indicate that litter is damp, or litter management practices require modification.

35
“Ammonia production in the poultry houses and its harmful effects” IU Sheikh, SS Nissa, Bushra Zaffer, KH Bulbul, AH Akand, HA Ahmed, Dilruba Hasin, Isfaqul Hussain and SA Hussain, International Journal of Veterinary Sciences and Animal Husbandry, 3(4): 30-33, 2018.

Proposed § 205.241(b)(3) would clarify the lighting requirements for organic layers and fully feathered birds. Organic producers could use artificial light for up to 16 hours per day (24-hour period). The 16-hour period would need to be calculated as a single continuous time period. Artificial light would need to be lowered gradually to encourage hens to move to perches or otherwise settle for the night. AMS is not including a requirement from the 2017 OLPP final rule (subsequently withdrawn in 2018) that required, “Natural light must be sufficient indoors on sunny days so that an inspector can read and write when all lights are turned off.” AMS determined that it would not be feasible for inspectors to verify a producer's compliance with this requirement, so the requirement was removed from this proposed rule.

Proposed § 205.241(b)(4) would require exit areas, or doors, on shelters to be designed in such a way that the birds could 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. This section also notes that shell egg producers may be subject to FDA requirements in 21 CFR part 118 intended to prevent Salmonella Enteritidis (SE). Specifically, these FDA regulations require producers to maintain biosecurity measures that prevent stray poultry, wild birds, cats, and other animals from entering poultry houses. AMS invites comments on how organic producers provide exit doors for meaningful outdoor access while simultaneously preventing animals (that could introduce or transfer SE) from entering poultry houses.

Proposed § 205.241(b)(5) would require perches for chicken layers at a rate of six inches per bird for all housing, with the exception of aviary housing. Perch space could include the alighting rail in front of nest boxes. Perches would not be required for broilers, meat birds, or layers of non-
Gallus gallus
species. Aviary housing would need to provide 6 inches of perch space for only 55 percent of the flock (
i.e.,
3.3 inches of perch for each bird in flock) because birds in aviary housing are also able to escape aggressive behavior by moving between tiers in the house. These proposed requirements are adopted from 2009 and 2011 NOSB recommendations.

Proposed § 205.241(b)(6) would specify indoor requirements to allow for certain natural behaviors. Indoor space would be required to include areas that allow for scratching and dust bathing. Litter (
i.e.,
bedding), such as wood shavings or straw, must also be provided indoors. Manure excreted by birds in a poultry house alone, without additional litter, would not be sufficient to meet this requirement. The proposed provisions would also require that litter be maintained in a dry manner, since wet litter can lead to a variety of problems for birds, including excess ammonia, lameness, and pest problems.
36

High moisture content in poultry litter can cause negative health and welfare outcomes, including foot pad dermatitis
37

and increased populations of house fly leading to disease in the birds.
38

Wet litter also promotes bacterial growth, which can further lead to disease and negative health outcomes in birds.
39

Litter may be topped off when needed to maintain sufficient dryness. The proposed requirements described in § 205.241(b)(6) are adopted from 2009 and 2011 NOSB recommendations.

36
“Broiler Litter: Odor and Moisture Concerns”, Tom Tabler, Yi Liang, Jonathan Moon, and Jessica Wells. Mississippi State University Extension, Publication: P3515, 2020.

37
“Wet litter not only induces footpad dermatitis but also reduces overall welfare, technical performance, and carcass yield in broiler chickens”, Ingrid C. de Jong, H.Gunnink and J.van Harn, Journal of Applied Poultry Research, 23(1): 51-58, 2014.

38
“Pests in Poultry, Poultry Product-Borne Infection and Future Precautions”, Hongshun Yang, Shuvra K. Dey, Robert Buchanan, and Debabrata, Biswas Practical Food Safety: Contemporary Issues and Future Directions, 1, 2014.

39
“Broiler Litter: Odor and Moisture Concerns”, Tom Tabler, Yi Liang, Jonathan Moon, and Jessica Wells, Mississippi State University Extension, Publication: P352020.

Proposed § 205.241(b)(7) would add 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. This proposed requirement is adopted from a 2009 NOSB recommendation.

Sections 205.241(b)(8), 205.241(b)(9), and 205.241(b)(10) propose 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 would 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). The proposed 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 proposed 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 would not be considered indoors (see definition of “outdoors” in § 205.2). These proposed requirements are adapted from 2009 and 2011 NOSB recommendations, and made in consideration of third-party animal welfare standards.

AMS proposes to establish indoor space requirements for common types of poultry housing. Less indoor space will be 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 proposes to allow 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 is using the unit of measurement as “pounds 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 proposed 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 proposes to extend this same unit of measurement to layers. This use of measurement allows birds to receive similar spacing densities physically no matter the breed's size. Under this proposed 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.

An example of how space requirements can be calculated is as follows: 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.

Proposed § 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 proposed 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. Nest boxes are excluded from the calculation, as they are distinct from useable floor areas of the house where birds can move around freely. This aligns with the 2009 and 2011 NOSB recommendations.

Proposed § 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 would ensure that enclosed porches that are not fully accessible to birds are not counted in indoor space calculations.

Proposed § 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 proposed § 205.241(c) are adapted from previously established requirements at § 205.239, 2009 and 2011 NOSB recommendations, and third-party animal welfare organization standards. Proposed § 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 proposed § 205.241(b)(4)). Outdoor access may only be temporarily restricted in accordance with proposed § 205.241(d).

Proposed § 205.241(c)(2) would require 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 would be 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 would depend on the season, climate, geography, species, and the stage of production.

Proposed § 205.241(c)(3) clarifies how producers may provide shade to meet the general requirements of proposed § 205.241(a). Shade may be provided in outdoor areas by trees, shade structures, or other appropriate objects. This section is specific to shade in outdoor areas; it would not permit structures that do not meet the definition of “outdoors” (§ 205.2) to be included in calculations of outdoor space.

This proposed rule would require organic layer producers to 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. The total outdoor space that must be provided per flock is to be calculated by multiplying the total number of birds in the flock by the space required per bird (
i.e.,
not by multiplying the number of birds actually in the outdoor area at a given moment by the space requirement per bird). All weight references in proposed § 205.241(b) and (c) refer to the weight of live birds and not the weight of processed birds.

Proposed § 205.241(c)(7) would clarify 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 would ensure 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.

Proposed § 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 USDA organic 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 proposed § 205.241(d) are adapted from previously established requirements for organic livestock at § 205.239(b), 2009 and 2011 NOSB recommendations, and third-party animal welfare organization standards.

Proposed § 205.241(d)(1) would provide an allowance for temporary confinement in response to inclement weather, which is defined at § 205.2. In addition, this provision would allow birds to be confined indoors when the temperature does not exceed 40° F. It would also allow 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 40-90º 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 that can cause physical harm to a species, a producer would still be in compliance with proposed § 205.241(d)(1) if birds were confined at temperatures that did not exceed 90° F, if the weather could cause physical harm.

Proposed § 205.241(d)(2) would provide an allowance for temporary confinement indoors due to a bird's stage of life. In this section, AMS proposes 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 would be in accordance with proposed § 205.241(d).

Proposed § 205.241(d)(3) would provide an allowance for temporary indoor confinement under conditions in which the health, safety, or well-being of the birds could be jeopardized. Temporary confinement would be required to be recorded, and to confine birds under this proposed 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. Certifying agents would verify compliance with this requirement. Producers and certifying agents 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 certifying agents and to AMS to discuss specific health concerns. AMS would continue to engage animal health officials, including State Departments of Agriculture and State Veterinarians, about risks to bird health and provide appropriate guidance to certifying agents or producers, as necessary.

Proposed § 205.241(d)(4) would provide an allowance for indoor confinement to prevent risk to soil or water quality. This provision would allow 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).

Proposed § 205.241(d)(5) would provide 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 would allow producers to briefly confine a flock to administer a vaccine or confine an individual animal that requires medical treatment.

Proposed § 205.241(d)(6) would provide an allowance for indoor confinement for sorting, shipping, and poultry sales. Birds would be required to 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.

Proposed § 205.241(d)(7) would provide an allowance for indoor confinement to train pullets to lay eggs in nest boxes, with a maximum period of five weeks allowed for confinement (over the life of the bird). The training period would be required to 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 proposed § 205.241(d).

Proposed § 205.241(d)(8) would provide an allowance for indoor confinement for youth exhibitions, such as with 4-H or the National FFA Organization. This provision would also include 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 add

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2022-16980. Public record. Not legal advice.