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

Federal RegisterNov 2, 2023

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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 205

[Doc. No. AMS-NOP-21-0073]

RIN 0581-AE06

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

AGENCY:

Agricultural Marketing Service, USDA.

ACTION:

Final rule.

SUMMARY:

The United States Department of Agriculture's (USDA) Agricultural Marketing Service (AMS) amends the organic livestock and poultry production requirements by adding new provisions for livestock handling and transport, slaughter, and avian (poultry) living conditions; and expanding and clarifying existing requirements covering livestock care and production practices and non-avian living conditions. These changes will ensure organically produced foods meet a transparent and consistent standard to allow the industry to maintain consumer confidence in USDA organic products, to align with consumer expectations regarding outdoor access, and to further facilitate interstate commerce in organic products.

DATES:

Effective Date:

This rule is effective January 2, 2024.

Compliance Dates:

All organic operations must comply with the requirements of this rule by January 2, 2025, except:

(1) Currently certified organic layer operations and layer operations that are certified before January 2, 2025, must comply with the §§ 205.241(c)(2), (c)(4), and (c)(5), concerning outdoor stocking density requirements and soil and vegetation requirements, by January 2, 2029.

(2) Currently certified organic broiler operations and broiler operations that are certified before January 2, 2025, must comply with §§ 205.241(b)(10), (c)(2), and (c)(6), concerning indoor and outdoor stocking density requirements and soil and vegetation requirements, by January 5, 2029.

(3) Currently certified organic poultry operations and poultry operations that are certified before January 2, 2025 must comply with § 205.241(b)(4), concerning poultry house exit area requirements, by January 2, 2029.

For more information, see the IMPLEMENTATION AND COMPLIANCE DATES FOR THE FINAL RULE section of this document.

FOR FURTHER INFORMATION CONTACT:

Erin Healy, Director, Standards Division, Telephone: (202) 720-3252; Email:

erin.healy@usda.gov

SUPPLEMENTARY INFORMATION:

Table of Contents

Executive Summary

A. Introduction

B. Summary of Provisions

C. Costs and Benefits

I. General Information

Does this action apply to me?

II. Background

A. Purpose and Need for the Rule

B. Statutory Authority To Issue Final Rule

C. NOSB Recommendations on Livestock Production

D. Organic Livestock Regulatory History

III. Overview of Public Comments

A. Responses to Comment on Statutory Authority

B. Responses to Comment on Market Failure

IV. Overview of Final Rule and Responses to Comments

A. Terms Defined (§ 205.2)

B. Livestock Care and Production Practices Standard (§ 205.238)

C. Mammalian and Non-Avian Livestock Living Conditions (§ 205.239)

D. Avian Living Conditions (§ 205.241)

E. Transport and Slaughter (§ 205.242)

F. Implementation and Compliance Dates for the Final Rule

G. Severability

V. Regulatory Analyses

A. Summary of Economic Analyses

B. Executive Order 12988

C. Executive Order 13132

D. Executive Order 13175

E. Civil Rights Impact Analysis

F. Paperwork Reduction Act

G. Related Documents

List of Subjects in 7 CFR Part 205

Part 205—National Organic Program

Executive Summary

A. Introduction

The Organic Livestock and Poultry Standards (OLPS) final rule amends the USDA organic regulations (7 CFR part 205) related to the production of livestock, including poultry, marketed as organic. The rule adds detailed regulations related to animal health care, indoor and outdoor space standards, manure management, temporary confinement of livestock, access to the outdoors, transportation conditions, and humane euthanasia and slaughter. USDA expects that the detailed regulations established by this final rule will clarify aspects of the existing USDA organic regulations that are not interpreted or enforced in a consistent manner. In turn, the detailed regulations in this final rule will better assure consumers that organic livestock products meet a consistent standard, as intended by the Organic Foods Production Act (OFPA or “the Act”).

The OLPS proposed rule received extensive public comment that indicated broad support for its policy changes. Ninety-four percent of the public comments and petition signatures that AMS received support the rule and its goals. Many comments also suggested policy revisions and provided helpful economic data, which AMS took into account when writing this final rule.

B. Summary of Provisions

Livestock that are certified organic under the USDA organic regulations include mammalian species (

e.g.,

cattle, swine, sheep, goats), avian or poultry species (

e.g.,

chickens, turkeys, ducks), and other animal species used for food or in the production of food, fiber, feed, or other agricultural-based consumer products. The changes in this rule address a range of topics related to the care of organic livestock, including:

Livestock health care practices

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

Living conditions

—the rule sets livestock living condition standards that reflect the needs and behaviors of different types of animals and consumers' expectations about the living conditions of animals in organic production. The avian (or poultry) livestock living standards include indoor and outdoor space requirements and require that housing provides sufficient exit areas for birds to access the outdoors;

Transport of animals

—the rule adds new requirements for the transport of organic livestock to sale or slaughter;

Slaughter

—the rule adds a new section to clarify how organic facility slaughter practices and USDA Food Safety and Inspection Service (FSIS) regulations work together to support animal welfare.

C. Costs and Benefits

AMS analyzed the rule's impact on the organic broiler market and the organic egg market. Table 1 summarizes the full range of benefits and costs related to the implementation of this rule. AMS has sought to quantify these benefits and costs to the greatest extent possible in Section F of the RIA.

Table 1—Qualitative Summary of Rule's Benefits and Costs

Benefits

Costs

Reduces information asymmetries between producers and consumers,

resulting in a more optimal distribution of organic and other value-added products.

Reduces consumer search costs

for consumers aware of these inconsistencies

On-going compliance costs:

more indoor space for organic broilers and more outdoor space for organic layers.*

Adds value to organic products:

consistent minimum animal welfare standards, increased space for organic broilers*, and increased outdoor access for organic layers.*

Temporary losses of economic welfare:

total surplus in organic egg market decreases more than total surplus increases in the cage-free egg market as organic egg production unable to comply with the rule shifts to cage-free markets.*

Reduces risk to the integrity of the organic label,

increasing the likelihood of sustained demand and continued growth of organic sales.

* These benefits/costs are quantified in the analysis.

Table

2 below captures the monetized costs, benefits, and net benefit in these markets. AMS estimates annual costs for organic layer operations of $28.1-$32.9 million and costs for organic broiler operations of $4.8-$5.5 million. Additionally, AMS estimates that organic egg production exiting for the cage-free egg market will lead to a temporary economic welfare loss of approximately $8.7-$16.0 million over the first 20 years of the rule. AMS estimates annual benefits for layer operations of $76.6-$89.6 million and benefits for organic broiler operations of $31.5-$35.6 million. In total, AMS anticipates this rule will produce an annualized net benefit ranging from $59.1 million (assuming a 7% discount rate overall) to $78.1 million (assuming a 3% discount rate overall). For more detailed discussion of the economic analysis, including its assumptions and methods, see the Regulatory Impact Analysis for this rule.

AMS finds it likely that controversy or confusion about one product under the organic scheme will cause secondary effects to the overall label and other products, including, but not limited to, risk to consumer confidence, trust, and demand. Because of the unique nature of the organic label, quantifying or monetizing this risk based on existing literature is not possible. See further discussion in Section F. For general information on the relationship between trust reputations and labels see: Jahn, G., Schramm, M., & Spiller, A. (2005). The reliability of certification: Quality labels as a consumer policy tool. Journal of Consumer Policy, 28, 53-73. For more on the relation between trust and organic label sales see: Janssen, M., & Hamm, U. (2014). Governmental and private certification labels for organic food: Consumer attitudes and preferences in Germany. Food Policy, 49, 437-448. For more information on the erosion of trust see: Golan, E., Kuchler, F., Mitchell, L., Greene, C., & Jessup, A. (2001). Economics of food labeling. Journal of Consumer Policy, 24(2), 117-184.

Table 2—Executive Summary: Unit Costs and Benefits for Eggs and Broilers

Eggs

Broilers

Unit Benefits and Costs

Avg. Benefit Per Unit (Consumer Willingness to Pay) *

0.205/dozen

0.14/lb.

Cost Change in Average Total Cost of Production Per Unit

0.06/dozen

0.02/lb.

Net Benefit per Unit Gaining Outdoor Access

0.145/dozen

0.16/lb.

Total Annualized Benefits and Costs

20-Year Annualized Discounted Benefits (3%) ($1,000) *

$89,564

$35,641

20-Year Annualized Discounted Benefits (7%) (1,000) *

76,641

31,467

20-Year Annualized Discounted Costs (3%) (1,000)

32,893

5,491

20-Year Annualized Discounted Costs (7%) (1,000)

28,147

4,848

20-Year Annualized Discounted Economic Welfare Loss (3%) (1,000)

8,709

20-Year Annualized Discounted Economic Welfare Loss (7%) (1,000)

16,046

Total Annualized Net Benefits

20-Year Annualized Discounted Net Benefits (3%) (1,000)

47,962

30,149

20-Year Annualized Discounted Net Benefits (7%) (1,000)

32,448

26,619

One-time Domestic Information Collection Cost (1,000)

4,930

* Layer benefit reports the mid-point benefits of the two estimates ($0.16/dz. and $0.25/dz.).

I. General Information

Does this action apply to me?

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

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

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

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

This listing is not intended to be exhaustive but identifies key entities likely to be affected by this action. Other types of entities could also be affected. To determine whether you or your

business may be affected by this action, you should carefully examine the regulatory text. If you have questions regarding the applicability of this action to a particular entity, consult the person listed above under

FOR FURTHER INFORMATION CONTACT

II. Background

A. Purpose and Need for the Rule

The purpose of this rule is to address several inconsistencies in organic livestock production that have arisen due to varying interpretations of the current livestock standards. This rule will add detail to the organic livestock health care and living conditions standards and add new standards specific to avian species. This additional detail will help producers and certifiers interpret and apply the organic livestock regulations more consistently, ensuring fair competition between producers and bolstering consumer confidence in the organic label.

In 2021, U.S. sales of organic livestock and poultry were $2.2 billion, and sales of organic livestock and poultry products were $2.9 billion.

Compared to 2011, this represents a 715 percent increase in sales of organic livestock and poultry and a 175 percent increase in sales of organic livestock and poultry products.

The organic regulations have included general standards for livestock production since they were first published in 2000, however, the regulations lack specific standards for certain topics such as physical alterations, euthanasia, transport, slaughter, and avian-specific living conditions. This means producers and certifying agents must interpret and apply these general standards to different livestock production systems, each of which has its own unique needs and practices. This has led to different interpretations of the organic regulations—both differences in how some operations produce organic livestock and differences in how some certifying agents enforce the organic livestock standards.

USDA, National Agricultural Statistics Service, 2021 Certified Organic Survey (released December 15, 2022),

https://www.nass.usda.gov/Surveys/Guide_to_NASS_Surveys/Organic_Production/.

USDA, National Agricultural Statistics Service, 2011 Certified Organic Survey (released October 2012),

https://www.nass.usda.gov/Surveys/Guide_to_NASS_Surveys/Organic_Production/.

Production practices may differ substantially among different producers and certifiers, and a key purpose of this rule is to resolve widely divergent interpretations of existing organic production standards. For example, the existing regulation at § 205.239(a)(1) requires “[y]ear-round access for all animals to the outdoors.” Some operations and certifying agents have interpreted this general requirement for outdoor access to mean that organically managed poultry need only to have access to fresh air and sunlight, and this can be satisfied by screened, elevated patio structures known as “porches.” Other certifying agents require operations to provide outdoor spaces with soil and vegetation, but even then, may differ in their interpretations of how much space must be provided outdoors. The final rule also details requirements for other aspects of organic livestock production for the purpose of reducing divergent interpretations of the regulations and divergent practices among organic livestock producers. These aspects include living conditions (both indoors and outdoors), health care practices, transport, and slaughter conditions.

Inconsistencies in livestock practices and enforcement such as these have several detrimental effects on the organic market: producers can have significantly different production costs for the same organic product, and in some cases, consumers are unaware that not all organic products are produced with attributes they desire (

e.g.,

outdoor access), resulting in consumers paying for an attribute they are not receiving.

If consumers become aware that they are paying for an attribute that does not exist, like access to soil and vegetation, they are likely to lose confidence in the organic label.

Recent survey data shows that 65% of frequent organic purchasers and 54% of all organic purchasers think that all organic animals have outdoor access throughout the day. See ASPCA and the Animal Welfare Institute survey, September 2022.

https://www.aspca.org/sites/default/files/awi_aspca_organic_consumer_survey_summary_2022_final.pdf.

AMS has found that inconsistent application of the organic livestock standards has likely produced a market failure, that has been in some part allowed to exist through government failure (action or inaction). “Market failure” occurs when the free market does not allocate resources efficiently—in other words, there is some market distortion such as information asymmetry—despite consumers making rational economic choices; analogously, “government failure,” for the purposes of this document, is the government's failure to refine its approach to addressing information asymmetry through regulation or through other government action. For example, if consumers are paying for an attribute that they believe they are receiving, such as an animal's full access to the outdoors, the money they spend on an attribute they do not receive is likely associated with the combination of information asymmetry from market and government failure. After reviewing the economic data, AMS believes that inconsistent application of the organic program standards has led to information asymmetry within the organic egg market and could be present in other organic livestock markets.

For more discussion of market failure, see Section II.D, ORGANIC LIVESTOCK REGULATORY HISTORY, and this rule's Regulatory Impact Analysis (RIA).

For example, based on data from the ASPCA/AWI Organic Consumer Survey, AMS estimates that at least 31.5% of organic eggs are purchased by consumers who mistakenly think the chickens producing their eggs have outdoor access that includes soil or pasture. See Section II Subsection D for more detail.

As a result of these failures, some consumers are losing trust in the organic label. In public comments, consumers conveyed they lost trust when they became aware that the organic label has not necessarily meant animals are raised under the conditions they expected. During the public comment period for the proposed OLPS rule, over 26,000 members of the public submitted letters that specifically referenced their diminished trust in the organic label. For example, AMS received more than 6,000 thousand copies of one letter saying, “the lack of clear standards undermines consumer confidence in the organic label,” and more than 700 copies of another saying, “I expect the USDA Organic seal to include robust standards for animal welfare and outdoor access . . . without [that], I'm left wondering what I'm really getting when I purchase products with the USDA Organic seal.” Similarly, the extensive and detailed comments submitted by several organic producers and trade groups identified loss of consumer confidence in the organic label as a primary concern. For more information on the relationship between trust and demand for labels, see Section F of the RIA.

Additionally, public comments highlighted the uneven production costs due to the inconsistencies in outdoor access.

One comment specifically stated that “The allowance by some ACAs of “porches” to satisfy the outdoor access requirements, created an uneven competitive landscape as well as “certifier shopping” which is unrebutted evidence of inconsistency in the federal standards as well as

evidence of inconsistent products in the stream of commerce.”

See

https://www.regulations.gov/comment/AMS-NOP-21-0073-39096

and

https://www.regulations.gov/comment/AMS-NOP-21-0073-39082.

Market failure, uneven production costs, and loss of trust in the organic label are three consequences that AMS seeks to address with this rule. The rule will establish avian-specific living conditions for poultry and provide more detail on living conditions and health care standards for all organic livestock. As a result of this rulemaking, AMS predicts that producers and certifying agents will be able to interpret and apply the organic regulations more consistently, assuring consumers that organically produced products meet a consistent and uniform standard, and safeguarding confidence in the organic label.

B. Statutory Authority To Issue Final Rule

Introduction

USDA is issuing these regulations under its authority as delegated by OFPA and described below. In particular, USDA has statutory authority to promulgate the regulations in the final rule pursuant to USDA's authority: (1) to better assure consumers that organic livestock products meet a consistent standard (7 U.S.C. 6501); (2) to establish a national organic certification program (7 U.S.C. 6503(a)); (3) to promulgate “other terms and conditions as may be determined by the Secretary to be necessary” to the organic program (7 U.S.C. 6506(a)(11)); and (4) to develop and implement standards for livestock production under the organic program (7 U.S.C. 6509). A discussion of public comments received on the topic of USDA's authority, and AMS's responses, can be found below in Section III., OVERVIEW OF PUBLIC COMMENTS.

Reasons for Changing Interpretation From the OLPP Withdrawal Rule

USDA acknowledges that its position on USDA's statutory authority to issue this rule differs from the rationale that USDA relied on for the withdrawal of the Organic Livestock and Poultry Practices (OLPP) final rule (Withdrawal Rule) in March 2018 (83 FR 10775). The sequence of events related to this rule is outlined below in the section titled “OLPP Rule and Legal Challenges.” USDA discusses the reasons for its change in position following a brief discussion of USDA's previous rationale for the withdrawal of the OLPP final rule.

In the Withdrawal Rule, USDA stated it withdrew the OLPP rule based on its then-interpretation of 7 U.S.C. 6509, which it believed did not “authorize the animal welfare provisions of the OLPP final rule” (83 FR 10776). At the time, USDA held that its authority under sec. 6509 to issue regulations for the “care” of livestock was limited to physical health care issues for livestock like those described in sec. 6509(d)(1),

i.e.,

relating to the “ingestion of chemical, artificial, or non-organic substances” (83 FR 10776). Based on this interpretation, USDA stated that the OLPP final rule had included “stand-alone animal welfare regulations” that Congress had not specifically authorized under sec. 6509. Additionally, the Withdrawal Rule reasoned that if the statutory text could be construed as “silent or ambiguous,” its interpretation was entitled to deference and based on a permissible statutory construction” (83 FR 10776).

USDA now disagrees with the rationale and narrow textual reading in the Withdrawal Rule, and USDA finds it has ample authority to issue this final rule based on the text and structure of sec, 6509 and the statute's plain meaning (at sec. 6509 and elsewhere, including 7 U.S.C. 6501, 7 U.S.C. 6503(a), 7 U.S.C. 6506(a)(11)). Additionally, USDA's longstanding interpretation of OFPA both prior to and since the Withdrawal Rule, as reflected in numerous regulations promulgated by AMS, confirms USDA's statutory authority to issue this rule (see “D. Organic Livestock Regulatory History”).

With this rule, USDA is using its authority to address regulatory issues that (1) prevent fair competition among producers (as the regulations are not interpreted consistently or applied equally to producers), and (2) lead to such widely varying practices among some producers that consumers cannot be assured an organic product meets a consistent standard—a key purpose of OFPA. The promulgation of this final rule is preferred to the alternative of relying on current regulations that are inconsistently interpreted and enforced (see Purpose and Need for the Rule). Data indicates that nothing since the withdrawal of the OLPP final rule has changed to reduce the inconsistency in practices, which continues to cause harm to consumers (see additional discussion of Market/Government Failure in the RIA for this final rule). Taking no action when known inconsistencies exist would run counter to a fundamental purpose of OFPA to assure consumers that organically produced products meet a consistent standard (7 U.S.C. 6501). This final rule addresses these inconsistencies and, in turn, satisfies OFPA's purposes. For these reasons above and others discussed throughout this final rule, USDA finds that it has good reasons to revise its previous position from the Withdrawal Rule and issue this final rule.

Long-Standing Interpretation of OFPA and Promulgation of Livestock Regulations

Since the implementation of the December 2000 final rule (65 FR 80548) that established the AMS National Organic Program (NOP) and the USDA organic requirements, organic livestock producers have been required to meet requirements related to origin of livestock (§ 205.236), livestock feed (§ 205.237), livestock health care practice standards (§ 205.238), and livestock living conditions (§ 205.239). These regulations address measures to avoid disease and illness; provisions about feed and pasture; principles governing housing, pasture conditions, sanitation practices; and requirements for access to the outdoors and a natural environment. As described in the December 2000 final rule, a producer must, “establish and maintain livestock living conditions for the animals under his or her care which accommodate the health and natural behavior of the livestock. The producer must provide access to the outdoors, shade, shelter, exercise areas, fresh air, and direct sunlight suitable to the species, its stage of production, the climate, and the environment.” These regulations that have been effective since April 2001 (66 FR 15619) reflect our longstanding interpretation of care of livestock, and necessarily implicate animal welfare considerations.

USDA, through its National Organic Program (NOP), oversees the entirety of the national organic certification program, from production standards to accreditation of USDA-accredited certifying agents, to noncompliance and appeal procedures, to international organic agreements, and more. The NOP does this through its comprehensive regulations at 7 CFR part 205. While the bulk of these specific regulations were published by USDA in December 2000, the NOP has elaborated on the regulations regularly since December 2000 under its authority delegated by OFPA.

AMS has updated the organic livestock regulations, specifically, multiple times since 2000. Notably, the 2010 Access to Pasture final rule (75 FR 7153) expanded the organic regulations to, “satisfy consumer expectations that ruminant livestock animals are grazing pastures and that pastures are managed to support grazing throughout the

grazing season.”

The rule specifically addressed areas related to production of organic ruminants (

e.g.,

cattle, sheep, goats), including pasture management, recordkeeping, access to the outdoors, temporary confinement from the outdoors and pasture, and the amount of pasture required in proportion to the total diet or ration. More recently, a 2022 Origin of Livestock final rule (87 FR 19740) clarified the manner in which organic dairy operations can transition livestock to organic production to increase uniformity in production practices for organic dairy animals and reduce variance between certifying agents. The regulatory history demonstrates a long precedent of AMS promulgating detailed regulations on organic livestock production. Similarly, this rule clarifies requirements for livestock production and supports the purposes of OFPA (7 U.S.C. 6501).

https://www.federalregister.gov/d/2010-3023/p-453.

Congress has also amended OFPA multiple times, but amendments to OFPA have never sought to restrict the types of organic livestock production practices that USDA may regulate under its delegated authority. In fact, Congress has occasionally urged USDA to finalize certain livestock regulations rather than clarify requirements through amendments to OFPA. For example, in the Further Consolidated Appropriations Act, 2020 (Pub. L. 116-94, div. B, title VII, sec. 756, Dec. 20, 2019, 133 Stat. 2654)), Congress directed USDA to issue a final rule based on the “Origin of Livestock” proposed rule that AMS published in April 2015.

OFPA Provisions and OFPA History

The plain language and the legislative history of OFPA and USDA's longstanding interpretation of the statute support USDA's authority to issue these regulations. OFPA includes few details about organic livestock production, organic crop production, and handling of organic products. In all cases, the USDA organic regulations (7 CFR part 205) have, since their inception, include more detailed requirements than included in OFPA, as Congress authorized and intended. For livestock, Congress was particularly clear in stating that the livestock requirements in OFPA were not fully developed, and delegated rulemaking authority to USDA to develop more detailed livestock production requirements and standards (7 U.S.C. 6509(g)).

As stated in the Conference Report of October 22, 1990 (p. 1177):

The Conference substitute adopts the House provision with an amendment which requires the Secretary to hold hearings and develop regulations regarding livestock standards in addition to those specified in this title . . . the Managers recognize the need to further elaborate on the standards set forth in the title and expect that by holding public discussions with interested parties and with the National Organic Standards Board, the Secretary will determine the necessary standards . . .

Moreover, as stated in the Senate Report, Congress made clear that USDA would develop “more detailed” livestock production standards, as well as implement them:

More detailed standards are enumerated for crop production than for livestock production. This reflects the extent of knowledge and consensus on appropriate organic crop production methods and materials. With additional research and as more producers enter into organic livestock production, the Committee expects that USDA, with the assistance of the National Organic Standards Board will elaborate on livestock criteria. The Committee recommends as well that, over time, USDA and the Organic Standards Board develop standards for aquaculture products.

S. Rep. No. 101-357, at 292 (1990).

In addition, OFPA grants USDA authority to establish standards for the national organic program. Sec. 6503(a) states: “The Secretary shall establish an organic certification program for producers and handlers of agricultural products that have been produced using organic methods as provided for in this chapter,” and 7 U.S.C. 6506(a)(11) which provides: “A program established under this chapter shall require such other terms and conditions as may be determined by the Secretary to be necessary.”

OFPA also specifically authorizes USDA to develop detailed requirements for animal production practices (7 U.S.C. 6509). 7 U.S.C. 6509(a) specifies that “Any livestock that is to be slaughtered and sold or labeled as organically produced shall be raised in accordance with this chapter.” “Organically produced,” as defined by OFPA, is broad. It is defined as “an agricultural product that is produced and handled in accordance with this chapter.”

Sec. 6509(d)(1) addresses a handful of specific prohibited health care practices related to use of medications and feed on organic farms. Notably, OFPA specifies at subsection 6509(d)(2): “The National Organic Standards Board shall recommend to the Secretary standards in addition to those in paragraph (1) [titled “Prohibited practices”] for the care of livestock to ensure that such livestock is organically produced.” Finally, 7 U.S.C. 6509(g) also provides that “the Secretary shall hold public hearings and shall

develop detailed regulations,

with notice and public comment, to guide the implementation of the standards for livestock products provided under this section” (italics added). USDA has long interpreted these provisions to grant the authority to address animal welfare as part of the organic standards, regularly developing and promulgating detailed regulations that implicate animal welfare through the statutorily outlined process of consulting NOSB and offering notice and public comment on additional standards developed.

7 U.S.C. 6502(15).

In withdrawing the OLPP Rule, USDA at that time asserted that standards for animal care practices are limited to physical health care practices similar to those specified in 7 U.S.C. 6509(d)(1) and could not encompass concerns about animal welfare. However, sec. 6509(d)(2) provides that the NOSB shall consider and propose additional standards, and the language of that section broadly allows the NOSB to recommend standards for the “care of livestock”, and nowhere explicitly limited to provisions that prohibit the ingestion or administration of chemical, synthetic, or non-naturally occurring substances for livestock. Indeed, the two subsections of sec. 6509(d) address certain prohibited health care practices and other types of care separately, suggesting Congress's intent that the NOSB consider and propose standards for each type of care. Sec. 6509(d)(1) lists “prohibited practices” in health care of livestock, including prohibiting administering routine antibiotics, synthetic internal parasiticides, or any medication beyond vaccines, in the absence of illness. Sec. 6509(d)(2) instead provides that NOSB shall recommend “standards in addition to” those prohibited practices “for the care of livestock to ensure that such livestock is organically produced.” (7 U.S.C. 6509(d)(2)). That Congress went to the effort of distinguishing certain prohibited medical practices from the general “care” for which NOSB can recommend standards reflects an intent that USDA's authority to regulate livestock production practices extends beyond the medication and feed examples in sect. 6509(d)(1).

In addition, OFPA did not define “raised,” “health care,” or “care,” and instead authorized USDA to promulgate regulations and implement standards for the organic program, generally, and for organic livestock products more specifically. Moreover, the plain meaning of the terms “care,” (7 U.S.C.

6509(d)(2)) “raised,” (7 U.S.C. 6509(a) and (e)) and “health care,” (7 U.S.C. 6509(d)) includes considerations of animal welfare. Merriam-Webster defines “care” as “charge, supervision . . .

especially:

responsibility for or attention to health, well-being, and safety.”

Similarly, the American Heritage Dictionary defines “care” as “watchful oversight; charge or supervision,”

and the Cambridge Dictionary defines “care” as “the process of protecting or providing for the needs of someone or something.”

Merriam-Webster defines “raise” as “to breed and bring (an animal) to maturity,”

and the American Heritage Dictionary defines “raise” as “to breed and care for to maturity:

raise cattle.”

In addition, “health care” is defined as “efforts made to maintain or restore physical, mental, or emotional well-being especially by trained and licensed professionals.”

Merriam-Webster Dictionary, available at

https://www.merriam-webster.com/dictionary/care

American Heritage Dictionary, available at

https://www.ahdictionary.com/word/search.html?q=care

Cambridge Dictionary, available at

https://dictionary.cambridge.org/dictionary/essential-american-english/care

Merriam Webster, available at

https://www.merriam-webster.com/dictionary/raise

American Heritage Dictionary, available at

https://www.ahdictionary.com/word/search.html?q=raise

Merriam Webster, available at

https://www.merriam-webster.com/dictionary/health%20care

In contrast to the narrow interpretation of the OFPA term “health care” used in the Withdrawal Rule, the OLPS final rule returns to USDA's longstanding interpretation of “health care” which goes beyond specific healthcare practices for organic livestock and can reasonably encompass production practices related to the welfare and well-being of livestock. This interpretation aligns with longstanding organic regulations related to health care at 7 CFR 205.238 titled “Livestock health care practice standard” and included in the 2000 final rule. Section 205.238(a) includes provisions that support livestock health, including provisions related to housing, feed, sanitation, species selection, exercise and movement, and conditions which allow for reduction of stress.

The aforementioned terms (“care,” “raised,” and “health care”) connote a broader conception of livestock health care and livestock care that includes livestock living conditions and considerations of welfare, and these terms allow USDA to prescribe modes of caring for livestock that extend beyond prohibiting specific health care practices such as the “ingestion of chemical, artificial, or non-organic substances.” (83 FR 10776). The language in sec. 6509, including allowing the NOSB to recommend regulations “in addition to” those in subsection 6509(d)(1) “for the care of livestock” indicates that the scope of USDA's authority extends beyond regulations prohibiting the ingestion of chemical, artificial, or non-organic substances. Sec. 6509(e)(1) and (2) describe “additional guidelines” for “rais[ing] and handl[ing]” poultry and dairy livestock, respectively. The use of the phrase “[r]aised and handled in accordance with this chapter” (6509(e)(1), (2)(A)) suggests a more comprehensive understanding of care that goes beyond narrow conceptions of medical care of organic livestock and can reasonably encompass production practices related to livestock living conditions and welfare. Thus, USDA believes that sec. 6509 supports the promulgation of these regulations concerning the humane raising of livestock. However, even if the text of sec. 6509 were silent or ambiguous about this issue, USDA believes that its interpretation is a permissible reading, an interpretation that is entitled to deference.

Animal Welfare

This rule's focus on animal welfare, especially outdoor access requirements, supports the organic regulations' existing principles of resource cycling and ecological balance (see “organic production” defined at 7 CFR 205.2 and § 205.239(e)). Nevertheless, USDA recognizes that NOSB recommendations and public comments that have shaped this final rule may have intended to enhance the welfare or well-being of animals marketed as organic. Many in the contemporary organic industry do not view animal welfare as distinct from the concerns expressly reflected in the statutory text of OFPA. A growing body of research is showing that livestock and poultry with access to pasture and the outdoors to forage and engage in natural behaviors may be positively associated with the following outcomes: improved well-being of the animals, environmental benefits, and healthier livestock and poultry products

for human consumption.

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/.

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/.

Public perception and the expectations of organic consumers parallel this research. For example, a 2021 study found that consumers expect less need for antibiotics and other medications that sec. 6509(d) expressly limits when animals are raised with practices that improve the health and welfare of livestock.

Since OFPA was enacted, expectations for the conditions under which animals are raised (

i.e.,

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

Likewise, consumers perceive organic livestock to be raised according to higher animal welfare standards than non-organic livestock.

Literature also suggests government-sponsored ecolabels provide the highest levels of consumer confidence.

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/.

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.

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.

Kim Mannemar S. Ãnderskov, 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.

The March 2018 Withdrawal Rule reasoned that OFPA did not authorize “stand-alone animal welfare regulations.” USDA's current position is that the OLPS final rule is not a stand-alone animal welfare regulation. Some provisions of the rule may improve animal welfare, but USDA's primary objective is to clarify requirements for products sold as “organic.” This role and its corresponding authority are clearly intended by OFPA, where Congress delegated authority to USDA “to establish an organic certification program for producers and handlers of agricultural products” (7 U.S.C. 6503(a)) and develop standards for the care of

livestock (7 U.S.C. 6509) to meet the purposes of the OFPA, including “to assure consumers that organically produced products meet a consistent standard” (7 U.S.C. 6501(2)). Since the enactment of OFPA, the USDA has worked to establish, develop, and administer standards on numerous aspects of organic production, including standards for the care of livestock that extend beyond the Withdrawal Rule's narrow interpretation of “health care.” USDA maintains that, notwithstanding the novel interpretation of the Withdrawal Rule, the authority of its national organic certification program to establish, develop, and administer livestock standards—including those that implicate the welfare of animals used in organic production—is confirmed by USDA's present and longstanding interpretation of OFPA.

NOSB Consultation (OFPA) and Development of OLPS

Congress directed USDA to consult with the NOSB to establish a national organic certification program (7 U.S.C. 6503(c), 6509(d)) and develop detailed livestock regulations with notice and public comment (7 U.S.C. 6509(g)). USDA has done just that in developing this and previous livestock regulations (see, for example, “History of AMS Livestock Policy” in Section D; to see recommendations related to the OLPS rule, see “C. NOSB Recommendations on Livestock Production”). The vast majority of NOSB recommendations and public comments agree with and support the USDA's decision to establish the regulations included in the OLPS final rule.

Conclusion

AMS is issuing this rule after determining, in consultation with the National Organic Standards Board (NOSB) and following notice and public comment, that regulations are necessary to clarify the existing livestock production standards. This follows the process intended for livestock standards development authorized by OFPA at 7 U.S.C. 6503 and 6509. USDA determined that existing organic livestock production regulations have not been interpreted or enforced in a consistent manner among certifiers to assure consumers that organic livestock and products from livestock (

e.g.,

eggs) meet a consistent standard. Under the authority granted by OFPA, AMS is issuing this rule with clearer standards to address inconsistencies in livestock production regulations.

Comment summaries and AMS responses on the topic of USDA's statutory authority to promulgate these regulations can be found below in Section III, OVERVIEW OF PUBLIC COMMENTS.

C. NOSB Recommendations on Livestock Production

The NOSB is a federal advisory committee established by OFPA (7 U.S.C. 6518) to provide recommendations to USDA on the development of organic standards and regulations. NOSB recommendations are developed through a rigorous process involving technical information, stakeholder input through public comment, open meetings, and a decisive two-thirds majority vote of the Board. Although the Board cannot direct or bind USDA through its recommendations, USDA utilizes the NOSB recommendations to inform rulemaking, including this rulemaking.

Between 1994 and 2011, the NOSB made nine recommendations regarding livestock health care, living conditions, and welfare in organic production. Between 1997 and 2000, AMS issued two proposed rules and a final rule regarding national standards for the production and handling of organic products, including livestock and their products. Members of the public commented on these rules regarding the health care and welfare of livestock. Summarized below are the key actions from that period that led to the development of the existing standards for organic livestock and that have informed this OLPS final rule.

(1) In June 1994, the NOSB recommended a series of provisions to address the care and handling of livestock on organic farms. Within this recommendation, the NOSB developed much of the framework for organic health care and welfare of livestock, including health care standards, living conditions, and transportation of livestock practices.

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

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

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

(5) On March 13, 2000, AMS published a second proposed rule to establish the National Organic Program (65 FR 13512) that incorporated public feedback on the December 1997 proposed rule. AMS also incorporated the NOSB's March 1998 recommendations related to livestock health care and living conditions. AMS proposed that organic producers must use disease prevention practices first, then approved synthetic medications only if preventive measures failed. However, a producer would need to use all appropriate measures to save the animal even if the animal lost organic status. In addition, AMS proposed that the living conditions for organic livestock must maintain the health of the animals and allow for natural behaviors, including access to the outdoors.

(6) On December 21, 2000, AMS published a final rule establishing the USDA organic regulations (65 FR 80548) (“NOP Rule”). Through this action, AMS finalized the standards for health care practices and livestock living conditions. This rule addressed a range of matters related to organic livestock production, including organic feed; use of hormones and supplements; measures to avoid disease and illness; veterinary biologics, medications, synthetic parasiticides, and other drugs; and general principles governing housing, pasture conditions, sanitation practices, and physical alterations. The NOP Rule also generally required producers to provide organic livestock with “access to the outdoors, shade, shelter, exercise areas, fresh air, and direct sunlight suitable to the species, its stage of production, the climate, and the environment,” but allowed producers to satisfy those criteria in different ways. That rule became effective on April 21, 2001 (correction of effective date; 66 FR 15619) and was fully implemented on October 21, 2002.

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

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

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.”

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.”

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), based on several NOSB recommendations regarding ruminant livestock feed and living conditions and public comments. AMS published the final rule, Access to Pasture (Livestock), on February 17, 2010 (75 FR 7154). This rule amended numerous areas of the organic livestock regulations, including 7 CFR 205.237, 205.239, 205.240, as described below in Section D, “Organic Livestock Regulatory History.”

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

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.

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.

The NOSB recommended changing the health care practice standards to allow the administration of drugs in the absence of illness to prevent disease or alleviate pain. In April 2010, the NOSB passed a recommendation to clarify that milk from animals treated with allowed synthetic medical treatments and annotated with a milk withholding time may be fed to young organic livestock still receiving milk in their diet.

The NOSB stated that such changes would improve the welfare of organic livestock.

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

NOSB, 2010. Formal Recommendation by the NOSB to the NOP, Clarification of 205.238(c)(1). Available at:

http://www.ams.usda.gov/rules-regulations/organic/nosb/recommendations

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

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

e.g.,

stocking densities, among other provisions for living conditions specific to poultry. For layers, the NOSB recommended a minimum of 2.0 ft

per bird indoors and outdoors.

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 the slaughter process, including transportation of livestock to slaughter facilities.

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

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

The series of recommendations described above demonstrate the collective effort of NOSB to develop specific standards for certain livestock production topics such as physical alterations, euthanasia, transport, slaughter, and avian-specific living conditions. AMS has utilized these recommendations to inform standards set forth in the OLPS rule. In doing so, NOSB and AMS have followed the process required by OFPA to consult with the NOSB (7 U.S.C. 6503(c)) to develop detailed regulations for livestock production (7 U.S.C. 6509(d) and (g)).

D. Organic Livestock Regulatory History

History of AMS Livestock Policy

This final rule clarifies and expands on the original December 2000 organic requirements (the “NOP Rule”) to support consistent interpretation and enforcement of organic livestock standards. USDA has revised the regulations related to organic livestock production since December 2000. On October 29, 2002, AMS issued a memorandum to clarify outdoor access and temporary confinement requirements for livestock under the USDA organic regulations.

The memorandum stated that producers are required to balance accommodations for an animal's health and natural behavior with measures to ensure an animal's safety and well-being. It further explained that the USDA organic regulations do not specify an outdoor space allowance or stocking rate, nor do they require that all animals in the herd or flock have access to the outdoors at the same time. This memorandum explained how producers could provide evidence of compliance to support temporary confinement.

However, NOP determined that additional specificity was required to improve compliance and enforcement and satisfy consumer expectations.

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

This memorandum was incorporated into the NOP Handbook (as “PM 11-5”) on January 31, 2011.

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” (enclosed, covered, and screened areas attached to a poultry house, either elevated or at ground level). The certifying agent denied certification for failing to provide hens with access to the outdoors. The certifying agent stated that a porch did not provide outdoor access as required by the USDA organic regulations. The operation appealed the Denial of Certification to the AMS Administrator on October 22, 2002. The Administrator sustained the appeal on October 25, 2002, and directed the certifying agent to grant organic certification to the operation retroactively to October 21, 2002.

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

Massachusetts Independent Certification, Inc.

Johanns,

486 F. Supp. 2d 105). As a result of these adjudications, use of porches to meet the requirement in the USDA organic regulations for outdoor access expanded, and certain producers have settled on production practices that rely on porches, leading to inconsistencies with producers that offer animals access to outdoor spaces with soil, vegetation, direct sunlight, and considerable space per animal.

While the use of porches was expanding in the organic poultry industry, AMS was more precisely defining outdoor access for other species. On February 17, 2010, AMS published a final rule adopting new provisions relating to organic livestock production. The Access to Pasture Rule was informed by NOSB's 2005 recommendation and extensive public input requesting clear outdoor access requirements for ruminant livestock. It required that ruminants graze at least 120 days per year, described situations that warrant denying ruminants access to the outdoors (

e.g.,

birthing cows or newborn calves), required that ruminants receive not less than 30 percent of dry matter intake from grazing, and addressed several other matters related to the management of pasture and feeding yards, pads, and lots. The Access to Pasture Rule also clarified that the requirements for outdoor access and species-appropriate access to shade, shelter, exercise, fresh air, and direct sunlight required by the NOP Rule must be provided for all organic livestock, including poultry, on a year-round basis.

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

The OIG found inconsistent certification practices regarding outdoor access for poultry. For example, one operation they visited provided a total of 300 square feet of outdoor access for approximately 15,000 chickens, while two other operations provided large pasture areas. Of the four certifying agents OIG visited, only one had developed stocking density requirements for livestock. The OIG recommended that AMS issue further guidance on outdoor access for livestock, especially poultry.

In response, AMS published draft guidance, Outdoor Access for Organic Poultry, on October 13, 2010 and sought public comment.

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.

It informed certifying agents and producers that maintaining poultry on soil or outdoor runs would demonstrate compliance with the outdoor access requirement in 7 CFR 205.239.

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).

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. Several commenters, including organic poultry producers, requested a change to the draft guidance language to say that poultry, when outdoors, should be maintained on soil, pasture, or vegetation. They described health benefits and protection of the environment that a pasture or other vegetated outdoor access area would afford. Additionally, some supported more specific and stringent stocking densities. Commenters suggested a maximum stocking rate of 1.75 square feet per bird in henhouses that provide access to perches, with an additional 5 square feet per bird available in vegetated outdoor runs accessible to all birds at the same time.

On the other hand, some commenters favored allowing porches as acceptable outdoor access, citing biosecurity and animal health concerns. One trade association, some organic egg producers, and consultants described several benefits in the use of production systems that limit outdoor access via the use of enclosed porches that keep poultry from contact with soil or pasture. These benefits included protection from predation and parasites, and seclusion from contact with pathogens that cause food safety problems and wild birds that could carry diseases. The commenters asserted that these systems are consistent with the 2002 NOSB recommendation and noted that organic egg producers had made substantial investments in facilities with porches. Some also expressed concerns that placing birds on soil would affect their ability to comply with the Food and Drug Administration's

Salmonella

prevention food safety regulations (21 CFR part 118). Several producers expressed concern with the 2009 NOSB recommendation that pullets be given outdoor access at 6 weeks of age, because layers are not fully immunized (including for protection against

Salmonella

) until 16 weeks of age. These producers said that pullets should not be exposed to uncontrolled environments until that time.

However, many comments suggested that AMS's draft guidance was unenforceable, and rulemaking would be a better action. These stated that certifying agents would be able to enforce a rule more clearly and decisively than guidance. Given this request that USDA address the issue of outdoor access for poultry through the rulemaking process, AMS determined to pursue rulemaking and did not finalize the draft guidance.

OLPP Rule and Legal Challenges

In April 2016, AMS published a proposed rule, Organic Livestock and Poultry Practices (OLPP), which incorporated NOSB recommendations. The proposed rule included provisions related to livestock health care practices (such as physical alteration procedures, euthanasia, and treatment of sick animals), living conditions for mammalian and avian livestock (including minimum indoor and outdoor space requirements for avian livestock), and requirements for care during transport and for slaughter practices. It received 6,675 written comments during the 90-day comment period, and petition signatures numbering in the tens of thousands. Comments were received from

producers, producer associations, handlers, certifying agents, consumers and consumer groups, animal welfare organizations, veterinarians, state government agencies, foreign government agencies, and trade associations or organizations. They provided insight on topics such as regulatory authority, import impact, trade agreements, and alternatives to regulation. Comments generally found the rule beneficial for the industry and the organic label, but several raised challenges with the proposed standards.

In response to public comment, AMS made a number of changes to the proposed rule to further clarify the requirements and mitigate economic impact on the industry. AMS published the Organic Livestock and Poultry Practices final rule (OLPP Rule) on January 19, 2017 (82 FR 7042). Prior to the OLPP Rule becoming effective, USDA (under a new Administration) delayed the effective date of the rule to allow the Administration to review it.

See

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

After delaying the OLPP Rule's effective date and conducting its review, AMS proposed withdrawing the OLPP Rule. It determined that the agency lacked the legal authority to issue the rulemaking, cited substantive errors in OLPP's economic analysis, and maintained that there was no market failure (82 FR 59988, December 18, 2017). On March 13, 2018, AMS published a final rule withdrawing the OLPP Rule for those reasons (Withdrawal Rule; 83 FR 10775). Plaintiffs challenged USDA's delay and subsequent withdrawal the OLPP Rule. The Center for Food Safety (CFS) and Center for Environmental Health (CEH) sued USDA, and the Organic Trade Association (OTA) separately filed a suit,

see Organic Trade Association

USDA,

No. 17-cv-1875-RMC (D.D.C.);

CEH

USDA,

No. 3:18-cv-1763 (N.D. Cal.)).

In March 2020, the U.S. District Court for the District of Columbia granted USDA's motion to remand to USDA for purposes of clarifying and supplementing the records regarding the economic analyses underlying the OLPP Rule and the Withdrawal Rule. The District Court set a deadline of 180 days for USDA to complete these economic analysis actions.

AMS reviewed the economic analyses for both the OLPP Rule and the Withdrawal Rule. It discovered additional errors in the OLPP Rule, beyond those already cited by the Withdrawal Rule, and substantive errors in the economic analysis of the Withdrawal Rule itself. AMS published the Organic Livestock and Poultry Practice Economic Analysis Report on April 23, 2020, describing all the errors and seeking public comment on the Report (85 FR 22664). After considering the comments, AMS published the Final Decision on Organic Livestock and Poultry Practices Rule and Summary of Comments on the Economic Analysis Report on September 17, 2020 (85 FR 57937). In the Final Decision, AMS concluded that “[t]o the extent the Withdrawal Rule formed an assessment of the likely costs and benefits of the OLPP Rule based on that flawed analysis, AMS hereby modifies that assessment and concludes simply that the Final RIA does not support promulgation of the OLPP Rule in light of its significant flaws.” AMS further concluded that “[i]mplementing the OLPP Rule based on such a flawed economic analysis is not in the public interest” and decided not to take any further regulatory action with respect to the OLPP Rule (85 FR 57944).

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

Economic Analysis and Market Failure

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

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

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

35 36

USDA ERS. Farmland Value.

https://www.ers.usda.gov/topics/farm-economy/land-useland-value-tenure/farmland-value.

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.

Based on data provided through public comment, AMS determined that there is inconsistent application of outdoor access requirements for organic livestock, leading to information asymmetry.

This inconsistency and information asymmetry threatens both consumer confidence in the organic label and future industry growth. One of the primary purposes of OFPA is “to assure consumers that organically produced products meet a consistent standard (7 U.S.C. 6501).” Therefore, USDA must issue additional regulations to ensure that organic livestock products meet a consistent, nationwide standard across the industry. This rule will

minimize the inconsistency and information asymmetry in the organic livestock industry and meet one of OFPA's main purposes.

Third-party certification can result in different certifiers interpreting the standards differently. In the case of organic animals, including organic poultry, there has been significant divergence among certifiers in how the “access to the outdoors” requirement in 7 CFR 205.239(a)(1) is interpreted and enforced. As a matter of practice, certifiers determine how much outdoor access is needed to meet the rule's requirements, and this has led to divergent certification and production practices.

While differing practices within a given industry do not necessarily constitute a market failure, highly varied practices under a single marketing label can create a market failure through information asymmetry. Information asymmetry occurs because consumers may not know how their organic livestock products are being produced but producers do, resulting in some organic consumers paying a premium for organic products that they incorrectly believe contain specific attributes (

e.g.,

outdoor access). When consumers pay for a product that does not include certain attributes they expect, this may represent a market failure caused by an information asymmetry between consumers and organic operations. The existence of this information asymmetry has been a driver of the creation and operation of USDA's organic certification program, and organic labeling thus communicates product attributes in accordance with the program's “organic” definition, standards, and enforcement; as a result, suboptimal past program choices may have contributed to the baseline market distortions.

In the organic egg industry, AMS estimates that approximately 30% of organic egg production comes from hens with access to outdoor areas that include soil or pasture, while approximately 70% of organic egg production only has access to the outdoors through enclosed porches with no soil or pasture. Recent survey data shows that 65% of frequent organic purchasers and 54% of all organic purchasers think that all organic animals have access to “outdoor pastures and fresh air throughout the day.”

Using this data, AMS estimates that 31.5% of organic eggs are purchased by consumers who mistakenly think the chickens producing their eggs have outdoor access that includes soil or pasture. This survey also demonstrates consumers may face similar information asymmetries about space and welfare requirements in organic agriculture, with 59% of consumers believing organic animals have more space and 45% of consumers believing organic animals are prohibited from having their beaks and tails removed.

ASPCA and the Animal Welfare Institute. Survey. September 2022.

https://www.aspca.org/sites/default/files/awi_aspca_organic_consumer_survey_summary_2022_final.pdf.

In summary, rulemaking is the best solution to resolve the market/government failure and meet the OFPA purpose of “assur[ing] consumers that organically produced products meet a consistent standard”—in this case assuring consumers that organic livestock products are produced using consistent animal welfare and outdoor access standards. Given that third-party labels are not regulated by USDA, it would be difficult to attain informational consistency needed to address the information asymmetry. Additionally, stakeholders have expressed concerns about the additional producer costs and consumer confusion these labels may create.

39 40

This rulemaking aligns with existing third-party labels regarding outdoor access, easing the burden on producers (relative to a hypothetical rulemaking with similar goals but no such alignment). AMS also believes that rulemaking is a better option than increased consumer education about the livestock attributes of the organic label. Consumer education may help consumers know what to expect from the organic label, but it would not address inconsistent production practices among organic livestock producers, which undermines AMS's statutory mission to ensure that products produced and sold under the organic label are meeting a consistent national standard. AMS believes rulemaking is the best option.

Producer costs under the various requirements are estimated in Section F of the RIA.

Theoretical discussion about the relations between consumer confusion and label trust can be found in Section F of the RIA.

Summaries of comments received on the topic of market failure and AMS's responses to comments on the topic are below. Many of the comments received supported AMS's conclusion that there is a market failure caused by a lack of clear standards.

III. Overview of Public Comments

AMS published the OLPS proposed rule on August 9, 2022, opening a 60-day public comment period. On August 19, AMS held an online public listening session on the proposed rule to gather additional feedback; 132 listeners attended the listening session, and 19 gave oral comments. At the request of several organic stakeholders, AMS extended the public comment period another 30 days to allow more time for the public to develop detailed comments on the rule's requirements. By the close of the 90-day public comment period on November 10, 2022, AMS had received 40,336 written comments from a variety of stakeholders, including consumers, operations, certifying agents, retailers, trade associations, and advocacy groups. Some of these comments (which can be found at

Regulations.gov

) included signed petitions, which totaled 57,000 signatures to petitions (in addition to the written comments). The subjects of the comments (including petitions) are discussed below. The organic industry demonstrated considerable interest in this rule and provided AMS detailed feedback on this rule.

By a large majority (94%), public comments and petitions supported the rule, with many saying that consumers already expect outdoor access to be part of the organic label in keeping with animals' natural behaviors. Several organic operations, certifying agents, and organic trade groups asserted the rule is necessary to ensure all producers have a consistent interpretation of what qualifies as outdoor access under the organic regulations. Most of the comments opposing the rule did not think it went far enough in protecting animal welfare and asked AMS to include additional animal welfare protections in the rule. Other comments disputed the need for the rule, AMS's authority to promulgate the rule, and the effect of the rule on animal safety and organic markets. AMS responds to these comments below.

In addition to soliciting general comments, AMS sought specific feedback on USDA's statutory authority to issue this rule, the rule's clarity, the accuracy of its Regulatory Impact Analysis (RIA) and Regulatory Flexibility Analysis (RFA), its consistency with current organic livestock production practices, and on specific implementation timeline options. The implementation timeline received by far the most public comment, with the nearly all commenters on that topic requesting implementation timelines shorter than the 15-year option. Poultry space requirements received the second most attention, and commenters responded in detail to several other livestock production practices and to issues regarding food and animal safety. AMS took public comments into

consideration when revising the policy and setting the implementation timeline.

AMS also received many public comments on the specific policies and livestock production practices we proposed. The revisions to this final rule took those public comments into account. Discussion of comments specific to the rule's policy follow in Section IV, OVERVIEW OF FINAL RULE.

A. Responses to Comment on Statutory Authority

(Comment)

Many comments posited that AMS is appropriately exercising its authority under OFPA to establish regulations regarding livestock and poultry health care practices, living conditions, and welfare. Comments asserted that OFPA directs AMS to regulate the care of farmed animals, which broadly encompasses animal welfare. Specifically, comments stated that OFPA commands AMS to “establish an organic certification program for producers and handlers of agricultural products that have been produced using organic methods” and to consult with the NOSB in development of that program.

Comments stated that OFPA provides that the NOSB may recommend standards specifically for the “care of livestock to ensure that such livestock is organically produced” in addition to provisions related to animal health care.

As OFPA does not define “care,” comments argued that it should be interpreted by its ordinary use definition

to include animal welfare.

7 U.S.C. 6503(a), (c).

7 U.S.C. 6509(d)(2).

F.D.I.C.

Meyer,

510 U.S. 471, 476 (1994).

Comments asserted that the legislative purpose and history demonstrate that Congress unambiguously intended for animal welfare practices to be required at certified organic operations. These comments argued that to meet OFPA's broad purposes of establishing “national standards governing the marketing of [organically produced] agricultural products,” assuring consumers that “organically produced products meet a consistent standard,” and facilitating interstate commerce with fresh and processed [organically produced] food,”

AMS must regulate animal welfare to align with consumer expectations.

7 U.S.C. 6501.

Comments also cited AMS's historical interpretation that OFPA grants the authority to regulate animal welfare through NOSB recommendations, as AMS did in the 2010 Access to Pasture rule. The Pasture rule was promulgated “in response to the 2005 NOSB recommendation and extensive public input requesting clear outdoor access requirements for ruminant livestock,”

and received over 4,000 public comments.

Comments noted the Pasture rule, which regulates animal welfare, was promulgated through the same process as this rule, based on recommendations, public hearings, and public comments.

Similarly, commenters said the OLPS proposed rule is based on NOSB recommendations, so both rulemaking precedent and NOSB recommendations reinforce AMS's authority to regulate animal welfare in the OLPS final rule.

87 FR at 48567.

National Organic Program (NOP)—Access to Pasture (Livestock) Proposed Rule:

https://www.regulations.gov/document/AMS-TM-06-0198-0001.

75 FR 7154, 7154-56 (Feb. 17, 2010).

Finally, comments cited concepts of statutory construction to support the notion that both OFPA and current livestock regulations authorize OLPS. One comment argued that “the accepted canons of statutory construction” support the interpretation that OFPA “expressly give[s] USDA authority to set the Organic Livestock Rule standards.”

This comment details how these “three core canons of statutory construction”—ordinary meaning, whole text, and surplusage—each support AMS's legal authority to regulate animal welfare under OFPA. The

ordinary meaning canon

holds that absent specific definitions, words in a statute must be interpreted using “their ordinary, contemporary, common meaning.”

Comments stated that the terms “care,” “health,” and “health care,” which are referenced but not defined in OFPA, are broad in their ordinary meanings to include animal welfare. The

whole text canon

calls for interpretation of statutory language to be based on consideration of the entire text and its logical relations.

Comments stated that this canon supports USDA's authority to issue this final rule, as OFPA provisions work together to require USDA to expand livestock care standards beyond prohibitions of certain substances: USDA cited §§ 6509(d)(2) and (g) when it promulgated the rule, explaining that § 6509(d)(2) authorizes the NOSB to recommend standards in addition to the OFPA provisions for livestock health care to ensure that livestock is organically produced. Sec. 6509(g) directs the Secretary to develop detailed regulations through notice and comment rulemaking to implement livestock production standards. Comments found that when read as a whole, OFPA's structure supports the USDA's authority to issue this final rule. The

surplusage canon,

which commands that “every word and every provision is to be given effect,”

prevents interpretations that would render a provision pointless; instead, courts should interpret a provision in a way that “leaves both provisions with some independent operation.”

Comments found that this provision allows for the agency to adopt additional standards “for the care of livestock,” including standards that promote animal welfare.

https://www.regulations.gov/document/AMS-NOP-21-0073-39096.

Perrin

United States,

444 U.S. 37, 42 (1979); see generally A. Scalia & B. Garner, Reading Law 69-77 (1st ed. 2012).

Mont

United States,

139 S. Ct. 1826, 1833-34 (2019).

Scalia & Garner, supra at 174.

Scalia & Garner, supra at 176.

(Response)

“Care of livestock” necessarily includes livestock wellbeing and welfare. AMS agrees that ordinary definitions of “care” and “health care”—which are not explicitly defined in OFPA nor its regulations—encompass living conditions included in the rule, and that “care of livestock” includes animal welfare.

Additionally, as OFPA provides, NOSB has previously issued recommendations regarding organic livestock production, and AMS has revised the organic regulations in response to the recommendations (

e.g.,

“Access to Pasture” and “Origin of Livestock”). Several NOSB recommendations are relevant to this final rule. At its Fall 2009 meeting, NOSB issued a final recommendation on animal welfare,

which was updated by subsequent recommendations. These recommendations set the framework for this final rule.

7 U.S.C. 6509(d)(2).

2009 NOSB Sunset Recommendation:

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

(Comment)

Several comments disagreed with AMS's statutory authority to regulate organic livestock welfare. These comments posited that AMS lacks the legal authority to promulgate the rule, arguing that OFPA authority is limited to livestock and poultry feeding and medication practices. In this view, animal handling practices are not a defining characteristic of organic agriculture and are not germane to the NOP as authorized by Congress. Comments also referenced a previous rulemaking that was withdrawn in March 2018, specifically AMS's rationale for withdrawing the OLPP Final Rule. Reasons cited include AMS's own stated

lack of statutory authority to promulgate the OLPP Final Rule, errors in calculating estimated benefits, and a lack of evidence of market failure to justify prescriptive regulatory action.

82 FR 59990, Dec. 18, 2017.

Many of these comments stated that because OFPA is limited in scope to organic production, regulations enacted pursuant to its authority must be narrowly tailored to specific practices that differentiate organic from any other method of agricultural production—and that animal welfare is not unique to organic production. One comment referenced the NOSB definitions of organic agriculture that omit mention of animal welfare.

Additionally, the definition of

organic production

at 7 CFR 205.2 does not explicitly mention animal welfare.

Another comment referenced a 2006 USDA Sustainable Agriculture Research and Education bulletin

Transitioning to Organic Production

that describes organic farming as an ecologically focused, input-based system as well as a 2007 USDA Cooperative State Research, Education, and Extension Service publication

Organic Agriculture Overview

that emphasizes biological diversity and economic sustainability. This comment questioned the justification of the proposed rule under OFPA given the cited publications do not mention nor consider animal welfare as a defining characteristic of organic agriculture.

“Organic agriculture is an ecological production management system that promotes and enhances biodiversity, biological cycles and soil biological activity. It is based on minimal use of off-farm inputs and on management practices that restore, maintain and enhance ecological harmony.” & “ `Organic' is a labeling term that denotes products produced under the authority of the Organic Foods Production Act. The principal guidelines for organic production are to use materials and practices that enhance the ecological balance of natural systems and that integrate the parts of the farming system into an ecological whole.” (April 1995 NOSB meeting).

“A production system that is managed in accordance with the Act and regulations in this part to respond to site-specific conditions by integrating cultural, biological, and mechanical practices that foster cycling of resources, promote ecological balance, and conserve biodiversity.” (7 CFR 205.2 “Organic production”).

(Response)

AMS finds that as animal health and welfare are intertwined, OLPS provisions for both fall under the statutory authority of OFPA. Given OFPA's plain language, legislative purpose and history, and historical regulatory interpretations, OLPS is consistent with the purposes of OFPA, and it establishes standards similar to existing organic standards. As animal welfare is intrinsically part of animal management,

AMS is clearly within its statutory bounds to mandate specific animal welfare requirements as part of organic animal management.

https://www.avma.org/resources/animal-health-welfare/animal-welfare-what-it#:~:text=Good%20animal%20welfare%20requires%20disease,humane%20handling%2C%20and%20humane%20slaughter

Further, the 1990 Senate Report that accompanied OFPA demonstrates Congressional expectation that USDA would update organic standards as organic production systems evolve.

The report states that “with additional research and as more producers enter into organic livestock production, the [Senate Committee on Agriculture, Nutrition, and Forestry] expects that USDA, with the assistance of the [NOSB] will elaborate on livestock criteria.”

The report further states that “[t]he Board shall recommend livestock standards, in addition to those specified in this bill, to the Secretary.”

Furthermore, in its October 1990 Conference Report, conference members noted, “[t]he Conference substitute adopts the House provision with an amendment which requires the Secretary to hold hearings and develop regulations regarding livestock standards in addition to those specified in this title.” (p. 1177). This amendment is reflected in OFPA at sec. 6509(g). For further discussion of the statutory authority to issue this rule, see Section II.B, STATUTORY AUTHORITY TO ISSUE FINAL RULE.

Sen. Rep. No. 101-357 (July 1990)).

Sen. Rep. No. 101-357, at 292 (July 1990).

Sen. Rep. No. 101-357, at 303 (July 1990).

B. Responses to Comment on Market Failure

AMS received approximately 300 comments discussing the market failure addressed by the rule. Discussion of specific themes and AMS's responses are below. Additional discussion of market failure can be found in the rule's Regulatory Impact Analysis.

(Comment)

Many comments agreed there is market failure, citing confusion over multiple certifications, cost of maintaining certifications, and consumer expectation that the organic label requires meaningful outdoor access for poultry. Some comments argued that market failure has not occurred in the organic poultry industry, pointing to the industry's rapid growth in the last five years. Most of these comments asked for additional justification of the claim of market failure in the organic label. However, most comments agreed that uneven compliance with and enforcement of the outdoor access requirement in organic livestock regulations creates a market failure. Some comments highlighted the possible negative impacts of this market failure, including loss of consumer confidence in the organic label and economic harm to producers.

Some comments provided context on consumer confusion about organic animal welfare requirements by sharing recent survey results. Several comments cited a 2017 Consumer Reports survey that found 83 percent of organic consumers “think it's highly important that organic eggs come from hens that were able to go outdoors, and have enough space to move around freely.”

Others cited a 2022 ASPCA survey finding that 65% of “frequent purchasers” (respondents who purchased organic animal products once a week or more) believed that “all animals raised on organic farms have access to outdoor pastures and fresh air throughout the day,” with another 23% indicating they were not sure.

“Consumer Reports Survey Finds Consumers think it's Important to Have High Animal Welfare Standards for Food Labeled Organic,” Consumer Reports, April 20, 2017,

https://www.consumerreports.org/media-room/press-releases/2017/04/consumer_reports_survey_finds_consumers_thin_its_important_to_have_high_animal_welfare_standards_for_food_labeled_organic/.

Organic Consumer Survey, Animal Welfare Institute, 2022,

https://www.aspca.org/sites/default/files/awi_aspca_organic_consumer_survey_summary_2022_final.pdf.

(Response)

AMS agrees with comments that some combination of market failure and government failure (action or inaction) exists in poultry products under the organic label. Market failure can occur even when a market experiences rapid growth because consumers could be paying for attributes they are not receiving. As some organic broilers and layers are not currently raised with “access to outdoor pastures and fresh air throughout the day,” AMS concludes, based on the survey data submitted in public comments, that some organic consumers are not receiving attributes they believe they are paying for (for example AMS estimates that at least 31.5% of organic eggs are purchased by consumers who mistakenly think the chickens producing their eggs have outdoor access that includes soil or pasture).

This gap in the organic poultry market could impact the entire organic label, as lowered consumer confidence in one product can impact consumer confidence across the label and

threatening organic integrity.

AMS revised the discussion on market failure for this final rule in response to comments arguing that a market failure likely exists under the current organic regulations. AMS included references to surveys provided in comments where appropriate and discussed concerns from commenters about how to address market distortions in the organic context. Additional information regarding market failure can be found in the RIA.

Based on data from ASPCA and the Animal Welfare Institute survey, September 2022.

https://www.aspca.org/sites/default/files/awi_aspca_organic_consumer_survey_summary_2022_final.pdf.

See Section II Subsection D for more detail.

See Section F of the RIA for more detail.

(Comment)

Some comments expressed the view that third-party labels allowed for flexibility in the market, however, most who commented on this topic felt that third-party labels do not address the problem and cause additional consumer confusion. Several comments pointed out that it costs producers to maintain additional third-party animal welfare certifications and asserted that consumers were confused by the various competing labels. A few comments stated that third-party labeling may be sufficient to address the market failure. Comments pointed to the many animal welfare certifying and labeling programs available for both organic and conventional producers, offering flexibility to producers and a range of options for consumers; these represent the diversity of livestock and poultry production, differing priorities of certifying organizations, and evolving scientific understanding of animal welfare.

(Response)

AMS believes the existing combination of market failure and government failure cannot be solved solely through third-party labeling. Many organic poultry producers currently incur additional costs by using third-party labels to solve the issue of different production practices between operations. This rule's additional specificity would improve the consistency of production practices and could reduce the need for and cost of additional third-party labels. Further, AMS agrees with other commenters who claim that third-party labels cannot address the problem because they create more consumer confusion. AMS revised the discussion on market failure in this final rule to include discussion of the inability of third-party labels to efficiently solve the observed information asymmetry. (See Section A, “Need for the Rule,” in the Regulatory Impact Analysis.)

IV. Overview of Final Rule and Responses to Comments

AMS provides a detailed description of the final rule below, section by section, and responds to comments received on each section. The descriptions of the requirements are meant to explain AMS's intent and provide examples of how to comply with the requirements.

A. Terms Defined (§ 205.2)

This rule adds seventeen new terms to 7 CFR 205.2:

beak trimming, caponization, cattle wattling, de-beaking, de-snooding, dubbing, indoors or indoor space, induced molting, mulesing, non-ambulatory, outdoors or outdoor space, perch, pullet, religious (or ritual) slaughter, stocking density, toe clipping,

and

vegetation.

The definitions are discussed below.

Eight New Terms To Define Prohibited Physical Alterations

Current organic regulations permit “physical alterations” of animals “as needed to promote the animal's welfare and in a manner that minimizes pain and stress” (7 CFR 205.238(a)). This rule elaborates on this requirement and prohibits some specific types of physical alterations. Defining these physical alterations supports common understanding of the meaning of the terms, as some terms could otherwise be interpreted in various ways (

e.g.,

“caponization” may be referred to as “castrating” in some regions). AMS prohibits some alterations because they do not promote animal welfare or may be overly painful or stressful without a corresponding benefit to animal welfare. NOSB recommended prohibiting these specific physical alterations in 2009.

The following terms are defined in this rule:

beak trimming, caponization, cattle wattling, de-beaking, de-snooding, dubbing, mulesing,

and

toe clipping.

Indoors or Indoor Space

The rule defines “indoors or indoor space” as the space inside of an enclosed building or housing structure that is available to livestock. The definition includes four examples of structures that are commonly used in poultry production. These indoor housing types are defined, in part, because space requirements are based on the housing type. AMS also includes an indoor space requirement at § 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 must be provided with species-appropriate shelter, structures providing indoor space are not necessarily required. For example, beef cattle raised on pasture or range in mild climates may not need to be provided with indoor space.

The final rule uses the term “enclosed” to establish if a space should be considered indoors or outdoors. Under the definition, the space within the building or structure that can be enclosed is considered the indoor space. The rule defines “outdoors or outdoor space” separately (see discussion below).

Induced Molting

The rule defines “induced molting” as molting that is artificially initiated. The term is broadly defined to include the various methods a producer may use to induce, or force, molting in a flock, such as withdrawal of feed or manipulation of light. The term aligns with the definition that currently appears in FDA requirements related to the production, storage, and transportation of shell eggs at 21 CFR 118.3.

Non-Ambulatory

The rule adds the term “non-ambulatory” and references FSIS regulations at 9 CFR 309.2(b). FSIS describes non-ambulatory as “livestock that cannot rise from a recumbent position or that cannot walk, including, but not limited to, those with broken appendages, severed tendons or ligaments, nerve paralysis, fractured vertebral column, or metabolic conditions.” The rule now requires that any non-ambulatory livestock on organic farms must be medically treated—even if the treatment causes the livestock to lose organic status—or be humanely euthanized.

Outdoors or Outdoor Space

The rule defines “outdoors or outdoor space” to clarify the meaning of outdoor areas for mammalian and avian species. “Outdoors or outdoor space” is defined as any area outside of an enclosed building or enclosed housing structure. In this definition, “outdoors or outdoor space” includes all the non-enclosed space encompassing soil-based areas such as pastures, pens, or sacrifice lots; hardened surface areas such as feedlots, walkways, or loafing sheds; and areas providing outdoor shelter such as windbreaks and shade structures. For avian species, the definition specifies that pasture pens are considered outdoor space. These are floorless pens that are moved regularly and provide direct access to vegetation, soil, and direct sunlight. These pens (often

referred to as “chicken tractors”) may include roofing to provide shelter for the birds, so long as birds are still able to express natural behaviors (

e.g.,

scratching) and meet all applicable requirements at § 205.241. To assist with the mitigation of biosecurity and predation risks, fencing, netting, or other materials are permitted over all or part of the outdoor areas to prevent predators and other wild birds from entering. For example, bird netting above a chicken pasture, where the chickens still have access to soil underneath, would be permitted. This area would qualify as outdoor space because it is not enclosed and allows access to soil. In contrast, a structure that is enclosed and has a hard floor (

i.e.,

no soil) would not qualify as outdoor space.

The definition also clarifies that enclosed open sided structures do not qualify as outdoors or outdoor space. This includes freestall barns and “open” sided poultry housing (enclosed by gates and/or wire, respectively). While housed in these structures, animals cannot be “outdoors.” Similarly, screened poultry “porches” or “verandas” attached to poultry houses and enclosed by wire on the sides, are not considered outdoors.

In this definition, “outdoors or outdoor space” includes all the non-enclosed space encompassing soil-based areas such as pastures, pens, or sacrifice lots; hardened surface areas such as feedlots, walkways, or loafing sheds; and areas providing outdoor shelter such as windbreaks and shade structures. For avian species, the definition specifies that pasture pens are considered outdoor space. These are floorless pens that are moved regularly and provide direct access to vegetation, soil, and direct sunlight. These pens (often referred to as “chicken tractors”) may include roofing to provide shelter for the birds, so long as birds are still able to express natural behaviors (

e.g.,

Many producers also use portable or permanent shade structures throughout their pastures, and the definition clarifies that unenclosed structures used for shade are considered outdoor space. For example, the area within a stand-alone, roofed shade structure in a pasture could be included as outdoor space area. Non-enclosed areas under the eaves or the awning of a building can also be considered outdoors. While these areas may have solid roofs overhead, they offer the same quality of outdoor space as uncovered outdoor areas, including natural ventilation/open air and open access to uncovered areas with direct sunlight, soil, and vegetation.

Perch

The rule defines the term “perch” as a rod- or branch-type structure above the floor or ground that accommodates roosting and allows birds to utilize vertical space. Perches may be indoors or outdoors. The final rule includes specific requirements for perch space for layers (Gallus gallus) indoors.

Pullets

AMS modified the definition of pullets, which is used by the AMS Livestock, Poultry, and Seed Program, to include species other than chickens. This rule defines “pullets” as female chickens or other avian species being raised for egg production that have not yet started to lay eggs. Once avian females begin laying eggs, AMS refers to them as layers. The term “pullets” is not used to describe young broilers used for meat production; broilers of any age are referred to as broilers in this rule.

Religious (or Ritual) Slaughter

The rule adds the term “religious (or ritual) slaughter.” This definition is very similar to a description in the Humane Methods of Slaughter Act (7 U.S.C. 1902(b)), which allows for ritual slaughter in accordance with religious faith. This method of slaughter relies on the simultaneous and instantaneous severance of the carotid arteries with a sharp instrument. Organic livestock and handling operations may use religious (or ritual) slaughter to convert their mammalian or avian livestock to meat or poultry without loss of organic status.

Stocking Density

The rule defines “stocking density” as the liveweight or number of animals on a given area or unit of land. This term is used to describe the indoor and outdoor space requirements for organic livestock. For example, this rule establishes maximum stocking densities for chickens, and the producer must ensure that the area provided is large enough to not exceed the maximum stocking density when all birds in the flock are in the area (

i.e.,

assume all birds are either indoors or all birds are outdoors when calculating space available to each bird).

Vegetation

The rule adds the term “vegetation” and defines it as living plant matter that is anchored in the soil by roots and provides ground cover. This term applies to the requirement for vegetation in outdoor areas, which is central to protecting soil and water quality as well as providing for livestock to exhibit their natural behaviors. The roots of vegetation provide stability and structure to soil. Vegetation helps water soak into the soil rather than running off, which can cause erosion. Livestock also have natural behaviors such as grazing, rooting, nesting, etc., which require vegetation.

Changes From Proposed to Final Rule

• AMS added the defined term “induced molting.” This term was added to clarify the rule's prohibition on induced molting, as described at § 205.238, Livestock care and practice standards. This term aligns with FDA regulations and includes all methods used to artificially initiate molting.

• AMS revised the definition of “mobile housing” to more clearly state that this type of housing must allow birds continuous access to outdoors during the daytime.

• AMS revised the definition of “outdoors or outdoor space” to clarify that open-sided but enclosed structures, such as freestall barns, are not considered outdoor space. The revised definition also clarifies that unenclosed shade structures are considered outdoor space.

• AMS revised the definition of avian “pasture pens” to clarify that they must allow birds to express natural behaviors.

• AMS revised the definition of “perch”, so it more broadly applies to perches in indoor and outdoor spaces.

• AMS changed the term “ritual slaughter” to “religious (or ritual) slaughter.” AMS amended this term for clarification and to better align with current and preferred language.

• AMS restructured the definition of “slatted/mesh flooring” into a single paragraph to improve clarity.

• AMS removed the definition of “soil.” Soil is a commonly understood term and a definition is not necessary to understand or implement this rule.

Responses to Public Comment

AMS received many public comments from stakeholders across the organic

industry discussing this section of the proposed rule. The majority of comments generally supported AMS's proposed revisions. Many commenters requested further clarification of the proposed changes, particularly regarding the definitions of soil and vegetation, and what qualifies as indoor or outdoor space.

Soil

(Comment)

Many of the comments that discussed soil requested either modifying or removing the definition of “soil” included in the proposed rule. Some commenters stated that because it did not originate from an NOSB recommendation, it should not be included in the rule. Others argued that defining “soil” for the purposes of livestock production standards could lead to unintended effects on other organic production areas, such as crop production.

(Response)

AMS agrees that a regulatory definition of “soil” should take the entire organic standard into consideration and that defining the term only for use in the livestock area of operation may affect other areas of organic production. Because soil is generally a well-understood term, a regulatory definition is not necessary for the successful implementation of this rule. AMS has removed the definition of “soil” from the final rule.

Vegetative Cover

(Comment)

Some commenters requested a new definition for the term “maximal vegetative cover.” This term was used in the proposed rule to describe a requirement for outdoor areas, but the term was not defined. Comments requested a more exact description of the term to support consistent enforcement of the proposed requirement.

(Response)

AMS has elected to maintain the proposed language in the definition of “vegetation” and does not define “maximal vegetative cover” in this rule. The word “maximal” is removed in the final rule from § 205.239(a)(12) and § 205.241(c)(2). Removing “maximal” gives operations the necessary flexibility to maintain vegetation in outdoor areas that is appropriate to their region, climate, and other site-specific conditions. See the “Mammalian and non-avian livestock living conditions” and “Avian living conditions” sections of this preamble for further information about vegetation in outdoor spaces.

Mobile Housing

(Comment)

Several commenters stated that the definition of “mobile housing” should be revised to better align with the industry's current use of this type of avian indoor living space, and to ensure that these types of structures allow appropriate outdoor access to outdoor areas.

(Response)

AMS revised the definition of “mobile housing” to specify that mobile housing structures must allow birds to continuously access areas outside the structure during the daytime. AMS also removed the previous term “during the grazing season” to clarify that mobile housing is commonly used year-round. These changes better align with how the organic industry uses mobile housing and will allow operations to meet this rule's avian indoor living requirements with this type of structure.

Pasture Pens (Avian)

(Comment)

Commenters expressed concern with the definition of “pasture pen,” stating that some types of pasture pens (

e.g.,

those with wire or partial floor covering) should not be counted as outdoor space because these pens may prevent the natural behaviors of birds or limit movement of birds.

(Response)

AMS recognizes the concerns and has revised the definition of “pasture pens” to include the phrase “allow birds to express their natural behaviors.” To be considered outdoor space, pasture pens must provide direct access to soil and allow birds to express natural behaviors, such as scratching and dust bathing. Producers with pasture pens must also meet requirements at § 205.241(a).

Stocking Density

(Comment)

Some commenters requested changing the word “animal” in the proposed definition to “bird” because the rule only defines stocking density for poultry, not other types of livestock.

(Response)

AMS has chosen to continue using “animal” in the definition of “stocking density.” The word “animal” includes birds and is therefore suitable for discussing and describing stocking densities of birds.

Euthanasia and Death

(Comment)

Several comments requested clarification on what the term “euthanasia” means, and asked AMS to develop a definition for “euthanasia,” “death” or “dead” to clarify what methods can be used to verify death following a euthanasia procedure.

(Response)

AMS has elected not to define “euthanasia,” “death,” or “dead” in the rule. Section 205.238, Livestock care and production practices standard, addresses euthanasia, including how operations must ensure animals are dead following euthanasia. The final rule does not require operations to use a specific method to verify death. However, AMS does recommend that operations use methods of euthanasia and confirmation of death consistent with the American Veterinary Medical Association (AVMA) Guidelines for the Euthanasia of Animals. See § 205.238(e) of this rule for more information on euthanasia and livestock care practices.

Outdoor Space

(Comment)

One comment expressed concern that the proposed rule's definition of outdoor space may allow operations to consider freestall or hoop barns with the sides up as outdoor space. The commenter requested such structures be counted as indoor space only.

(Response)

AMS amended the definition

of outdoor space

to specifically clarify that “enclosed housing structures with open sides (

e.g.,

open-sided freestall barns) are not to be considered outdoors or outdoor space.” The definition was amended to remove language about roofed areas that are not enclosed being permitted as outdoor space. The language was replaced with a specification that open-sided enclosed structures are not considered outdoor space. Because such structures may not always allow animals free access to outdoor areas, the space is enclosed and therefore considered indoor space, not outdoor space.

B. Livestock Care and Production Practices Standard (§ 205.238)

Description of Final Policy

This final rule updates § 205.238 of the USDA organic regulations. This section discusses requirements for the care and management of organic livestock that apply to all species of livestock. The two following sections of this rule (§§ 205.239 and 205.241) cover living condition requirements specific to mammalian/non-avian and avian species, respectively. The following discussion describes the changes that this final rule makes to § 205.238.

Updates to § 205.238(a) require that producers select a species suitable for the conditions of their site, establish appropriate housing, and provide a feed ration sufficient to the nutritional requirements of the animal. During on-site inspections, certifying agents must verify the suitability of the breed to its housing and living conditions and the adequacy of the animals' diet.

AMS revises § 205.238(a)(5) to clarify the conditions under which operations may perform physical alterations on

livestock. Physical alterations may be performed for identification purposes or the safety of the animal. Alterations must be done at a young age for the species, and in a manner that minimizes the animals' pain and stress during and after the procedure. Alterations may only be performed by an individual who is capable of doing so in a manner than minimizes stress and pain. Operations may use an individual's training or experience to demonstrate that individual's capability to perform physical alterations.

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

Section 205.238(a)(5)(i) of this final rule restricts needle teeth clipping and tail docking. These two types of physical alterations may not be performed on a routine basis, but they are not prohibited in all cases. As § 205.238(a)(5)(i) specifies, needle teeth clipping and tail docking may only be performed in response to documented instances of harm, and only with documentation that alternative steps to prevent such harm failed. For example, an organic swine producer who clipped needle teeth or performed tail docking would need to document excessive needle teeth scarring on the underline of a sow or piglets, or document tail biting on piglets in the litter. In this case, the producer also must document that alternative methods to prevent scarring had failed. Such alternative methods may include, but are not limited to, cross-fostering prior to teat fidelity across litters to minimize weight variation, providing sufficient enrichment materials, and providing vegetation for rooting. Teeth clipping, if performed, is limited to the top third of each needle tooth.

Available at

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

AMS adds new paragraph (a)(5)(ii) to list the physical alterations that an organic operation must not perform. Based on 2011 NOSB recommendations, the following physical alterations to avian species are prohibited: de-beaking, de-snooding, caponization, dubbing, toe clipping of chickens, toe clipping of turkeys unless with infra-red at hatchery, and beak clipping after 10 days of age. In addition, the following physical alterations to mammalian species are prohibited: tail docking of cattle, wattling of cattle, face branding of cattle, tail docking of sheep shorter than the distal end of the caudal fold, and mulesing of sheep.

AMS adds new requirements at § 205.238(a)(7) to specify that surgical procedures on livestock to treat illness or injury must be done in a manner that minimizes pain, stress, and suffering. The NOSB recommended that all surgical procedures for livestock be done with the use of anesthetics, analgesics, and sedatives. USDA organic regulations require that all surgical procedures for treatment of disease be undertaken in a manner that employs best management practices in order to minimize pain, stress, and suffering. Operations may only use synthetic anesthetics, analgesics, and sedatives if listed on the National List of Allowed and Prohibited Substances (“National List”) at § 205.603(a) and (b), which lists the synthetic substances that are allowed in organic livestock production.

The final rule adds new § 205.238(a)(8) that requires organic producers to actively monitor lameness within the herd or flock and to undertake timely and appropriate treatment and mitigation strategies. Lameness can be an issue in various livestock species, including broilers, sheep, and dairy cattle. This requirement for producers to create a plan for monitoring and treating lameness in the OSP will enable them to identify and address potential problems among animals before they become widespread.

The final rule amends § 205.238(b) to state that synthetic medications allowed under § 205.603 of the National List may be administered to alleviate pain or suffering, as well as when preventive practices and veterinary biologics are inadequate to prevent sickness. Similarly, parasiticides allowed by the National List may be used on breeder stock, dairy animals, and fiber bearing animals, as allowed under § 205.603. When using these substances, operations must follow all applicable limitations of use as listed in § 205.603, including any withholding or withdrawal periods.

AMS amends § 205.238(c)(1) to clarify that milk from an animal treated with a substance that is allowed on the National List and has a withdrawal period may not be sold, labeled, or represented as organic during that withdrawal period. However, that milk may be fed to organic calves on the same operation during the withdrawal period. This is consistent with the 2010 NOSB recommendation that a calf nursing a cow treated topically with lidocaine or other approved synthetic with a withdrawal period should not lose organic status. For example, if an organic cow became injured and was treated with lidocaine to minimize pain, she could continue to nurse her organic calf during lidocaine's seven-day withholding period, and the calf would not lose its organic status.

The final rule revises § 205.238(c)(2) to clarify that producers may administer allowed synthetic medication (

i.e.,

those on the National List at § 205.603) to alleviate pain and suffering, in addition to use for the treatment of illness.

AMS revises § 205.238(c)(3) to clarify that organic livestock producers are prohibited from administering synthetic or non-synthetic hormones to promote growth, or for production or reproductive purposes. Hormones listed in § 205.603 could be used as medical treatments (

e.g.,

oxytocin). Stakeholders have noted that the USDA organic regulations fail to address use of hormones to stimulate production or for reproductive purposes. AMS is not aware of any hormones used by organic producers for these purposes, and no hormones are included on the National List for these uses. Therefore, the final rule's change maintains the status quo; that is, it affirms and supports the current prohibition on using hormones to promote growth, production, or reproduction. All hormones—unless used as medical treatments and included on the National List—are prohibited in organic production.

The final rule adds new § 205.238(c)(8) to prohibit organic livestock producers from withholding treatment designed to minimize pain and suffering for injured, diseased, or sick animals. Injured, diseased, or sick animals may be treated with any allowed natural substance or synthetic medication that appears on the National List without losing their organic status. However, if no medication allowed for organic production suffices to ease the animal's suffering, organic livestock producers are required to administer treatment even if the animals subsequently lose their organic status. Euthanasia is an acceptable practice for minimizing pain and suffering only when the animal is suffering from disease or injury that cannot be healed by other treatments, including treatments that would cause an animal to lose its organic status.

AMS adds new § 205.238(c)(9), which requires livestock producers to identify and record treatment of sick and injured animals in animal health records. Early identification can lead to more effective prevention or treatment, which can enhance the overall health of the livestock on that operation. Certifiers should review treatment during on-site inspections to verify that operations are individually identifying treated animals

and that treatments comply with the organic regulations.

AMS adds new § 205.238(c)(10) prohibiting induced molting in poultry production. This rule also defines induced molting at § 205.2 as any type of molting that is artificially induced. Section 205.238(a)(2) of this rule requires a nutritionally sufficient feed ration for livestock. Induced molting, a practice by which feed restriction, severe light manipulation, or other management practices are used to rejuvenate egg production, runs counter to the welfare intent of this final rule. An explicit prohibition on induced molting is consistent with the organic regulation's general animal welfare requirements, and the fall 2009 NOSB recommendation.

Available at

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

AMS adds new § 205.238(d) requiring organic livestock operations to have a plan to minimize internal parasite problems in livestock. The plan must include preventive measures such as pasture management, fecal monitoring, and emergency measures in the event of a parasite outbreak. Certifying agents must approve a livestock operation's parasite control plan as part of the operation's OSP.

In certain cases, livestock may suffer from an illness or injury where recovery is unlikely. AMS adds new § 205.238(e) to address euthanasia based on the 2011 NOSB recommendations. Section 205.238(e)(1) requires livestock producers to maintain written plans for euthanizing sick or injured livestock suffering from irreversible disease or injury. Section 205.238(e)(2) prohibits the following methods of euthanasia: suffocation, manual blows to the head by blunt instrument or manual blunt force trauma, and use of equipment that crushes the neck (

e.g.,

killing pliers or Burdizzo clamps). In the event of an emergency situation where a local, State, or Federal government agency requires the use of a non-organic method of euthanasia, organic livestock operations would not lose organic certification or face other penalties for that instance of euthanasia. The NOSB recommended listing the allowable methods of euthanasia; however, given that new humane euthanasia methods may emerge, AMS does not intend to discourage producers from using these techniques. AMS therefore directs organic livestock producers to use methods of euthanasia consistent with the most recent editions of the American Veterinary Medical Association (AVMA) Guidelines for the Euthanasia of Animals.

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

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

Changes From Proposed to Final Rule

• AMS removed the phrase “resulting in appropriate body condition” from the feed ration requirement in § 205.238(a)(2) because some comments found this phrase to be unnecessarily prescriptive or confusing. Removing this phrase reinforces that this requirement is meant to ensure operations provide adequate and nutritional feed to organic livestock.

• AMS amended the requirements in § 205.238(a)(5) regarding physical alterations. AMS removed the phrase “to benefit the welfare of the animal” as this is redundant with “for . . . the safety of the animal.” In response to public comment, the final rule clarifies who may perform alterations (“a person . . . capable of performing the physical alteration in a manner that minimizes stress and pain”) and when the alteration may be performed (“at a young age for the species”).

• In response to public comment, AMS amended the surgical procedure requirements in § 205.238(a)(7). AMS clarified that surgical procedures may be required to treat “illness

or injury

.” AMS also clarified that the reason for using surgical best practices is to “promote the animal's wellbeing.”

• AMS removed a requirement to record lameness and the percent of herd suffering from lameness at § 205.238(a)(8) and revised the section to focus on a more general requirement to monitor, treat, and prevent lameness as appropriate to the species. This provides additional flexibility because some species are more prone to lameness.

• To align with changes made by AMS's Origin of Livestock final rule (April 5, 2022; 87 FR 19740) to the preventive medicine and parasiticide livestock practice standards, AMS amended § 205.238(b).

• In response to public comment, AMS clarified in § 205.238(c)(1) that milk from animals treated with synthetic substances that “have associated withdrawal periods” cannot be sold, labeled, or represented as organic during the withdrawal period.

• AMS revised the language in § 205.238(c)(10) that prohibits induced molting. The proposed rule used the term “forced molting or withdrawal of feed to induce molting.” AMS finds that “induced molting” is a more common and comprehensive term that better captures AMS's intent for a total ban on this practice, and it also aligns with the FDA definition of induced molting (21 CFR 118.3).

• AMS removed the sentence in § 205.238(d)(1) stating that “Parasite control plans shall be approved by the certifying agent.” Because parasite control plans are part of an OSP, and certifying agents must approve organic systems plans, the sentence was unnecessary, and AMS removed the language to avoid confusion.

• In response to public comment, AMS revised § 205.238(e)(1) to state that euthanasia is for “sick or injured livestock

suffering from irreversible disease or injury.”

This change clarifies that euthanasia should be used only if treatment is not an option.

Responses to Public Comment

AMS received many public comments from stakeholders across the organic industry discussing this section of the proposed rule. The topics that received the most public comment were physical alterations, body condition, induced molting, monitoring of lameness, medicines with withholding periods, and euthanasia. AMS summarizes and responds to those comments below.

Physical Alterations

(Comment)

Several commenters requested that AMS clarify the requirements in § 205.238(a)(5) for when physical alteration is permitted and who may perform it. Commenters found “reasonably young age” (the language in the proposed rule) vague and requested a definition or species-specific listing of ages. Similarly, commenters said the requirement that alterations be performed “by a competent person” was vague. Some proposed alternative definitions of “competent person” while others asked that the regulation specify the person must be a veterinarian or that that the phrase be replaced with language such as “a person skilled in the procedure.

(Response)

AMS agrees that “reasonably young age” is too vague and has instead required that alterations

must be performed “at a young age for the species.” This clarifies that operations should choose an age that is appropriate to the species of livestock. Similarly, AMS has added a phrase to clarify who may perform physical alterations: “a person who is capable of performing the physical alteration in a manner that minimizes stress and pain.” This language avoids being overly prescriptive and leaves flexibility to operations and certifiers while emphasizing that an operator's ability to minimize the animals' stress and pain during the alteration is the key qualification. Operations should choose a person capable of performing physical alterations based on their training and experience. This means that the capability of the person performing the physical alteration should scale with the complexity of the alteration. For example, ear tagging of cattle is a simple procedure that requires minimal knowledge and training, while a physical alteration that necessitates a permitted sedative and pain reliever may require the expertise of a more experienced or specially trained individual such as a veterinarian. These revisions clarify the use of permitted physical alterations, but also provide appropriate flexibility for operations to choose safe and responsible methods that best match their species of livestock.

(Comment)

Several comments asked AMS to require that pain relief be administered—some said by a licensed veterinarian—both before and after physical alterations.

(Response)

While AMS agrees that pain relief is an important element of physical alteration procedures, we believe that the final rule adequately addresses this concern. The final rule at § 205.238(a)(5) requires that “physical alterations must be performed . . . in a manner that minimizes stress and pain.” Operations should provide pain relief before and after physical alterations if this is necessary to minimize the stress and pain of the livestock.

(Comment)

Some commenters objected to the proposed requirement to use anesthetics, analgesics, and sedatives for surgical procedures in cattle and sheep. Commenters interpreted the proposed requirement as requiring these drugs for

all

surgical procedures and stated the requirement was, “inappropriate given that FDA has not approved any post-surgical analgesic products for pain management.”

(Response)

Section 205.238(a)(7) of the final rule requires that surgical procedures be conducted using best practices to promote animal well-being and to minimize pain, stress, and suffering. In response to comments about the requirement to use medications for surgical procedures, AMS revised the final rule to clarify that medications should be used, “as

appropriate

”. This section does not require use of anesthetics, analgesics, and sedatives for

all

procedures, although some surgical procedures may require medication to minimize pain, stress, and suffering. As to the commenters' point about lack of FDA approval for analgesics, AMS is aware that the National List (§ 205.603) includes animal drugs that are not necessarily labeled (

i.e.,

FDA approved) for use on all species. AMS also understands that the Animal Medicinal Drug Use Clarification Act (AMDUCA) allows veterinarians to prescribe “extra-label” use of drugs under certain conditions (see

https://www.fda.gov/animal-veterinary/guidance-regulations/animal-medicinal-drug-use-clarification-act-1994-amduca

), which may include use of a drug on a species that is not included on the approved drug label. AMS anticipates that operations will work with veterinarians to determine the appropriate, legal, and safe drugs for surgical procedures to minimize pain, stress, and suffering. The use of any individual substance in § 205.603 in a formulated product that is intended or used as a medical treatment is under the authority of FDA and must comply with all FDA regulations.

(Comment)

Several comments requested that AMS add detusking to the list of prohibited pig management practices. Commenters cited that prohibiting tusk removal would align with third party boar welfare standards, namely the Certified Animal Welfare Approved by AGW (AWA), Global Animal Partnership (GAP), Regenerative Organic Certified (ROC), and Certified Humane Standards for pigs. They argued that physical alterations should be limited to those only necessary for an animal's well-being.

(Response)

Consistent with NOSB recommendations, the final rule prohibits needle teeth clipping and tail docking as routine procedures and allows them only “with documentation that alternative methods to prevent harm failed.” AMS elected not to include detusking among the prohibited practices listed at § 205.238(a)(5)(ii). The NOSB recommendations did not address detusking or recommend that the practice be prohibited, and most pigs are slaughtered prior to an age when tusks would be present. Although not expressly prohibited by the final rule, an operation could only detusk if it could demonstrate it meets the requirements at § 205.238(a)(5).

Body Condition

(Comment)

Several commenters pointed out that the proposed rule's requirement in § 205.238(a)(2) that feed and nutrition result in “appropriate body condition” was unclear. Many found the term “appropriate” too subjective. Others warned that the phrase “body condition” could be confused with “body condition scoring” as used in the livestock industry and be interpreted to mean that an animal's body condition score would establish whether a producer complied with the requirement.

(Response)

AMS appreciates and agrees with these comments and has removed the phrase “resulting in appropriate body condition” from the final rule. By removing the phrase, the requirement correctly focuses on an operation's ability to meet nutritional needs by providing an appropriate food ration. Certifying agents and inspectors should verify that operations are meeting this requirement by reviewing an operation's feeding and nutrition practices. In some cases, a body condition score may be an appropriate measure of compliance.

Milk From Animals Treated With Substances That Have a Withdrawal Period

(Comment)

Many commenters noted that the proposed regulatory text at § 205.238(c)(1) lacked helpful language from the preamble, which specified that milk from an animal treated with an allowed substance “which has a withholding time” could not be sold, labeled, or represented as organic “during that withholding time.” Commenters suggested that the language from the preamble should be included in the regulatory text.

(Response)

AMS appreciates and agrees with this editorial suggestion. In the final rule, § 205.238(c)(1) specifies that milk from animals treated with substances “that are allowed under § 205.603 but have associated withdrawal periods” may not be sold, labeled, or represented as organic “during the withdrawal period.” Additionally, the regulatory text now says “withdrawal period” rather than “withholding time” for consistency with the language in the National List.

Preventive Medicines and Parasiticides

(Comment)

Several comments noted that the OLPS proposed language at § 205.238(b) had not been updated to reflect changes to this section of the regulations by a recent AMS final rule

on the “Origin of Livestock” (April 5, 2022; 87 FR 19740).

(Response)

AMS acknowledges the error and has revised the language at §§ 205.238(b)(2) and (b)(3) to reflect the regulatory text finalized by the Origin of Livestock final rule. The regulatory text now simplifies the reference to dairy and includes a reference to fiber bearing animals.

Induced (Forced) Molting

(Comment)

Several comments requested a definition of the term “forced or induced molting,” as the term is used but not defined in the rule. Many commenters found it unclear whether all induced molting was prohibited, or only certain practices to induce molting. Some comments noted that the phrase “or withdrawal of feed to induce molting” may suggest that some methods of induced molting may be allowed. Commenters overwhelmingly requested that AMS prohibit any form of induced molting.

(Response)

The final rule adopts the term “induced molting” as it better aligns with existing industry standards. AMS also added “induced molting” as a defined term in § 205.2 to mean “molting that is artificially initiated.” This term aligns with the FDA's definition of the term (21 CFR 118.3). The definition of induced molting and the language at § 205.238(c)(10) that “An organic livestock operation must not . . . practice induced molting,” clarifies that no form of artificially initiated molting is permitted in organic production.

Euthanasia

(Comment)

Several commenters requested definitions for the terms “death” and “euthanasia,” which are used several times in the rule but not defined. Some wanted clarity on how death should be properly assessed following euthanasia.

(Response)

AMS has chosen not to define “death” or “euthanasia” in the rule. AMS appreciates the feedback on this topic; however, commenters asked AMS to require very specific methods of confirming death. AMS believes that requiring such specific ways to confirm death would limit the options available to operations and make the requirement difficult to meet. AMS has chosen to keep the proposed rule's language, which requires that euthanized livestock “must be carefully examined to ensure that they are dead.” This will give operations the flexibility needed to confirm death in a way that best matches their livestock, production system and practices, and site-specific conditions. AMS recommends that operations use methods of euthanasia and confirmation of death consistent with the American Veterinary Medical Association (AVMA) Guidelines for the Euthanasia of Animals.

(Comment)

Several commenters requested that the language in § 205.238(e) clearly state that euthanasia should only be used in cases where there is incurable illness or disease and cannot be used in lieu of treatment that would cause an animal to lose its organic status. Some commenters also believed that the proposed rule could be interpreted to suggest that euthanasia is the only or preferred option for sick or injured animals.

(Response)

The final rule adds a phrase to clarify that organic operations must have written plans for “prompt, humane euthanasia for sick or injured livestock

suffering from irreversible disease or injury

.” Sick or injured livestock must be treated if recovery is possible, even if treatment would cause the animal to lose its organic status. Section 205.238(c)(7) clearly states that operations must not withhold medical treatment to protect organic status. AMS intends for euthanasia to be used in the humane management of irreversibly diseased or injured animals, not as a way to conveniently dispose of sick or injured animals.

Lameness

(

Comment

) One commenter noted that the proposed rule only required producers to monitor for lameness but that the rule did not require producers to treat animals for lameness or to modify conditions on the operation that might contribute to lameness. The comment requested that AMS include these additional requirements in the final rule to better align OLPS with third-party welfare standards.

(

Response

) AMS revised § 205.238(a)(8) to require that, in addition to monitoring lameness, operations provide “timely and appropriate treatment of lameness” and “mitigation of the causes of lameness.” Like all requirements in § 205.238 and subpart C of the organic regulations, an operation must describe in their OSP how they meet this requirement. However, AMS is not prescribing specific types of recordkeeping or documentation regarding lameness. The requirement in the final rule is sufficient to address monitoring, prevention, and treatment of lameness, while also being flexible enough that producers can choose options that best fit their operation, species of livestock, and site-specific conditions.

(

Comment

) Several comments suggested revising or removing § 205.238(a)(8). One commenter stated that interpretations of lameness can vary greatly, so additional clarification would be needed. Another commenter stated that this requirement is redundant, as recording sick livestock is already required in § 205.238(c)(9), and recordkeeping is required in § 205.103.

(

Response

) AMS agrees that other recordkeeping requirements in the rule and the existing organic regulations are sufficient to address lameness. AMS has removed the proposed rule's requirement to keep “records of the percent of the herd or flock suffering from lameness and the causes.” The final rule replaces the recordkeeping language with requirements for “timely and appropriate treatment of lameness for the species; and mitigation of the causes of lameness.”

Vaccines

(

Comment

) Two certified operations and a veterinarian suggested that poultry vaccines should be allowed regardless of how they are produced.

(

Response

) Like the existing regulations and the proposed rule, the final rule in § 205.238(a)(6) continues to allow “vaccines and other veterinary biologics” as part of a producer's preventive health care practices. The status of specific vaccine manufacturing processes under § 205.603(a) (National List) or § 205.105(e) (Excluded Methods) is outside the scope of practice standards addressed in this rule.

C. Mammalian and Non-Avian Livestock Living Conditions (§ 205.239)

Description of Final Policy

The final rule separates the organic regulation's livestock living condition requirements into two distinct sections: one for mammalian and non-avian livestock species and one for avian species. Using two distinct sections acknowledges that these types of animals have different physiologies and therefore require certain unique husbandry practices. Section 205.239 includes requirements for mammalian and non-avian species. Avian living conditions are addressed in new § 205.241. Applicable sections of § 205.239 may be used for the certification of non-avian and non-mammalian livestock defined as “livestock” at § 205.2. For example, this may include certification of honeybees for the production of organic honey and honey products. However, livestock as defined in § 205.2 does not include aquatic animals for the production of food, fiber, feed, or other agricultural-based consumer products.

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

AMS is making no changes to the current § 205.239(a)(3), which requires the use of appropriate, clean, dry bedding. If roughages are used as bedding, they must be organically produced and handled by certified operations, with the exception of transitioning dairy producers, who may provide crops and forage from third-year transitioning land—that is, land included in the OSP of the dairy farm in its third year of organic management, during the 12-month period immediately prior to the sale of organic milk and milk products (7 CFR 205.236(a)(2)(iii)).

Section 205.239(a)(4) describes the requirements for livestock shelter. Shelter must have sufficient space for the animals to lie down, stand up, and fully stretch their limbs and allow livestock to express their normal patterns of behavior over a 24-hour period. Shelter for livestock must provide temperatures, ventilation, and air circulation that is appropriate to the species using the shelter. This means that shelter must be designed to protect animals from extreme weather conditions they may face, including extreme cold, heat, precipitation, wind, or other conditions that could endanger the physical safety or well-being of the animal. Shelter must also be designed and managed in a way that reduces the potential for livestock to be injured when using the shelter.

AMS recognizes that there are times when an animal's freedom of movement may need to be temporarily limited for handling or management purposes. For example, an operation may need to temporarily limit freedom of movement for short periods of time for milking, feeding, or to ensure the well-being of animals. Stalls for organic dairy cattle are often designed to limit the animals from turning to the sides. This stall design directs manure and urine into a collection system to prevent mastitis and maintain low somatic cell counts in the milk. Mammalian livestock may be housed for part of the day in stalls as described in the OSP as long as they have complete freedom of movement during significant parts of the day for grazing, loafing, and exhibiting natural social behavior. This allowance does not permit the use of gestation crates, farrowing crates, or other confinement systems in which swine are housed individually in stalls that do not allow for sufficient space and freedom to lie down, turn around, stand up, fully stretch their limbs, and express normal patterns of behavior. If livestock are temporarily confined indoors as permitted in § 205.239(b), livestock must be able to move around (stand up and lie down) and stretch their limbs. Operations must fully describe in their OSP the use of any stalls, including their methods of stall management and how livestock will be able to express their normal patterns of behavior.

AMS adds § 205.239(a)(4)(iv) to set requirements for indoor bedding and resting areas. Bedding and resting areas must be sufficiently large and comfortable to keep livestock clean, dry, and free of lesions. This requirement does not apply to animals raised on pasture or range. AMS recognizes that while livestock must be provided with shelter (defined in § 205.2), sometimes livestock on pasture or range do not have access to traditional barns or bedded areas and therefore do not have access to indoor space. These types of operations may provide animals with natural forms of shelter (

e.g.,

trees) to serve the same purpose as indoor shelter. Operations must describe in their OSP how they provide shelter to their livestock in a manner suitable for the species, stage of production, and environment.

AMS adds new requirements in § 205.239(a)(7) concerning the individual housing of dairy young stock. Section 205.239(a)(7) allows for the individual housing of animals until the weaning process is complete, as long as the animals have sufficient room to turn around, lie down, stretch out while lying down, get up, rest, and groom themselves. In addition, individual pens for young stock must be designed so that animals can see, smell, and hear other animals.

Once weaning is complete, an operation may no longer confine dairy young stock for this reason. An operation may confine dairy young stock for other reasons permitted under § 205.239(c), if applicable. For example, § 205.239(c)(2) permits temporary confinement of young dairy cattle from pasture for up to six months (prior to development of the rumen). Certifying agents must review any confinement practices following completion of the weaning process to determine if the temporary confinement is justified and allowed, especially when animals continue to be housed individually.

AMS adds three new provisions in § 205.239(a)(8) to require the group housing of swine, with three listed exceptions: (1) § 205.239(a)(8)(i) allows for sows to be individually housed at farrowing and during the suckling period, except gestation and farrowing creates are prohibited; (2) § 205.239(a)(8)(ii) allows for boars to be individually housed to reduce the likelihood of fights and injuries; and (3) § 205.239(a)(8)(iii) allows for swine to be individually housed after multiple documented instances of aggression or to allow an individual pig to recover from a documented illness. Certified operations should not use individual housing as the only remedy to aggressive behavior. Operations should also attempt to mitigate aggressive behavior by modifying practices or living conditions that could reduce this behavior. If these fail to correct the behavior, animals may be individually housed.

AMS adds two new provisions in § 205.239(a)(9) and (10) concerning swine housing. Section 205.239(a)(9) prohibits the use of flat decks or piglet cages. This provision prohibits the stacking of piglets in flat decks in multiple layers. AMS is not aware of any organic producers currently using these methods for organic production but prohibits the practices to affirm that these systems do not and cannot meet the living conditions requirements of the organic regulations. In addition, § 205.239(a)(10) requires that rooting materials be provided at all times, except during the farrowing and suckling period. Rooting is a natural behavior that organic swine producers must accommodate. Rooting can be done in soil, deep packed straw, or other materials.

AMS adds a new provision in § 205.239(a)(11) to further clarify the use of barns or other structures with stalls. If indoor shelter is provided by a structure with stalls, this structure must have enough stalls to allow for the natural behaviors of the animals. A cage does not qualify as a stall. AMS is aware that some operations use systems that robotically feed animals that take turns entering an individual feeding stall. AMS does not intend to prohibit such systems since they could enhance the well-being of organic livestock. Therefore, § 205.239(a)(11) provides an exception for this type of system: more animals than feeding stalls may be allowed for group-housed swine as long as all animals are fed routinely every day.

AMS also adds specific allowances for a variety of cattle barns, including tie-stall barns and stanchion barns, as long as an operation uses them in a way that is compatible with organic production. That means that animals must be given space to lie down, turn around, stand up, fully stretch their limbs, and express normal patterns of behavior over a 24-hour period (see the requirement at § 205.239(a)(4)(i)). Because tie-stall and stanchion barns do not allow an animal to turn around, an operation cannot leave an animal tied up in this type of indoor space for more than 24 hours. Operations must describe their practices in their OSP and demonstrate to an accredited certifying agent that their use of these structures complies with other applicable organic regulations.

AMS adds a new requirement for outdoor access in § 205.239(a)(12). Organic livestock must have unencumbered access to the outdoors year-round, unless temporary confinement is justified under a specific reason described at § 205.239(b)-(d) (

e.g.,

nighttime confinement for protection from predators). When the outdoor space includes soil, then vegetative cover must be maintained as appropriate for the season, climate, geography, species of livestock, and stage of production. Ruminants must have access to pasture during the grazing season. Swine are not required to have access to soil or vegetation; however, if a swine producer chooses to allow swine to have access to the soil as a rooting material, then the producer must maintain vegetative cover that is appropriate to the season, the local environmental conditions, and the natural rooting behavior of swine.

AMS revises § 205.239(b)(7) to clarify the exemption for temporary confinement for the purpose of breeding livestock. Livestock may only be confined for the time required for natural breeding or to perform artificial insemination. A group of livestock may be confined before the procedures and while individual animals are bred; afterward, the group must be returned to living spaces that allow outdoor access. Livestock must not be confined to observe estrus, or after breeding to confirm pregnancy.

AMS revises § 205.239(b)(8) to clarify the temporary confinement exception for youth livestock projects. Because many youth livestock projects include the sale of market animals, organic animals that were under continuous organic management may be sold as organic animals at youth fairs, even if the sales facility is not certified organic. Thus, the revision includes an exemption to the § 205.239(b)(6) requirement that a livestock sales facility be certified as an organic operation. As an example, if a youth exhibition and sale is held at a livestock sales facility that is not certified organic, the livestock may be temporarily confined indoors during the event. In this case, the youth may still sell the organic animal as an organic animal, provided all other requirements for the organic management of livestock are met. Otherwise, non-certified sales facilities, such as auction barns or fairgrounds, may not sell or represent livestock as organic. AMS includes this exception to encourage the next generation of organic farmers.

AMS revises § 205.239(d) to mirror a revision at § 205.239(a)(1). Specifically, the revisions remove a requirement that ruminant slaughter stock be able to feed simultaneously during the finishing period. The update does not require space for simultaneous feeding but simply requires that all animals be able to feed without crowding and without competition for feed.

Changes From Proposed to Final Rule

AMS has made several changes to the regulatory text of the OLPS proposed rule when writing this final rule. Changes to the final rule are discussed below and are followed by specific topics and themes from public comment. For discussion of comments about the economic impacts of the rule, please see the Regulatory Impact Analysis (RIA) included in the docket.

• AMS revised the title of § 205.239 from “Mammalian livestock living conditions” to “Mammalian and non-avian livestock living conditions” to ensure that operations producing organic invertebrates (

e.g.,

honeybees) can continue to do so under the applicable standards of this rule.

• In § 205.239(a)(4)(iv), AMS added language to clarify that the indoor housing standards for “clean and dry” bedding and resting areas should be applied as appropriate to the species of livestock. This acknowledges that different species have different bedding and resting area requirements and gives operations greater flexibility when applying the requirement to different species.

• In response to public comment, AMS removed from § 205.239(a)(7) the six-month time limit for temporary confinement of dairy young stock during the weaning process, authorizing temporary confinement only until the weaning process is complete. This change was made because the weaning process is typically much shorter than six months.

• AMS added language in § 205.239(a)(8)(i) to explicitly prohibit the use of gestation and farrowing crates for sows at farrowing and during the suckling period. This change was made in response to public comments requesting the explicit prohibition of these methods of individual confinement.

• AMS revised language in § 205.239(a)(8)(iii) to limit individual confinement of swine to only animals who have shown

multiple

instances of aggression or for recovery from an illness.

• AMS removed the word “maximal” relating to vegetative cover in § 205.239(a)(12). AMS removed this term because comments stated that the proposed rule's use of “maximal vegetative cover” was unclear and would be difficult to implement consistently. AMS refers to “vegetation” because that is a defined term.

• In response to requests in public comment, AMS added language to § 205.239(b)(7) to clarify that animals cannot be confine

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