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Proposed Rule2022-16980

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

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Published

August 9, 2022

Issuing agencies

Agriculture DepartmentAgricultural Marketing Service

Abstract

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

Full Text

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[Federal Register Volume 87, Number 152 (Tuesday, August 9, 2022)]
[Proposed Rules]
[Pages 48562-48595]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-16980]

[[Page 48561]]

Vol. 87

Tuesday,

No. 152

August 9, 2022

Part II

Department of Agriculture

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Agricultural Marketing Service

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7 CFR Part 205

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

Federal Register / Vol. 87 , No. 152 / Tuesday, August 9, 2022 /
Proposed Rules

[[Page 48562]]

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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: Proposed rule.

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

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

ADDRESSES: Interested persons may comment on this proposed rule using
one of the following methods:
Oral Comments: Each commenter wishing to address AMS must pre-
register by 11:59 p.m. ET on August 15, 2022. Each commenter will be
allotted a speaking slot during the virtual listening session.
Instructions for registering for the listening session can be found at
<a href="https://www.ams.usda.gov/event/listening-session-organic-livestock-and-poultry-standards">https://www.ams.usda.gov/event/listening-session-organic-livestock-and-poultry-standards</a>.
Federal eRulemaking Portal: <a href="https://www.regulations.gov">https://www.regulations.gov</a>. Follow the
instructions for submitting written comments. The deadline to submit
written comments is 11:59 p.m. ET, October 11, 2022.
Mail: AMS strongly prefers comments be submitted electronically.
However, written comments may be submitted (i.e., postmarked) via mail
to Erin Healy, MPH., Director Standards Division, National Organic
Program, USDA-AMS-NOP, Room 2646-So., Ag Stop 0268, 1400 Independence
Ave. SW, Washington, DC 20250-0268. Mailed comments must be postmarked
by October 11, 2022.
Transcript: The listening session will be recorded, and a
transcript will be posted on the AMS website and on <a href="https://www.regulations.gov">https://www.regulations.gov</a> (search for docket ``AMS-NOP-21-0073'') following
the session.
Meeting Accommodations: The listening session will be held
virtually. If you are a person requiring a reasonable accommodation,
please make requests by the registration deadline (which is 11:59 p.m.
ET on August 15, 2022) for sign language interpretation or other
reasonable accommodation to the person listed under FOR FURTHER
INFORMATION CONTACT. Determinations for a reasonable accommodation will
be made on a case-by-case basis.
Instructions: All submissions received must include the agency name
and docket number or Regulatory Information Number (RIN) for this
rulemaking. All comments received will be posted without change to
<a href="https://www.regulations.gov">https://www.regulations.gov</a>, including any personal information
provided. For detailed instructions on sending comments and additional
information on the rulemaking process, see the ``What Should I Consider
as I Prepare My Comments for AMS?'' heading of the SUPPLEMENTARY
INFORMATION section of this document.
Docket: For access to the docket, including background documents
and comments received, go to <a href="https://www.regulations.gov">https://www.regulations.gov</a> (search for
docket ``AMS-NOP-21-0073''). Comments submitted in response to this
proposed rule will also be available for viewing in person at USDA-AMS,
National Organic Program, Room 2646-South Building, 1400 Independence
Ave. SW, Washington, DC, from 9 a.m. to 12 noon and from 1 p.m. to 4
p.m., Monday through Friday (except official Federal holidays). Persons
wanting to visit the USDA South Building to view comments received in
response to this proposed rule are requested to make an appointment in
advance by calling (202) 720-3252.

FOR FURTHER INFORMATION CONTACT: Erin Healy, MPH, Director of Standards
Division, Telephone: (202) 720-3252; Email: <a href="/cdn-cgi/l/email-protection#c7a2b5aea9e9afa2a6abbe87b2b4a3a6e9a0a8b1">[email&#160;protected]</a>.

Executive Summary

A. Purpose of the Proposed Rule

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

B. Summary of Provisions

This proposed rule would update the USDA organic regulations for
livestock production. The proposed changes would address a range of
topics related to the care of organic livestock, including:
Livestock health care practices--the proposed rule would specify
which physical alteration procedures are prohibited or restricted for
use on organic livestock. The proposed livestock health care practice
standards include requirements for euthanasia to reduce suffering of
any sick or disabled livestock;
Living conditions--this proposed rule would set separate standards
for mammalian and avian livestock living conditions to better reflect
the needs and behaviors of the different species, as well as related
consumer expectations. The proposed mammalian livestock standards would
cover both ruminants and swine. The proposed avian livestock living
standards would set maximum indoor and outdoor stocking densities to
ensure the birds have sufficient space to engage in natural behaviors;
Transport of animals--this proposed rule would add new requirements
on the transport of organic livestock to sale or slaughter;
Slaughter--this proposed rule would add a new section to clarify
how organic slaughter facility practices and USDA Food Safety and
Inspection Service

[[Page 48563]]

(FSIS) regulations work together to support animal welfare.

C. Costs and Benefits

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

Table 1--Executive Summary: Costs and Benefits for Eggs and Broilers
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Proposed rule
(5-year Proposed rule (5- Proposed rule
compliance--No year compliance-- (15-year Proposed rule
Growth) Growth) compliance)
Eggs Eggs Eggs Broilers
(per dozen) (per dozen) (per dozen) (per pound)
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Benefits (Consumer Willingness to Pay)..... 0.21 0.21 0.21 0.34
Benefits with 80% Breaker Egg Adjustment... 0.16 0.16 0.16 ..............
Cost (Change in Average Total Cost of 0.05 0.05 0.05 0.02
Production)...............................
Net Benefit per Unit....................... 0.11 0.11 0.11 0.32
20-Year Annualized Net Benefits (3%) 10,429 18,757 10,278 101,011
($1,000)..................................
20-Year Annualized Net Benefits (7%) 9,236 16,132 8,027 91,418
($1,000)..................................
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Average Discounted Domestic Information .............. ................... $194,777
Collection Cost.......................
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AMS estimates that the discounted costs for layer operations would
range between $3.6 million and $8.4 million annually. To monetize the
benefits of this rule, AMS used research that measured consumers'
willingness-to-pay for outdoor access at a premium of between $0.16 and
$0.25 per dozen eggs, controlling for other factors, including the
organic label. Based on this, AMS estimates the annually discounted
benefits falling between $11.6 million to $27.1 million.\1\
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\1\ These ranges capture the discounted high and low estimates
across all three layer scenarios, which vary in use of growth and
implementation time. All three of the layer models account for
approximately 50% of initial production leaving due to difficulty
for some pit-litter and aviary houses to comply with the proposed
requirements, if finalized.

Table 2--Executive Summary of Annualized Discounted Net Benefits for Eggs
[Thousands of $]
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No rule Growth prevented and Growth and exit in year Growth and exit in year
--------------------------------------------------------------------------- exit in year 6 (5-year 6 (5-year co-proposal) 16 (15-year co-
co-proposal) -------------------------- proposal)
Discount rate 3% 7% -------------------------- -------------------------
3% 7% 3% 7% 3% 7%
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Annualized Benefits............................. $0.00 $0.00 $15,651 $13,860 $27,110 $23,315 $14,858 $11,605
Annualized Costs................................ 0.00 0.00 5,222 4,625 8,352 7,183 4,580 3,578
Annualized Net Benefits......................... 0.00 0.00 10,429 9,236 18,757 16,132 10,278 8,027
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AMS estimates that the total annual discounted costs for broiler
compliance would be between $5.7 million and $6.3 million. The benefits
for broilers are calculated using a willingness-to-pay at a premium of
$0.34/lb. With this willingness-to-pay, the annual discounted benefits
range between $97 million and $107 million.\2\
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\2\ The broiler model assumes that all broiler production is
able to comply with the rule because of the prevalence of single
story housing and existing land near production houses. Therefore,
exiting is not considered in the broiler model and a standard 3-year
compliance is used with growth continuing at the historic average.

Table 3--Executive Summary of Annualized Discounted Net Benefits for Broilers
[Thousands of $]
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Broiler
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Discount rate No rule With rule
---------------------------------------------------------------
3% 7% 3% 7%
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Annualized Discounted Values:
Benefits.................................... $0.00 $0.00 $107,295 $97,105
Costs....................................... 0.00 0.00 6,284 5,687
Net Benefits................................ 0.00 0.00 101,011 91,418
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[[Page 48564]]

SUPPLEMENTARY INFORMATION:

Table of Contents

I. General Information
A. Does this proposed action apply to me?
B. What should I consider as I prepare my comments for AMS?
II. Background
A. Current Organic Livestock Standards
B. NOSB Recommendations
C. AMS Policy, Regulatory History, and Withdrawal
D. Related Issues
III. Overview of Proposed Amendments
A. Definitions
B. Livestock Care and Production Practices Standard
C. Mammalian Livestock Living Conditions
D. Avian Living Conditions
E. Transport and Slaughter
F. Slaughter Requirements
IV. Related Documents
V. Executive Orders 12866 and 13563--Executive Summary
VI. Executive Order 12988
VII. Executive Order 13175
VIII. Paperwork Reduction Act
IX. Civil Rights Impact Analysis
List of Subjects in 7 CFR Part 205

I. General Information

A. Does this proposed action apply to me?

You may be affected by the proposed action if you are engaged in
the meat, egg, poultry, dairy, or animal fiber industries. Potentially
affected entities may include, but are not limited to:
<bullet> Individuals or business entities that are considering
organic certification for a new or existing livestock farm or slaughter
facility;
<bullet> Existing livestock farms and slaughter facilities that are
currently certified organic under the USDA organic regulations; and
<bullet> Certifying agents accredited by USDA to certify organic
livestock operations and organic livestock handling operations.
This listing is not intended to be exhaustive, but identifies key
entities likely to be affected by this action. Other types of entities
could also be affected. To determine whether you or your business may
be affected by this action, you should carefully examine the proposed
regulatory text. If you have questions regarding the applicability of
this action to a particular entity, consult the person listed under FOR
FURTHER INFORMATION CONTACT.

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

Specifically, AMS seeks comment on the following topics:
1. Do the proposed amendments provide enough clarity to farmers,
handlers, and certifying agents to be able to comply with the proposed
requirements?
2. Do the assumptions and estimates outlined in the Regulatory
Impact Analysis and Regulatory Flexibility Analysis accurately reflect
the current practices and production rates among organic poultry and
egg producers? Specifically, to what degree do the proposed
requirements align with third-party animal welfare certification
programs and current industry practices? Are assumptions about welfare
surplus valid? Is the period of analysis and the estimates about the
useful life of a poultry house appropriate? Are AMS's benefit estimates
for broilers appropriate? Are AMS's cost estimates for small producers
accurate? Are AMS's estimates for the paperwork burden accurate?
3. Do the proposed amendments to Sec. 205.239 related to mammalian
livestock reflect current practices among organic mammalian livestock
producers or impose new requirements on these operations?
4. What is an appropriate and feasible implementation timeframe for
the proposed changes? Specifically, AMS seeks comment on the following
implementation approach and timeframes:
(a) One year for all proposed changes, except for the indoor space
requirements for broiler operations and the outdoor space requirements
for layer operations;
(b) Three years for the indoor space requirements for broilers; and
(c) Outdoor space requirements for layers (three options):
Option 1: Layer operations certified at the time of the rule's
effective date (typically 60 days after publication) or within three
years of the effective date will have five years to comply with the
rule's outdoor space requirements concerning stocking density, exit
doors, soil, and vegetation. Those operations certified more than three
years after the rule's effective date will need to comply with all of
the rule's outdoor access requirements immediately; or
Option 2: Layer operations certified at the time of the rule's
effective date will have 15 years to comply with the rule's outdoor
space requirements concerning stocking density, exit doors, soil, and
vegetation. Fifteen years was selected in order to allow previously
built facilities to fully depreciate under the Internal Revenue Service
(IRS) depreciation schedule. New entrants certified within three years
of the rule being effective must comply with the outdoor space
requirements within five years of the effective date. Those operations
certified more than three years after the rule's effective date will
need to comply with all of the rule's outdoor access requirements
immediately.
Option 3: AMS seeks comments on alterative timeframes to those
presented above for the outdoor space requirements for layer
operations, including justification for alternatives and data on the
costs and benefits.
These options and their costs and benefits are discussed below in
Section V (``Executive Orders 12866 and 13563--Executive Summary'').
Detailed information can be found in the Regulatory Impact Analysis for
this proposed rule.

II. Background

This proposed rule addresses health care, transport, slaughter, and
living conditions for organic livestock. Furthermore, the provisions
for outdoor access for poultry have a long history of agency and NOSB
actions and are a focal issue in this proposed rule. Outdoor access
practices, particularly for organic layers, vary among certified
operations: some operations provide large, open-air outdoor areas,
while other operations provide minimal outdoor space or use screened,
covered enclosures commonly called ``porches'' to provide outdoor
space. An audit conducted by the USDA Office of the Inspector General
(OIG) identified inconsistencies in certification practices regarding
the use of porches as outdoor space.\3\ To address this finding, AMS
issued draft guidance \4\ but determined that rulemaking was preferable
to resolve the divergent outdoor access practices for organic poultry.
To assist with the rulemaking, the NOSB developed a series of
recommendations to clarify organic livestock health care, transport,
slaughter, and living conditions, including outdoor access for poultry.
The NOSB deliberation process revealed broad support within the organic
community and consumer expectations for specific guidelines for
meaningful outdoor access for organically-produced poultry.
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\3\ USDA, Office of the Inspector General. March 2010. Audit
Report 01601-03-Hy, Oversight of the National Organic Program.
Copies may be available at <a href="https://www.usda.gov/oig/reports/audit-reports">https://www.usda.gov/oig/reports/audit-reports</a> or by contacting the Office at <a href="https://www.usda.gov/oig/foia">https://www.usda.gov/oig/foia</a>. A copy of the report is also available in the docket for this
proposed rule and can be found be searching for the docket number
``AMS-NOP-21-0073'' at <a href="https://www.regulations.gov/">https://www.regulations.gov/</a>.
\4\ On October 13, 2010, AMS published a Notice of Availability
of Draft Guidance and Request for Comments in the Federal Register
(75 FR 62693).
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A. Current Organic Livestock Standards

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

[[Page 48565]]

standards governing the marketing of certain agricultural products as
organically produced products''; ``assure consumers that organically
produced products meet a consistent standard''; and ``facilitate
interstate commerce in fresh and processed food that is organically
produced.'' 7 U.S.C. 6501. To that end, Congress broadly authorized the
Secretary of Agriculture to promulgate and implement regulations
related to the national organic program. 7 U.S.C. 6506(a)(11).
AMS administers the National Organic Program (NOP), which oversees
the development and implementation of the national standards for the
production, handling, and marketing of organically produced
agricultural products. OFPA at 7 U.S.C. 6509, among other sections,
authorizes the USDA to develop and implement regulations regarding
standards for organic livestock products. 7 U.S.C. 6509(g).
Furthermore, OFPA authorizes the creation of the NOSB to advise USDA
about the implementation of standards and practices for organic
production. 7 U.S.C. 6518.
The NOSB is a 15-member Federal Advisory Board appointed by the
Secretary of Agriculture that meets in public twice annually. OFPA
specifies the composition of the NOSB and reserves four NOSB seats for
producers/growers and two seats for handlers/processors. The NOSB
solicits public comment on topics related to the USDA organic
regulations to inform its public deliberations and decision making at
public meetings. If AMS agrees with an NOSB recommendation, a
recommendation to amend the USDA organic regulations must be
implemented through the notice-and-comment rulemaking process. A
summary of the NOSB recommendations on livestock production practices
follows in the NOSB RECOMMENDATIONS section.
Consistent with the Secretary's authority to promulgate regulations
for organic livestock products, 7 U.S.C. 6509, USDA organic regulations
include broad and general requirements for ensuring the living
conditions associated with certified organic livestock. For example,
the USDA organic regulations currently require organic producers to
provide year-round access to the outdoors, shade, shelter, exercise
areas, fresh air, clean drinking water, and direct sunlight (7 CFR
205.239(a)(1)). For all livestock, the regulations also require: (1) An
environment that allows animals to express natural behaviors; (2)
preventive health care to reduce the likelihood of illness; and (3)
protection from conditions that jeopardize an animal's well-being, such
as predators and adverse weather.
USDA-accredited certifying agents inspect organic operations and
decide whether the operation's practices comply with the USDA organic
regulations. Certifying agents must consider site-specific conditions,
including prevalent pests and diseases, weather, and natural resources
of the operation when determining the acceptability of a particular
management practice. Certifying agents must also determine if organic
operations provide ``access to the outdoors'' in a manner that meets
the current requirements. 7 CFR 205.239(a)(1). This flexibility results
in significant variation in the manner by which producers meet the
requirements. For example, in organic poultry production, producers
meet the requirement for outdoor access by providing animals with
extensive pasture and also by providing a small roofed enclosure
(including porches with no access to soil or vegetation). To complicate
the assessment of access to the outdoors, a certifying agent generally
only inspects an organic operation during limited and discrete periods
of time.
The disparities in amount and quality of outdoor access have
economic implications for producers. This disparity also increases
consumer search costs and has been identified by USDA as a possible
consumer welfare loss.\5\ Consumer welfare loss could result in reduced
confidence in and demand for organic eggs, as the organic label may
inconsistently signal its attributes and provide less-consistent value.
This may create additional search costs as consumers seek to understand
and choose the marketing claim or label that most closely matches their
preferences. In addition, a growing body of research shows that outdoor
and pasture access encourages foraging and supports the natural
behaviors of livestock and poultry. These behaviors may be positively
associated with improved health and well-being, may be better for the
environment, and may result in healthier livestock products for human
consumption and poultry.6 7
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\5\ Mojduszka, Eliza M. (2018) ``An Analysis of the Specialty
Egg Market: Hedonic Price with Fixed Brand Effects vs. Random
Coefficient Discrete Choice Model.'' <a href="https://www.usda.gov/sites/default/files/documents/Mojduszka%202018%20An%20Analysis%20of%20the%20Specialty%20Egg%20Market.pdf">https://www.usda.gov/sites/default/files/documents/Mojduszka%202018%20An%20Analysis%20of%20the%20Specialty%20Egg%20Market.pdf</a>.
\6\ Is Grassfed Meat and Dairy Better for Human and
Environmental Health? Frederick D. Provenza, Scott L. Kronberg, and
Pablo Gregorini, Front Nutr. 2019; 6: 26. <a href="https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6434678/">https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6434678/</a>.
\7\ Phillips HN, Heins BJ. Effects of Outdoor Stocking Density
on Growth, Feather Damage and Behavior of Slow-Growing Free-Range
Broilers. Animals (Basel). 2021;11(3):688. <a href="https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7998225/">https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7998225/</a>.
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To resolve the divergence in practices under the organic label, the
NOSB, organic trade groups, and consumer groups have asked AMS through
multiple public meetings and public comment periods to revise the
organic regulations.
The organic regulations also include more specific requirements for
livestock production. These have existed since publication of the USDA
organic regulations in December 2000 (65 FR 80547) and have been
revised intermittently. Additional specificity was added by a 2010
final rule (75 FR 7153; 76 FR 26927) to require that ruminants,
specifically, graze at least 120 days per year and receive 30 percent
of dry matter intake from grazing (7 CFR 205.239) and to describe
situations that warrant denying ruminants access to pasture or the
outdoors (e.g., for newborn dairy cattle up to six months) (7 CFR
205.239(c)(2)). This proposed rule seeks to similarly elaborate on the
current regulations, especially for avian species and mammalian, non-
ruminant livestock. For example, the proposed rule elaborates on the
current requirements for year-round access to the outdoors, fresh air,
and direct sunlight by including requirements for outdoor space (per
bird), establishing thresholds for ammonia gas, and requiring doors in
poultry houses to ensure all birds may access the outdoors. The
proposed rule also elaborates on current standards (7 CFR 205.239)
related to situations that may warrant temporary confinement of
animals.

B. Prior NOSB Recommendations

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

[[Page 48566]]

much of the framework for organic health care and welfare of livestock,
including health care standards, living conditions, and transportation
of livestock practices.
(2) In April and October 1995, the NOSB made a series of
recommendations as addendums to the June 1994 recommendations. These
recommendations further addressed various health care practices, a
requirement for outside access, and the use of vaccines.
(3) On December 16, 1997, AMS responded to the 1994 and 1995 NOSB
recommendations in a proposed rule to establish the NOP (62 FR 65850).
Consistent with the NOSB's recommendation, the proposed language would
have required that organic livestock producers develop a preventive
health care plan and use synthetic drugs only if preventive measures
failed. The 1997 proposed rule also included standards for livestock
living conditions, including when livestock would be permitted to be
confined. This proposed rule was not finalized.
(4) In March 1998, the NOSB reaffirmed its earlier recommendations
on livestock health care and living conditions. The 1998 NOSB
recommendation also stressed the importance of treating sick livestock
by recommending that any organic producer who did not take specified
actions to provide care for a diseased animal would lose certification.
This recommendation also included provisions to clarify when livestock
could be confined indoors and defined ``outdoors'' as having direct
access to sunshine.
(5) On March 13, 2000, AMS published a second proposed rule to
establish the National Organic Program (65 FR 13512). AMS responded to
the NOSB's March 1998 recommendation on livestock health care and
living conditions in this proposed rule. AMS proposed that organic
producers must use disease prevention practices first, then approved
synthetic medications only if preventive measures failed. However, a
producer would need to use all appropriate measures to save the animal
even if the animal lost organic status. In addition, AMS proposed that
the living conditions for organic livestock must maintain the health of
the animals and allow for natural behaviors, including access to the
outdoors.
(6) On December 21, 2000, AMS published a final rule establishing
the USDA organic regulations (65 FR 80548) (``NOP Rule''). Through this
action, AMS finalized the standards for health care practices and
livestock living conditions. This rule addressed a range of matters
related to organic livestock production, including organic feed; use of
hormones and supplements; measures to avoid disease and illness;
veterinary biologics, medications, synthetic parasiticides, and other
drugs; and general principles governing housing, pasture conditions,
sanitation practices, and physical alterations. The Rule also generally
required producers to provide organic livestock with ``access to the
outdoors, shade, shelter, exercise areas, fresh air, and direct
sunlight suitable to the species, its stage of production, the climate,
and the environment,'' but allowed producers to satisfy those baseline
criteria in different ways. That rule became effective on February 20,
2001, and was fully implemented on October 21, 2002.
(7) In May 2002, the NOSB again addressed outdoor access, stating
this should include open air and direct access to sunshine.\8\ In
addition, the May 2002 recommendation stated that bare surfaces other
than soil do not meet the NOP Rule's intent of outdoor access for
poultry. This recommendation also included clarifications as to when
livestock could be temporarily confined.
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\8\ NOSB, 2002. Recommendation Access to Outdoors for Poultry.
Available at: <a href="http://www.ams.usda.gov/rules-regulations/organic/nosb/recommendations">http://www.ams.usda.gov/rules-regulations/organic/nosb/recommendations</a>.
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(8) In March 2005, the NOSB recommended that the temporary
confinement provision for ``stage of production'' be changed to ``stage
of life.'' \9\ The NOSB reasoned that confinement for a ``stage of
life'' would limit producers from confining animals for long periods,
such as confinement during the entire period that a dairy animal is
lactating. ``Stage of life'' was reasoned to be more specific than
``stage of production.''
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\9\ NOSB, 2005. Formal Recommendation by the NOSB to NOP. NOSB
recommendation for Rule change--``Stage of Production'' to ``Stage
of Life.'' Available at: <a href="http://www.ams.usda.gov/rules-regulations/organic/nosb/recommendations">http://www.ams.usda.gov/rules-regulations/organic/nosb/recommendations</a>.
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(9) On October 24, 2008, AMS published a proposed rule on access to
pasture for ruminant livestock (73 FR 63584). AMS published the final
rule, Access to Pasture (Livestock) on February 17, 2010 (75 FR 7154).
This rule was based on several NOSB recommendations regarding ruminant
livestock feed and living conditions. This rule set a requirement that
ruminants obtain a minimum of 30 percent dry matter intake from grazing
during the grazing season (7 CFR 205.237(c)).
(10) Between 2009 and 2011, the NOSB issued a series of
recommendations on livestock welfare. These were intended to
incorporate prior NOSB recommendations that AMS had not addressed. The
November 2009 recommendation suggested revisions and additions to the
livestock health care practice standards and living conditions
standards.\10\ The NOSB recommended banning or restricting certain
physical alterations and requiring organic producers to keep records on
livestock that were lame and/or sick and how they were treated. This
recommendation proposed to separate mammalian living conditions from
avian living conditions sections of the USDA organic regulations so
that the provisions could be more directly tailored to various
livestock species. In the mammalian section, the NOSB proposed
mandatory group housing of swine and a requirement for rooting
materials for swine. In the avian section, the NOSB proposed a variety
of provisions, including maximum ammonia levels, perch space
requirements and outdoor access clarifications.
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\10\ NOSB, 2009. Formal Recommendation by the NOSB to the NOP,
Animal Welfare. Available at: <a href="http://www.ams.usda.gov/rules-regulations/organic/nosb/recommendations">http://www.ams.usda.gov/rules-regulations/organic/nosb/recommendations</a>.
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(11) In October 2010, the NOSB passed a recommendation on the use
of drugs for pain relief.\11\ The NOSB recommended changing the health
care practice standards to allow the administration of drugs in the
absence of illness to prevent disease or alleviate pain. The NOSB
stated that such a change would improve the welfare of organic
livestock.
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\11\ NOSB, 2010. Formal Recommendation by the NOSB to the NOP,
Clarification of 205.238(c)(2). Available at: <a href="http://www.ams.usda.gov/rules-regulations/organic/nosb/recommendations">http://www.ams.usda.gov/rules-regulations/organic/nosb/recommendations</a>.
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(12) In December 2011, the NOSB passed an additional livestock
welfare recommendation.\12\ The 2011 recommendation added definitions
for terms related to livestock production and provisions for health
care standard and living conditions. The NOSB also revised its prior
recommendation on physical alterations to provide a more inclusive list
of prohibited procedures. In the mammalian living conditions section,
the NOSB recommended that outdoor access for swine include a minimum of
25 percent vegetative cover at all times. For avian species, the NOSB
recommended specific indoor and outdoor space requirements, e.g.,
stocking densities, among other provisions for living conditions
specific to poultry. For layers, the NOSB

[[Page 48567]]

recommended a minimum of 2.0 ft\2\ per bird indoors and outdoors.
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\12\ NOSB, 2011. Formal Recommendation by the NOSB to the NOP,
Animal Welfare and Stocking Rates. Available at: <a href="http://www.ams.usda.gov/rules-regulations/organic/nosb/recommendations">http://www.ams.usda.gov/rules-regulations/organic/nosb/recommendations</a>.
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(13) In December 2011, the NOSB passed a separate recommendation to
add standards for transportation of livestock to slaughter facilities
and the slaughter process.\13\ The NOSB's recommendation for transport
included provisions for veal calves and the trailers/trucks used to
transport animals to ensure continuous organic management. The NOSB
recommended that slaughter facilities must meet certain performance-
based standards assessed via observations of animal handling and any
slips, falls or vocalizations before and during slaughter.
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\13\ NOSB, 2011. Formal Recommendation by the NOSB to the NOP,
Animal Handling and Transport to Slaughter. Available at: <a href="http://www.ams.usda.gov/rules-regulations/organic/nosb/recommendations">http://www.ams.usda.gov/rules-regulations/organic/nosb/recommendations</a>.
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C. AMS Policy, Regulatory History, and Withdrawal of OLPP

(1) AMS Policy Regarding Animal Welfare
On October 29, 2002, AMS issued a memorandum to clarify outdoor
access and temporary confinement requirements for livestock under the
USDA organic regulations.\14\ The memorandum stated that producers are
required to balance accommodations for an animal's health and natural
behavior with measures to ensure an animal's safety and well-being. The
memorandum further explained that the USDA organic regulations do not
specify an outdoor space allowance or stocking rate, nor do they
require that all animals in the herd or flock have access to the
outdoors at the same time. This memorandum explained how producers
could provide evidence of compliance to support temporary confinement.
This memorandum was incorporated into the NOP Handbook (as ``PM 11-5'')
on January 31, 2011, and is retained as current policy.
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\14\ National Organic Program, 2002. Access to the Outdoors for
Livestock. Retained as Policy Memo 11-5. Available in the NOP
Handbook: <a href="https://www.ams.usda.gov/sites/default/files/media/Program%20Handbk_TOC.pdf">https://www.ams.usda.gov/sites/default/files/media/Program%20Handbk_TOC.pdf</a>.
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On February 17, 2010, AMS published a final rule on Access to
Pasture (Livestock). The final rule was in response to the 2005 NOSB
recommendation and extensive public input requesting clear outdoor
access requirements for ruminant livestock. The Access to Pasture Rule
adopted new provisions relating to organic livestock production,
addressing such matters as animal feed; dry matter intake; access to
and management of pasture as an organic crop; organic bedding; and use
and management of feeding yards, feeding pads, and feedlots. The Access
to Pasture Rule also clarified that the requirements for outdoor access
and species-appropriate access to shade, shelter, exercise, fresh air,
and direct sunlight required by the NOP Rule must be provided for all
organic livestock, including poultry, on a year-round basis. The final
rule established that ruminant livestock obtain at least 30 percent dry
matter intake from grazing during the grazing season (7 CFR
205.237(c)). The rule provided clarity to correct inconsistent
application and enforcement of the outdoor access provisions for
ruminant livestock. While AMS was able to rely on stakeholder feedback
about consistent application of regulations to inform this proposed
rule, AMS was unable to look at regulatory impacts from the rule like
production levels because USDA's Economic Research Service stopped
releasing that data in 2011, and available data sources would not be
sufficient to estimate any causality or impact.
In March 2010, the USDA Office of the Inspector General (OIG)
issued a report concerning, in part, AMS guidance on outdoor access for
organic livestock.\15\ The OIG found inconsistent certification
practices regarding outdoor access for poultry. The OIG recommended
that AMS issue guidance on outdoor access for livestock.
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\15\ USDA, Office of the Inspector General. March 2010. Audit
Report 01601-03-Hy, Oversight of the National Organic Program.
Available at: <a href="http://www.usda.gov/oig/rptsauditsams.htm">http://www.usda.gov/oig/rptsauditsams.htm</a>.
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On October 13, 2010, AMS published draft guidance, Outdoor Access
for Organic Poultry, for public comment.\16\ The draft guidance advised
certifying agents to use the 2002 and 2009 NOSB recommendations as the
basis for certification decisions regarding outdoor access for
poultry.\17\ The draft guidance informed certifying agents and
producers that maintaining poultry on soil or outdoor runs would
demonstrate compliance with the outdoor access requirement in 7 CFR
205.239. Comments received by AMS on the draft guidance are summarized
below. Given the comments and the request that USDA address this issue
through the rulemaking process, AMS determined to pursue rulemaking to
clarify outdoor access for poultry and did not finalize the draft
guidance.
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\16\ On October 13, 2010, AMS also published a Notice of
Availability of Draft Guidance and Request for Comments in the
Federal Register (75 FR 62693).
\17\ The 2002 and 2009 NOSB recommendations included daily
outdoor access from an early age and access to direct sunlight, open
air and soil.
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AMS received 69 comments on the draft guidance. Comments varied
widely. Some supported more specific and stringent stocking densities
and soil-based outdoor access, citing animal health and environmental
benefits. Other comments favored maintaining an allowance for porches
as acceptable outdoor access, citing biosecurity and animal health
concerns.
Furthermore, commenters stated that the draft guidance was
unenforceable and would not ensure year-round outside access for
poultry. These commenters suggested a minimum stocking rate of 1.75
square feet per bird in henhouses that also provide access to perches,
with an additional 5 square feet per bird available in vegetated
outdoor runs, which should be accessible to all birds at the same time.
Some comments from poultry producers supported outdoor access on
pasture or other vegetation and described health benefits and
protection of the environment that a pasture or other vegetated outdoor
access area would afford. A number of commenters, including organic
poultry producers, requested a change to the draft guidance language to
say that poultry, when outdoors, should be maintained on soil.
One trade association, some organic egg producers, and consultants
described the use of production systems that limit outdoor access via
the use of enclosed porches, so that poultry are not in contact with
soil or pasture. These commenters described the benefits of these
systems: protection from predation, pathogens that cause food safety
problems, exposure to parasites, and contact with wild birds that could
carry diseases. The commenters asserted that these systems are
consistent with the 2002 NOSB recommendation. They noted that organic
egg producers have made substantial investments in facilities with
porches. Some also expressed concerns that placing birds on soil would
affect their ability to comply with the Food and Drug Administration's
Salmonella prevention food safety regulations (21 CFR part 118).
Several producers expressed concern with the 2009 NOSB recommendation
that pullets be given outdoor access at 6 weeks of age, because layers
are not fully immunized (including for protection against Salmonella)
until 16 weeks of age and should not be exposed to uncontrolled
environments until that time.
(2) Regulatory History of the OLPP Rule
A proposed rule that incorporated NOSB recommendations was then
published in April 2016. The proposed rule included provisions related
to health care practices, such as physical alteration procedures,
euthanasia, and

[[Page 48568]]

treatment of sick animals. It also addressed living conditions for
mammalian and avian livestock, including minimum indoor and outdoor
space requirements for avian livestock. Finally, the rule addressed
requirements for transport and for slaughter practices. It received
6,675 written comments during the 90-day comment period. There were
nearly 1,500 individual comments on the proposed rule, excluding form
letters and signatures on petitions (numbering in the tens of
thousands). Comments were received from producers, producer
associations, handlers, certifying agents, consumers and consumer
groups, animal welfare organizations, veterinarians, state government
agencies, foreign government agencies, and trade associations or
organizations. Comments provided insight on the public's questions
about regulatory authority, import impact, trade agreements, and
educational avenues. Additionally, comments about the clarity of the
rule generally found it beneficial for the industry and its impact on
the label but acknowledged some challenges with universal standards.
AMS made a number of changes to this proposed rule based on
comments in order to mitigate impacts and improve the clarity of the
requirements. AMS published the Organic Livestock and Poultry Practices
final rule (OLPP Rule) on January 19, 2017 (82 FR 7042). Prior to the
OLPP Rule becoming effective, USDA decided to delay that date to allow
the new Administration to review the Rule.
(3) Withdrawal of OLPP Final Rule
After delaying the effective date of the final rule,\18\ AMS
proposed withdrawing the OLPP rule because of its emergent view that
the agency lacked the legal authority for the rulemaking, substantive
errors in the economic analysis for the rule, and a lack of market
failure (82 FR 59988, December 18, 2017). On March 13, 2018, AMS
published a final rule (Withdraw Rule) withdrawing the OLPP Rule for
those reasons (83 FR 10775). After discovering additional errors in the
economic analysis for the OLPP Rule and the Withdraw Rule, AMS
published the Organic Livestock and Poultry Practice Economic Analysis
Report on April 23, 2020, to describe all the errors and sought comment
on the Report (85 FR 22664). After considering the comments, AMS
published the Final Decision on Organic Livestock and Poultry Practices
Rule and Summary of Comments on the Economic Analysis Report on
September 17, 2020 (85 FR 57937). In the Final Decision, AMS concluded
that ``[t]o the extent the Withdrawal Rule formed an assessment of the
likely costs and benefits of the OLPP Rule based on that flawed
analysis, AMS hereby modifies that assessment and concludes simply that
the Final RIA does not support promulgation of the OLPP Rule in light
of its significant flaws.'' AMS further concluded that ``[i]mplementing
the OLPP Rule based on such a flawed economic analysis is not in the
public interest[]'' and decided not to take any further regulatory
action with respect to the OLPP Rule (85 FR 57944).
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\18\ See 82 FR 9967 (February 9, 2017); 82 FR 21677 (May 19,
2017); and 82 FR 52643 (November 14, 2017).
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In June 2021, Secretary Vilsack announced that USDA would
``reconsider the prior Administration's interpretation that [OFPA] does
not authorize USDA to regulate the practices that were the subject of
the [OLPP Rule].'' He further directed NOP ``to begin a rulemaking to
address this statutory interpretation and to include a proposal to
disallow the use of porches as outdoor space in organic production over
time and on other topics that were the subject of the OLPP final
rule.''
(a) Economic Analysis
In the Economic Analysis Report, AMS described the three errors
that had been identified in the economic analysis of the Withdraw Rule:
(1) the incorrect application of the discounting formula; (2) the use
of an incorrect willingness to pay value for eggs produced under the
new open access requirements; and (3) the incorrect application of a
depreciation treatment to the benefit calculations. The Report
explained that although the economic analysis of the Withdraw Rule
correctly identified these errors and properly addressed the first two
errors (incorrect discounting methodology and willingness-to-pay
values), it had not fully removed the incorrect depreciation treatment
from the cost and benefit calculations, which erroneously reduced the
calculation of both costs and benefits.
The Report went on to identify and discuss four categories of
additional errors in the economic analysis of the OLPP Rule that were
previously undetected and therefore inadvertently carried forward to
the economic analysis of the Withdraw Rule. These were: (1)
inconsistent or incorrect documentation of key calculation variables;
(2) an error in the volume specification affecting benefits
calculations in two of three scenarios considered; (3) the incorrect
use of production values in the benefits calculations that do not
account for projected increased mortality loss; and (4) aspects of the
cost calculations that resulted in certain costs being ignored,
underreported, or inconsistently applied. In addition, the Report
described certain minor errors that did not have a material impact on
the cost and benefit calculations (85 FR 57938).
In this proposed rule, AMS worked to ensure that the RIA for the
proposed rule addressed these concerns. Some of the mathematical or
descriptive concerns were addressed with rewriting the proposed rule.
AMS specifically addressed issues with discounting and depreciation in
the analysis and fixed various errors found by the report.
Additionally, AMS adjusted the willingness to pay for outdoor access in
eggs to the more precise measure suggested by the economic analysis
report. While AMS maintains the use of enterprise budgets in the
original rule to model costs, we updated costs to the extent possible
based on data availability and believe these models are appropriate, as
they provide the most detailed estimates for the organic industry and
USDA ERS has shown that both feed and land costs have remained
approximately steady since their development.19 20
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\19\ USDA ERS. Farmland Value. <a href="https://www.ers.usda.gov/topics/farm-economy/land-use-land-value-tenure/farmland-value/">https://www.ers.usda.gov/topics/farm-economy/land-use-land-value-tenure/farmland-value/</a>.
\20\ USDA NASS. Paid Indexes by Farm Origin and Month, Feed and
Livestock & Poultry. <a href="https://www.nass.usda.gov/Charts_and_Maps/Agricultural_Prices/prod3.php">https://www.nass.usda.gov/Charts_and_Maps/Agricultural_Prices/prod3.php</a>.
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(b) Market Failure
The Withdraw Rule said that the OLPP Rule failed to meet the
requirements of Executive Order 12866, that the agency ``propose or
adopt a regulation only upon a reasoned determination that the benefits
of the intended regulation justify its costs'' and that there was no
clear market failure for the need for the rule as referenced in
Executive Order 13563. Although it is not necessary for rulemaking, AMS
is reconsidering this rationale in the Withdraw Rule.
In reviewing the available information, AMS does believe a market
failure exists in the organic label. Specifically, consumers have
varying understanding of the degree to which the organic label requires
indoor/outdoor space, health, and welfare provisions for animals used
in organic production. Specifically, space and outdoor access are
required in 7 CFR 205.239(a)(1), but this requirement has been
interpreted by producers and certifying agents in different ways,
allowing producers to provide indoor space and outdoor access through

[[Page 48569]]

several different metrics and methods. While different practices are
not inherently a market failure--and in many markets a sign of healthy
market innovation--in a marketing label, varying practices can create
inefficient outcomes if they allow for producers to benefit from
information failures.
Consumers are increasingly interested in the treatment of animals
raised for food, as evidenced by the proliferation of animal welfare
certification labeling claims. These animal welfare certification
programs have varying requirements, even within individual programs,
creating a range of standards in the marketplace.\21\ For example,
these programs may include standards for pastured, cage-free and free-
range production. High participation rates among organic livestock and
poultry producers in these third-party animal welfare certification
programs indicates that the organic label does not provide the level of
information consumers need to assess whether a specific brand meets
their expectations for animal welfare practices. Consumers who purchase
these doubly certified products would likely not be satisfied with
private animal welfare certification alone because organic
certification addresses other unique attributes they seek, e.g.,
animals receive only organic feed. While the proliferation of ecolabels
may not dilute the value of the organic label, literature shows
consumer confusion may be associated with ecolabel proliferation.\22\
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\21\ The Humane Farm Animal Care program has compiled a table
comparing the requirements of selected third-party animal welfare
certification programs for laying hens. This includes stocking
density and outdoor standards. The comparison table is available at:
<a href="http://certifiedhumane.org/how-we-work/fact-sheet/">http://certifiedhumane.org/how-we-work/fact-sheet/</a>.
\22\ Magali A. Delmas, Olivier Gergaud, Sustainable practices
and product quality: Is there value in eco-label certification? The
case of wine, Ecological Economics, Volume 183, 2021, <a href="https://doi.org/10.1016/j.ecolecon.2021.106953">https://doi.org/10.1016/j.ecolecon.2021.106953</a>.
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The various production practices used to meet requirements like
outdoor access have allowed producers that use lower-cost and less-
stringent practices to benefit from the same organic labeling and
premium as producers than use more costly or robust practices. Through
public comment and literature reviews outlined in the RIA, AMS has
observed that consumers need to expend additional effort and seek out
additional label information if they wish to purchase animal products
with outdoor access to soil and flora. AMS seeks comment on this
analysis that market failure exists.
(c) Statutory Authority
In 2018, AMS withdrew the OLPP Rule, in part, based on its view
that the OFPA did not provide authority for the OLPP Rule. AMS stated
that the statutory authority for the OLPP Rule was insufficient because
the ``reference in 7 U.S.C. 6509(d)(2) to additional regulatory
standards `for the care' of organically produced livestock does not
encompass stand-alone concerns about animal welfare, but rather is
limited to practices that are similar to those specified by Congress in
the statute''--e.g., restrictions on the use of antibiotics, synthetic
internal parasiticides, administration of medication, and certain feed
substances and practices--``and necessary to meet congressional
objectives outlined in'' section 6501. Id. at 10,776. AMS further
stated that ``standards promulgated pursuant to section 6509(d)(2) and
section 6509(g) must be relevant to ensuring that livestock is
`organically produced.' '' Id. USDA reasoned that dictionary
definitions of the word ``organic'' generally relate to the use of
``artificial chemicals in the growing of plan[t]s and animals for food
and other products,'' and that ``[t]he surrounding provisions in
section 6509 demonstrate that Congress had a similar understanding of
the term `organic.' '' Id. Based on this analysis, AMS concluded that
``the authority granted in section 6509(d)(2) and section 6509(g) for
the Secretary to issue additional [livestock care] regulations fairly
extends only to those [regulations] that . . . relate to the ingestion
or administration of non-organic substances, thus tracking the purposes
of the OFPA[.]'' Id. at 10776-77. AMS determined that ``stand-alone
concerns about animal welfare'' did not meet this standard. Id. at
10,776. In so concluding, USDA explained that it would not ``regulate
outside the boundaries of legislative text,'' id. at 10,776, such that
even if the OFPA were ``silent or ambiguous with respect to the
authority issue,'' it believed that its interpretation was a
``permissible'' one. Id. at 10,777; see also id. at 10,778 (referring
to agency's ``interpretation of the scope of its statutory authority''
as ``permissible'').
This aspect of the Withdraw Rule was in tension with the USDA's
view of its authority in issuing the OLPP Rule, as well as the
regulatory authority USDA has traditionally exercised in this area.
With this rulemaking action, AMS is reconsidering the determination in
the Withdraw Rule. Based on the analysis below, the agency is proposing
to adopt the position that OFPA does provide the requisite authority
for regulations regarding livestock and poultry health care practices
and living conditions, including regulations regarding animal welfare.
OFPA at 7 U.S.C. 6509 addresses practices and materials that may be
used in organic livestock production. Subsection (c) of that provision,
entitled ``Practices,'' requires producers to use organic feed,
prohibits certain types of feed, such as plastic pellets and manure
refeeding, and prohibits the use of growth promoters and hormones.
Subsection (d), entitled ``Health care,'' restricts the use of
subtherapeutic doses of antibiotics, the routine use of synthetic
internal parasiticides, and the administration of medication absent
illness. Id. Sec. 6509(d)(1). In addition, subsection (d)(2) requires
the NOSB to ``recommend to the Secretary standards in addition to those
[specified in subsection (d)(1)] for the care of livestock to ensure
that such livestock is organically produced.'' 7 U.S.C. 6509(d)(2).
While 7 U.S.C. 6509 addresses specific animal production practices
for the organic program, OFPA does not prohibit the Secretary from
adopting additional requirements about practices used in raising
organic livestock. For example, much of Section 6509 dictates what
organic producers ``shall not'' do and contains prohibitions of
specific livestock production practices while not limiting the
Secretary's authority to promulgate regulations about how organic
livestock shall be ``raised.'' See, e.g., 7 U.S.C. 6509(a) (``Any
livestock that is to be slaughtered and sold or labeled as organically
produced shall be raised in accordance with this chapter.''). Indeed,
Section 6509(d)(2) recognizes that the NOSB will recommend standards
``in addition'' to the practices specified in subsection (d) ``for the
care of livestock.''
In addition to the specific authority regarding livestock in
section 6509, Congress also provided the Secretary with broad
rulemaking authority to ``require such other terms and conditions'' for
the organic program that he may deem necessary. 7 U.S.C. 6506(a)(11).
This section, along with section 6509(g)'s charge to the Secretary to
``develop detailed regulations . . . to guide the implementation of the
standards for livestock products provided under this section,'' would
provide ample authority for the detailed requirements in this proposed
rule.
In any event, even if the statutory text were ambiguous, USDA's
interpretation is reasonable because the proposed rule would be
consistent with the purposes of the OFPA. Commenters noted in the OLPP
Rule that it would be reasonable

[[Page 48570]]

for AMS to adopt regulations that address animal welfare as part of
OFPA's overall design.\23\ Consistent with this design, AMS has
promulgated regulations addressing livestock production and living
conditions that affect the health and welfare of livestock, including
measures to avoid disease and illness; provisions about feed;
principles governing housing, pasture conditions, and sanitations
practices; and requirements for access to the outdoors and an the
natural environment.
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\23\ Comments for all OLPP rulemaking can be found at <a href="https://www.regulations.gov/docket/AMS-NOP-15-0012/document">https://www.regulations.gov/docket/AMS-NOP-15-0012/document</a>.
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Over the years since OFPA was enacted, animal welfare has become an
integral part of organic production as evidenced by the hundreds of
thousands of public comments that USDA has received on this topic over
the years as well as an emerging body of research on the motivations
that drive consumers to buy organic livestock products. Several studies
point to animal welfare concerns as significant or even primary drivers
for organic consumers,\24\ and likewise that non-organic consumers
perceive organic livestock to be raised according to higher animal
welfare standards than non-organic livestock.\25\ Literature also
suggest state sponsored ecolabels provide the highest levels of
consumer confidence.\26\
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\24\ Alonso, Marta E.; Gonz[aacute]lez-Monta[ntilde]a,
Jos[eacute] R.; and Lomillos, Juan M. (2020) ``Consumers' Concerns
and Perceptions of Farm Animal Welfare,'' Animals, Vol. 10, pp. 385-
397. McEachern, M.G.; Willock, J. (2004) ``Producers and consumers
of organic meat: A focus on attitudes and motivations.'' British
Food Journal, Vol. 106, pp.534-552.
\25\ Harper, Gemma C; Makatouni, Aikaterini (2002) ``Consumer
perception of organic food production and farm animal welfare.''
British Food Journal; Vol. 104, Iss. 3-5, pp. 287-299.
\26\ Kim Mannemar S[Atilde]nderskov, and Carsten Daugbjerg.
``The State and Consumer Confidence In Eco-labeling: Organic
Labeling In Denmark, Sweden, The United Kingdom and The United
States.'' Agriculture and human values, v. 28, .4 pp. 507-517. doi:
10.1007/s10460-010-9295-5
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Notably, many in the contemporary organic industry do not view
animal welfare as distinct from the concerns expressly reflected in the
statutory text of OFPA. For example, by promoting animal natural
behaviors and practices that maximize the health and welfare of organic
livestock, producers reduce the need for antibiotics and other
medications that section 6509(d) expressly limits.\27\ The Senate
report that accompanied the OFPA legislation set the expectation for
greater specificity in the future for organic livestock standards as
the industry matured: ``More detailed standards are enumerated for crop
production than for livestock production. This reflects the extent of
knowledge and consensus on appropriate organic crop production methods
and materials. With additional research and as more producers enter
into organic livestock production, the Committee expects that USDA,
with the assistance of the National Organic Standards Board will
elaborate on livestock criteria.'' \28\
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\27\ Wemette, M., Safi, A. G., Wolverton, A. K., Beauvais, W.,
Shapiro, M., Moroni, P., . . . & Ivanek, R. (2021). Public
perceptions of antibiotic use on dairy farms in the United States.
Journal of Dairy Science, 104(3), 2807-2821 <a href="https://pubmed.ncbi.nlm.nih.gov/33455793/">https://pubmed.ncbi.nlm.nih.gov/33455793/</a>
\28\ Senate Committee on Agriculture, Forestry and Nutrition,
Report of the Committee on Agriculture, Forestry and Nutrition to
Accompany S. 2830 Together with Additional and Minority Views, 101st
Congress, S. REP. NO. 101-357, at 289 (1990).
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In addition, a growing body of research is showing that livestock
and poultry with access to pasture and the outdoors forage and engage
in natural behaviors, which may be positively associated with their
improved health and well-being, be better for the environment, and
result in healthier livestock and poultry \29\ products for human
consumption.\30\ AMS believes that promoting animal welfare through the
practices addressed in the OLPS Rule, and particularly with respect to
outdoor access, would contribute to cycling of resources and ecological
balance values reflected in the regulation.
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\29\ Is Grassfed Meat and Dairy Better for Human and
Environmental Health? Frederick D. Provenza, Scott L. Kronberg, and
Pablo Gregorini, Front Nutr. 2019; 6: 26. <a href="https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6434678/">https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6434678/</a>
\30\ Palupi, Eny; Jayanegara, Anuraga; Ploegera, Angelika and
Kahla, Johannes (2012) ``Comparison of nutritional quality between
conventional and organic dairy products: a meta-analysis,'' Journal
of the Science of Food and Agriculture, Vol. 92, pp. 2774-2781.
<a href="https://pubmed.ncbi.nlm.nih.gov/22430502/">https://pubmed.ncbi.nlm.nih.gov/22430502/</a>
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Additionally, as the USDA Office of the Inspector General noted,
certifiers have been inconsistent in their application of livestock
access to outdoor space, a requirement stemming from the 2010 Access to
Pasture Rule. This proposed rule would address the inconsistent
application of the requirement by specifying a minimum size for outdoor
access areas, clarifying circumstances when animals do not require
outdoor access, and specifying records that operations must keep to
disclose their activities, including records of temporary confinement
from the outdoors.
In sum, USDA believes that, as a policy matter, regulation is
warranted. USDA is also proposing to determine, for the reasons
identified above, that it may exercise this authority under the OFPA.
USDA is requesting comment on the identified disagreement over whether
OFPA authorizes regulations on animal welfare and livestock production
practices that are part of this proposed rule.

D. Related Issues

If finalized, this rule would supersede the appeal decision
described below and impose the requirements set out in a final rule
with respect to avian living conditions.
On July 15, 2002, an operation applied for organic certification of
its egg laying operation with a USDA-accredited certifying agent. As
part of the application, the operation's Organic System Plan (OSP)
stated that outdoor access would be provided through covered and
screened ``porches.'' Porches are elevated areas (with solid or slatted
floors) that have access to/from the poultry house and do not typically
provide any means for birds to descend to ground level. The certifying
agent denied certification for failure to provide hens with access to
the outdoors. The certifying agent stated that a porch did not provide
outdoor access as required by the USDA organic regulations. The
operation appealed the Denial of Certification to the AMS Administrator
on October 22, 2002. The Administrator sustained the appeal on October
25, 2002, and directed the certifying agent to grant organic
certification to the operation retroactively to October 21, 2002.
The certifying agent objected to the Administrator's decision and
appealed to the USDA Office of the Administrative Law Judge (ALJ). On
November 4, 2003, the USDA ALJ dismissed the appeal. On December 11,
2003, the certifying agent appealed to the USDA Judicial Officer. On
April 21, 2004, the USDA Judicial Officer dismissed the appeal. On
September 27, 2005, the certifying agent filed an appeal with the U.S.
District Court, District of Massachusetts. On March 30, 2007, the U.S.
District Court granted USDA's motion to dismiss the case (Massachusetts
Independent Certification, Inc. v. Johanns, 486 F.Supp.2d 105).
As a result of these adjudications, use of porches to meet the
requirement in the USDA organic regulations for outdoor access
expanded, and certain producers have settled on production practices
that rely on porches, leading to inconsistencies with producers that
offer animals access to outdoor spaces with soil, vegetation, direct
sunlight, and considerable space per animal.

III. Overview of Proposed Amendments

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

[[Page 48571]]

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

A. Definitions (Sec. 205.2)

This proposed rule would add seventeen new terms to 7 CFR 205.2:
beak trimming, caponization, cattle wattling, de-beaking, de-snooding,
dubbing, indoors or indoor space, mulesing, non-ambulatory, outdoors or
outdoor space, perch, pullet, ritual slaughter, soil, stocking density,
toe clipping, and vegetation. The proposed definitions are discussed
below.
1. Eight New Terms To Define Prohibited Physical Alterations
Current organic regulations permit ``physical alterations'' of
animals ``as needed to promote the animal's welfare and in a manner
that minimizes pain and stress'' (7 CFR 205.238(a)). The proposed rule
would elaborate on this requirement and prohibit some specific types of
physical alterations. These physical alterations would be defined in
the regulations to support common understanding of the meaning of the
terms, as some terms could otherwise be interpreted in various ways
(e.g., ``caponization'' may be referred to as ``castrating'' in some
regions). These alterations are not understood to promote animal
welfare or may be overly painful or stressful without a corresponding
benefit to animal welfare. The prohibition of specific physical
alterations was recommended by the NOSB in 2009.
The following terms are defined in this proposed rule: ``beak
trimming,'' ``caponization,'' ``cattle wattling,'' ``de-beaking,''
``de-snooding,'' ``dubbing,'' ``mulesing,'' and ``toe clipping.''
2. Indoors or Indoor Space
The proposed rule would define ``indoors or indoor space'' as the
space inside of an enclosed building or housing structure that is
available to livestock. The proposed definition includes four examples
of structures that are commonly used in poultry production. These
indoor housing types would be defined, in part, because the proposed
space requirements are based on the housing type. AMS also includes an
indoor space requirement at Sec. 205.241(b)(8)(v) for housing that
does not fit within one of the specific types defined in Sec. 205.2.
While all organic livestock would need to be provided with species-
appropriate shelter, structures providing indoor space would not be
required. For example, beef cattle raised on pasture or range in mild
climates may not be provided with indoor space.
The proposal relies on the term ``enclosed'' to establish if a
space should be considered indoors or outdoors. Under the proposed
definition, the space within the building or structure that can be
enclosed would be considered the indoor space. The proposed rule
defines ``outdoors or outdoor space'' separately (see discussion
below). AMS welcomes public comment on whether the proposed definitions
clearly and adequately distinguish the two types of spaces.
Specifically, AMS seeks comments on whether the proposed
definitions sufficiently address spaces that may be enclosed by fences
and/or overhead netting. The definition of ``indoors or indoor space''
is not intended, as proposed, to include fenced areas outside of a
building or structure or to include fenced outdoor areas that may also
have overhead netting. AMS recognizes that, in most cases, animals are
also ``enclosed'' within outdoor spaces by fencing and/or overhead
netting, and AMS seeks comments on whether the proposed definitions
would allow for consistent implementation of the indoor and outdoor
space requirements.
One of the key considerations for distinguishing indoor space from
outdoor space would be how the livestock are managed in that space,
which may determine whether the space could be defined as indoors,
outdoors, or neither indoors nor outdoors. As an example, a screened-in
and roofed porch to which the (enclosed) birds always have access,
including during temporary confinement events, would be considered
indoor space. That same porch would be considered neither indoors nor
outdoors if the birds do not have continuous access to the space during
temporary confinement events. If the screens were removed from that
porch so that the birds could freely access other outdoor space, then
the porch would be considered outdoor space (see ``Outdoors or outdoor
space ``in section III.A.3). These distinctions would provide
flexibility for producers to work with their certifying agents when
developing their organic system plans (OSPs), yet still aligns with the
position that enclosed porches are not considered to be outdoor space.
The proposed rule would also define the term ``perch'' as a rod- or
branch-type structure above the floor of the house that accommodates
roosting, allowing birds to utilize vertical space in the house.
3. Outdoors or Outdoor Space
The proposed rule would define ``outdoors or outdoor space'' to
clarify the meaning of outdoor areas for mammalian and avian species.
``Outdoors or outdoor space'' would be defined as any area outside of
an enclosed building or enclosed housing structure, but including
roofed areas that are not enclosed. For example, a screened poultry
``porch,'' enclosed by wire on the sides, would not be considered
outdoors. In this definition, ``outdoors or outdoor space'' would
include all of the non-enclosed space encompassing soil-based areas
such as pastures, pens, or sacrifice lots; hardened surface areas such
as feedlots, walkways, or loafing sheds; and areas providing outdoor
shelter such as windbreaks and shade structures. For avian species, the
proposed definition includes pasture pens, which are floorless pens
that are moved regularly and provide direct access to soil and
vegetation. These pens (also referred to as ``chicken tractors'') may
consist of solid roofing over all or part of the pen to provide shelter
for the birds.
The outdoor space would have species-specific requirements. For
example, this proposed rule sets the requirement that 50 percent of the
outdoor space for avian species must be soil-based and that the soil be
maximally covered with vegetation appropriate to the specific local
conditions. Depending on the outdoor space and local conditions, a
producer could rotate poultry around outdoor areas to allow vegetation
to recover, or a producer might need to periodically reseed an outdoor
area. Vegetative cover would need to be maintained in a manner that
would not provide harborage for rodents and other pests. For additional
description of the proposed requirements, see section below ``Avian
Living Conditions.''
The proposed rule would define ``soil'' as the outermost layer of
the earth comprised of minerals, water, air, organic matter, fungi, and
bacteria in which plants may grow roots. Soil would be defined to
distinguish these areas from impervious areas such as concrete or
pavement. Soil may consist of bare ground but is generally covered with
vegetation. As described in the

[[Page 48572]]

mammalian and avian living condition sections, maximum vegetative cover
should be maintained on the soil as appropriate for the species,
season, geography, and climate. Designated sacrifice areas or dry lots
would be permitted. Outdoor areas would need to be maintained in a
manner that maintains or improves natural resources, including soil and
water quality (7 CFR 205.200). Temporary confinement may be provided to
protect soil and water quality.
To assist with the mitigation of biosecurity and predation risks,
fencing, netting, or other materials would be permitted over all or
part of the outdoor areas to prevent predators and other wild birds
from entering the outdoor area. Many producers also use portable or
permanent shade structures throughout their pastures. Structures for
shade would also be permitted in the outdoor space. For example, the
area within a stand-alone, roofed shade structure could be included as
outdoor space area. Areas under the eaves or the awning of a building,
with a roof attached to the outer wall of the indoor space structure,
can also be considered outdoors. While these areas may have solid roofs
overhead, they can offer the same quality of outdoor space as uncovered
outdoor areas, including natural ventilation/open air, direct sunlight,
soil, vegetation, and open access to uncovered areas beyond.
4. Non-ambulatory
The proposed rule would add the term ``non-ambulatory'' and
references the definition in 9 CFR 309.2(b). FSIS defines non-
ambulatory as ``livestock that cannot rise from a recumbent position or
that cannot walk, including, but not limited to, those with broken
appendages, severed tendons or ligaments, nerve paralysis, fractured
vertebral column, or metabolic conditions.'' Any non-ambulatory
livestock on organic farms would need to be medically treated, even if
the treatment causes the livestock to lose organic status or be
humanely euthanized.
5. Pullets
AMS modified the definition of pullets, which is used by the AMS
Livestock, Poultry, and Seed Program, to include species other than
chickens. This proposed rule would define ``pullets'' as female
chickens or other avian species being raised for egg production that
have not yet started to lay eggs. Once avian females begin laying eggs,
AMS refers to them as layers. The term ``pullets'' would not describe
young broilers used for meat production.
6. Stocking Density
The proposed rule would define ``stocking density'' as the weight
of animals on a given area or unit of land. This term is used to
describe the indoor and outdoor space requirements for organic
livestock. For example, the proposed rule would establish maximum
stocking densities for avian species, and the producer would need to
ensure that the area provided is large enough to not exceed the
established maximum stocking density when all birds in the flock are on
the given area (i.e., indoors) or unit of land.
7. Ritual Slaughter
The proposed rule would add the term ``ritual slaughter'' and
references the definition in the Humane Methods of Slaughter Act (7
U.S.C. 1902(b)). This Act defines ritual slaughter as ``slaughtering in
accordance with the ritual requirements of any religious faith that
prescribes a method of slaughter whereby the animal suffers loss of
consciousness by anemia of the brain caused by the simultaneous and
instantaneous severance of the carotid arteries with a sharp instrument
and handling in connection with such slaughtering.''
Organic livestock and handling operations may use ritual slaughter
to convert their livestock to meat or poultry without loss of organic
status.
8. Vegetation
The proposed rule would add the term ``vegetation'' and defines it
as living plant matter that is anchored in the soil by roots and
provides ground cover. This term applies to the requirement for
vegetation in outdoor areas, which is central to protecting soil and
water quality as well as providing for livestock to exhibit their
natural behaviors. The roots of vegetation provide stability and
structure to soil. Vegetation helps water soak into the soil rather
than running off, which can cause erosion. Livestock also have natural
behaviors of grazing, rooting, nesting, etc., which require vegetation.

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

AMS proposes to amend current provisions and add new provisions to
the organic livestock care and production practice standards. The
proposed amendment to Sec. 205.238(a)(2) specifies that the
sufficiency of the feed ration be demonstrated by appropriate body
condition of the livestock. Livestock producers would be required to
monitor their animals to ensure body condition is being maintained. In
addition, certifying agents would need to verify the nutritional
adequacy of the animals' diet by assessing the body condition of
organic livestock during inspection. Suitable body condition varies
between species, between breeds, and between production types. For
example, a suitable condition for dairy cattle may be considered too
thin in beef cattle.
AMS proposes to revise Sec. 205.238(a)(5) to clarify the
conditions under which physical alterations may be performed on
livestock. Physical alterations may only be performed for an animal's
welfare, identification, or safety. Alterations must be done at a
reasonably young age with minimal pain or stress to the animal and may
only be performed by an individual who can competently perform the
procedure. Competency in performing physical alterations may be
demonstrated by appropriate training or experience of the individual.
A 2009 NOSB recommendation allowed teeth clipping and tail docking
in piglets, but this revision was retracted in the 2011 NOSB
recommendation.\31\ This proposed rule would add Sec.
205.238(a)(5)(i), which would restrict needle teeth clipping and tail
docking in pigs. These two types of physical alterations may not be
performed on a routine basis but may be performed as needed to improve
livestock welfare, as listed below.
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Needle teeth clipping and tail docking in pigs may only be
performed in response to documented animal welfare reasons after
alternative steps to prevent harm fail. Teeth clipping, if performed,
is limited to the top third of each needle tooth. For example, an
organic swine producer who clipped needle teeth or performed tail
docking would need to document excessive needle teeth scarring on the
underline of a sow or piglets, or document tail biting on piglets in
the litter. Swine producers would also need to document that
alternative methods to prevent scarring had failed. Such alternative
methods may include, but are not limited to, cross-fostering prior to
teat fidelity across litters to minimize weight variation, providing
sufficient enrichment materials, and providing vegetation for rooting.
AMS proposes to add a new Sec. 205.238(a)(5)(ii) to list the
physical alterations that would be prohibited in an organic operation.
Based on the 2011 NOSB recommendations, the following

[[Page 48573]]

physical alterations to avian species would be prohibited: de-beaking,
de-snooding, caponization, dubbing, toe clipping of chickens, toe
clipping of turkeys unless with infra-red at hatchery, and beak
clipping after 10 days of age. In addition, the following physical
alterations to mammalian species would be prohibited: tail docking of
cattle, wattling of cattle, face branding of cattle, tail docking of
sheep shorter than the distal end of the caudal fold, and mulesing of
sheep.
AMS proposes to add new requirements at Sec. 205.238(a)(7) to
specify that surgical procedures on livestock to treat an illness must
be done in a manner that minimizes pain, stress, and suffering. The
NOSB recommended that all surgical procedures for livestock be done
with the use of anesthetics, analgesics, and sedatives. USDA organic
regulations require that all surgical procedures for treatment of
disease be undertaken in a manner that employs best management
practices in order to minimize pain, stress, and suffering, and only
with the use of anesthetics, analgesics, and sedatives as listed in
Sec. 205.603(a) and (b).
AMS is proposing a new Sec. 205.238(a)(8) that would require
organic producers to actively monitor and document lameness within the
herd or flock. Lameness can be an issue in various livestock species,
including broilers, sheep, and dairy cattle. This proposed requirement
for producers to create a plan for monitoring and recording instances
of lameness in the organic system plan would enable organic livestock
producers to identify and address potential problems among animals
before they become widespread. In addition, documentation of lameness
would provide an auditable trail for certifying agents to verify that
livestock producers are monitoring these potential causes of animal
suffering.
AMS proposes to add Sec. 205.238(b) to state that synthetic
medications allowed under Sec. 205.603 may be administered to
alleviate pain or suffering. In addition, synthetic medications allowed
under Sec. 205.603 may be administered when preventive practices and
veterinary biologics are inadequate to prevent sickness.
AMS proposes to amend Sec. 205.238(c)(1) to clarify that milk from
an animal treated with an allowed substance in Sec. 205.603, which has
a withholding time, may not be sold, labeled, or represented as organic
during that withholding time. However, organic animals or breeder stock
may continue to provide milk for organic calves on the same operation
during the withholding time. This is consistent with the 2010 NOSB
recommendation that a calf nursing a cow treated topically with
lidocaine or other approved synthetic with a withdrawal time would not
lose organic status. For example, if an organic beef cow was nursing
her organic calf and the cow became injured, her calf could continue to
nurse the cow even during the seven-day withholding period if lidocaine
was used to minimize pain and stress during her treatment. In this
scenario, the calf would not lose organic status.
AMS proposes to revise Sec. 205.238(c)(2) to clarify that other
veterinary biologics, in addition to vaccines, would be exempt from the
prohibition on administering animal drugs in the absence of illness.
This change would be consistent with the definition for biologics in
Sec. 205.2 and supports Sec. 205.238(a)(6), which identifies the use
of vaccines and other veterinary biologics as a required practice to
improve animal health.
AMS proposes to revise Sec. 205.238(c)(3) to clarify that organic
livestock producers would be prohibited from administering synthetic or
non-synthetic hormones to promote growth, or for production or
reproductive purposes. Hormones listed in Sec. 205.603 could be used
as medical treatments (e.g., oxytocin). Stakeholders have noted that
the USDA organic regulations fail to address use of hormones to
stimulate production or for reproductive purposes. AMS is not aware of
any hormones used by organic producers for these purposes (and none are
included on the National List for these uses). The proposed changes
would maintain the status quo; however, the proposed changes affirm and
support the current prohibition on hormones in organic production. This
addition would clarify that all hormones--unless used as medical
treatments--are prohibited in organic production.
AMS proposes to add a new Sec. 205.238(c)(8) that would prohibit
organic livestock producers from withholding treatment designed to
minimize pain and suffering for injured, diseased, or sick animals.
Injured, diseased, or sick animals may be treated with any allowed
natural substance or synthetic medication that appears on the National
List. However, if no appropriate medication is allowed for organic
production, organic livestock producers would be required to administer
treatment even if the animals subsequently lose their organic status.
Furthermore, as recommended by the American Veterinary Medical
Association, some forms of euthanasia may be an acceptable practice for
minimizing pain and suffering.
AMS proposes to add a new Sec. 205.238(c)(9) that would require
livestock producers to identify and record treatment of sick and
injured animals in animal health records. Early identification can lead
to more effective prevention or treatment, which would enhance the
overall health of the livestock on that operation.
AMS proposes to add a new Sec. 205.238(c)(10) that would prohibit
the practice of forced molting in poultry. Section 205.238(a)(2) of
this proposed rule requires a nutritionally sufficient feed ration for
livestock. Forced molting, a practice in which feed is severely
restricted for a period of time in order to rejuvenate egg production,
runs counter to this proposed addition. The proposed new Sec.
205.238(c)(10) would be consistent with the fall 2009 NOSB
recommendation.\32\
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AMS proposes to add a new Sec. 205.238(d) that would require
organic livestock operations to have a plan to minimize internal
parasite problems in livestock. The plan to minimize internal parasites
must include preventive measures such as pasture management, fecal
monitoring, and emergency measures in the event of a parasite outbreak.
Livestock producers would also be required to work with their
certifying agents to approve a parasite control plan.
In certain cases, livestock may suffer from an illness or injury
where recovery is unlikely. AMS proposes to add a new Sec. 205.238(e)
to address euthanasia based on the 2011 NOSB recommendations. Proposed
Sec. 205.238(e)(1) would require livestock producers to maintain
written plans for euthanizing sick or injured livestock. Proposed Sec.
205.238(e)(2) would prohibit the following methods of euthanasia:
suffocation, manual blows to the head by blunt instrument or manual
blunt force trauma, and use of equipment that crushes the neck (e.g.,
killing pliers or Burdizzo clamps). In the event of an emergency
situation where a local, State, or Federal government agency requires
the use of a non-organic method of euthanasia, organic livestock
operations would not lose organic certification or face other penalties
for the use of non-organic methods of euthanasia. The NOSB recommended
listing the allowable methods of euthanasia, however, given that new
humane euthanasia methods may emerge, AMS does not intend to discourage
producers from using these techniques. AMS proposes to direct

[[Page 48574]]

organic livestock producers to use methods of euthanasia consistent
with the most recent editions of the American Veterinary Medical
Association (AVMA) Guidelines for the Euthanasia of Animals.\33\ The
list of specifically prohibited methods could be amended to include
other techniques, if needed, through future rulemaking. AMS also
proposes to add a new Sec. 205.238(e)(3), which would require organic
producers to examine livestock to ensure they are dead following a
euthanasia procedure.
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C. Mammalian Livestock Living Conditions (Sec. 205.239)

AMS is proposing to separate the mammalian living conditions
section from avian living conditions section due to the different
physiology and husbandry practices for birds and mammals. As a result,
AMS proposes revising the title of Sec. 205.239 from ``Livestock
Living Conditions'' to ``Mammalian Livestock Living Conditions.'' By
creating clear living condition requirements for mammalian livestock
and avian livestock, organic operations and certifying agents are
better equipped to implement the USDA organic regulations in a
consistent manner. Information regarding avian living conditions is
addressed in new Sec. 205.241.
AMS proposes to revise Sec. 205.239(a)(1) to remove the
requirement that all ruminant livestock must be able to feed
simultaneously. One method of feeding livestock, including ruminants,
is the use of a self-feeder or a creep-feeder. With creep-feeding and
self-feeding, feed is accessible to all livestock at all times though
they may not feed at the exact same time. Allowing self-feeding and
creep-feeding systems would provide organic ruminant producers with
more flexibility and options to manage their farm and livestock in
farm-specific methods.
AMS proposes to maintain the current Sec. 205.239(a)(3), which
requires the use of appropriate, clean, dry bedding. If roughages are
used as bedding, they must be organically produced and handled by
certified operations, with the exception of transitioning dairy
producers that may provide crops and forage from land included in the
organic system plan of the dairy farm that is in the third year of
organic management during the 12-month period immediately prior to the
sale of organic milk and milk products (7 CFR 205.236(a)(2)(i)).
AMS proposes to revise Sec. 205.239(a)(4)(i) to specify that
shelter must be designed to accommodate natural behaviors over every
24-hour period. Shelter must have sufficient space for the animals to
lie down, stand up, and fully stretch their limbs and allow livestock
to express their normal patterns of behavior over a 24-hour period. AMS
recognizes that there are times when animals will be constrained for
livestock handling or management purposes. An animal may be limited in
its freedom of movement during parts of the day for a variety of
reasons, including milking, feeding, or other handling purposes.
Livestock may be constrained for limited amounts of time to ensure
hygiene and wellbeing of the animals. Stalls for organic dairy cattle
are often designed to limit the animals from turning to the sides. This
stall design directs manure and urine into a collection system to
prevent mastitis and maintain low somatic cell counts in the milk.
Mammalian livestock may be housed for part of the day in stalls as
described in the organic system plan as long as they have complete
freedom of movement during significant parts of the day for grazing,
loafing, and exhibiting natural social behavior. This allowance does
not permit the use of gestation crates or other confinement systems in
which swine would be housed individually in stalls for months at a
time. However, if livestock are temporarily confined indoors as
permitted in Sec. 205.239(b), livestock must be able to move around,
turn around, and stretch their limbs indoors for part of the day.
Operations would need to fully describe the use of any stalls, methods
used in stall management, and how livestock are able to express their
normal patterns of behavior.
AMS proposes to add Sec. 205.239(a)(4)(iv) to set requirements for
an indoor space for bedding and resting that is sufficiently large and
comfortable to keep livestock clean, dry, and free of lesions, with the
exception of animals raised on pasture or range. AMS recognizes that
while livestock do need to be provided with shelter (defined in Sec.
205.2), livestock on pasture or range may not have access to
traditional barns or bedded areas and therefore may not be provided
with indoor space. These types of operations may use windbreaks or
other methods to provide shelter for the livestock. Additionally, not
all manufactured shelters are designed to hold bedding; for example, a
shelter designed to provide shade may be portable and thus incompatible
with holding bedding. Operations need to describe in their OSP how they
will provide shelter to their livestock in a manner suitable for the
species, stage of production, and environment.
AMS proposes to add new requirements in Sec. 205.239(a)(7)
concerning the individual housing of dairy young stock. Section
205.239(a)(7) would allow for the individual housing of animals until
the weaning process is complete but no longer than six months, as long
as the animals have sufficient room to turn around, lie down, stretch
out while lying down, get up, rest, and groom themselves. In addition,
the individual housing of young stock would need to be designed so that
animals can see, smell, and hear other animals.
AMS proposes to add three new provisions in Sec. 205.239(a)(8) to
require the group housing of swine, with three listed exceptions: (1)
Sec. 205.239(a)(8)(i) would allow for sows to be individually housed
at farrowing and during the suckling period; (2) Sec.
205.239(a)(8)(ii) would allow for boars to be individually housed to
reduce the likelihood of fights and injuries; and (3) Sec.
205.239(a)(8)(iii) would allow for swine to be individually housed
after multiple documented instances of aggression or to allow an
individual pig to recover from a documented illness.
AMS proposes to add two new provisions in Sec. 205.239(a)(9) and
(10) concerning swine housing. Section 205.239(a)(9) would prohibit the
use of flat decks or piglet cages. This provision would prohibit the
stacking of piglets in flat decks in multiple layers. AMS is not aware
of any organic producers currently using these methods for organic
production. AMS is proposing specific language to prohibit the
practices and affirm that these systems do not and cannot meet the
living conditions requirements of the organic regulations. In addition,
Sec. 205.239(a)(10) would require both indoor and outdoor areas for
swine to include space for the livestock to root. Rooting is a natural
behavior that must be accommodated by organic swine producers and could
be done in soil, deep packed straw, or other materials. Organic swine
producers would also be required to update their OSP to address how
swine will be allowed to root during temporary confinement periods.
AMS proposes to add a new provision in Sec. 205.239(a)(11) to
further clarify the use of barns or other structures with stalls. If
indoor shelter is provided by a structure with stalls, this structure
must have a sufficient number of stalls to allow for the natural
behaviors of the animals. A cage would not be

[[Page 48575]]

considered a stall. AMS is aware that some operations use systems that
robotically feed animals that take turns entering an individual feeding
stall. AMS does not intend to prohibit such systems since they could
enhance the wellbeing of organic livestock. Therefore, the proposed
Sec. 205.239(a)(11) would provide an exception for this type of
system: more animals than feeding stalls may be allowed for group-
housed swine as long as all animals are fed routinely every day. AMS
also proposes to add specific allowances for a variety of cattle barns,
including tie stall barns, stanchion barns, and free stall barns.
However, while these barns can all be suitable for organic
certification systems, the specific procedures used by producers with
these barns may be incompatible with organic production. For example,
it would not be permitted for a producer to leave an animal tied up for
24 hours per day in a tie stall barn.
AMS proposes to add a new requirement for outdoor access in Sec.
205.239(a)(12). Organic livestock would be required to have
unencumbered access to the outdoors year-round, unless temporary
confinement is justified under a specific reason described in the USDA
organic regulations (e.g., nighttime confinement for protection from
predators). When the outdoor space includes soil, then maximal
vegetative cover must be maintained as appropriate for the season,
climate, geography, species of livestock, and stage of production.
Ruminants must have access to graze during the growing season. Swine
are not required to have access to the soil or vegetation; however, if
a swine producer chooses to allow swine to have access to the soil as a
rooting material, then the producer must maintain as much vegetative
cover as possible given the natural behavior of swine to root, the
season, and local environmental conditions.
AMS proposes to revise Sec. 205.239(b)(7) to clarify the exemption
for temporary confinement for the purpose of breeding livestock.
Livestock may only be confined for the time required for natural or
artificial breeding. A group of livestock may be confined before the
procedures and while the various individuals are bred; afterward, the
group shall be returned to living spaces that allow outdoor access.
This provision would prohibit livestock from being confined indoors to
observe estrus, or until they are determined to be pregnant. Proposed
Sec. 205.239(c)(1) further describes the time when ruminants may be
denied access to pasture, but not access to the outdoors, before and
after a breeding attempt.
AMS proposes to revise Sec. 205.239(b)(8) to clarify the temporary
confinement exception for youth livestock projects. Because many youth
livestock projects include the sale of market animals, organic animals
that were under continuous organic management may be sold as organic
animals at youth fairs, even if the sales facility is not certified
organic. Thus, the proposed revision includes an exemption to the
proposed Sec. 205.239(b)(6) requirement that a livestock sales
facility be certified as an organic operation. As an example, if a
youth exhibition and sale is held at a livestock sales facility that is
not certified organic, the livestock may be temporarily confined
indoors during the event. In this case, the youth could still sell the
organic animal as an organic animal, provided all other requirements
for the organic management of livestock are met. Otherwise, non-
certified sales facilities, such as auction barns or fairgrounds, may
not sell or represent livestock as organic. AMS proposes to include
this exception to encourage the next generation of organic farmers.
AMS proposes to revise Sec. 205.239(d) to reflect the similar
proposed changes in Sec. 205.239(a)(1). Use of self-feeding and creep-
feeding would be allowed to provide ruminants with access to feed
continuously over a 24-hour period.

D. Avian Living Conditions (Sec. 205.241)

AMS is proposing to add a new section to the organic regulations,
Sec. 205.241, entitled ``Avian living conditions,'' which includes
requirements for all organic avian (``bird'' or ``poultry'') species,
including but not limited to, chickens, turkeys, geese, quail,
pheasant, and any other species that are raised for organic eggs,
organic meat, or other organic agricultural products.
Section 205.241(a) proposes to establish general requirements for
organic poultry production. These general principles are further
clarified in Sec. 205.241(b), (c), and (d). Section 205.241(a) would
require organic poultry operations to establish and maintain living
conditions that accommodate the wellbeing and natural behaviors of the
birds. These living conditions include: year-round access to the
outdoors, soil, shade, shelter, exercise areas, fresh air, direct
sunlight, clean water for drinking, materials for dust bathing, and
adequate space to escape aggressive behaviors. The living conditions
provided should be appropriate to the species, its stage of life, the
climate, and the environment. These proposed requirements are based
upon a 2009 NOSB recommendation \34\ and are largely identical to
previously established livestock requirements at Sec. 205.239(a)(1),
although AMS proposes to add additional requirements, including
materials for dust bathing and adequate outdoor space to escape
aggressive behaviors. These additional requirements are necessary to
provide for the basic needs of poultry.
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\34\ 2009 NOSB Sunset Recommendation: <a href="https://www.ams.usda.gov/sites/default/files/media/NOP%20Final%20Sunset%20Rec%20Animal%20Welfare.pdf">https://www.ams.usda.gov/sites/default/files/media/NOP%20Final%20Sunset%20Rec%20Animal%20Welfare.pdf</a>.
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Section 205.241(b) proposes to specify the indoor space
requirements for avian species. This proposed provision would require
operations to provide shelter to birds, and if an operation provides
indoor space to birds, this space would need to meet the proposed
indoor space requirements. Proposed Sec. 205.241(b)(1) would require
that indoor space be sufficiently spacious to allow all birds to move
freely, stretch their wings, stand normally, and engage in natural
behaviors. Cages or environments that limit free movement within the
indoor space would be prohibited. In addition, the indoor space must
allow birds to engage in natural behaviors such as dust bathing,
scratching, and perching. These proposed requirements are adopted from
a 2009 NOSB recommendation and modify previously established
requirements for organic livestock at Sec. 205.239(a)(4)(i) that
required, ``shelter designed to allow for. . .natural maintenance,
comfort behaviors, and opportunity to exercise.''
AMS proposes to add a new Sec. 205.241(b)(2) to require producers
to monitor ammonia levels at least monthly and implement practices to
maintain ammonia levels below 10 ppm. Should ammonia levels exceed 10
ppm, producers would be required to implement additional practices and
additional monitoring to reduce ammonia levels below 10 ppm. Ammonia
levels above 25 ppm would not comply with the requirements. Ammonia is
a natural breakdown product of manure from livestock and is harmful to
birds when inhaled, especially at concentrations above 25 ppm.\35\
Inhalation of high levels of ammonia has a negative impact on welfare
in poultry, causing irritation and inflammation, as well as
contributing to negative production outcomes like reduced growth. In
most

[[Page 48576]]

cases, high levels of ammonia indicate that litter is damp, or litter
management practices require modification.
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\35\ ``Ammonia production in the poultry houses and its harmful
effects'' IU Sheikh, SS Nissa, Bushra Zaffer, KH Bulbul, AH Akand,
HA Ahmed, Dilruba Hasin, Isfaqul Hussain and SA Hussain,
International Journal of Veterinary Sciences and Animal Husbandry,
3(4): 30-33, 2018.
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Proposed Sec. 205.241(b)(3) would clarify the lighting
requirements for organic layers and fully feathered birds. Organic
producers could use artificial light for up to 16 hours per day (24-
hour period). The 16-hour period would need to be calculated as a
single continuous time period. Artificial light would need to be
lowered gradually to encourage hens to move to perches or otherwise
settle for the night. AMS is not including a requirement from the 2017
OLPP final rule (subsequently withdrawn in 2018) that required,
``Natural light must be sufficient indoors on sunny days so that an
inspector can read and write when all lights are turned off.'' AMS
determined that it would not be feasible for inspectors to verify a
producer's compliance with this requirement, so the requirement was
removed from this proposed rule.
Proposed Sec. 205.241(b)(4) would require exit areas, or doors, on
shelters to be designed in such a way that the birds could easily
access both indoor and outdoor areas. Access and utilization of outdoor
areas is a core principle of organic production systems. Organic avian
systems must be designed so birds have ready access to outdoor areas
and so birds are able to return indoors to roost in the evening.
Producers must provide exit doors and door sizes to enable all birds to
access outdoor and indoor areas. Door size and appropriate placement
must provide meaningful outdoor access to the birds. This section also
notes that shell egg producers may be subject to FDA requirements in 21
CFR part 118 intended to prevent Salmonella Enteritidis (SE).
Specifically, these FDA regulations require producers to maintain
biosecurity measures that prevent stray poultry, wild birds, cats, and
other animals from entering poultry houses. AMS invites comments on how
organic producers provide exit doors for meaningful outdoor access
while simultaneously preventing animals (that could introduce or
transfer SE) from entering poultry houses.
Proposed Sec. 205.241(b)(5) would require perches for chicken
layers at a rate of six inches per bird for all housing, with the
exception of aviary housing. Perch space could include the alighting
rail in front of nest boxes. Perches would not be required for
broilers, meat birds, or layers of non-Gallus gallus species. Aviary
housing would need to provide 6 inches of perch space for only 55
percent of the flock (i.e., 3.3 inches of perch for each bird in flock)
because birds in aviary housing are also able to escape aggressive
behavior by moving between tiers in the house. These proposed
requirements are adopted from 2009 and 2011 NOSB recommendations.
Proposed Sec. 205.241(b)(6) would specify indoor requirements to
allow for certain natural behaviors. Indoor space would be required to
include areas that allow for scratching and dust bathing. Litter (i.e.,
bedding), such as wood shavings or straw, must also be provided
indoors. Manure excreted by birds in a poultry house alone, without
additional litter, would not be sufficient to meet this requirement.
The proposed provisions would also require that litter be maintained in
a dry manner, since wet litter can lead to a variety of problems for
birds, including excess ammonia, lameness, and pest problems.\36\ High
moisture content in poultry litter can cause negative health and
welfare outcomes, including foot pad dermatitis \37\ and increased
populations of house fly leading to disease in the birds.\38\ Wet
litter also promotes bacterial growth, which can further lead to
disease and negative health outcomes in birds.\39\ Litter may be topped
off when needed to maintain sufficient dryness. The proposed
requirements described in Sec. 205.241(b)(6) are adopted from 2009 and
2011 NOSB recommendations.
---------------------------------------------------------------------------

\36\ ``Broiler Litter: Odor and Moisture Concerns'', Tom Tabler,
Yi Liang, Jonathan Moon, and Jessica Wells. Mississippi State
University Extension, Publication: P3515, 2020.
\37\ ``Wet litter not only induces footpad dermatitis but also
reduces overall welfare, technical performance, and carcass yield in
broiler chickens'', Ingrid C. de Jong, H.Gunnink and J.van Harn,
Journal of Applied Poultry Research, 23(1): 51-58, 2014.
\38\ ``Pests in Poultry, Poultry Product-Borne Infection and
Future Precautions'', Hongshun Yang, Shuvra K. Dey, Robert Buchanan,
and Debabrata, Biswas Practical Food Safety: Contemporary Issues and
Future Directions, 1, 2014.
\39\ ``Broiler Litter: Odor and Moisture Concerns'', Tom Tabler,
Yi Liang, Jonathan Moon, and Jessica Wells, Mississippi State
University Extension, Publication: P352020.
---------------------------------------------------------------------------

Proposed Sec. 205.241(b)(7) would add specific flooring
requirements for indoor avian housing with slatted/mesh floors. These
houses must provide at least 30 percent solid flooring to allow birds
indoors to engage in natural behaviors, including scratching and dust
bathing, without crowding. This proposed requirement is adopted from a
2009 NOSB recommendation.
Sections 205.241(b)(8), 205.241(b)(9), and 205.241(b)(10) propose
minimum indoor space requirements for different types of housing. These
are minimum standards, and organic producers may choose to provide more
indoor space than required. The indoor space requirements would apply
to chickens (Gallus gallus), with layer requirements at Sec.
205.241(b)(8), pullet requirements at Sec. 205.241(b)(9), and broiler
requirements at Sec. 205.241(b)(10). The proposed indoor space
requirements for layers vary by the type of housing provided. The types
of housing are further defined in Sec. 205.2 and include: mobile
housing, aviary housing, slatted/mesh floor housing, and floor litter
housing. For housing that does not fit into any of these defined types,
the proposed indoor space requirement is no more than 2.25 pounds of
hen per square foot. Pasture pens that are moved regularly and provide
direct access to soil and vegetation would not be considered indoors
(see definition of ``outdoors'' in Sec. 205.2). These proposed
requirements are adapted from 2009 and 2011 NOSB recommendations, and
made in consideration of third-party animal welfare standards.
AMS proposes to establish indoor space requirements for common
types of poultry housing. Less indoor space will be required per bird
in houses that provide more access to vertical space in the house, as
birds have more room to move around (e.g., aviary and slatted/mesh
floor housing). Housing where birds have more limited access to
vertical space (e.g., floor litter housing) must provide more indoor
space per bird. AMS proposes to allow higher stocking densities in
mobile housing, as birds managed in these systems spend more time
outdoors, and mobile housing must be relatively small and light, as it
is moved frequently.
AMS is using the unit of measurement as ``pounds per square foot''
to establish space requirements. In other words, the minimum space that
must be provided depends on the average weight of birds at that time.
All weight references proposed in Sec. 205.241(b) and (c) refer to the
weight of live birds and not the weight of processed birds, for
example. By stating the requirement in pounds per square foot, the
application of the space requirement is more consistent between breeds,
where the average weight per bird can vary significantly. This unit of
measurement (pounds per square foot) was recommended by the NOSB in
2011 for pullets and broilers, and AMS proposes to extend this same
unit of measurement to layers. This use of measurement allows birds to
receive similar spacing densities physically no matter the breed's
size. Under this proposed rule, larger breeds (i.e., heavier on a per-
bird basis) must be provided with more indoor space than smaller birds,
on a per bird basis. For example, Rhode Island Red birds are heavier
than White Leghorns or ISA

[[Page 48577]]

Browns, and thus cannot be stocked as densely, in terms of number of
birds per unit area.
An example of how space requirements can be calculated is as
follows: a layer in a floor litter housing system that is 32 weeks of
age and weighs 4.3 pounds must be provided with 1.43 square feet per
bird (equivalent to 3.0 pounds of bird for each one square foot);
however, at 80 weeks of age and a weight of 4.5 pounds, each bird must
be provided with 1.5 square feet per bird (3.0 pounds of bird for each
one square foot). In other words, for each 10,000 square feet, a
producer could stock 6,993 birds at 32 weeks of age (bird weight of 4.3
pounds) but only 6,667 birds at 80 weeks of age (bird weight of 4.5
pounds). Although older and heavier birds require more space, natural
mortalities over time may result in compliance with the space
requirements over a production cycle.
To calculate the weight of birds, an average weight may be
established for the flock by taking weights of a representative sample
of the flock. The requirement is not specific to each individual bird
in a flock. AMS understands that many producers already monitor and
track bird weight closely during the production cycle to monitor bird
development and health and calculate feed requirements. However, if
weight is not monitored by a producer, the producer will need to
establish the weight of birds based on objective criteria to determine
the space required indoors and outdoors. Certifiers may also weigh
birds at inspections to verify compliance with the requirements.
Proposed Sec. 205.241(b)(11) specifies how the area of the indoor
space is calculated. Indoor space must be calculated to ensure that
birds are provided with adequate indoor space to meet the proposed
space requirements at Sec. 205.241(b)(8) through (10). The total size
of the indoor space is calculated by including all flat areas in a
house, excluding nest boxes. Elevated round perches, for example, are
not flat areas and could not be included as indoor space. Nest boxes
are excluded from the calculation, as they are distinct from useable
floor areas of the house where birds can move around freely. This
aligns with the 2009 and 2011 NOSB recommendations.
Proposed Sec. 205.241(b)(12) clarifies that indoor space may
include enclosed porches and lean-to type structures (e.g., screened
in, roofed) provided that the birds always have access to the space,
including during temporary confinement events. The same porch must not
be counted as indoor space if the birds do not have continued access to
the space during temporary confinement events. This would ensure that
enclosed porches that are not fully accessible to birds are not counted
in indoor space calculations.
Proposed Sec. 205.241(c) establishes the requirements for outdoor
areas for organic avian species, including the amount of outdoor space
that must be provided to organic avian species. The requirements of
proposed Sec. 205.241(c) are adapted from previously established
requirements at Sec. 205.239, 2009 and 2011 NOSB recommendations, and
third-party animal welfare organization standards. Proposed Sec.
205.241(c)(1) requires that the outdoor space be designed to promote
and encourage outdoor access for all birds. Producers are required to
provide access to the outdoors at an early age. This section requires
door spacing to be designed to promote and encourage outdoor access and
requires outdoor access to be provided on a daily basis (further
described at proposed Sec. 205.241(b)(4)). Outdoor access may only be
temporarily restricted in accordance with proposed Sec. 205.241(d).
Proposed Sec. 205.241(c)(2) would require outdoor areas for
poultry to have a minimum of 50 percent soil and that the soil portion
of the outdoor area include maximal vegetative cover. Vegetative cover
must be maintained in a manner that does not provide harborage for
rodents and other pests. For example, a producer may mow vegetation to
ensure that tall vegetation does not provide harborage for pests. A
maximum of 50 percent of the outdoor area may be gravel, concrete, or
surfaces other than soil or soil with vegetative cover. Maximal
vegetation would be required, as vegetation protects soil and water
quality and allows birds to engage in natural behaviors, including
foraging, pecking, and scratching. The amount of vegetation present
would depend on the season, climate, geography, species, and the stage
of production.
Proposed Sec. 205.241(c)(3) clarifies how producers may provide
shade to meet the general requirements of proposed Sec. 205.241(a).
Shade may be provided in outdoor areas by trees, shade structures, or
other appropriate objects. This section is specific to shade in outdoor
areas; it would not permit structures that do not meet the definition
of ``outdoors'' (Sec. 205.2) to be included in calculations of outdoor
space.
This proposed rule would require organic layer producers to provide
at least one square foot of outdoor space for every 2.25 pounds of bird
in the flock. For example, if birds average 4.5 pounds, a producer must
provide 2.0 square feet of outdoor space for each bird in the flock.
Organic pullet producers must provide at least one square foot of
outdoor space for every 3.0 pounds of bird in the flock. Organic
broiler producers must provide at least one square foot of outdoor
space for every 5.0 pounds of bird in the flock. The total outdoor
space that must be provided per flock is to be calculated by
multiplying the total number of birds in the flock by the space
required per bird (i.e., not by multiplying the number of birds
actually in the outdoor area at a given moment by the space requirement
per bird). All weight references in proposed Sec. 205.241(b) and (c)
refer to the weight of live birds and not the weight of processed
birds.
Proposed Sec. 205.241(c)(7) would clarify that porches and lean-to
type structures that are not enclosed (e.g., with a roof, but with
screens removed) and allow birds to freely access other outdoor areas
can be counted as outdoor space. This would ensure that enclosed
porches are not counted as outdoor space, while providing flexibility
for producers to use modified porches as outdoor space when they are
open to larger outdoor areas that the birds can access.
Proposed Sec. 205.241(d) describes the conditions under which
organic avian livestock producers may temporarily confine birds indoors
(``temporary'' and ``temporarily'' further defined at Sec. 205.2).
Producers must record confinement, and should do so in a manner that
will demonstrate compliance with the USDA organic regulations (also see
Sec. 205.103). Records could include the reason for the confinement,
the duration of the confinement, and the flocks that were confined.
Records should be sufficient for a certifier to determine if birds were
confined in compliance with this section. The requirements of proposed
Sec. 205.241(d) are adapted from previously established requirements
for organic livestock at Sec. 205.239(b), 2009 and 2011 NOSB
recommendations, and third-party animal welfare organization standards.
Proposed Sec. 205.241(d)(1) would provide an allowance for
temporary confinement in response to inclement weather, which is
defined at Sec. 205.2. In addition, this provision would allow birds
to be confined indoors when the temperature does not exceed 40[deg] F.
It would also allow birds to be denied outdoor access or be brought
inside when the daytime temperature exceeds 90[deg] F. In this case,
producers have to provide outdoor access during parts of the day when
temperatures are between 40-90[ordm] F, unless other forms of

[[Page 48578]]

inclement weather occur. Weather may still qualify as inclement weather
(Sec. 205.2) within the 40-90[deg] F temperature range. For example,
excessive precipitation and very violent weather can occur when
temperatures are within 40[deg] F and 90[deg] F. Likewise, weather may
meet the definition of inclement weather within the range of 40[deg] F
and 90[deg] F if the relative humidity is very high and the air
temperature is nearing 90[deg] F, or under extremely windy conditions.
As inclement weather is defined, in part, as weather that can cause
physical harm to a species, a producer would still be in compliance
with proposed Sec. 205.241(d)(1) if birds were confined at
temperatures that did not exceed 90[deg] F, if the weather could cause
physical harm.
Proposed Sec. 205.241(d)(2) would provide an allowance for
temporary confinement indoors due to a bird's stage of life. In this
section, AMS proposes specific requirements for confining chicken
broilers and chicken pullets due to their stage of life (``stage of
life'' previously defined at Sec. 205.2). Additionally, the section
includes a general provision for confining other avian species until
fully feathered. Chicken broilers may be confined through 4 weeks of
age and chicken pullets may be temporarily confined indoors through 16
weeks of age. The NOSB recommended 16 weeks of age as the age after
which outdoor access is required to provide adequate time for pullets
to complete their vaccination program before exposure to pathogens
outdoors. Any confinement beyond the time when birds are fully
feathered would be in accordance with proposed Sec. 205.241(d).
Proposed Sec. 205.241(d)(3) would provide an allowance for
temporary indoor confinement under conditions in which the health,
safety, or well-being of the birds could be jeopardized. Temporary
confinement would be required to be recorded, and to confine birds
under this proposed provision, a producer must have sufficient
justification to demonstrate that an animal's health, safety, or well-
being could be jeopardized by access to the outdoors. Certifying agents
would verify compliance with this requirement. Producers and certifying
agents should consult with animal health officials, as appropriate, to
determine when confinement of birds is warranted to protect the health,
safety, or well-being of the birds. Animal health officials are also
encouraged to reach out to certifying agents and to AMS to discuss
specific health concerns. AMS would continue to engage animal health
officials, including State Departments of Agriculture and State
Veterinarians, about risks to bird health and provide appropriate
guidance to certifying agents or producers, as necessary.
Proposed Sec. 205.241(d)(4) would provide an allowance for indoor
confinement to prevent risk to soil or water quality. This provision
would allow for confinement of birds when the outdoor area is being
managed to reestablish vegetation. As outdoor areas must be maximally
vegetated, producers may need to occasionally confine birds to meet the
vegetation requirement at Sec. 205.241(c)(2).
Proposed Sec. 205.241(d)(5) would provide an allowance for indoor
confinement for preventive health care procedures and for the treatment
of illness or injury. Neither life stages nor egg laying are considered
an illness for confinement purposes. For example, this provision would
allow producers to briefly confine a flock to administer a vaccine or
confine an individual animal that requires medical treatment.
Proposed Sec. 205.241(d)(6) would provide an allowance for indoor
confinement for sorting, shipping, and poultry sales. Birds would be
required to be managed organically during the entire time of
confinement. For example, any feed provided during confinement must be
organic. Confinement must be no longer than necessary to sort the birds
or to catch the birds, place them in shipping containers, and conduct
the sale.
Proposed Sec. 205.241(d)(7) would provide an allowance for indoor
confinement to train pullets to lay eggs in nest boxes, with a maximum
period of five weeks allowed for confinement (over the life of the
bird). The training period would be required to not be any longer than
required to establish the proper behavior. As soon as the behavior is
established, birds must be provided with access to the outdoors, except
when confined in accordance with other provisions under proposed Sec.
205.241(d).
Proposed Sec. 205.241(d)(8) would provide an allowance for indoor
confinement for youth exhibitions, such as with 4-H or the National FFA
Organization. This provision would also include an exemption to the
requirement that a livestock sales facility be certified as an organic
operation. As an example, if a youth exhibition and sale is held at a
livestock sales facility that is not certified organic, a youth may
sell birds there as organic, provided all other requirements for
organic management are met. During the youth event, the livestock may
be temporarily confined indoors. Otherwise, non-certified sales
facilities, such as auction barns, may not sell or represent livestock
as organic. AMS is adding these provisions at proposed Sec.
205.241(d)(8) to encourage the next generation of organic producers.
Proposed Sec. 205.241(e) would require organic poultry producers
to manage manure in a manner that does not contribute to contamination
of crops, soil, or water quality by plant nutrients, heavy metals, or
pathogenic organisms. Organic poultry producers would be required to
manage the outdoor space in a manner that does not put soil or water
quality at risk. In addition, organic poultry producers would be
required to comply with all other governmental agency requirements for
environmental quality. The proposed requirements of this section are
adapted from previously established requirements for organic livestock
at Sec. 205.239(e).

E. Transport and Slaughter

AMS is proposing to add a new section to the organic regulations at
Sec. 205.242 titled ``Transport and Slaughter,'' to address the care
of organic animals during transport and up to the time of slaughter.
Proposed Sec. 205.242 is divided into three subsections on
transportation, mammalian slaughter, and avian slaughter.
The proposed changes are made in response to a December 2011 NOSB
recommendation \40\ and under AMS's authority to promulgate standards
``for the care of livestock'' (7 U.S.C. 6509(d)(2)). AMS understands
that ``care of livestock'' is relevant up to the time of slaughter and
that some practices during transport and/or slaughter should affect an
animal's organic certification. Once killed, existing organic
regulations for handling operations become relevant for the processing,
packaging, and sale of organic animal products. The proposed
requirements would apply to the care of live animals.
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\40\ <a href="https://www.ams.usda.gov/sites/default/files/media/NOP%20Livestock%20Final%20Rec%20Animal%20Handling%20and%20Transport%20to%20Slaughter.pdf">https://www.ams.usda.gov/sites/default/files/media/NOP%20Livestock%20Final%20Rec%20Animal%20Handling%20and%20Transport%20to%20Slaughter.pdf</a>
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The December 2011 NOSB recommendation noted that additional
regulations for the transport and slaughter of organic animals were
appropriate to assure consumers that animal products sold as organic
are produced with a high level of animal welfare and, ``to avoid animal
mistreatment on the farm, during transport to, or at the slaughter
plant.'' The NOSB noted that their recommended regulatory language
reflect third-party animal welfare

[[Page 48579]]

certification standards and common practices within the industry. The
NOSB also specifically recommended that AMS adopt the ``necessary''
requirements from the recommendation to avoid increasing paperwork
burden or certification costs, and to avoid discouraging small
slaughter plants from seeking or maintaining organic certification. AMS
agrees that additional requirements are appropriate to cover the time
period(s) during which organic livestock are transported and
slaughtered. As noted above, products sold as organic must be managed
and processed in accordance with detailed organic regulations. AMS
believes that it is appropriate to clarify the requirements for
transport and slaughter in the organic regulations. This proposal seeks
to minimize paperwork burden and increases in certification costs, when
possible, by referring to existing regulations and laws that apply to
transport and slaughter. Specific requirements are also included, as
recommended by the NOSB.
Proposed Sec. 205.242(a)(1) would require that animals are clearly
identified during transport. AMS's approach requires that livestock are
clearly identified but provides flexibility on how the identity is
maintained during transport. Proposed Sec. 205.242(a)(2) would set
minimum fitness requirements for livestock to be transported. Proposed
Sec. 205.242(a)(2)(i) would require that calves have a dry navel cord
and the ability to stand and walk without assistance if they are to be
transported. This provision would apply to transport to buyers, auction
facilities, or slaughter facilities. Beef cattle and dairy cattle
producers may transport calves on the farm before the navel is dried
and the calves can walk. Proposed Sec. 205.242(a)(2)(ii) would
prohibit transport of non-ambulatory animals to buyers, auction
facilities, or slaughter facilities. These animals may either be given
medical treatments and cared for until their health conditions improve,
so that they are able to walk, or they may be euthanized.
Proposed Sec. 205.242(a)(3) and (4) would set minimum standards
for the trailer, truck, or shipping container used for transporting
organic livestock. The mode of transportation would be required to
provide seasonally appropriate ventilation to protect livestock against
cold or heat stress. This provision would require that air flow be
adjusted depending on the season and temperature. In addition, bedding
would be required to be provided on trailer floors as needed to keep
livestock clean, dry, and comfortable. If roughage is used as bedding,
the bedding would need to be organically produced and handled. Bedding
would not be required for poultry crates.
Proposed Sec. 205.242(a)(5) would require that all livestock be
provided with organic feed and clean water if transport time exceeds 12
hours. The 12-hour time period includes all times during which the
livestock are on the trailer, truck, or shipping container, even if
these modes of transportation are not moving. In cases such as poultry
slaughter in which requirements do not allow feed 24 hours before
slaughter, producers and slaughter facilities would need to ensure that
transport time does not exceed 12 hours. After 12 hours of transport,
the birds would need to be fed, which may prolong the time to
slaughter. The certified operation would need to present records--which
verify that transport times meet the 12-hour requirement--to the
certifying agent during inspections or upon request.
Proposed Sec. 205.242(a)(6) would require that operations that
transport livestock to sales or slaughter have emergency plans in place
that adequately address problems reasonably possible during transport.
Such emergency plans could include how to provide feed and water if
transport time exceeds 12 hours, what to do if livestock escape during
transport, or how to euthanize an animal injured during transport.
Shipping and/or receiving operations would also be required to include
these plans in their OSPs.

F. Slaughter Requirements (Sec. 205.242(b) and (c))

1. Slaughter and the Handling of Livestock in Connection With Slaughter
The requirements regarding slaughter and the handling of livestock
in connection with slaughter are governed by separate authority
applicable to both certified organic and non-organic livestock
products. The proposed rule reiterates that compliance with these
regulations, as determined by FSIS, is required for certified organic
livestock operations. The proposed requirements defers, in large part,
to existing regulations and law while also aiming to ensure that USDA-
accredited certifying agents have access to relevant records. The
proposal seeks to avoid undue burden on certified organic slaughter
facilities which could have the effect of reducing the availability of
certified organic slaughter facilities. Proposed Sec. 205.242(b)
regarding mammalian slaughter would clarify the authority of AMS,
certifying agents, and State organic programs to review records related
to humane handling and slaughter issued by the controlling national,
federal, or state authority, and records of any required corrective
actions if certified operations are found to have violated FSIS
regulations governing the humane handling of mammalian livestock in
connection with slaughter (note that AMS has separated mammalian from
avian slaughter requirements due to the differences in how mammalian
and avian livestock are handled and slaughtered). This new subsection
(proposed Sec. 205.242(b)), titled ``Mammalian Slaughter,'' would
govern mammals defined as ``livestock'' or ``exotic animals'' under the
FSIS regulations. Under the FSIS regulations, ``livestock'' are cattle,
sheep, swine, goat, horse, mule, or other equines. ``Exotic animals''
include antelope, bison, buffalo, cattalo, deer, elk, reindeer, and
water buffalo. These regulations govern the handling and slaughter of
most mammalian animals used for food in the United States and apply to
all operations that slaughter these animals.
Proposed Sec. 205.242(b)(1) would require certified organic
slaughter facilities to be in full compliance with the Humane Methods
of Slaughter Act (HMSA) of 1978 (7 U.S.C. 1901 et seq.) and its
implementing FSIS regulations, as determined by FSIS. The HMSA requires
that humane methods be used for handling and slaughtering livestock and
defines humane methods of slaughter. In the HMSA, Congress found ``that
the use of humane methods in the slaughter of livestock prevents
needless suffering; results in safer and better working conditions for
persons engaged in the slaughtering industry; brings about improvement
of products and economies in slaughtering operations; and produces
other benefits for producers, processors, and consumers which tend to
expedite an orderly flow of livestock and livestock products in
interstate and foreign commerce.'' The HMSA is referenced in the
Federal Meat Inspection Act (FMIA) at 21 U.S.C. 603 and is implemented
by FSIS humane handling and slaughter regulations found at 9 CFR parts
309 and 313. The FMIA provides that, for the purposes of preventing
inhumane slaughter of livestock, the Secretary of Agriculture will
assign inspectors to examine and inspect the methods by which livestock
are slaughtered and handled in connection with slaughter in
slaughtering establishments subject to inspection (21 U.S.C. 603(b)).
All establishments that slaughter livestock, which include any
certified organic operations that slaughter livestock, must meet the
humane

[[Page 48580]]

handling and slaughter requirements the entire time they hold livestock
in connection with slaughter. FSIS provides for continuous inspection
in livestock slaughter establishments, and inspection program personnel
verify compliance with the humane handling regulations during each
shift that animals are slaughtered, or when animals are on site, even
during a processing-only shift. The regulations at 9 CFR part 313
govern the maintenance of pens, driveways, and ramps; the handling of
livestock, focusing on their movement from pens to slaughter; and the
use of different stunning and slaughter methods. Notably, FSIS
inspection program personnel verify compliance with the regulations at
9 CFR part 313 through the monitoring of many of the same parameters
proposed by the NOSB in 2011, including prod use, slips and falls,
stunning effectiveness, and incidents of egregious inhumane
handling.\41\ The regulations at 9 CFR part 309 govern ante-mortem
inspection and ensure that only healthy ambulatory animals are
slaughtered, and that non-ambulatory are euthanized and disposed of
promptly. FSIS has a range of enforcement actions available regarding
violations of the humane slaughter requirements for livestock,
including noncompliance records, regulatory control actions, and
suspensions of inspection.
---------------------------------------------------------------------------

\41\ FSIS Directive 6900.2, Revision 2, Humane Handling and the
Slaughter of Livestock, August 15, 2011.
---------------------------------------------------------------------------

Further, FSIS encourages livestock slaughter establishments to use
a systematic approach to humane handling and slaughter to best ensure
that they meet the requirements of the HMSA, FMIA, and implementing
regulations.\42\ With a systematic approach, establishments focus on
treating livestock in such a manner as to minimize excitement,
discomfort, and accidental injury the entire time they hold livestock
in connection with slaughter. Establishments may develop written animal
handling plans and share them with FSIS inspection program personnel.
---------------------------------------------------------------------------

\42\ Humane Handling and Slaughter Requirements and the Merits
of a Systematic Approach to Meet Such Requirements, FSIS, 69 FR
54625, September 9, 2004.
---------------------------------------------------------------------------

AMS proposes to add a new Sec. 205.242(b)(2) for those certified
organic facilities that slaughter exotic animals and voluntarily
request FSIS inspection. FSIS also provides, upon request, voluntary
inspection of certain exotic animal species on a fee-for-service basis
under the authority of the Agricultural Marketing Act of 1946. FSIS
regulates the humane handling of the slaughter of exotic animals under
the regulations at 9 CFR part 352.10, which require that exotic animals
be slaughtered and handled in connection with slaughter in accordance
with the requirements for livestock at 9 CFR part 309 and 9 CFR part
313. Violation of these regulations can result in a denial of service
by FSIS.
Proposed Sec. 205.242(b)(3) would require that all certified
organic slaughter facilities provide any FSIS noncompliance records or
corrective action records relating to humane handling and slaughter to
certifying agents during inspections or upon request. Not all
violations of FSIS regulations result in a suspension of FSIS
inspection services. In some cases, FSIS will issue a noncompliance
record and the slaughter facility must perform corrective actions to
bring the slaughter facility back into compliance. These records would
be required to be provided to certifying agents during inspection or
upon request to verify that the slaughter facility is in full
compliance and has taken all corrective actions. If records revealed
that an organic operation had not taken corrective actions required by
FSIS within the time period allowed by FSIS, the certifying agent could
initiate actions to suspend the facility's organic certification. While
this action would be separate from any FSIS actions, it would impact
the facility's capacity to handle organic animals.
In addition, AMS recognizes that in the United States, some
slaughter facilities are regulated by the State for intra-state meat
sales. In foreign countries, foreign governments may be the appropriate
regulatory authority for humane slaughter inspections. In all cases,
the relevant humane slaughter noncompliance records and corrective
action records would be required to be provided to certifying agents
during the inspections or upon request.
2. Slaughter and the Handling of Poultry in Connection With Slaughter
AMS proposes to add Sec. 205.242(c) regarding avian slaughter
facilities. Proposed Sec. 205.242(c)(1) would clarify the authority of
AMS, certifying agents, and State organic programs to review
noncompliance records related to the use of good manufacturing
practices in connection with slaughter issued by the controlling
national, federal, or state authority, and records of subsequent
corrective action if certified operations are found to have violated
the Poultry Products Inspection Act (PPIA) requirements regarding
poultry slaughter, violated the FSIS regulations regarding the
slaughter of poultry, or failed to use good commercial practices in the
slaughter of poultry, as determined by FSIS. Under the PPIA and the
FSIS regulations, poultry are defined as chickens, turkeys, ducks,
geese, guineas, ratites, and squabs. These species constitute most
avian species slaughtered for human food in the United States. However,
the proposed organic standards for avian slaughter would apply to all
species biologically considered avian or birds. The NOSB did not
directly address avian slaughter requirements. However, AMS is
proposing to add avian slaughter requirements for consistency with the
new mammalian slaughter requirements and to provide consistent
slaughter requirements for certified organic operations.
While the HMSA does not apply to poultry, under the PPIA at 21
U.S.C. 453(g)(5), a poultry product is considered adulterated if it is
in whole, or in part, the product of any poultry that has died by other
means than slaughter. FSIS regulations, in turn, require that poultry
be slaughtered in accordance with good commercial practices in a manner
that will result in thorough bleeding of the poultry carcass and will
ensure that breathing has stopped before scalding (9 CFR 381.65 (b)).
Compliance with FSIS Directives 6100.3 and 6910.1, as determined by
FSIS, would be required under the proposed rule.
In a 2005 Federal Register Notice, FSIS reminded all poultry
slaughter establishments that live poultry:

. . . must be handled in a manner that is consistent with good
commercial practices, which means they should be treated humanely.
Although there is no specific federal humane handling and slaughter
statute for poultry, under the PPIA, poultry products are more
likely to be adulterated if, among other circumstances, they are
produced from birds that have not been treated humanely, because
such birds are more likely to be bruised or to die other than by
slaughter.\43\
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\43\ Treatment of Live Poultry before Slaughter, FSIS, 70 FR
56624, September 28, 2005.

FSIS also suggested in this Notice that poultry slaughter
establishments consider a systematic approach to handling poultry in
connection with slaughter. FSIS defined a systematic approach as one in
which establishments focus on treating poultry in such a manner as to
minimize excitement, discomfort, and accidental injury the entire time
that live poultry is held in connection with slaughter. Although the
adoption of such an approach is voluntary, it would likely

[[Page 48581]]

better ensure that poultry carcasses are unadulterated.
FSIS inspection program personnel verify that poultry slaughter is
conducted in accordance with good commercial practices in the pre-scald
area of slaughter establishments, where they observe whether
establishment employees are mistreating birds or handling them in a way
that will cause death or injury, prevent thorough bleeding, or result
in excessive bruising. Examples of noncompliant mistreatment could
include breaking the legs of birds to hold the birds in the shackle,
birds suffering or dying from heat exhaustion, and breathing birds
entering the scalder.\44\ Also, in 2015, FSIS issued specific
instructions to inspection program personnel for recording
noncompliance with the requirement for the use of good commercial
practices in poultry slaughter.\45\
---------------------------------------------------------------------------

\44\ FSIS Directive 6100.3, Revision 1, Ante-Mortem and Post-
Mortem Poultry Inspection, April 30, 2009.
\45\ FSIS Notice 07-15, Instructions for Writing Poultry Good
Commercial Practices Noncompliance Records and Memorandum of
Interview Letters for Poultry Mistreatment, January 21, 2015.
---------------------------------------------------------------------------

Proposed Sec. 205.242(c)(2) would require that all certified
organic slaughter facilities provide, during the annual organic
inspection, any FSIS noncompliance records and corrective action
records related to the use of good manufacturing practices in the
handling and slaughter of poultry in order to determine that slaughter
facilities have addressed any outstanding FSIS noncompliances and are
in good standing with FSIS. Not all violations of FSIS regulations
result in a suspension of inspection services. In some cases, FSIS will
issue a noncompliance record and the slaughter facility must perform
corrective actions to bring the slaughter facility back into
compliance. These records must be provided to the certifying agent at
inspection or upon request to verify that the slaughter facility is
operating in compliance with FSIS regulations and is addressing/has
addressed all corrective actions. If records revealed that an organic
operation had not taken corrective actions required by FSIS within the
time period allowed by FSIS, the certifying agent could initiate
actions to suspend the facility's organic certification. While this
action would be separate from any FSIS actions, it would impact the
facility's capacity to handle organic animals. In addition, AMS
recognizes that some poultry slaughter facilities in the United States
are regulated by the State for intra-state poultry sales. In foreign
countries, foreign governments may be the appropriate regulatory
authority for poultry slaughter inspections. In all cases, the relevant
noncompliance records and corrective action records would be required
to be provided to the certifying agent during inspections or upon
request.
Unlike the proposed requirements for livestock slaughter
inspection, exemptions from poultry slaughter inspection exist for some
poultry that is going to be sold to the public. The PPIA exempts from
continuous inspection some establishments that slaughter poultry based
on various factors, such as volume of slaughter and the nature of
operations and sales. This includes persons custom slaughtering and
distributing from their own premises directly to household consumers,
restaurants, hotels, and boarding houses, for use in their own dining
rooms, or in compliance with religious dietary laws (21 U.S.C. Chapter
10).
AMS is proposing to add handling and slaughter standards for such
poultry that is either exempt from or not covered by the inspection
requirement of the PPIA. These proposed requirements would serve to
establish a consistent and basic standard for the humane handling of
organic poultry, regardless of an operation's size or method of sales,
for example. Specifically, proposed Sec. 205.242(c)(3)(i) would
prohibit hanging, carrying, or shackling any lame birds by their legs.
Birds with broken legs or injured feet may suffer needlessly if carried
or hung by their legs. Such birds would be required to either be
euthanized or made insensible before being shackled. AMS also is
proposing (Sec. 205.242(c)(3)(ii)) to include a requirement that all
birds that were hung or shackled on a chain or automated slaughter
system be stunned prior to exsanguination (bleeding). This proposed
requirement would not apply to small-scale producers who do not shackle
the birds or use an automated system but who instead place the birds in
killing cones before exsanguinating them without stunning. This
proposed requirement would not apply to ritual slaughter establishments
(e.g., Kosher or Halal slaughter facilities), who are required to meet
all the humane handling regulatory requirements except stunning prior
to shackling, hoisting, throwing, cutting, or casting. Finally,
proposed Sec. 205.242(c)(3)(iii) would require that all birds be
irreversibly insensible prior to being placed in the scalding tank.

IV. Related Documents

Documents related to this proposed rule include the Organic Foods
Production Act of 1990, as amended, (7 U.S.C. 6501-6524) and its
implementing regulations (7 CFR part 205). The NOSB deliberated and
made the recommendations described in this proposal at public meetings
announced in the following Federal Register notices: 67 FR 19375 (April
19, 2002); 74 FR 46411 (September 9, 2009); 75 FR 57194 (September 20,
2010); and 76 FR 62336 (October 7, 2011). NOSB meetings are open to the
public and allow for public participation.
AMS published a series of past proposed rules that addressed, in
part, the organic livestock requirements at: 62 FR 65850 (December 16,
1997); 65 FR 13512 (March 13, 2000); 71 FR 24820 (April 27, 2006); 73
FR 63584 (October 24, 2008), and 81 FR 21956 (April 13, 2016). Past
final rules relevant to this topic were published at: 65 FR 80548
(December 21, 2000); 71 FR 32803 (June 7, 2006); and 75 FR 7154
(February 17, 2010). AMS activities and documents that followed
publication of the January 19, 2017 OLPP final rule (82 FR 7042) are
detailed above in the AMS POLICY section.

V. Executive Orders 12866 and 13563--Executive Summary

The Regulatory Impact Analysis and Regulatory Flexibility Analysis
are available at <a href="https://www.regulations.gov">https://www.regulations.gov</a> in the ``docket'' for this
proposed rule. The docket can be found by searching for ``AMS-NOP-21-
0073'' at <a href="https://www.regulations.gov">https://www.regulations.gov</a>. Below is an executive summary of
the analyses.
AMS is writing this proposed rule to clarify and ensure consistent
application of the USDA organic standards and therefore mitigate
information asymmetries and associated costs amongst certifying agents,
producers, and consumers. This action will augment the USDA organic
livestock production regulations with clear provisions to fulfill the
purposes of the Organic Foods Production Act (OFPA) (7 U.S.C. 6501-
6524): to assure consumers that organically produced products meet a
consistent, uniform standard and to further facilitate interstate
commerce of organic products. OFPA mandates that detailed livestock
regulations be developed through notice and comment rulemaking (7
U.S.C. 6509(g)) and USDA did so when it published the final rule on the
National Organic Program (65 FR 80547; December 21, 2000). In 2010, AMS
published a final rule (75 FR 7154; February 17, 2010) clarifying the
pasture and grazing requirements for organic ruminant livestock. This
proposed rule would provide clarity for the production of organic
livestock and poultry, consistent

[[Page 48582]]

with recommendations provided by USDA's Office of Inspector General and
nine separate recommendations from the NOSB.
This proposed rule would add requirements for the production,
transport, and slaughter of organic livestock and poultry. The proposed
provisions for outdoor access and space for organic poultry production
are the focal areas of this rule. Currently, organic poultry are
already required to have outdoor access, but this varies widely in
practice.\46\ Some organic poultry operations provide large, open-air
outdoor areas, while other operations provide minimal outdoor space or
use screened and covered enclosures commonly called ``porches'' to meet
outdoor access requirements. This variability leads to additional costs
for some producers and consumers, and may also create consumer
confusion about the meaning of the USDA organic label.
---------------------------------------------------------------------------

\46\ The 2013 NAHMS poultry survey reports that 36% of organic
hens covered in the survey have at least 2 sq. ft. per bird
(equivalent to 2.25 lbs./sq. ft.) of outdoor space and 35% of hens
have outdoor access via a porch system or covered area. Other
studies have found between 15.5-59% of organic egg production has at
least 2 sq. ft. of outdoor space. <a href="https://www.aphis.usda.gov/aphis/ourfocus/animalhealth/monitoring-and-surveillance/nahms/NAHMS_Poultry_Studies">https://www.aphis.usda.gov/aphis/ourfocus/animalhealth/monitoring-and-surveillance/nahms/NAHMS_Poultry_Studies</a>.
---------------------------------------------------------------------------

The proposed changes would better define standards of outdoor
access for poultry, taking into account stakeholder input, as mandated
by OFPA. Specifically, the changes address the wide disparities in
production practices within the organic poultry sector. These
provisions support an open, fair, and equitable market for producers
who choose to pursue organic certification by providing standards that
would apply to all organic livestock operations. Similarly, these
provisions would reduce consumer search costs and welfare loss by
standardizing the attributes of organic livestock and poultry products.
In the long run, these provisions may help minimize the risk to
consumer confidence brought on by these costs.
This economic impact analysis describes the cost impacts and
benefits of the proposed rule, with a focus on organic egg and broiler
producers, because these types of operations may face additional
production costs as a result of this proposed rule. AMS is evaluating
this proposed rule's potential benefits against the costs of:

<bullet> Additional indoor space for broilers
<bullet> Additional outdoor space for layers

To project costs, AMS assessed current (baseline) conditions and
considered how producers might respond to the proposed requirements.
Based on NOSB deliberations, surveys of organic poultry producers, and
public comments on previous proposed rules, we determined that the
outdoor access/stocking density requirements for layers and indoor
stocking density requirements for broilers would drive the costs of
this proposed rule. For organic layers, the key factor affecting
compliance is the availability of land to accommodate all birds at the
required stocking density. In our assessment of projected costs and
benefits of the proposed rule and policy alternatives, we consider four
scenarios that represent a combination of policy options and market
responses to policy implementation:
Scenario 1: No Rule. There are no costs and no benefits because the
status quo is maintained.
Scenario 2: Growth Prevented and Exit in Year 6 (5-year Co-
Proposal). Existing producers and those certified within three years of
the rule's effective date have five years from the effective date
(e.g., 60 days after publication of final rule) to comply with the
outdoor space requirements for layers. Those certified more than three
years after the rule's effective date must comply immediately.
Producers that account for approximately half of existing organic egg
production are assumed to comply with the outdoor space requirement on
the fifth anniversary of the rule's effective date while maintaining
current production levels; the other half move from organic to the
cage-free, non-organic market at that time. There is assumed to be no
growth in impacted organic egg production once the final rule is
effective.
Scenario 3: Growth and Exit in Year 6 (5-year Co-Proposal). The
policy is the same as in Scenario 2, it is assumed that producers
accounting for approximately half of existing organic egg production
leave organic production to join the cage-free, non-organic market five
years after the rule's effective date (lesser amounts of cage-free
production are new in the meantime). The other half of production is
assumed to come into compliance with the rule at that time. Organic egg
production grows at a slower rate than in Scenario 1 (i.e., if there
was no rule) in the five years after the rule's effective date as there
is assumed to be only growth among those producers that plan to come
into compliance with the rule, not among those planning to leave for
the cage-free market. In Scenario 3 there is a significantly higher
level of organic egg production than in Scenario 2 at the end of five
years because there is growth in organic egg production after the
rule's effective date. Costs and benefits include, among others,
effects calculated starting in year four for new entrants certified
more than three years after the rule's effective date, and starting in
year six for existing producers and new entrants starting within three
years of the rule's effective date.
Scenario 4: Growth and Exit in Year 16 (15-year Co-Proposal). The
rule is implemented with a 15-year grace period for implementation of
the layer outdoor space requirement for existing operations and those
certified within three years of the rule's effective date. Organic egg
production among operations that will not be compliant in year 16 is
frozen at year 1 levels. The proportion of existing production that
will become compliant in year 16 grows at historical rates for the
industry. Costs and benefits include, among others, effects calculated
starting in year four for new entrants certified more than three years
after the rule's effective date.
Regarding the organic broiler industry, AMS assumed that organic
broiler producers would build enough new facilities to comply with the
new indoor stocking density requirement and maintain their current
production level while remaining in the organic market.\47\
---------------------------------------------------------------------------

\47\ Additional land needed to meet indoor space requirements in
broiler production is on average much smaller than the land needed
for those adjusting to the requirements for outdoor access.
Additionally, past public comment and stakeholder feedback have
indicated that broiler producers would seek to maintain current
levels of production.
---------------------------------------------------------------------------

Costs incurred by new entrants after the rule's publication are
counted for all new production starting in year two. Costs for all
other operators do not accrue until this rule is fully implemented
(i.e., three years after the effective date for broiler producers and
five years after the effective date for layer producers).
In summary, AMS estimates that the rule will increase total
production costs for broiler and layer operations between $9.3 million
and $14.6 million annually. This range spans three producer response
scenarios, two implementation periods for the outdoor space
requirements, and a no-rule scenario (see Table 2).
We estimate the annual costs for organic egg production are $4.6
million to $8.3 million (discounted annualized value) if 50% of organic
egg production in 2022 transitions to the cage-free egg market by the
5-year implementation date. Under this scenario the shift would also
result in approximately $113.6 million to $172.6 million

[[Page 48583]]

(discounted annualized value) in production that moves from organic to
cage-free egg production. We estimate the annual costs for organic egg
production are $3.6 million to $4.6 million (discounted annualized
value) with the co-proposed 15-year implementation date; under this
scenario, the shift would also result in approximately $62.2 million to
$77.8 million (discounted annualized value) in production that moves
from organic to cage-free egg production.
We estimate that the annual costs for organic broiler production
account for $5.7 million to $6.3 million of the above totals. This
reflects costs to build additional housing for more space per bird to
meet the indoor stocking density requirement. This rule will have
broad, important benefits for the organic sector as a whole that are
difficult to quantify. Standards that more closely align to consumer
expectations will sustain demand and support the growth of the $62
billion U.S. organic market.\48\ Furthermore, clear parameters for
production practices ensure fair competition among producers by
facilitating equitable certification and enforcement decisions.
---------------------------------------------------------------------------

\48\ OTA, 2021 Industry Survey.
---------------------------------------------------------------------------

To quantify the benefits of this proposed rule, AMS used research
that estimated consumers' willingness-to-pay for outdoor access to be
between $0.16 and $0.25 per dozen eggs. Based on this, AMS estimates
that the benefits for layer operations would range between $11.6 to
14.9 million (under Scenario 4) and $23.3 to 27.1 million annually
(under Scenario 3).
The benefits for broilers are calculated using a willingness-to-pay
of $0.34/lb. Based on this, AMS estimates that the annual discounted
benefits for broiler operations would range between $97 million and
$107 million. AMS estimates that the total annualized discounted
benefits would be between $109 million and $134 million for eggs and
broilers.
In the Regulatory Flexibility Analysis, AMS reports that large
poultry operations would have higher compliance costs than small
operations on average. Many larger organic layer operations will need
more land to comply with the outdoor access requirements, and some
operations will not be able to modify their houses to meet the proposed
outdoor access requirements due to how they are arranged on the farm.
Table 1 presents estimated net benefits for the models AMS
calculated. These models use the 5-year and 15-year implementation
periods (with growth) for the layer outdoor access/stocking density
requirements and the 3-year implementation period for the broiler
compliance horizon. Total annual discounted net benefits range between
$99 million and $119 million.

Table 1--Executive Summary: Costs and Benefits for Eggs and Broilers
----------------------------------------------------------------------------------------------------------------
Proposed rule Proposed rule Proposed rule Proposed rule
(5-year (5-year (15-year ---------------
compliance-- compliance-- compliance)
No Growth) Growth) ----------------
-------------------------------- Broilers (per
Eggs (per Eggs (per Eggs (per pound)
dozen) dozen) dozen)
----------------------------------------------------------------------------------------------------------------
Benefits (Consumer Willingness to Pay).......... $0.21 $0.21 $0.21 $0.34
Benefits with 80% Breaker Egg Adjustment........ 0.16 0.16 0.16
Cost (Change in Average Total Cost of 0.05 0.05 0.05 0.02
Production)....................................
Net Benefit per Unit............................ 0.11 0.11 0.11 0.32
20-Year Annualized Discounted Net Benefits (3%) 10,429 18,757 10,278 101,011
($1,000).......................................
20-Year Annualized Discounted Net Benefits (7%) 9,236 16,132 8,027 91,418
($1,000).......................................
Average Annual Domestic Information Collection .............. .............. .............. $194,777
Cost...........................................
----------------------------------------------------------------------------------------------------------------

Table 2--Four Scenarios: Market Responses to Outdoor Access Policies for Layers
----------------------------------------------------------------------------------------------------------------

----------------------------------------------------------------------------------------------------------------
Assumed conditions Affected population..... Costs Benefits Eggs newly
labeled cage-
free
----------------------------------------------------------------------------------------------------------------
Millions of Dollars
----------------------------------------------------------------------------------------------------------------
Scenario 1: No Rule/No Change......... No producers or $0.0 $0.0 $0.0
consumers.
Scenario 2: 50% of organic layer Organic layer production $4.6-$5.2 $13.9-$15.7 $146.4-$172.6
production in year 6, moves to the at full implementation
cage-free market. Growth prevented. of rule (after year 5).
Scenario 3: 50% of organic layer Organic layer production $7.2-$8.3 $23.3-$27.1 $113.6-$131.6
production in year 6, moves to the at full implementation
cage-free market.. of rule (after year 5).
Growth considered..................... Compliance from growth
starting in year 4.
Scenario 4: Organic layer populations Organic layer and $3.6-$4.6 $11.6-$14.9 $62.2-$77.8
continue historical growth rates production at full
after rule and existing firms are implementation of rule
grandfathered until the end of year (after year 15).
15. Compliance from growth
starting in year 4.
All broiler production in year 4 Current broiler $5.7-$6.3 $97.1-$107.3 N/A
complies with the proposed rule. operations at full
implementation of the
rule (after year 3).
----------------------------------------------------------------------------------------------------------------

[[Page 48584]]

VI. Executive Order 12988

Executive Order 12988 instructs each executive agency to adhere to
certain requirements in the development of new and revised regulations
in order to avoid unduly burdening the court system. This proposed rule
cannot be applied retroactively.
States and local jurisdictions are preempted under the OFPA from
creating programs of accreditation for private persons or State
officials who want to become certifying agents of organic farms or
handling operations. A governing State official would have to apply to
USDA to be accredited as a certifying agent, as described in OFPA at 7
U.S.C. 6514. States are also preempted under OFPA at 7 U.S.C. 6503 and
6507 from creating certification programs to certify organic farms or
handling operations unless the State programs have been submitted to,
and approved by, the USDA Secretary as meeting the requirements of the
OFPA.
Pursuant to 7 U.S.C. 6507(b)(2), a State organic certification
program may contain additional requirements for the production and
handling of organically produced agricultural products that are
produced in the State and for the certification of organic farm and
handling operations located within the State under certain
circumstances. Such additional requirements must: (a) Further the
purposes of the OFPA, (b) not be inconsistent with the OFPA, (c) not be
discriminatory toward agricultural commodities organically produced in
other States; and (d) not be effective until approved by the Secretary.
Pursuant to 7 U.S.C. 6519, this proposed rule would not alter the
authority of the Secretary under the Federal Meat Inspection Act (21
U.S.C. 601-624), the Poultry Products Inspection Act (21 U.S.C. 451-
471), or the Egg Products Inspection Act (21 U.S.C. 1031-1056),
concerning meat, poultry, and egg products, nor any of the authorities
of the Secretary of Health and Human Services under the Federal Food,
Drug and Cosmetic Act (21 U.S.C. 301-399i), nor the authority of the
Administrator of the EPA under the Federal Insecticide, Fungicide and
Rodenticide Act (7 U.S.C. 136-136(y)).
Furthermore, 7 U.S.C. 6520 provides for the Secretary to establish
an expedited administrative appeals procedure under which persons may
appeal an action of the Secretary, the applicable governing State
official, or a certifying agent under this title that adversely affects
such person or is inconsistent with the organic certification program
established under this title. The OFPA also provides that the U.S.
District Court for the district in which a person is located has
jurisdiction to review the Secretary's decision.

VII. Executive Order 13175

Executive Order 13175 requires Federal agencies to consult and
coordinate with Tribes on a government-to-government basis on policies
that have Tribal implications, including regulations, legislative
comments, or proposed legislation. Additionally, other policy
statements or actions that have substantial direct effects on one or
more Indian Tribes, the relationship between the Federal Government and
Indian Tribes, or on the distribution of power and responsibilities
between the Federal Government and Indian Tribes also require
consultation. This regulation discloses that there are tribal
implications. AMS hosted a virtual tribal consultation meeting on
September 9, 2021, where this proposed rule was discussed with tribal
leaders. No questions or concerns were brought to AMS's attention about
this rule by any tribal leaders at the meeting. If a tribe requests
consultation in the future, AMS will work with the Office of Tribal
Relations to ensure meaningful consultation is provided.

VIII. Paperwork Reduction Act

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C.
3501-3520) (PRA), AMS is requesting OMB approval for a new information
collection totaling 102,088 hours for the reporting and recordkeeping
requirements contained in this proposed rule. AMS is using the
previously assigned OMB control number 0581-0293 even though this is
new burden due to a proposed rule. OMB previously approved information
collection requirements associated with the NOP and assigned OMB
control number 0581-0191. AMS intends to merge this new information
collection, upon OMB approval, into the approved 0581-0191 information
collection. Below, AMS has described and estimated the new information
collection and recordkeeping burden, i.e., the amount of time and cost
of labor, for entities to prepare and maintain information to
participate in this voluntary labeling program. The OFPA, as amended,
provides authority for this action.
Title: National Organic Program: Organic Livestock and Poultry
Standards.
OMB Control Number: 0581-0293.
Expiration Date of Approval: 3 years from OMB date of approval.
Type of Request: New collection.
Abstract: Information collection and recordkeeping is necessary to
implement reporting and recordkeeping necessitated by amendments to
Sec. Sec. 205.238 and 205.239 and the addition of Sec. Sec. 205.241
and 205.242 for additional animal welfare standards for organic
livestock and poultry production under the USDA organic regulations.
The Organic Foods Production Act (OFPA) authorizes the further
development of livestock production standards (7 U.S.C. 6509). This
proposed action is necessary to address multiple recommendations
provided to USDA by the NOSB to add specificity about livestock and
poultry production practices with the purpose of ensuring consumers
that conditions and practices for livestock and poultry products
labeled as organic encourage and accommodate natural behaviors and
utilize preventive health care and humane slaughter practices.
All certified organic operations must develop and maintain an
organic system plan (OSP) to comply with the USDA organic regulations
(Sec. 205.201). The OSP must include a description of practices and
procedures to be performed and maintained, including the frequency with
which they will be performed. Under this proposed rule, organic
livestock and poultry operations would be subject to additional
reporting requirements. The proposed requirements in Sec. Sec.
205.238, 205.239, 205.241, and 205.242 would require livestock and
poultry operations to provide specific documentation as a part of the
OSP that describes livestock and poultry living conditions (including
minimum space requirements, outdoor access, preventive health care
practices [e.g., physical alterations, euthanasia], and humane
transportation and slaughter practices). This documentation would
enable certifying agents to make consistent certification decisions and
facilitate fairness and transparency for the organic producers and
consumers that participate in this market. This proposed action and its
associated information collection would promulgate changes to the USDA
organic regulations consistent with the OFPA.
The PRA also requires AMS to measure the recordkeeping burden.
Under the USDA organic regulations, each producer is required to
maintain and make available upon request, for five years, such records
as are necessary to verify compliance (Sec. 205.103). Certifying
agents are required to maintain records for 5 to 10 years, depending on
the type of record (Sec. 205.510(b)), and make these records

[[Page 48585]]

available for inspection upon request (Sec. 205.501(a)(9)).
The new information that livestock and poultry operations would be
required to provide for certification would assist certifying agents
and inspectors in the efficient and comprehensive evaluation of these
operations and would impose an additional recordkeeping burden for
livestock and poultry operations. Certifying agents currently involved
in livestock certification are required to observe the same
recordkeeping requirements to maintain accreditation. AMS expects that
this proposed rule would increase the recordkeeping burden on certified
operations and certifying agents during the first year of
implementation and would then become routine to maintain. In addition,
livestock and poultry operations that claim organic status in direct-
to-consumer sales (but are exempt from organic certification because
they sell $5,000 or less of organically managed animal products) must
maintain records to support their claim in the event of a complaint.
State organic programs enforce the OFPA in its state under the
authority of AMS, and they are also impacted by these requirements. AMS
expects that this proposed rule would not significantly increase the
recordkeeping burden on exempt operations or state organic programs.
Reporting and recordkeeping are essential to the integrity of the
organic certification system. A clear paper trail is a critical tool
for verifying that practices meet the mandate of OFPA and the USDA
organic regulations. The information collected supports the AMS
mission, program objectives, and management needs by enabling AMS to
assess the efficiency and effectiveness of the NOP. The information
also affects decisions because it is the basis for evaluating
compliance with the OFPA and USDA organic regulations, administering
the NOP, establishing the cost of the program, and facilitating
management decisions and planning. It also supports administrative and
regulatory actions to address noncompliance with the OFPA and USDA
organic regulations.
This information collection is only used by the certifying agent
and authorized representatives of USDA, including AMS and NOP staff.
Certifying agents, including any affiliated organic inspectors, and
USDA are the primary users of the information.

Respondents

AMS identified four types of entities (respondents)--organic
livestock and poultry operations, accredited certifying agents,
inspectors, and state organic programs--that will need to submit and
maintain information in order to participate in organic livestock and
poultry certification. To more precisely understand the paperwork costs
of this proposed rule, AMS calculates the potential impacts utilizing
domestic and foreign labor rates per hour plus benefits.
For each type of respondent, we describe the general paperwork
submission and recordkeeping activities and estimate: (i) the number of
respondents; (ii) the hours they spend, annually, completing the
paperwork requirements of this labeling program; and (iii) the costs of
those activities based on prevailing domestic \49\ and foreign \50\
wages and benefits.51 52
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\49\ The source of the specific hourly wage rates identified
below is the National Compensation Survey: Occupational Employment
and Wages, May 2021, published by the Bureau of Labor Statistics.
Bureau of Labor Statistics, Occupational Employment and Wages,
<a href="https://www.bls.gov/oes/current/oes_nat.htm">https://www.bls.gov/oes/current/oes_nat.htm</a>.
\50\ The source of the data is based on average World Bank wage
rates for countries with USDA-accredited certifying agents which are
70.3% of U.S. labor rates. <a href="https://data.worldbank.org/indicator/NY.GDP.PCAP.PP.CD">https://data.worldbank.org/indicator/NY.GDP.PCAP.PP.CD</a>.
\51\ Bureau of Labor Statistics News Release on Employer Costs
for Employee Compensation, Wages account for 68.7% and Benefits
account for 31.3% of total average employer compensation costs, June
18, 2020: <a href="https://www.bls.gov/news.release/ecec.nr0.htm">https://www.bls.gov/news.release/ecec.nr0.htm</a>.
\52\ The source of compensation rates is based on an average of
Organization for Economic Co-Operation and Development (OECD)
benefits compensation rates at 34.63% of wage rates for countries
with USDA-accredited certifying agents. <a href="https://stats.oecd.org/Index.aspx?DataSetCode=AWCOMP">https://stats.oecd.org/Index.aspx?DataSetCode=AWCOMP</a>.
---------------------------------------------------------------------------

Total (Domestic and Foreign) Information Collection Cost (Reporting and
Recordkeeping) of Proposed Rule: $4,138,397

For the 7,559 reporting and recordkeeping respondents, the total
information collection for both reporting and recordkeeping is 102,088
hours with 40,673 total responses, 5.38 responses per respondent, and
2.51 hours per response at a total burden cost of $4,138,397 for both
reporting (Table 1) and recordkeeping (Table 2). These are estimates of
costs for respondents to develop procedures, receive training, and
perform tasks for the first time. AMS estimates that as livestock and
poultry producers adapt to the proposed requirements in Sec. Sec.
205.238, 205.239, 205.241, and 205.242, the labor hours for the new
requirements are one-time costs and will become routine to maintain.
These costs will be merged into the overall information collection
burden for the program. All costs are rounded.
1. Operations. In order to obtain and maintain certification,
domestic and foreign organic operations will need to develop and
maintain an OSP. Livestock and poultry producers and handlers will need
to submit the following information to certifying agents: an
application for certification, detailed descriptions of specific
practices, and annual updates to continue certification and to report
changes in their practices. The OSP is a requirement for all organic
operations and the USDA organic regulations describe what information
must be included (Sec. 205.201). This proposed rule describes the
additional information in Sec. Sec. 205.238, 205.239, 205.241, and
205.242 that would need to be included in a livestock and poultry
operation's organic system plan in order to assess compliance with
these proposed new requirements. Certified operations are also required
to keep records about their organic production and/or handling for at
least five years (Sec. 205.103(b)(3)).
AMS estimated the number of livestock and poultry operations that
would be affected by this proposed action. AMS estimates that 6,174
currently certified organic domestic and foreign livestock and poultry
operations will be subject to the amendments in Sec. Sec. 205.238,
205.239, 205.241, and 205.242. Based on average growth of 5.9% in
livestock and poultry operations under current rules,\53\ AMS expects
to add 364 operations to the 6,174 operations currently certified for
livestock or poultry production. In addition, AMS estimates that there
are 713 livestock and poultry operations that claim organic status in
direct-to-consumer sales (but are exempt from organic certification
because they sell $5,000 or less of organically managed animal
products) that will be impacted by the new recordkeeping
requirements.\54\
---------------------------------------------------------------------------

\53\ Organic Integrity Database: <a href="https://organic.ams.usda.gov/integrity/">https://organic.ams.usda.gov/integrity/</a>.
\54\ USDA National Ag Statistics Service, Census of Agriculture,
2019 Organic Survey: <a href="https://www.nass.usda.gov/Publications/AgCensus/2017/Online_Resources/Organics/">https://www.nass.usda.gov/Publications/AgCensus/2017/Online_Resources/Organics/</a>.
---------------------------------------------------------------------------

AMS estimates the average collection and recordkeeping costs per
organic livestock and producer poultry to be $314.47. This estimate is
based on an average of 7.3 labor hours (53,018 total hours per 7,252
certified and exempt organic livestock and poultry operations) at
$48.49 per labor hour,\55\

[[Page 48586]]

including 31.3% benefits,\56\ and $34.95 per labor hour,\57\ including
34.63% benefits,\58\ for an organic domestic and foreign livestock or
poultry producer, respectively. This estimate includes operations that
make organic claims about their product but are exempt from
certification because they only sell $5,000 or less organic animal and
poultry products.
---------------------------------------------------------------------------

\55\ National Compensation Survey: Occupational Employment and
Wage Estimates, May 2020, published by the Bureau of Labor
Statistics. 11-9013 Farmers, Ranchers, and Other Agricultural
Managers. <a href="https://www.bls.gov/oes/current/oes_nat.htm">https://www.bls.gov/oes/current/oes_nat.htm</a>.
\56\ Bureau of Labor Statistics News Release on Employer Costs
for Employee Compensation, Wages account for 68.7% and Benefits
account for 31.3% of total average employer compensation costs, June
18, 2020: <a href="https://www.bls.gov/news.release/ecec.nr0.htm">https://www.bls.gov/news.release/ecec.nr0.htm</a>.
\57\ The source of the data is based on average World Bank wage
rates for countries with USDA-accredited certifying agents, which
were 70.3% of U.S. labor rates in 2020. <a href="https://data.worldbank.org/indicator/NY.GDP.PCAP.PP.CD">https://data.worldbank.org/indicator/NY.GDP.PCAP.PP.CD</a>.
\58\ The source of compensation rates is based on an average of
Organization for Economic Co-Operation and Development (OECD)
benefits compensation rates at 34.63% of wage rates for countries
with USDA-accredited certifying agents. <a href="https://stats.oecd.org/Index.aspx?DataSetCode=AWCOMP">https://stats.oecd.org/Index.aspx?DataSetCode=AWCOMP</a>.
---------------------------------------------------------------------------

2. Certifying agents. Certifying agents are State, private, or
foreign entities accredited by USDA to certify domestic and foreign
livestock producers and handlers as organic in accordance with the OFPA
and USDA organic regulations. Certifying agents determine if an
operation meets organic requirements, using detailed information from
the operation about its specific practices and on-site inspection
reports from organic inspectors. Currently, there are 75 certifying
agents accredited under NOP that are based in the U.S. and in foreign
countries. AMS accredits 57 certifying agents for the scope of
livestock to certify organic livestock and poultry operations. AMS
assumes that all certifying agents accredited for the scope of
livestock will evaluate livestock and poultry operations for compliance
with the USDA organic regulations and will therefore be subject to the
proposed requirements in Sec. Sec. 205.238, 205.239, 205.241, and
205.242.
Each entity seeking to continue USDA accreditation for the scope of
livestock will need to submit information documenting its business
practices including certification, enforcement and recordkeeping
procedures, personnel qualifications, and the provision of training for
certification review personnel and inspectors (Sec. 205.504). AMS will
review that information during their next scheduled on-site
assessments, which occur at least twice every five years to determine
whether to continue accreditation for the scope of livestock.
Certifying agents will need to update their information, provide the
results of personnel performance evaluations and the internal review of
its certification activities, and document the training provided to
certification review personnel and inspectors (Sec. 205.510) to comply
with the proposed requirements.
AMS projects that the additional components of organic system plans
for livestock and poultry producers may entail longer review times of
documents and longer inspection times to evaluate operations under
these proposed new requirements for the first time. AMS estimates the
average collection and recordkeeping costs per certifying agent will be
$25,759. This estimate of the average cost for each of the 57
certifying agents is based on an average of 609 labor hours (34,740
total hours across 57 certifiers) to prepare procedures to certify
operations under these new requirements, certify an average of 115
livestock or poultry operations (6,539 total certified operations
across 57 certifiers), provide training to their certification review
personnel and inspectors, and store the records at $47.73 per labor
hour,\59\ including 31.7% benefits,\60\ and $34.40 per labor hour,\61\
including 34.63% benefits \62\ for a domestic and foreign certifying
agent, respectively. These are one-time costs that will become routine
to maintain.
---------------------------------------------------------------------------

\59\ National Compensation Survey: Occupational Employment and
Wages, May 2020, published by the Bureau of Labor Statistics. Bureau
of Labor Statistics, Occupational Employment and Wages, May 2021.
\59\ The labor rate for certification review staff is based on
Occupational Employment Statistics group 13-1041, Compliance
Officers. Compliance officers examine, evaluate, and investigate
eligibility for or conformity with laws and regulations governing
contract compliance of licenses and permits, and perform other
compliance and enforcement inspection and analysis activities not
classified elsewhere. <a href="https://www.bls.gov/oes/current/oes_nat.htm">https://www.bls.gov/oes/current/oes_nat.htm</a>.
\60\ Bureau of Labor Statistics News Release on Employer Costs
for Employee Compensation, Wages account for 68.7% and Benefits
account for 31.3% of total average employer compensation costs,
December 2020: <a href="https://www.bls.gov/news.release/ecec.nr0.htm">https://www.bls.gov/news.release/ecec.nr0.htm</a>.
\61\ The source of the data is based on average World Bank wage
rates for countries with USDA-accredited certifying agents, which
are 70.3% of U.S. labor rates. <a href="https://data.worldbank.org/indicator/NY.GDP.PCAP.PP.CD">https://data.worldbank.org/indicator/NY.GDP.PCAP.PP.CD</a>.
\62\ The source of compensation rates is based on an average of
Organization for Economic Co-Operation and Development (OECD)
benefits compensation rates at 34.63% of wage rates for countries
with USDA-accredited certifying agents. <a href="https://stats.oecd.org/Index.aspx?DataSetCode=AWCOMP">https://stats.oecd.org/Index.aspx?DataSetCode=AWCOMP</a>.
---------------------------------------------------------------------------

3. Inspectors. Inspectors conduct on-site inspections of organic
operations and operations applying for certification and report their
findings to the certifying agent. Inspectors may be the certifying
agents themselves, employees of the certifying agents, or individual
contractors. The USDA organic regulations call for certified operations
to be inspected annually; however, a certifying agent may call for
additional inspections on an as-needed basis (Sec. 205.403(a)).
Any individual who applies to conduct inspections of organic
livestock and poultry operations will need to submit information
documenting their qualifications to the certifying agent (Sec.
205.504(a)(3)). Inspectors will need to provide an inspection report to
the certifying agent for each operation inspected (Sec. 205.403(e)).
AMS projects that inspectors will attend at least one 5-hour training
to learn about inspecting operations under the new requirements.
AMS estimates that inspectors will spend two hours longer

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