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Rule2023-23726

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

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Published

November 2, 2023

Effective

January 2, 2024

Issuing agencies

Agriculture DepartmentAgricultural Marketing Service

Abstract

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

Full Text

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[Federal Register Volume 88, Number 211 (Thursday, November 2, 2023)]
[Rules and Regulations]
[Pages 75394-75449]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-23726]

[[Page 75393]]

Vol. 88

Thursday,

No. 211

November 2, 2023

Part II

Department of Agriculture

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Agricultural Marketing Service

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7 CFR Part 205

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

Federal Register / Vol. 88 , No. 211 / Thursday, November 2, 2023 /
Rules and Regulations

[[Page 75394]]

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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 205

[Doc. No. AMS-NOP-21-0073]
RIN 0581-AE06

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

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

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

DATES:
Effective Date: This rule is effective January 2, 2024.
Compliance Dates: All organic operations must comply with the
requirements of this rule by January 2, 2025, except:
(1) Currently certified organic layer operations and layer
operations that are certified before January 2, 2025, must comply with
the Sec. Sec. 205.241(c)(2), (c)(4), and (c)(5), concerning outdoor
stocking density requirements and soil and vegetation requirements, by
January 2, 2029.
(2) Currently certified organic broiler operations and broiler
operations that are certified before January 2, 2025, must comply with
Sec. Sec. 205.241(b)(10), (c)(2), and (c)(6), concerning indoor and
outdoor stocking density requirements and soil and vegetation
requirements, by January 5, 2029.
(3) Currently certified organic poultry operations and poultry
operations that are certified before January 2, 2025 must comply with
Sec. [thinsp]205.241(b)(4), concerning poultry house exit area
requirements, by January 2, 2029.
For more information, see the IMPLEMENTATION AND COMPLIANCE DATES
FOR THE FINAL RULE section of this document.

FOR FURTHER INFORMATION CONTACT: Erin Healy, Director, Standards
Division, Telephone: (202) 720-3252; Email: <a href="/cdn-cgi/l/email-protection#e98c9b8087c7818c888590a99c9a8d88c78e869f">[email&#160;protected]</a>.

SUPPLEMENTARY INFORMATION:

Table of Contents

Executive Summary
A. Introduction
B. Summary of Provisions
C. Costs and Benefits
I. General Information
Does this action apply to me?
II. Background
A. Purpose and Need for the Rule
B. Statutory Authority To Issue Final Rule
C. NOSB Recommendations on Livestock Production
D. Organic Livestock Regulatory History
III. Overview of Public Comments
A. Responses to Comment on Statutory Authority
B. Responses to Comment on Market Failure
IV. Overview of Final Rule and Responses to Comments
A. Terms Defined (Sec. [thinsp]205.2)
B. Livestock Care and Production Practices Standard (Sec.
[thinsp]205.238)
C. Mammalian and Non-Avian Livestock Living Conditions (Sec.
[thinsp]205.239)
D. Avian Living Conditions (Sec. [thinsp]205.241)
E. Transport and Slaughter (Sec. 205.242)
F. Implementation and Compliance Dates for the Final Rule
G. Severability
V. Regulatory Analyses
A. Summary of Economic Analyses
B. Executive Order 12988
C. Executive Order 13132
D. Executive Order 13175
E. Civil Rights Impact Analysis
F. Paperwork Reduction Act
G. Related Documents
List of Subjects in 7 CFR Part 205
Part 205--National Organic Program

Executive Summary

A. Introduction

The Organic Livestock and Poultry Standards (OLPS) final rule
amends the USDA organic regulations (7 CFR part 205) related to the
production of livestock, including poultry, marketed as organic. The
rule adds detailed regulations related to animal health care, indoor
and outdoor space standards, manure management, temporary confinement
of livestock, access to the outdoors, transportation conditions, and
humane euthanasia and slaughter. USDA expects that the detailed
regulations established by this final rule will clarify aspects of the
existing USDA organic regulations that are not interpreted or enforced
in a consistent manner. In turn, the detailed regulations in this final
rule will better assure consumers that organic livestock products meet
a consistent standard, as intended by the Organic Foods Production Act
(OFPA or ``the Act'').
The OLPS proposed rule received extensive public comment that
indicated broad support for its policy changes. Ninety-four percent of
the public comments and petition signatures that AMS received support
the rule and its goals. Many comments also suggested policy revisions
and provided helpful economic data, which AMS took into account when
writing this final rule.

B. Summary of Provisions

Livestock that are certified organic under the USDA organic
regulations include mammalian species (e.g., cattle, swine, sheep,
goats), avian or poultry species (e.g., chickens, turkeys, ducks), and
other animal species used for food or in the production of food, fiber,
feed, or other agricultural-based consumer products. The changes in
this rule address a range of topics related to the care of organic
livestock, including:
Livestock health care practices--the rule specifies which physical
alteration procedures are prohibited or restricted for use on organic
livestock. The livestock health care practice standards include
requirements for euthanasia to reduce suffering of irreversibly sick or
disabled livestock;
Living conditions--the rule sets livestock living condition
standards that reflect the needs and behaviors of different types of
animals and consumers' expectations about the living conditions of
animals in organic production. The avian (or poultry) livestock living
standards include indoor and outdoor space requirements and require
that housing provides sufficient exit areas for birds to access the
outdoors;
Transport of animals--the rule adds new requirements for the
transport of organic livestock to sale or slaughter;
Slaughter--the rule adds a new section to clarify how organic
facility slaughter practices and USDA Food Safety and Inspection
Service (FSIS) regulations work together to support animal welfare.

C. Costs and Benefits

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

[[Page 75395]]

Table 1--Qualitative Summary of Rule's Benefits and Costs
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Benefits Costs
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Reduces information asymmetries between On-going compliance costs: more
producers and consumers, resulting in indoor space for organic
a more optimal distribution of organic broilers and more outdoor
and other value-added products. space for organic layers.*
Reduces consumer search costs for
consumers aware of these
inconsistencies.
Adds value to organic products: Temporary losses of economic
consistent minimum animal welfare welfare: total surplus in
standards, increased space for organic organic egg market decreases
broilers*, and increased outdoor more than total surplus
access for organic layers.* increases in the cage-free egg
market as organic egg
production unable to comply
with the rule shifts to cage-
free markets.*
Reduces risk to the integrity of the
organic label, increasing the
likelihood of sustained demand and
continued growth of organic sales.\1\
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* These benefits/costs are quantified in the analysis.

Table 2 below captures the monetized costs, benefits, and net
benefit in these markets. AMS estimates annual costs for organic layer
operations of $28.1-$32.9 million and costs for organic broiler
operations of $4.8-$5.5 million. Additionally, AMS estimates that
organic egg production exiting for the cage-free egg market will lead
to a temporary economic welfare loss of approximately $8.7-$16.0
million over the first 20 years of the rule. AMS estimates annual
benefits for layer operations of $76.6-$89.6 million and benefits for
organic broiler operations of $31.5-$35.6 million. In total, AMS
anticipates this rule will produce an annualized net benefit ranging
from $59.1 million (assuming a 7% discount rate overall) to $78.1
million (assuming a 3% discount rate overall). For more detailed
discussion of the economic analysis, including its assumptions and
methods, see the Regulatory Impact Analysis for this rule.
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\1\ AMS finds it likely that controversy or confusion about one
product under the organic scheme will cause secondary effects to the
overall label and other products, including, but not limited to,
risk to consumer confidence, trust, and demand. Because of the
unique nature of the organic label, quantifying or monetizing this
risk based on existing literature is not possible. See further
discussion in Section F. For general information on the relationship
between trust reputations and labels see: Jahn, G., Schramm, M., &
Spiller, A. (2005). The reliability of certification: Quality labels
as a consumer policy tool. Journal of Consumer Policy, 28, 53-73.
For more on the relation between trust and organic label sales see:
Janssen, M., & Hamm, U. (2014). Governmental and private
certification labels for organic food: Consumer attitudes and
preferences in Germany. Food Policy, 49, 437-448. For more
information on the erosion of trust see: Golan, E., Kuchler, F.,
Mitchell, L., Greene, C., & Jessup, A. (2001). Economics of food
labeling. Journal of Consumer Policy, 24(2), 117-184.

Table 2--Executive Summary: Unit Costs and Benefits for Eggs and
Broilers
------------------------------------------------------------------------
Eggs Broilers
------------------------------------------------------------------------
Unit Benefits and Costs
------------------------------------------------------------------------
Avg. Benefit Per Unit (Consumer 0.205/dozen 0.14/lb.
Willingness to Pay) *..................
Cost Change in Average Total Cost of 0.06/dozen 0.02/lb.
Production Per Unit....................
Net Benefit per Unit Gaining Outdoor 0.145/dozen 0.16/lb.
Access.................................
------------------------------------------------------------------------
Total Annualized Benefits and Costs
------------------------------------------------------------------------
20-Year Annualized Discounted Benefits $89,564 $35,641
(3%) ($1,000) *........................
20-Year Annualized Discounted Benefits 76,641 31,467
(7%) (1,000) *.........................
20-Year Annualized Discounted Costs (3%) 32,893 5,491
(1,000)................................
20-Year Annualized Discounted Costs (7%) 28,147 4,848
(1,000)................................
20-Year Annualized Discounted Economic 8,709 0
Welfare Loss (3%) (1,000)..............
20-Year Annualized Discounted Economic 16,046 0
Welfare Loss (7%) (1,000)..............
------------------------------------------------------------------------
Total Annualized Net Benefits
------------------------------------------------------------------------
20-Year Annualized Discounted Net 47,962 30,149
Benefits (3%) (1,000)..................
20-Year Annualized Discounted Net 32,448 26,619
Benefits (7%) (1,000)..................
------------------------------------------------------------------------
One-time Domestic Information Collection Cost (1,000)... 4,930
------------------------------------------------------------------------
* Layer benefit reports the mid-point benefits of the two estimates
($0.16/dz. and $0.25/dz.).

I. General Information

Does this action apply to me?

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

--Individuals or business entities that are considering organic
certification for a new or existing livestock farm or slaughter
facility;
--Existing livestock farms and slaughter facilities that are currently
certified organic under the USDA organic regulations; and
--Certifying agents accredited by USDA to certify organic livestock
operations and organic livestock handling operations.

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

[[Page 75396]]

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

II. Background

A. Purpose and Need for the Rule

The purpose of this rule is to address several inconsistencies in
organic livestock production that have arisen due to varying
interpretations of the current livestock standards. This rule will add
detail to the organic livestock health care and living conditions
standards and add new standards specific to avian species. This
additional detail will help producers and certifiers interpret and
apply the organic livestock regulations more consistently, ensuring
fair competition between producers and bolstering consumer confidence
in the organic label.
In 2021, U.S. sales of organic livestock and poultry were $2.2
billion, and sales of organic livestock and poultry products were $2.9
billion.\2\ Compared to 2011, this represents a 715 percent increase in
sales of organic livestock and poultry and a 175 percent increase in
sales of organic livestock and poultry products.\3\ The organic
regulations have included general standards for livestock production
since they were first published in 2000, however, the regulations lack
specific standards for certain topics such as physical alterations,
euthanasia, transport, slaughter, and avian-specific living conditions.
This means producers and certifying agents must interpret and apply
these general standards to different livestock production systems, each
of which has its own unique needs and practices. This has led to
different interpretations of the organic regulations--both differences
in how some operations produce organic livestock and differences in how
some certifying agents enforce the organic livestock standards.
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\2\ USDA, National Agricultural Statistics Service, 2021
Certified Organic Survey (released December 15, 2022), <a href="https://www.nass.usda.gov/Surveys/Guide_to_NASS_Surveys/Organic_Production/">https://www.nass.usda.gov/Surveys/Guide_to_NASS_Surveys/Organic_Production/</a>.
\3\ USDA, National Agricultural Statistics Service, 2011
Certified Organic Survey (released October 2012), <a href="https://www.nass.usda.gov/Surveys/Guide_to_NASS_Surveys/Organic_Production/">https://www.nass.usda.gov/Surveys/Guide_to_NASS_Surveys/Organic_Production/</a>.
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Production practices may differ substantially among different
producers and certifiers, and a key purpose of this rule is to resolve
widely divergent interpretations of existing organic production
standards. For example, the existing regulation at Sec. 205.239(a)(1)
requires ``[y]ear-round access for all animals to the outdoors.'' Some
operations and certifying agents have interpreted this general
requirement for outdoor access to mean that organically managed poultry
need only to have access to fresh air and sunlight, and this can be
satisfied by screened, elevated patio structures known as ``porches.''
Other certifying agents require operations to provide outdoor spaces
with soil and vegetation, but even then, may differ in their
interpretations of how much space must be provided outdoors. The final
rule also details requirements for other aspects of organic livestock
production for the purpose of reducing divergent interpretations of the
regulations and divergent practices among organic livestock producers.
These aspects include living conditions (both indoors and outdoors),
health care practices, transport, and slaughter conditions.
Inconsistencies in livestock practices and enforcement such as
these have several detrimental effects on the organic market: producers
can have significantly different production costs for the same organic
product, and in some cases, consumers are unaware that not all organic
products are produced with attributes they desire (e.g., outdoor
access), resulting in consumers paying for an attribute they are not
receiving.\4\ If consumers become aware that they are paying for an
attribute that does not exist, like access to soil and vegetation, they
are likely to lose confidence in the organic label.
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\4\ Recent survey data shows that 65% of frequent organic
purchasers and 54% of all organic purchasers think that all organic
animals have outdoor access throughout the day. See ASPCA and the
Animal Welfare Institute survey, September 2022. <a href="https://www.aspca.org/sites/default/files/awi_aspca_organic_consumer_survey_summary_2022_final.pdf">https://www.aspca.org/sites/default/files/awi_aspca_organic_consumer_survey_summary_2022_final.pdf</a>.
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AMS has found that inconsistent application of the organic
livestock standards has likely produced a market failure, that has been
in some part allowed to exist through government failure (action or
inaction). ``Market failure'' occurs when the free market does not
allocate resources efficiently--in other words, there is some market
distortion such as information asymmetry--despite consumers making
rational economic choices; analogously, ``government failure,'' for the
purposes of this document, is the government's failure to refine its
approach to addressing information asymmetry through regulation or
through other government action. For example, if consumers are paying
for an attribute that they believe they are receiving, such as an
animal's full access to the outdoors, the money they spend on an
attribute they do not receive is likely associated with the combination
of information asymmetry from market and government failure. After
reviewing the economic data, AMS believes that inconsistent application
of the organic program standards has led to information asymmetry
within the organic egg market and could be present in other organic
livestock markets.\5\ For more discussion of market failure, see
Section II.D, ORGANIC LIVESTOCK REGULATORY HISTORY, and this rule's
Regulatory Impact Analysis (RIA).
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\5\ For example, based on data from the ASPCA/AWI Organic
Consumer Survey, AMS estimates that at least 31.5% of organic eggs
are purchased by consumers who mistakenly think the chickens
producing their eggs have outdoor access that includes soil or
pasture. See Section II Subsection D for more detail.
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As a result of these failures, some consumers are losing trust in
the organic label. In public comments, consumers conveyed they lost
trust when they became aware that the organic label has not necessarily
meant animals are raised under the conditions they expected. During the
public comment period for the proposed OLPS rule, over 26,000 members
of the public submitted letters that specifically referenced their
diminished trust in the organic label. For example, AMS received more
than 6,000 thousand copies of one letter saying, ``the lack of clear
standards undermines consumer confidence in the organic label,'' and
more than 700 copies of another saying, ``I expect the USDA Organic
seal to include robust standards for animal welfare and outdoor access
. . . without [that], I'm left wondering what I'm really getting when I
purchase products with the USDA Organic seal.'' Similarly, the
extensive and detailed comments submitted by several organic producers
and trade groups identified loss of consumer confidence in the organic
label as a primary concern. For more information on the relationship
between trust and demand for labels, see Section F of the RIA.
Additionally, public comments highlighted the uneven production
costs due to the inconsistencies in outdoor access.\6\ One comment
specifically stated that ``The allowance by some ACAs of ``porches'' to
satisfy the outdoor access requirements, created an uneven competitive
landscape as well as ``certifier shopping'' which is unrebutted
evidence of inconsistency in the federal standards as well as

[[Page 75397]]

evidence of inconsistent products in the stream of commerce.'' \7\
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\6\ See <a href="https://www.regulations.gov/comment/AMS-NOP-21-0073-39096">https://www.regulations.gov/comment/AMS-NOP-21-0073-39096</a> and <a href="https://www.regulations.gov/comment/AMS-NOP-21-0073-39082">https://www.regulations.gov/comment/AMS-NOP-21-0073-39082</a>.
\7\ <a href="https://www.regulations.gov/comment/AMS-NOP-21-0073-39082">https://www.regulations.gov/comment/AMS-NOP-21-0073-39082</a>.
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Market failure, uneven production costs, and loss of trust in the
organic label are three consequences that AMS seeks to address with
this rule. The rule will establish avian-specific living conditions for
poultry and provide more detail on living conditions and health care
standards for all organic livestock. As a result of this rulemaking,
AMS predicts that producers and certifying agents will be able to
interpret and apply the organic regulations more consistently, assuring
consumers that organically produced products meet a consistent and
uniform standard, and safeguarding confidence in the organic label.

B. Statutory Authority To Issue Final Rule

Introduction
USDA is issuing these regulations under its authority as delegated
by OFPA and described below. In particular, USDA has statutory
authority to promulgate the regulations in the final rule pursuant to
USDA's authority: (1) to better assure consumers that organic livestock
products meet a consistent standard (7 U.S.C. 6501); (2) to establish a
national organic certification program (7 U.S.C. 6503(a)); (3) to
promulgate ``other terms and conditions as may be determined by the
Secretary to be necessary'' to the organic program (7 U.S.C.
6506(a)(11)); and (4) to develop and implement standards for livestock
production under the organic program (7 U.S.C. 6509). A discussion of
public comments received on the topic of USDA's authority, and AMS's
responses, can be found below in Section III., OVERVIEW OF PUBLIC
COMMENTS.
Reasons for Changing Interpretation From the OLPP Withdrawal Rule
USDA acknowledges that its position on USDA's statutory authority
to issue this rule differs from the rationale that USDA relied on for
the withdrawal of the Organic Livestock and Poultry Practices (OLPP)
final rule (Withdrawal Rule) in March 2018 (83 FR 10775). The sequence
of events related to this rule is outlined below in the section titled
``OLPP Rule and Legal Challenges.'' USDA discusses the reasons for its
change in position following a brief discussion of USDA's previous
rationale for the withdrawal of the OLPP final rule.
In the Withdrawal Rule, USDA stated it withdrew the OLPP rule based
on its then-interpretation of 7 U.S.C. 6509, which it believed did not
``authorize the animal welfare provisions of the OLPP final rule'' (83
FR 10776). At the time, USDA held that its authority under sec. 6509 to
issue regulations for the ``care'' of livestock was limited to physical
health care issues for livestock like those described in sec.
6509(d)(1), i.e., relating to the ``ingestion of chemical, artificial,
or non-organic substances'' (83 FR 10776). Based on this
interpretation, USDA stated that the OLPP final rule had included
``stand-alone animal welfare regulations'' that Congress had not
specifically authorized under sec. 6509. Additionally, the Withdrawal
Rule reasoned that if the statutory text could be construed as ``silent
or ambiguous,'' its interpretation was entitled to deference and based
on a permissible statutory construction'' (83 FR 10776).
USDA now disagrees with the rationale and narrow textual reading in
the Withdrawal Rule, and USDA finds it has ample authority to issue
this final rule based on the text and structure of sec, 6509 and the
statute's plain meaning (at sec. 6509 and elsewhere, including 7 U.S.C.
6501, 7 U.S.C. 6503(a), 7 U.S.C. 6506(a)(11)). Additionally, USDA's
longstanding interpretation of OFPA both prior to and since the
Withdrawal Rule, as reflected in numerous regulations promulgated by
AMS, confirms USDA's statutory authority to issue this rule (see ``D.
Organic Livestock Regulatory History'').
With this rule, USDA is using its authority to address regulatory
issues that (1) prevent fair competition among producers (as the
regulations are not interpreted consistently or applied equally to
producers), and (2) lead to such widely varying practices among some
producers that consumers cannot be assured an organic product meets a
consistent standard--a key purpose of OFPA. The promulgation of this
final rule is preferred to the alternative of relying on current
regulations that are inconsistently interpreted and enforced (see
Purpose and Need for the Rule). Data indicates that nothing since the
withdrawal of the OLPP final rule has changed to reduce the
inconsistency in practices, which continues to cause harm to consumers
(see additional discussion of Market/Government Failure in the RIA for
this final rule). Taking no action when known inconsistencies exist
would run counter to a fundamental purpose of OFPA to assure consumers
that organically produced products meet a consistent standard (7 U.S.C.
6501). This final rule addresses these inconsistencies and, in turn,
satisfies OFPA's purposes. For these reasons above and others discussed
throughout this final rule, USDA finds that it has good reasons to
revise its previous position from the Withdrawal Rule and issue this
final rule.
Long-Standing Interpretation of OFPA and Promulgation of Livestock
Regulations
Since the implementation of the December 2000 final rule (65 FR
80548) that established the AMS National Organic Program (NOP) and the
USDA organic requirements, organic livestock producers have been
required to meet requirements related to origin of livestock (Sec.
205.236), livestock feed (Sec. 205.237), livestock health care
practice standards (Sec. 205.238), and livestock living conditions
(Sec. 205.239). These regulations address measures to avoid disease
and illness; provisions about feed and pasture; principles governing
housing, pasture conditions, sanitation practices; and requirements for
access to the outdoors and a natural environment. As described in the
December 2000 final rule, a producer must, ``establish and maintain
livestock living conditions for the animals under his or her care which
accommodate the health and natural behavior of the livestock. The
producer must provide access to the outdoors, shade, shelter, exercise
areas, fresh air, and direct sunlight suitable to the species, its
stage of production, the climate, and the environment.'' These
regulations that have been effective since April 2001 (66 FR 15619)
reflect our longstanding interpretation of care of livestock, and
necessarily implicate animal welfare considerations.
USDA, through its National Organic Program (NOP), oversees the
entirety of the national organic certification program, from production
standards to accreditation of USDA-accredited certifying agents, to
noncompliance and appeal procedures, to international organic
agreements, and more. The NOP does this through its comprehensive
regulations at 7 CFR part 205. While the bulk of these specific
regulations were published by USDA in December 2000, the NOP has
elaborated on the regulations regularly since December 2000 under its
authority delegated by OFPA.
AMS has updated the organic livestock regulations, specifically,
multiple times since 2000. Notably, the 2010 Access to Pasture final
rule (75 FR 7153) expanded the organic regulations to, ``satisfy
consumer expectations that ruminant livestock animals are grazing
pastures and that pastures are managed to support grazing throughout
the

[[Page 75398]]

grazing season.'' \8\ The rule specifically addressed areas related to
production of organic ruminants (e.g., cattle, sheep, goats), including
pasture management, recordkeeping, access to the outdoors, temporary
confinement from the outdoors and pasture, and the amount of pasture
required in proportion to the total diet or ration. More recently, a
2022 Origin of Livestock final rule (87 FR 19740) clarified the manner
in which organic dairy operations can transition livestock to organic
production to increase uniformity in production practices for organic
dairy animals and reduce variance between certifying agents. The
regulatory history demonstrates a long precedent of AMS promulgating
detailed regulations on organic livestock production. Similarly, this
rule clarifies requirements for livestock production and supports the
purposes of OFPA (7 U.S.C. 6501).
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\8\ <a href="https://www.federalregister.gov/d/2010-3023/p-453">https://www.federalregister.gov/d/2010-3023/p-453</a>.
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Congress has also amended OFPA multiple times, but amendments to
OFPA have never sought to restrict the types of organic livestock
production practices that USDA may regulate under its delegated
authority. In fact, Congress has occasionally urged USDA to finalize
certain livestock regulations rather than clarify requirements through
amendments to OFPA. For example, in the Further Consolidated
Appropriations Act, 2020 (Pub. L. 116-94, div. B, title VII, sec. 756,
Dec. 20, 2019, 133 Stat. 2654)), Congress directed USDA to issue a
final rule based on the ``Origin of Livestock'' proposed rule that AMS
published in April 2015.
OFPA Provisions and OFPA History
The plain language and the legislative history of OFPA and USDA's
longstanding interpretation of the statute support USDA's authority to
issue these regulations. OFPA includes few details about organic
livestock production, organic crop production, and handling of organic
products. In all cases, the USDA organic regulations (7 CFR part 205)
have, since their inception, include more detailed requirements than
included in OFPA, as Congress authorized and intended. For livestock,
Congress was particularly clear in stating that the livestock
requirements in OFPA were not fully developed, and delegated rulemaking
authority to USDA to develop more detailed livestock production
requirements and standards (7 U.S.C. 6509(g)).
As stated in the Conference Report of October 22, 1990 (p. 1177):

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

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

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

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

In addition, OFPA grants USDA authority to establish standards for
the national organic program. Sec. 6503(a) states: ``The Secretary
shall establish an organic certification program for producers and
handlers of agricultural products that have been produced using organic
methods as provided for in this chapter,'' and 7 U.S.C. 6506(a)(11)
which provides: ``A program established under this chapter shall
require such other terms and conditions as may be determined by the
Secretary to be necessary.''
OFPA also specifically authorizes USDA to develop detailed
requirements for animal production practices (7 U.S.C. 6509). 7 U.S.C.
6509(a) specifies that ``Any livestock that is to be slaughtered and
sold or labeled as organically produced shall be raised in accordance
with this chapter.'' ``Organically produced,'' as defined by OFPA, is
broad. It is defined as ``an agricultural product that is produced and
handled in accordance with this chapter.'' \9\ Sec. 6509(d)(1)
addresses a handful of specific prohibited health care practices
related to use of medications and feed on organic farms. Notably, OFPA
specifies at subsection 6509(d)(2): ``The National Organic Standards
Board shall recommend to the Secretary standards in addition to those
in paragraph (1) [titled ``Prohibited practices''] for the care of
livestock to ensure that such livestock is organically produced.''
Finally, 7 U.S.C. 6509(g) also provides that ``the Secretary shall hold
public hearings and shall develop detailed regulations, with notice and
public comment, to guide the implementation of the standards for
livestock products provided under this section'' (italics added). USDA
has long interpreted these provisions to grant the authority to address
animal welfare as part of the organic standards, regularly developing
and promulgating detailed regulations that implicate animal welfare
through the statutorily outlined process of consulting NOSB and
offering notice and public comment on additional standards developed.
---------------------------------------------------------------------------

\9\ 7 U.S.C. 6502(15).
---------------------------------------------------------------------------

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

[[Page 75399]]

6509(d)(2)) ``raised,'' (7 U.S.C. 6509(a) and (e)) and ``health care,''
(7 U.S.C. 6509(d)) includes considerations of animal welfare. Merriam-
Webster defines ``care'' as ``charge, supervision . . . especially:
responsibility for or attention to health, well-being, and safety.''
\10\ Similarly, the American Heritage Dictionary defines ``care'' as
``watchful oversight; charge or supervision,'' \11\ and the Cambridge
Dictionary defines ``care'' as ``the process of protecting or providing
for the needs of someone or something.'' \12\ Merriam-Webster defines
``raise'' as ``to breed and bring (an animal) to maturity,'' \13\ and
the American Heritage Dictionary defines ``raise'' as ``to breed and
care for to maturity: raise cattle.'' \14\ In addition, ``health care''
is defined as ``efforts made to maintain or restore physical, mental,
or emotional well-being especially by trained and licensed
professionals.'' \15\
---------------------------------------------------------------------------

\10\ Merriam-Webster Dictionary, available at <a href="https://www.merriam-webster.com/dictionary/care">https://www.merriam-webster.com/dictionary/care</a>.
\11\ American Heritage Dictionary, available at <a href="https://www.ahdictionary.com/word/search.html?q=care">https://www.ahdictionary.com/word/search.html?q=care</a>.
\12\ Cambridge Dictionary, available at <a href="https://dictionary.cambridge.org/dictionary/essential-american-english/care">https://dictionary.cambridge.org/dictionary/essential-american-english/care</a>.
\13\ Merriam Webster, available at <a href="https://www.merriam-webster.com/dictionary/raise">https://www.merriam-webster.com/dictionary/raise</a>.
\14\ American Heritage Dictionary, available at <a href="https://www.ahdictionary.com/word/search.html?q=raise">https://www.ahdictionary.com/word/search.html?q=raise</a>.
\15\ Merriam Webster, available at <a href="https://www.merriam-webster.com/dictionary/health%20care">https://www.merriam-webster.com/dictionary/health%20care</a>.
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In contrast to the narrow interpretation of the OFPA term ``health
care'' used in the Withdrawal Rule, the OLPS final rule returns to
USDA's longstanding interpretation of ``health care'' which goes beyond
specific healthcare practices for organic livestock and can reasonably
encompass production practices related to the welfare and well-being of
livestock. This interpretation aligns with longstanding organic
regulations related to health care at 7 CFR 205.238 titled ``Livestock
health care practice standard'' and included in the 2000 final rule.
Section 205.238(a) includes provisions that support livestock health,
including provisions related to housing, feed, sanitation, species
selection, exercise and movement, and conditions which allow for
reduction of stress.
The aforementioned terms (``care,'' ``raised,'' and ``health
care'') connote a broader conception of livestock health care and
livestock care that includes livestock living conditions and
considerations of welfare, and these terms allow USDA to prescribe
modes of caring for livestock that extend beyond prohibiting specific
health care practices such as the ``ingestion of chemical, artificial,
or non-organic substances.'' (83 FR 10776). The language in sec. 6509,
including allowing the NOSB to recommend regulations ``in addition to''
those in subsection 6509(d)(1) ``for the care of livestock'' indicates
that the scope of USDA's authority extends beyond regulations
prohibiting the ingestion of chemical, artificial, or non-organic
substances. Sec. 6509(e)(1) and (2) describe ``additional guidelines''
for ``rais[ing] and handl[ing]'' poultry and dairy livestock,
respectively. The use of the phrase ``[r]aised and handled in
accordance with this chapter'' (6509(e)(1), (2)(A)) suggests a more
comprehensive understanding of care that goes beyond narrow conceptions
of medical care of organic livestock and can reasonably encompass
production practices related to livestock living conditions and
welfare. Thus, USDA believes that sec. 6509 supports the promulgation
of these regulations concerning the humane raising of livestock.
However, even if the text of sec. 6509 were silent or ambiguous about
this issue, USDA believes that its interpretation is a permissible
reading, an interpretation that is entitled to deference.
Animal Welfare
This rule's focus on animal welfare, especially outdoor access
requirements, supports the organic regulations' existing principles of
resource cycling and ecological balance (see ``organic production''
defined at 7 CFR 205.2 and Sec. 205.239(e)). Nevertheless, USDA
recognizes that NOSB recommendations and public comments that have
shaped this final rule may have intended to enhance the welfare or
well-being of animals marketed as organic. Many in the contemporary
organic industry do not view animal welfare as distinct from the
concerns expressly reflected in the statutory text of OFPA. A growing
body of research is showing that livestock and poultry with access to
pasture and the outdoors to forage and engage in natural behaviors may
be positively associated with the following outcomes: improved well-
being of the animals, environmental benefits, and healthier livestock
and poultry products \16\ for human consumption.\17\
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\16\ Is Grassfed Meat and Dairy Better for Human and
Environmental Health? Frederick D. Provenza, Scott L. Kronberg, and
Pablo Gregorini, Front Nutr. 2019; 6: 26. <a href="https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6434678/">https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6434678/</a>.
\17\ Palupi, Eny; Jayanegara, Anuraga; Ploegera, Angelika and
Kahla, Johannes (2012) ``Comparison of nutritional quality between
conventional and organic dairy products: a meta-analysis,'' Journal
of the Science of Food and Agriculture, Vol. 92, pp. 2774-2781.
<a href="https://pubmed.ncbi.nlm.nih.gov/22430502/">https://pubmed.ncbi.nlm.nih.gov/22430502/</a>.
---------------------------------------------------------------------------

Public perception and the expectations of organic consumers
parallel this research. For example, a 2021 study found that consumers
expect less need for antibiotics and other medications that sec.
6509(d) expressly limits when animals are raised with practices that
improve the health and welfare of livestock.\18\ Since OFPA was
enacted, expectations for the conditions under which animals are raised
(i.e., animal welfare) have become an integral part of organic
production, as evidenced by the hundreds of thousands of public
comments that USDA has received on this topic over three decades, as
well as an emerging body of research on the motivations that drive
consumers to buy organic livestock products. Several studies point to
animal welfare concerns as significant or even primary drivers for
organic consumers.\19\ Likewise, consumers perceive organic livestock
to be raised according to higher animal welfare standards than non-
organic livestock.\20\ Literature also suggests government-sponsored
ecolabels provide the highest levels of consumer confidence.\21\
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\18\ Wemette, M., Safi, A.G., Wolverton, A.K., Beauvais, W.,
Shapiro, M., Moroni, P., . . . & Ivanek, R. (2021). Public
perceptions of antibiotic use on dairy farms in the United States.
Journal of Dairy Science, 104(3), 2807-2821 <a href="https://pubmed.ncbi.nlm.nih.gov/33455793/">https://pubmed.ncbi.nlm.nih.gov/33455793/</a>.
\19\ Alonso, Marta E.; Gonz[aacute]lez-Monta[ntilde]a,
Jos[eacute] R.; and Lomillos, Juan M. (2020) ``Consumers' Concerns
and Perceptions of Farm Animal Welfare,'' Animals, Vol. 10, pp. 385-
397. McEachern, M.G.; Willock, J. (2004) ``Producers and consumers
of organic meat: A focus on attitudes and motivations.'' British
Food Journal, Vol. 106, pp.534-552.
\20\ Harper, Gemma C; Makatouni, Aikaterini (2002) ``Consumer
perception of organic food production and farm animal welfare.''
British Food Journal; Vol. 104, Iss. 3-5, pp. 287-299.
\21\ Kim Mannemar S. [Atilde]nderskov, and Carsten Daugbjerg.
``The State and Consumer Confidence In Eco-labeling: Organic
Labeling In Denmark, Sweden, The United Kingdom and The United
States.'' Agriculture and human values, v. 28,.4 pp. 507-517. doi:
10.1007/s10460-010-9295-5.
---------------------------------------------------------------------------

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

[[Page 75400]]

livestock (7 U.S.C. 6509) to meet the purposes of the OFPA, including
``to assure consumers that organically produced products meet a
consistent standard'' (7 U.S.C. 6501(2)). Since the enactment of OFPA,
the USDA has worked to establish, develop, and administer standards on
numerous aspects of organic production, including standards for the
care of livestock that extend beyond the Withdrawal Rule's narrow
interpretation of ``health care.'' USDA maintains that, notwithstanding
the novel interpretation of the Withdrawal Rule, the authority of its
national organic certification program to establish, develop, and
administer livestock standards--including those that implicate the
welfare of animals used in organic production--is confirmed by USDA's
present and longstanding interpretation of OFPA.
NOSB Consultation (OFPA) and Development of OLPS
Congress directed USDA to consult with the NOSB to establish a
national organic certification program (7 U.S.C. 6503(c), 6509(d)) and
develop detailed livestock regulations with notice and public comment
(7 U.S.C. 6509(g)). USDA has done just that in developing this and
previous livestock regulations (see, for example, ``History of AMS
Livestock Policy'' in Section D; to see recommendations related to the
OLPS rule, see ``C. NOSB Recommendations on Livestock Production'').
The vast majority of NOSB recommendations and public comments agree
with and support the USDA's decision to establish the regulations
included in the OLPS final rule.
Conclusion
AMS is issuing this rule after determining, in consultation with
the National Organic Standards Board (NOSB) and following notice and
public comment, that regulations are necessary to clarify the existing
livestock production standards. This follows the process intended for
livestock standards development authorized by OFPA at 7 U.S.C. 6503 and
6509. USDA determined that existing organic livestock production
regulations have not been interpreted or enforced in a consistent
manner among certifiers to assure consumers that organic livestock and
products from livestock (e.g., eggs) meet a consistent standard. Under
the authority granted by OFPA, AMS is issuing this rule with clearer
standards to address inconsistencies in livestock production
regulations.
Comment summaries and AMS responses on the topic of USDA's
statutory authority to promulgate these regulations can be found below
in Section III, OVERVIEW OF PUBLIC COMMENTS.

C. NOSB Recommendations on Livestock Production

The NOSB is a federal advisory committee established by OFPA (7
U.S.C. 6518) to provide recommendations to USDA on the development of
organic standards and regulations. NOSB recommendations are developed
through a rigorous process involving technical information, stakeholder
input through public comment, open meetings, and a decisive two-thirds
majority vote of the Board. Although the Board cannot direct or bind
USDA through its recommendations, USDA utilizes the NOSB
recommendations to inform rulemaking, including this rulemaking.
Between 1994 and 2011, the NOSB made nine recommendations regarding
livestock health care, living conditions, and welfare in organic
production. Between 1997 and 2000, AMS issued two proposed rules and a
final rule regarding national standards for the production and handling
of organic products, including livestock and their products. Members of
the public commented on these rules regarding the health care and
welfare of livestock. Summarized below are the key actions from that
period that led to the development of the existing standards for
organic livestock and that have informed this OLPS final rule.
(1) In June 1994, the NOSB recommended a series of provisions to
address the care and handling of livestock on organic farms. Within
this recommendation, the NOSB developed much of the framework for
organic health care and welfare of livestock, including health care
standards, living conditions, and transportation of livestock
practices.
(2) In April and October 1995, the NOSB made a series of
recommendations as addenda to the June 1994 recommendations. These
recommendations further addressed various health care practices, a
requirement for outdoor access, and the use of vaccines.
(3) On December 16, 1997, AMS incorporated the 1994 and 1995 NOSB
recommendations in a proposed rule to establish the NOP (62 FR 65850).
Consistent with the NOSB's recommendation, the proposed language would
have required that organic livestock producers develop a preventive
health care plan and use synthetic drugs only if preventive measures
failed. The 1997 proposed rule also included standards for livestock
living conditions, including when livestock could be confined. That
proposed rule was not finalized.
(4) In March 1998, the NOSB reaffirmed its earlier recommendations
on livestock health care and living conditions. The 1998 NOSB
recommendation also stressed the importance of treating sick livestock
by recommending that any organic producer who did not take specified
actions to provide care for a diseased animal would lose certification.
This recommendation also included provisions to clarify when livestock
could be confined indoors and defined ``outdoors'' as having direct
access to sunshine.
(5) On March 13, 2000, AMS published a second proposed rule to
establish the National Organic Program (65 FR 13512) that incorporated
public feedback on the December 1997 proposed rule. AMS also
incorporated the NOSB's March 1998 recommendations related to livestock
health care and living conditions. AMS proposed that organic producers
must use disease prevention practices first, then approved synthetic
medications only if preventive measures failed. However, a producer
would need to use all appropriate measures to save the animal even if
the animal lost organic status. In addition, AMS proposed that the
living conditions for organic livestock must maintain the health of the
animals and allow for natural behaviors, including access to the
outdoors.
(6) On December 21, 2000, AMS published a final rule establishing
the USDA organic regulations (65 FR 80548) (``NOP Rule''). Through this
action, AMS finalized the standards for health care practices and
livestock living conditions. This rule addressed a range of matters
related to organic livestock production, including organic feed; use of
hormones and supplements; measures to avoid disease and illness;
veterinary biologics, medications, synthetic parasiticides, and other
drugs; and general principles governing housing, pasture conditions,
sanitation practices, and physical alterations. The NOP Rule also
generally required producers to provide organic livestock with ``access
to the outdoors, shade, shelter, exercise areas, fresh air, and direct
sunlight suitable to the species, its stage of production, the climate,
and the environment,'' but allowed producers to satisfy those criteria
in different ways. That rule became effective on April 21, 2001
(correction of effective date; 66 FR 15619) and was fully implemented
on October 21, 2002.

[[Page 75401]]

(7) In May 2002, the NOSB again addressed outdoor access, stating
this should include open air and direct access to sunshine.\22\ In
addition, the May 2002 recommendation stated that bare surfaces other
than soil do not meet the NOP Rule's intent for outdoor access for
poultry. This recommendation also included clarifications as to when
livestock could be temporarily confined.
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\22\ NOSB, 2002. Recommendation Access to Outdoors for Poultry.
Available at: <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.'' \23\ The NOSB reasoned that confinement for a ``stage of
life'' would limit producers from confining animals for long periods,
such as confinement during the entire period that a dairy animal is
lactating. ``Stage of life'' was reasoned to be more specific than
``stage of production.''
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\23\ NOSB, 2005. Formal Recommendation by the NOSB to NOP. NOSB
recommendation for Rule change--``Stage of Production'' to ``Stage
of Life.'' Available at: <a href="http://www.ams.usda.gov/rules-regulations/organic/nosb/recommendations">http://www.ams.usda.gov/rules-regulations/organic/nosb/recommendations</a>.
---------------------------------------------------------------------------

(9) On October 24, 2008, AMS published a proposed rule on access to
pasture for ruminant livestock (73 FR 63584), based on several NOSB
recommendations regarding ruminant livestock feed and living conditions
and public comments. AMS published the final rule, Access to Pasture
(Livestock), on February 17, 2010 (75 FR 7154). This rule amended
numerous areas of the organic livestock regulations, including 7 CFR
205.237, 205.239, 205.240, as described below in Section D, ``Organic
Livestock Regulatory History.''
(10) Between 2009 and 2011, the NOSB issued a series of
recommendations on livestock welfare. These were intended to
incorporate prior NOSB recommendations that AMS had not addressed. The
November 2009 recommendation suggested revisions and additions to the
livestock health care practice standards and living conditions
standards.\24\ The NOSB recommended banning or restricting certain
physical alterations and requiring organic producers to keep records on
livestock that were lame and/or sick and how they were treated. This
recommendation proposed to separate mammalian living conditions from
avian living conditions sections of the USDA organic regulations so
that the provisions could be more directly tailored to various
livestock species. In the mammalian section, the NOSB proposed
mandatory group housing of swine and a requirement for rooting
materials for swine. In the avian section, the NOSB proposed a variety
of provisions, including maximum ammonia levels, perch space
requirements, and outdoor access clarifications.
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\24\ NOSB, 2009. Formal Recommendation by the NOSB to the NOP,
Animal Welfare. Available at: <a href="http://www.ams.usda.gov/rules-regulations/organic/nosb/recommendations">http://www.ams.usda.gov/rules-regulations/organic/nosb/recommendations</a>.
---------------------------------------------------------------------------

(11) In October 2010, the NOSB passed a recommendation on the use
of drugs for pain relief.\25\ The NOSB recommended changing the health
care practice standards to allow the administration of drugs in the
absence of illness to prevent disease or alleviate pain. In April 2010,
the NOSB passed a recommendation to clarify that milk from animals
treated with allowed synthetic medical treatments and annotated with a
milk withholding time may be fed to young organic livestock still
receiving milk in their diet.\26\ The NOSB stated that such changes
would improve the welfare of organic livestock.
---------------------------------------------------------------------------

\25\ 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>.
\26\ NOSB, 2010. Formal Recommendation by the NOSB to the NOP,
Clarification of 205.238(c)(1). 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>.
---------------------------------------------------------------------------

(12) In December 2011, the NOSB passed an additional livestock
welfare recommendation.\27\ The 2011 recommendation added definitions
for terms related to livestock production and provisions for health
care standards and living conditions. The NOSB also revised its prior
recommendation on physical alterations to provide a broader list of
prohibited procedures. In the mammalian living conditions section, the
NOSB recommended that outdoor access for swine include a minimum of 25
percent vegetative cover at all times. For avian species, the NOSB
recommended specific indoor and outdoor space requirements, e.g.,
stocking densities, among other provisions for living conditions
specific to poultry. For layers, the NOSB recommended a minimum of 2.0
ft\2\ per bird indoors and outdoors.
---------------------------------------------------------------------------

\27\ 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>.
---------------------------------------------------------------------------

(13) In December 2011, the NOSB passed a separate recommendation to
add standards for the slaughter process, including transportation of
livestock to slaughter facilities.\28\ The NOSB's recommendation for
transport included provisions for veal calves and the trailers/trucks
used to transport animals to ensure continuous organic management. The
NOSB recommended that slaughter facilities meet certain performance-
based standards assessed via observations of animal handling and any
slips, falls or vocalizations before and during slaughter.
---------------------------------------------------------------------------

\28\ 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>.
---------------------------------------------------------------------------

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

D. Organic Livestock Regulatory History

History of AMS Livestock Policy
This final rule clarifies and expands on the original December 2000
organic requirements (the ``NOP Rule'') to support consistent
interpretation and enforcement of organic livestock standards. USDA has
revised the regulations related to organic livestock production since
December 2000. On October 29, 2002, AMS issued a memorandum to clarify
outdoor access and temporary confinement requirements for livestock
under the USDA organic regulations.\29\ The memorandum stated that
producers are required to balance accommodations for an animal's health
and natural behavior with measures to ensure an animal's safety and
well-being. It further explained that the USDA organic regulations do
not specify an outdoor space allowance or stocking rate, nor do they
require that all animals in the herd or flock have access to the
outdoors at the same time. This memorandum explained how producers
could provide evidence of compliance to support temporary
confinement.\30\ However, NOP determined that additional specificity
was required to improve compliance and enforcement and satisfy consumer
expectations.
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\29\ National Organic Program, 2002. Access to the Outdoors for
Livestock. Retained as Policy Memo 11-5. Available in the NOP
Handbook: <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>.
\30\ This memorandum was incorporated into the NOP Handbook (as
``PM 11-5'') on January 31, 2011.
---------------------------------------------------------------------------

On July 15, 2002, an operation applied for organic certification of
its

[[Page 75402]]

egg laying operation with a USDA-accredited certifying agent. As part
of the application, the operation's organic system plan (OSP) stated
that outdoor access would be provided through covered and screened
``porches'' (enclosed, covered, and screened areas attached to a
poultry house, either elevated or at ground level). The certifying
agent denied certification for failing to provide hens with access to
the outdoors. The certifying agent stated that a porch did not provide
outdoor access as required by the USDA organic regulations. The
operation appealed the Denial of Certification to the AMS Administrator
on October 22, 2002. The Administrator sustained the appeal on October
25, 2002, and directed the certifying agent to grant organic
certification to the operation retroactively to October 21, 2002.
The certifying agent objected to the Administrator's decision and
appealed to the USDA Office of the Administrative Law Judge (ALJ). On
November 4, 2003, the USDA ALJ dismissed the appeal. On December 11,
2003, the certifying agent appealed to the USDA Judicial Officer. On
April 21, 2004, the USDA Judicial Officer dismissed the appeal. On
September 27, 2005, the certifying agent filed an appeal with the U.S.
District Court, District of Massachusetts. On March 30, 2007, the U.S.
District Court granted USDA's motion to dismiss the case (Massachusetts
Independent Certification, Inc. v. Johanns, 486 F. Supp. 2d 105). As a
result of these adjudications, use of porches to meet the requirement
in the USDA organic regulations for outdoor access expanded, and
certain producers have settled on production practices that rely on
porches, leading to inconsistencies with producers that offer animals
access to outdoor spaces with soil, vegetation, direct sunlight, and
considerable space per animal.
While the use of porches was expanding in the organic poultry
industry, AMS was more precisely defining outdoor access for other
species. On February 17, 2010, AMS published a final rule adopting new
provisions relating to organic livestock production. The Access to
Pasture Rule was informed by NOSB's 2005 recommendation and extensive
public input requesting clear outdoor access requirements for ruminant
livestock. It required that ruminants graze at least 120 days per year,
described situations that warrant denying ruminants access to the
outdoors (e.g., birthing cows or newborn calves), required that
ruminants receive not less than 30 percent of dry matter intake from
grazing, and addressed several other matters related to the management
of pasture and feeding yards, pads, and lots. The Access to Pasture
Rule also clarified that the requirements for outdoor access and
species-appropriate access to shade, shelter, exercise, fresh air, and
direct sunlight required by the NOP Rule must be provided for all
organic livestock, including poultry, on a year-round basis.
In March 2010, the USDA Office of the Inspector General (OIG)
issued a report concerning, in part, AMS guidance on outdoor access for
organic livestock.\31\ The OIG found inconsistent certification
practices regarding outdoor access for poultry. For example, one
operation they visited provided a total of 300 square feet of outdoor
access for approximately 15,000 chickens, while two other operations
provided large pasture areas. Of the four certifying agents OIG
visited, only one had developed stocking density requirements for
livestock. The OIG recommended that AMS issue further guidance on
outdoor access for livestock, especially poultry.
In response, AMS published draft guidance, Outdoor Access for
Organic Poultry, on October 13, 2010 and sought public comment.\32\ The
draft guidance advised certifying agents to use the 2002 and 2009 NOSB
recommendations as the basis for certification decisions regarding
outdoor access for poultry.\33\ It informed certifying agents and
producers that maintaining poultry on soil or outdoor runs would
demonstrate compliance with the outdoor access requirement in 7 CFR
205.239.
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\32\ On October 13, 2010, AMS also published a Notice of
Availability of Draft Guidance and Request for Comments in the
Federal Register (75 FR 62693).
\33\ The 2002 and 2009 NOSB recommendations included daily
outdoor access from an early age and access to direct sunlight, open
air and soil.
---------------------------------------------------------------------------

AMS received 69 comments on the draft guidance. Comments varied
widely. Several commenters, including organic poultry producers,
requested a change to the draft guidance language to say that poultry,
when outdoors, should be maintained on soil, pasture, or vegetation.
They described health benefits and protection of the environment that a
pasture or other vegetated outdoor access area would afford.
Additionally, some supported more specific and stringent stocking
densities. Commenters suggested a maximum stocking rate of 1.75 square
feet per bird in henhouses that provide access to perches, with an
additional 5 square feet per bird available in vegetated outdoor runs
accessible to all birds at the same time.
On the other hand, some commenters favored allowing porches as
acceptable outdoor access, citing biosecurity and animal health
concerns. One trade association, some organic egg producers, and
consultants described several benefits in the use of production systems
that limit outdoor access via the use of enclosed porches that keep
poultry from contact with soil or pasture. These benefits included
protection from predation and parasites, and seclusion from contact
with pathogens that cause food safety problems and wild birds that
could carry diseases. The commenters asserted that these systems are
consistent with the 2002 NOSB recommendation and noted that organic egg
producers had made substantial investments in facilities with porches.
Some also expressed concerns that placing birds on soil would affect
their ability to comply with the Food and Drug Administration's
Salmonella prevention food safety regulations (21 CFR part 118).
Several producers expressed concern with the 2009 NOSB recommendation
that pullets be given outdoor access at 6 weeks of age, because layers
are not fully immunized (including for protection against Salmonella)
until 16 weeks of age. These producers said that pullets should not be
exposed to uncontrolled environments until that time.
However, many comments suggested that AMS's draft guidance was
unenforceable, and rulemaking would be a better action. These stated
that certifying agents would be able to enforce a rule more clearly and
decisively than guidance. Given this request that USDA address the
issue of outdoor access for poultry through the rulemaking process, AMS
determined to pursue rulemaking and did not finalize the draft
guidance.
OLPP Rule and Legal Challenges
In April 2016, AMS published a proposed rule, Organic Livestock and
Poultry Practices (OLPP), which incorporated NOSB recommendations. The
proposed rule included provisions related to livestock health care
practices (such as physical alteration procedures, euthanasia, and
treatment of sick animals), living conditions for mammalian and avian
livestock (including minimum indoor and outdoor space requirements for
avian livestock), and requirements for care during transport and for
slaughter practices. It received 6,675 written comments during the 90-
day comment period, and petition signatures numbering in the tens of
thousands. Comments were received from

[[Page 75403]]

producers, producer associations, handlers, certifying agents,
consumers and consumer groups, animal welfare organizations,
veterinarians, state government agencies, foreign government agencies,
and trade associations or organizations. They provided insight on
topics such as regulatory authority, import impact, trade agreements,
and alternatives to regulation. Comments generally found the rule
beneficial for the industry and the organic label, but several raised
challenges with the proposed standards.
In response to public comment, AMS made a number of changes to the
proposed rule to further clarify the requirements and mitigate economic
impact on the industry. AMS published the Organic Livestock and Poultry
Practices final rule (OLPP Rule) on January 19, 2017 (82 FR 7042).
Prior to the OLPP Rule becoming effective, USDA (under a new
Administration) delayed the effective date of the rule to allow the
Administration to review it.\34\
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\34\ See 82 FR 9967 (February 9, 2017); 82 FR 21677 (May 19,
2017); and 82 FR 52643 (November 14, 2017).
---------------------------------------------------------------------------

After delaying the OLPP Rule's effective date and conducting its
review, AMS proposed withdrawing the OLPP Rule. It determined that the
agency lacked the legal authority to issue the rulemaking, cited
substantive errors in OLPP's economic analysis, and maintained that
there was no market failure (82 FR 59988, December 18, 2017). On March
13, 2018, AMS published a final rule withdrawing the OLPP Rule for
those reasons (Withdrawal Rule; 83 FR 10775). Plaintiffs challenged
USDA's delay and subsequent withdrawal the OLPP Rule. The Center for
Food Safety (CFS) and Center for Environmental Health (CEH) sued USDA,
and the Organic Trade Association (OTA) separately filed a suit, see
Organic Trade Association v. USDA, No. 17-cv-1875-RMC (D.D.C.); CEH v.
USDA, No. 3:18-cv-1763 (N.D. Cal.)).
In March 2020, the U.S. District Court for the District of Columbia
granted USDA's motion to remand to USDA for purposes of clarifying and
supplementing the records regarding the economic analyses underlying
the OLPP Rule and the Withdrawal Rule. The District Court set a
deadline of 180 days for USDA to complete these economic analysis
actions.
AMS reviewed the economic analyses for both the OLPP Rule and the
Withdrawal Rule. It discovered additional errors in the OLPP Rule,
beyond those already cited by the Withdrawal Rule, and substantive
errors in the economic analysis of the Withdrawal Rule itself. AMS
published the Organic Livestock and Poultry Practice Economic Analysis
Report on April 23, 2020, describing all the errors and seeking public
comment on the Report (85 FR 22664). After considering the comments,
AMS published the Final Decision on Organic Livestock and Poultry
Practices Rule and Summary of Comments on the Economic Analysis Report
on September 17, 2020 (85 FR 57937). In the Final Decision, AMS
concluded that ``[t]o the extent the Withdrawal Rule formed an
assessment of the likely costs and benefits of the OLPP Rule based on
that flawed analysis, AMS hereby modifies that assessment and concludes
simply that the Final RIA does not support promulgation of the OLPP
Rule in light of its significant flaws.'' AMS further concluded that
``[i]mplementing the OLPP Rule based on such a flawed economic analysis
is not in the public interest'' and decided not to take any further
regulatory action with respect to the OLPP Rule (85 FR 57944).
In June 2021, Secretary Vilsack announced that USDA would
``reconsider the prior Administration's interpretation that [OFPA] does
not authorize USDA to regulate the practices that were the subject of
the [OLPP Rule].'' He further directed NOP ``to begin a rulemaking to
address this statutory interpretation and to include a proposal to
disallow the use of porches as outdoor space in organic production over
time and on other topics that were the subject of the OLPP Final
Rule.''
Economic Analysis and Market Failure
In the Economic Analysis Report, AMS described the three errors
that had been identified in the economic analysis of the Withdrawal
Rule: (1) the incorrect application of the discounting formula; (2) the
use of an incorrect willingness to pay value for eggs produced under
the new outdoor access requirements; and (3) the incorrect application
of a depreciation treatment to the benefit calculations. The Report
explained that although the economic analysis of the Withdrawal Rule
correctly identified these errors and properly addressed the first two
errors (incorrect discounting methodology and willingness-to-pay
values), it had not fully removed the incorrect depreciation treatment
from the cost and benefit calculations, which erroneously reduced the
calculation of both costs and benefits.
The Report went on to identify and discuss four categories of
additional errors in the economic analysis of the OLPP Rule that were
previously undetected and therefore inadvertently carried forward to
the economic analysis of the Withdrawal Rule. These were: (1)
inconsistent or incorrect documentation of key calculation variables;
(2) an error in the volume specification affecting benefits
calculations in two of three scenarios considered; (3) the incorrect
use of production values in the benefits calculations that do not
account for projected increased mortality loss; and (4) aspects of the
cost calculations that resulted in certain costs being ignored,
underreported, or inconsistently applied. In addition, the Report
described certain minor errors that did not have a material impact on
the cost and benefit calculations (85 FR 57938).
In this OLPS final rule, AMS has worked to ensure that the RIA
addresses these concerns. Some of the mathematical or descriptive
concerns were addressed with rewriting the rule. AMS specifically
addressed issues with discounting and depreciation in the analysis and
fixed various errors found by the report. Additionally, AMS adjusted
the willingness to pay for outdoor access in eggs to the more precise
measure suggested by the economic analysis report. While AMS maintains
the use of enterprise budgets in the original rule to model costs, AMS
updated costs in the rule to the extent possible based on data
availability, as they provide the most detailed estimates for the
organic industry and USDA ERS has shown that both feed and land costs
have remained approximately steady since their
development.35 36
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\35\ USDA ERS. Farmland Value. <a href="https://www.ers.usda.gov/topics/farm-economy/land-useland-value-tenure/farmland-value">https://www.ers.usda.gov/topics/farm-economy/land-useland-value-tenure/farmland-value</a>.
\36\ 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>.
---------------------------------------------------------------------------

Based on data provided through public comment, AMS determined that
there is inconsistent application of outdoor access requirements for
organic livestock, leading to information asymmetry.\37\ This
inconsistency and information asymmetry threatens both consumer
confidence in the organic label and future industry growth. One of the
primary purposes of OFPA is ``to assure consumers that organically
produced products meet a consistent standard (7 U.S.C. 6501).''
Therefore, USDA must issue additional regulations to ensure that
organic livestock products meet a consistent, nationwide standard
across the industry. This rule will

[[Page 75404]]

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

\37\ For example, based on data from the ASPCA/AWI Organic
Consumer Survey, AMS estimates that at least 31.5% of organic eggs
are purchased by consumers who mistakenly think the chickens
producing their eggs have outdoor access that includes soil or
pasture. See below for more detail.
---------------------------------------------------------------------------

Third-party certification can result in different certifiers
interpreting the standards differently. In the case of organic animals,
including organic poultry, there has been significant divergence among
certifiers in how the ``access to the outdoors'' requirement in 7 CFR
205.239(a)(1) is interpreted and enforced. As a matter of practice,
certifiers determine how much outdoor access is needed to meet the
rule's requirements, and this has led to divergent certification and
production practices.
While differing practices within a given industry do not
necessarily constitute a market failure, highly varied practices under
a single marketing label can create a market failure through
information asymmetry. Information asymmetry occurs because consumers
may not know how their organic livestock products are being produced
but producers do, resulting in some organic consumers paying a premium
for organic products that they incorrectly believe contain specific
attributes (e.g., outdoor access). When consumers pay for a product
that does not include certain attributes they expect, this may
represent a market failure caused by an information asymmetry between
consumers and organic operations. The existence of this information
asymmetry has been a driver of the creation and operation of USDA's
organic certification program, and organic labeling thus communicates
product attributes in accordance with the program's ``organic''
definition, standards, and enforcement; as a result, suboptimal past
program choices may have contributed to the baseline market
distortions.
In the organic egg industry, AMS estimates that approximately 30%
of organic egg production comes from hens with access to outdoor areas
that include soil or pasture, while approximately 70% of organic egg
production only has access to the outdoors through enclosed porches
with no soil or pasture. Recent survey data shows that 65% of frequent
organic purchasers and 54% of all organic purchasers think that all
organic animals have access to ``outdoor pastures and fresh air
throughout the day.'' \38\ Using this data, AMS estimates that 31.5% of
organic eggs are purchased by consumers who mistakenly think the
chickens producing their eggs have outdoor access that includes soil or
pasture. This survey also demonstrates consumers may face similar
information asymmetries about space and welfare requirements in organic
agriculture, with 59% of consumers believing organic animals have more
space and 45% of consumers believing organic animals are prohibited
from having their beaks and tails removed.
---------------------------------------------------------------------------

\38\ ASPCA and the Animal Welfare Institute. Survey. September
2022. <a href="https://www.aspca.org/sites/default/files/awi_aspca_organic_consumer_survey_summary_2022_final.pdf">https://www.aspca.org/sites/default/files/awi_aspca_organic_consumer_survey_summary_2022_final.pdf</a>.
---------------------------------------------------------------------------

In summary, rulemaking is the best solution to resolve the market/
government failure and meet the OFPA purpose of ``assur[ing] consumers
that organically produced products meet a consistent standard''--in
this case assuring consumers that organic livestock products are
produced using consistent animal welfare and outdoor access standards.
Given that third-party labels are not regulated by USDA, it would be
difficult to attain informational consistency needed to address the
information asymmetry. Additionally, stakeholders have expressed
concerns about the additional producer costs and consumer confusion
these labels may create.39 40 This rulemaking aligns with
existing third-party labels regarding outdoor access, easing the burden
on producers (relative to a hypothetical rulemaking with similar goals
but no such alignment). AMS also believes that rulemaking is a better
option than increased consumer education about the livestock attributes
of the organic label. Consumer education may help consumers know what
to expect from the organic label, but it would not address inconsistent
production practices among organic livestock producers, which
undermines AMS's statutory mission to ensure that products produced and
sold under the organic label are meeting a consistent national
standard. AMS believes rulemaking is the best option.
---------------------------------------------------------------------------

\39\ Producer costs under the various requirements are estimated
in Section F of the RIA.
\40\ Theoretical discussion about the relations between consumer
confusion and label trust can be found in Section F of the RIA.
---------------------------------------------------------------------------

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

III. Overview of Public Comments

AMS published the OLPS proposed rule on August 9, 2022, opening a
60-day public comment period. On August 19, AMS held an online public
listening session on the proposed rule to gather additional feedback;
132 listeners attended the listening session, and 19 gave oral
comments. At the request of several organic stakeholders, AMS extended
the public comment period another 30 days to allow more time for the
public to develop detailed comments on the rule's requirements. By the
close of the 90-day public comment period on November 10, 2022, AMS had
received 40,336 written comments from a variety of stakeholders,
including consumers, operations, certifying agents, retailers, trade
associations, and advocacy groups. Some of these comments (which can be
found at <a href="http://Regulations.gov">Regulations.gov</a>) included signed petitions, which totaled
57,000 signatures to petitions (in addition to the written comments).
The subjects of the comments (including petitions) are discussed below.
The organic industry demonstrated considerable interest in this rule
and provided AMS detailed feedback on this rule.
By a large majority (94%), public comments and petitions supported
the rule, with many saying that consumers already expect outdoor access
to be part of the organic label in keeping with animals' natural
behaviors. Several organic operations, certifying agents, and organic
trade groups asserted the rule is necessary to ensure all producers
have a consistent interpretation of what qualifies as outdoor access
under the organic regulations. Most of the comments opposing the rule
did not think it went far enough in protecting animal welfare and asked
AMS to include additional animal welfare protections in the rule. Other
comments disputed the need for the rule, AMS's authority to promulgate
the rule, and the effect of the rule on animal safety and organic
markets. AMS responds to these comments below.
In addition to soliciting general comments, AMS sought specific
feedback on USDA's statutory authority to issue this rule, the rule's
clarity, the accuracy of its Regulatory Impact Analysis (RIA) and
Regulatory Flexibility Analysis (RFA), its consistency with current
organic livestock production practices, and on specific implementation
timeline options. The implementation timeline received by far the most
public comment, with the nearly all commenters on that topic requesting
implementation timelines shorter than the 15-year option. Poultry space
requirements received the second most attention, and commenters
responded in detail to several other livestock production practices and
to issues regarding food and animal safety. AMS took public comments
into

[[Page 75405]]

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

A. Responses to Comment on Statutory Authority

(Comment) Many comments posited that AMS is appropriately
exercising its authority under OFPA to establish regulations regarding
livestock and poultry health care practices, living conditions, and
welfare. Comments asserted that OFPA directs AMS to regulate the care
of farmed animals, which broadly encompasses animal welfare.
Specifically, comments stated that OFPA commands AMS to ``establish an
organic certification program for producers and handlers of
agricultural products that have been produced using organic methods''
and to consult with the NOSB in development of that program.\41\
Comments stated that OFPA provides that the NOSB may recommend
standards specifically for the ``care of livestock to ensure that such
livestock is organically produced'' in addition to provisions related
to animal health care.\42\ As OFPA does not define ``care,'' comments
argued that it should be interpreted by its ordinary use definition
\43\ to include animal welfare.
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\41\ 7 U.S.C. 6503(a), (c).
\42\ 7 U.S.C. 6509(d)(2).
\43\ F.D.I.C. v. Meyer, 510 U.S. 471, 476 (1994).
---------------------------------------------------------------------------

Comments asserted that the legislative purpose and history
demonstrate that Congress unambiguously intended for animal welfare
practices to be required at certified organic operations. These
comments argued that to meet OFPA's broad purposes of establishing
``national standards governing the marketing of [organically produced]
agricultural products,'' assuring consumers that ``organically produced
products meet a consistent standard,'' and facilitating interstate
commerce with fresh and processed [organically produced] food,'' \44\
AMS must regulate animal welfare to align with consumer expectations.
---------------------------------------------------------------------------

\44\ 7 U.S.C. 6501.
---------------------------------------------------------------------------

Comments also cited AMS's historical interpretation that OFPA
grants the authority to regulate animal welfare through NOSB
recommendations, as AMS did in the 2010 Access to Pasture rule. The
Pasture rule was promulgated ``in response to the 2005 NOSB
recommendation and extensive public input requesting clear outdoor
access requirements for ruminant livestock,'' \45\ and received over
4,000 public comments.\46\ Comments noted the Pasture rule, which
regulates animal welfare, was promulgated through the same process as
this rule, based on recommendations, public hearings, and public
comments.\47\ Similarly, commenters said the OLPS proposed rule is
based on NOSB recommendations, so both rulemaking precedent and NOSB
recommendations reinforce AMS's authority to regulate animal welfare in
the OLPS final rule.
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\45\ 87 FR at 48567.
\46\ National Organic Program (NOP)--Access to Pasture
(Livestock) Proposed Rule: <a href="https://www.regulations.gov/document/AMS-TM-06-0198-0001">https://www.regulations.gov/document/AMS-TM-06-0198-0001</a>.
\47\ 75 FR 7154, 7154-56 (Feb. 17, 2010).
---------------------------------------------------------------------------

Finally, comments cited concepts of statutory construction to
support the notion that both OFPA and current livestock regulations
authorize OLPS. One comment argued that ``the accepted canons of
statutory construction'' support the interpretation that OFPA
``expressly give[s] USDA authority to set the Organic Livestock Rule
standards.'' \48\ This comment details how these ``three core canons of
statutory construction''--ordinary meaning, whole text, and
surplusage--each support AMS's legal authority to regulate animal
welfare under OFPA. The ordinary meaning canon holds that absent
specific definitions, words in a statute must be interpreted using
``their ordinary, contemporary, common meaning.'' \49\ Comments stated
that the terms ``care,'' ``health,'' and ``health care,'' which are
referenced but not defined in OFPA, are broad in their ordinary
meanings to include animal welfare. The whole text canon calls for
interpretation of statutory language to be based on consideration of
the entire text and its logical relations.\50\ Comments stated that
this canon supports USDA's authority to issue this final rule, as OFPA
provisions work together to require USDA to expand livestock care
standards beyond prohibitions of certain substances: USDA cited
Sec. Sec. 6509(d)(2) and (g) when it promulgated the rule, explaining
that Sec. 6509(d)(2) authorizes the NOSB to recommend standards in
addition to the OFPA provisions for livestock health care to ensure
that livestock is organically produced. Sec. 6509(g) directs the
Secretary to develop detailed regulations through notice and comment
rulemaking to implement livestock production standards. Comments found
that when read as a whole, OFPA's structure supports the USDA's
authority to issue this final rule. The surplusage canon, which
commands that ``every word and every provision is to be given effect,''
\51\ prevents interpretations that would render a provision pointless;
instead, courts should interpret a provision in a way that ``leaves
both provisions with some independent operation.'' \52\ Comments found
that this provision allows for the agency to adopt additional standards
``for the care of livestock,'' including standards that promote animal
welfare.
---------------------------------------------------------------------------

\48\ <a href="https://www.regulations.gov/document/AMS-NOP-21-0073-39096">https://www.regulations.gov/document/AMS-NOP-21-0073-39096</a>.
\49\ Perrin v. United States, 444 U.S. 37, 42 (1979); see
generally A. Scalia & B. Garner, Reading Law 69-77 (1st ed. 2012).
\50\ Mont v. United States, 139 S. Ct. 1826, 1833-34 (2019).
\51\ Scalia & Garner, supra at 174.
\52\ Scalia & Garner, supra at 176.
---------------------------------------------------------------------------

(Response) ``Care of livestock'' necessarily includes livestock
wellbeing and welfare. AMS agrees that ordinary definitions of ``care''
and ``health care''--which are not explicitly defined in OFPA nor its
regulations--encompass living conditions included in the rule, and that
``care of livestock'' includes animal welfare.\53\ Additionally, as
OFPA provides, NOSB has previously issued recommendations regarding
organic livestock production, and AMS has revised the organic
regulations in response to the recommendations (e.g., ``Access to
Pasture'' and ``Origin of Livestock''). Several NOSB recommendations
are relevant to this final rule. At its Fall 2009 meeting, NOSB issued
a final recommendation on animal welfare,\54\ which was updated by
subsequent recommendations. These recommendations set the framework for
this final rule.
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\53\ 7 U.S.C. 6509(d)(2).
\54\ 2009 NOSB Sunset Recommendation: <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>.
---------------------------------------------------------------------------

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

[[Page 75406]]

lack of statutory authority to promulgate the OLPP Final Rule, errors
in calculating estimated benefits, and a lack of evidence of market
failure to justify prescriptive regulatory action.\55\
---------------------------------------------------------------------------

\55\ 82 FR 59990, Dec. 18, 2017.
---------------------------------------------------------------------------

Many of these comments stated that because OFPA is limited in scope
to organic production, regulations enacted pursuant to its authority
must be narrowly tailored to specific practices that differentiate
organic from any other method of agricultural production--and that
animal welfare is not unique to organic production. One comment
referenced the NOSB definitions of organic agriculture that omit
mention of animal welfare.\56\ Additionally, the definition of organic
production at 7 CFR 205.2 does not explicitly mention animal
welfare.\57\ Another comment referenced a 2006 USDA Sustainable
Agriculture Research and Education bulletin Transitioning to Organic
Production that describes organic farming as an ecologically focused,
input-based system as well as a 2007 USDA Cooperative State Research,
Education, and Extension Service publication Organic Agriculture
Overview that emphasizes biological diversity and economic
sustainability. This comment questioned the justification of the
proposed rule under OFPA given the cited publications do not mention
nor consider animal welfare as a defining characteristic of organic
agriculture.
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\56\ ``Organic agriculture is an ecological production
management system that promotes and enhances biodiversity,
biological cycles and soil biological activity. It is based on
minimal use of off-farm inputs and on management practices that
restore, maintain and enhance ecological harmony.'' & `` `Organic'
is a labeling term that denotes products produced under the
authority of the Organic Foods Production Act. The principal
guidelines for organic production are to use materials and practices
that enhance the ecological balance of natural systems and that
integrate the parts of the farming system into an ecological
whole.'' (April 1995 NOSB meeting).
\57\ ``A production system that is managed in accordance with
the Act and regulations in this part to respond to site-specific
conditions by integrating cultural, biological, and mechanical
practices that foster cycling of resources, promote ecological
balance, and conserve biodiversity.'' (7 CFR 205.2 ``Organic
production'').
---------------------------------------------------------------------------

(Response) AMS finds that as animal health and welfare are
intertwined, OLPS provisions for both fall under the statutory
authority of OFPA. Given OFPA's plain language, legislative purpose and
history, and historical regulatory interpretations, OLPS is consistent
with the purposes of OFPA, and it establishes standards similar to
existing organic standards. As animal welfare is intrinsically part of
animal management,\58\ AMS is clearly within its statutory bounds to
mandate specific animal welfare requirements as part of organic animal
management.
---------------------------------------------------------------------------

\58\ https://www.avma.org/resources/animal-health-welfare/
animal-welfare-what-
it#:~:text=Good%20animal%20welfare%20requires%20disease,humane%20hand
ling%2C%20and%20humane%20slaughter.
---------------------------------------------------------------------------

Further, the 1990 Senate Report that accompanied OFPA demonstrates
Congressional expectation that USDA would update organic standards as
organic production systems evolve.\59\ The report states that ``with
additional research and as more producers enter into organic livestock
production, the [Senate Committee on Agriculture, Nutrition, and
Forestry] expects that USDA, with the assistance of the [NOSB] will
elaborate on livestock criteria.'' \60\ The report further states that
``[t]he Board shall recommend livestock standards, in addition to those
specified in this bill, to the Secretary.'' \61\ Furthermore, in its
October 1990 Conference Report, conference members noted, ``[t]he
Conference substitute adopts the House provision with an amendment
which requires the Secretary to hold hearings and develop regulations
regarding livestock standards in addition to those specified in this
title.'' (p. 1177). This amendment is reflected in OFPA at sec.
6509(g). For further discussion of the statutory authority to issue
this rule, see Section II.B, STATUTORY AUTHORITY TO ISSUE FINAL RULE.
---------------------------------------------------------------------------

\59\ Sen. Rep. No. 101-357 (July 1990)).
\60\ Sen. Rep. No. 101-357, at 292 (July 1990).
\61\ Sen. Rep. No. 101-357, at 303 (July 1990).
---------------------------------------------------------------------------

B. Responses to Comment on Market Failure

AMS received approximately 300 comments discussing the market
failure addressed by the rule. Discussion of specific themes and AMS's
responses are below. Additional discussion of market failure can be
found in the rule's Regulatory Impact Analysis.
(Comment) Many comments agreed there is market failure, citing
confusion over multiple certifications, cost of maintaining
certifications, and consumer expectation that the organic label
requires meaningful outdoor access for poultry. Some comments argued
that market failure has not occurred in the organic poultry industry,
pointing to the industry's rapid growth in the last five years. Most of
these comments asked for additional justification of the claim of
market failure in the organic label. However, most comments agreed that
uneven compliance with and enforcement of the outdoor access
requirement in organic livestock regulations creates a market failure.
Some comments highlighted the possible negative impacts of this market
failure, including loss of consumer confidence in the organic label and
economic harm to producers.
Some comments provided context on consumer confusion about organic
animal welfare requirements by sharing recent survey results. Several
comments cited a 2017 Consumer Reports survey that found 83 percent of
organic consumers ``think it's highly important that organic eggs come
from hens that were able to go outdoors, and have enough space to move
around freely.'' \62\ Others cited a 2022 ASPCA survey finding that 65%
of ``frequent purchasers'' (respondents who purchased organic animal
products once a week or more) believed that ``all animals raised on
organic farms have access to outdoor pastures and fresh air throughout
the day,'' with another 23% indicating they were not sure.\63\
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\62\ ``Consumer Reports Survey Finds Consumers think it's
Important to Have High Animal Welfare Standards for Food Labeled
Organic,'' Consumer Reports, April 20, 2017, <a href="https://www.consumerreports.org/media-room/press-releases/2017/04/consumer_reports_survey_finds_consumers_thin_its_important_to_have_high_animal_welfare_standards_for_food_labeled_organic/">https://www.consumerreports.org/media-room/press-releases/2017/04/consumer_reports_survey_finds_consumers_thin_its_important_to_have_high_animal_welfare_standards_for_food_labeled_organic/</a>.
\63\ Organic Consumer Survey, Animal Welfare Institute, 2022,
<a href="https://www.aspca.org/sites/default/files/awi_aspca_organic_consumer_survey_summary_2022_final.pdf">https://www.aspca.org/sites/default/files/awi_aspca_organic_consumer_survey_summary_2022_final.pdf</a>.
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(Response) AMS agrees with comments that some combination of market
failure and government failure (action or inaction) exists in poultry
products under the organic label. Market failure can occur even when a
market experiences rapid growth because consumers could be paying for
attributes they are not receiving. As some organic broilers and layers
are not currently raised with ``access to outdoor pastures and fresh
air throughout the day,'' AMS concludes, based on the survey data
submitted in public comments, that some organic consumers are not
receiving attributes they believe they are paying for (for example AMS
estimates that at least 31.5% of organic eggs are purchased by
consumers who mistakenly think the chickens producing their eggs have
outdoor access that includes soil or pasture).\64\ This gap in the
organic poultry market could impact the entire organic label, as
lowered consumer confidence in one product can impact consumer
confidence across the label and

[[Page 75407]]

threatening organic integrity.\65\ AMS revised the discussion on market
failure for this final rule in response to comments arguing that a
market failure likely exists under the current organic regulations. AMS
included references to surveys provided in comments where appropriate
and discussed concerns from commenters about how to address market
distortions in the organic context. Additional information regarding
market failure can be found in the RIA.
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\64\ Based on data from ASPCA and the Animal Welfare Institute
survey, September 2022. <a href="https://www.aspca.org/sites/default/files/awi_aspca_organic_consumer_survey_summary_2022_final.pdf">https://www.aspca.org/sites/default/files/awi_aspca_organic_consumer_survey_summary_2022_final.pdf</a>.
See Section II Subsection D for more detail.
\65\ AMS finds it likely that controversy or confusion about one
product under the organic scheme will cause secondary effects to the
overall label and other products, including, but not limited to,
risk to consumer confidence, trust, and demand. Because of the
unique nature of the organic label, quantifying or monetizing this
risk was not possible.
See Section F of the RIA for more detail.
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(Comment) Some comments expressed the view that third-party labels
allowed for flexibility in the market, however, most who commented on
this topic felt that third-party labels do not address the problem and
cause additional consumer confusion. Several comments pointed out that
it costs producers to maintain additional third-party animal welfare
certifications and asserted that consumers were confused by the various
competing labels. A few comments stated that third-party labeling may
be sufficient to address the market failure. Comments pointed to the
many animal welfare certifying and labeling programs available for both
organic and conventional producers, offering flexibility to producers
and a range of options for consumers; these represent the diversity of
livestock and poultry production, differing priorities of certifying
organizations, and evolving scientific understanding of animal welfare.
(Response) AMS believes the existing combination of market failure
and government failure cannot be solved solely through third-party
labeling. Many organic poultry producers currently incur additional
costs by using third-party labels to solve the issue of different
production practices between operations. This rule's additional
specificity would improve the consistency of production practices and
could reduce the need for and cost of additional third-party labels.
Further, AMS agrees with other commenters who claim that third-party
labels cannot address the problem because they create more consumer
confusion. AMS revised the discussion on market failure in this final
rule to include discussion of the inability of third-party labels to
efficiently solve the observed information asymmetry. (See Section A,
``Need for the Rule,'' in the Regulatory Impact Analysis.)

IV. Overview of Final Rule and Responses to Comments

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

A. Terms Defined (Sec. 205.2)

This rule adds seventeen new terms to 7 CFR 205.2: beak trimming,
caponization, cattle wattling, de-beaking, de-snooding, dubbing,
indoors or indoor space, induced molting, mulesing, non-ambulatory,
outdoors or outdoor space, perch, pullet, religious (or ritual)
slaughter, stocking density, toe clipping, and vegetation. The
definitions are discussed below.
Eight New Terms To Define Prohibited Physical Alterations
Current organic regulations permit ``physical alterations'' of
animals ``as needed to promote the animal's welfare and in a manner
that minimizes pain and stress'' (7 CFR 205.238(a)). This rule
elaborates on this requirement and prohibits some specific types of
physical alterations. Defining these physical alterations supports
common understanding of the meaning of the terms, as some terms could
otherwise be interpreted in various ways (e.g., ``caponization'' may be
referred to as ``castrating'' in some regions). AMS prohibits some
alterations because they do not promote animal welfare or may be overly
painful or stressful without a corresponding benefit to animal welfare.
NOSB recommended prohibiting these specific physical alterations in
2009.
The following terms are defined in this rule: beak trimming,
caponization, cattle wattling, de-beaking, de-snooding, dubbing,
mulesing, and toe clipping.
Indoors or Indoor Space
The rule defines ``indoors or indoor space'' as the space inside of
an enclosed building or housing structure that is available to
livestock. The definition includes four examples of structures that are
commonly used in poultry production. These indoor housing types are
defined, in part, because space requirements are based on the housing
type. AMS also includes an indoor space requirement at Sec.
205.241(b)(8)(v) for housing that does not fit within one of the
specific types defined in Sec. 205.2. While all organic livestock must
be provided with species-appropriate shelter, structures providing
indoor space are not necessarily required. For example, beef cattle
raised on pasture or range in mild climates may not need to be provided
with indoor space.
The final rule uses the term ``enclosed'' to establish if a space
should be considered indoors or outdoors. Under the definition, the
space within the building or structure that can be enclosed is
considered the indoor space. The rule defines ``outdoors or outdoor
space'' separately (see discussion below).
Induced Molting
The rule defines ``induced molting'' as molting that is
artificially initiated. The term is broadly defined to include the
various methods a producer may use to induce, or force, molting in a
flock, such as withdrawal of feed or manipulation of light. The term
aligns with the definition that currently appears in FDA requirements
related to the production, storage, and transportation of shell eggs at
21 CFR 118.3.
Non-Ambulatory
The rule adds the term ``non-ambulatory'' and references FSIS
regulations at 9 CFR 309.2(b). FSIS describes non-ambulatory as
``livestock that cannot rise from a recumbent position or that cannot
walk, including, but not limited to, those with broken appendages,
severed tendons or ligaments, nerve paralysis, fractured vertebral
column, or metabolic conditions.'' The rule now requires that any non-
ambulatory livestock on organic farms must be medically treated--even
if the treatment causes the livestock to lose organic status--or be
humanely euthanized.
Outdoors or Outdoor Space
The rule defines ``outdoors or outdoor space'' to clarify the
meaning of outdoor areas for mammalian and avian species. ``Outdoors or
outdoor space'' is defined as any area outside of an enclosed building
or enclosed housing structure. In this definition, ``outdoors or
outdoor space'' includes all the non-enclosed space encompassing soil-
based areas such as pastures, pens, or sacrifice lots; hardened surface
areas such as feedlots, walkways, or loafing sheds; and areas providing
outdoor shelter such as windbreaks and shade structures. For avian
species, the definition specifies that pasture pens are considered
outdoor space. These are floorless pens that are moved regularly and
provide direct access to vegetation, soil, and direct sunlight. These
pens (often

[[Page 75408]]

referred to as ``chicken tractors'') may include roofing to provide
shelter for the birds, so long as birds are still able to express
natural behaviors (e.g., scratching) and meet all applicable
requirements at Sec. 205.241. To assist with the mitigation of
biosecurity and predation risks, fencing, netting, or other materials
are permitted over all or part of the outdoor areas to prevent
predators and other wild birds from entering. For example, bird netting
above a chicken pasture, where the chickens still have access to soil
underneath, would be permitted. This area would qualify as outdoor
space because it is not enclosed and allows access to soil. In
contrast, a structure that is enclosed and has a hard floor (i.e., no
soil) would not qualify as outdoor space.
The definition also clarifies that enclosed open sided structures
do not qualify as outdoors or outdoor space. This includes freestall
barns and ``open'' sided poultry housing (enclosed by gates and/or
wire, respectively). While housed in these structures, animals cannot
be ``outdoors.'' Similarly, screened poultry ``porches'' or
``verandas'' attached to poultry houses and enclosed by wire on the
sides, are not considered outdoors.
In this definition, ``outdoors or outdoor space'' includes all the
non-enclosed space encompassing soil-based areas such as pastures,
pens, or sacrifice lots; hardened surface areas such as feedlots,
walkways, or loafing sheds; and areas providing outdoor shelter such as
windbreaks and shade structures. For avian species, the definition
specifies that pasture pens are considered outdoor space. These are
floorless pens that are moved regularly and provide direct access to
vegetation, soil, and direct sunlight. These pens (often referred to as
``chicken tractors'') may include roofing to provide shelter for the
birds, so long as birds are still able to express natural behaviors
(e.g., scratching) and meet all applicable requirements at Sec.
205.241. To assist with the mitigation of biosecurity and predation
risks, fencing, netting, or other materials are permitted over all or
part of the outdoor areas to prevent predators and other wild birds
from entering.
Many producers also use portable or permanent shade structures
throughout their pastures, and the definition clarifies that unenclosed
structures used for shade are considered outdoor space. For example,
the area within a stand-alone, roofed shade structure in a pasture
could be included as outdoor space area. Non-enclosed areas under the
eaves or the awning of a building can also be considered outdoors.
While these areas may have solid roofs overhead, they offer the same
quality of outdoor space as uncovered outdoor areas, including natural
ventilation/open air and open access to uncovered areas with direct
sunlight, soil, and vegetation.
Perch
The rule defines the term ``perch'' as a rod- or branch-type
structure above the floor or ground that accommodates roosting and
allows birds to utilize vertical space. Perches may be indoors or
outdoors. The final rule includes specific requirements for perch space
for layers (Gallus gallus) indoors.
Pullets
AMS modified the definition of pullets, which is used by the AMS
Livestock, Poultry, and Seed Program, to include species other than
chickens. This rule defines ``pullets'' as female chickens or other
avian species being raised for egg production that have not yet started
to lay eggs. Once avian females begin laying eggs, AMS refers to them
as layers. The term ``pullets'' is not used to describe young broilers
used for meat production; broilers of any age are referred to as
broilers in this rule.
Religious (or Ritual) Slaughter
The rule adds the term ``religious (or ritual) slaughter.'' This
definition is very similar to a description in the Humane Methods of
Slaughter Act (7 U.S.C. 1902(b)), which allows for ritual slaughter in
accordance with religious faith. This method of slaughter relies on the
simultaneous and instantaneous severance of the carotid arteries with a
sharp instrument. Organic livestock and handling operations may use
religious (or ritual) slaughter to convert their mammalian or avian
livestock to meat or poultry without loss of organic status.
Stocking Density
The rule defines ``stocking density'' as the liveweight or number
of animals on a given area or unit of land. This term is used to
describe the indoor and outdoor space requirements for organic
livestock. For example, this rule establishes maximum stocking
densities for chickens, and the producer must ensure that the area
provided is large enough to not exceed the maximum stocking density
when all birds in the flock are in the area (i.e., assume all birds are
either indoors or all birds are outdoors when calculating space
available to each bird).
Vegetation
The rule adds the term ``vegetation'' and defines it as living
plant matter that is anchored in the soil by roots and provides ground
cover. This term applies to the requirement for vegetation in outdoor
areas, which is central to protecting soil and water quality as well as
providing for livestock to exhibit their natural behaviors. The roots
of vegetation provide stability and structure to soil. Vegetation helps
water soak into the soil rather than running off, which can cause
erosion. Livestock also have natural behaviors such as grazing,
rooting, nesting, etc., which require vegetation.
Changes From Proposed to Final Rule
AMS has made several changes to the regulatory text of the OLPS
proposed rule when writing this final rule. Changes to the final rule
are discussed below and are followed by specific topics and themes from
public comment.
<bullet> AMS added the defined term ``induced molting.'' This term
was added to clarify the rule's prohibition on induced molting, as
described at Sec. 205.238, Livestock care and practice standards. This
term aligns with FDA regulations and includes all methods used to
artificially initiate molting.
<bullet> AMS revised the definition of ``mobile housing'' to more
clearly state that this type of housing must allow birds continuous
access to outdoors during the daytime.
<bullet> AMS revised the definition of ``outdoors or outdoor
space'' to clarify that open-sided but enclosed structures, such as
freestall barns, are not considered outdoor space. The revised
definition also clarifies that unenclosed shade structures are
considered outdoor space.
<bullet> AMS revised the definition of avian ``pasture pens'' to
clarify that they must allow birds to express natural behaviors.
<bullet> AMS revised the definition of ``perch'', so it more
broadly applies to perches in indoor and outdoor spaces.
<bullet> AMS changed the term ``ritual slaughter'' to ``religious
(or ritual) slaughter.'' AMS amended this term for clarification and to
better align with current and preferred language.
<bullet> AMS restructured the definition of ``slatted/mesh
flooring'' into a single paragraph to improve clarity.
<bullet> AMS removed the definition of ``soil.'' Soil is a commonly
understood term and a definition is not necessary to understand or
implement this rule.
Responses to Public Comment
AMS received many public comments from stakeholders across the
organic

[[Page 75409]]

industry discussing this section of the proposed rule. The majority of
comments generally supported AMS's proposed revisions. Many commenters
requested further clarification of the proposed changes, particularly
regarding the definitions of soil and vegetation, and what qualifies as
indoor or outdoor space.
Soil
(Comment) Many of the comments that discussed soil requested either
modifying or removing the definition of ``soil'' included in the
proposed rule. Some commenters stated that because it did not originate
from an NOSB recommendation, it should not be included in the rule.
Others argued that defining ``soil'' for the purposes of livestock
production standards could lead to unintended effects on other organic
production areas, such as crop production.
(Response) AMS agrees that a regulatory definition of ``soil''
should take the entire organic standard into consideration and that
defining the term only for use in the livestock area of operation may
affect other areas of organic production. Because soil is generally a
well-understood term, a regulatory definition is not necessary for the
successful implementation of this rule. AMS has removed the definition
of ``soil'' from the final rule.
Vegetative Cover
(Comment) Some commenters requested a new definition for the term
``maximal vegetative cover.'' This term was used in the proposed rule
to describe a requirement for outdoor areas, but the term was not
defined. Comments requested a more exact description of the term to
support consistent enforcement of the proposed requirement.
(Response) AMS has elected to maintain the proposed language in the
definition of ``vegetation'' and does not define ``maximal vegetative
cover'' in this rule. The word ``maximal'' is removed in the final rule
from Sec. 205.239(a)(12) and Sec. 205.241(c)(2). Removing ``maximal''
gives operations the necessary flexibility to maintain vegetation in
outdoor areas that is appropriate to their region, climate, and other
site-specific conditions. See the ``Mammalian and non-avian livestock
living conditions'' and ``Avian living conditions'' sections of this
preamble for further information about vegetation in outdoor spaces.
Mobile Housing
(Comment) Several commenters stated that the definition of ``mobile
housing'' should be revised to better align with the industry's current
use of this type of avian indoor living space, and to ensure that these
types of structures allow appropriate outdoor access to outdoor areas.
(Response) AMS revised the definition of ``mobile housing'' to
specify that mobile housing structures must allow birds to continuously
access areas outside the structure during the daytime. AMS also removed
the previous term ``during the grazing season'' to clarify that mobile
housing is commonly used year-round. These changes better align with
how the organic industry uses mobile housing and will allow operations
to meet this rule's avian indoor living requirements with this type of
structure.
Pasture Pens (Avian)
(Comment) Commenters expressed concern with the definition of
``pasture pen,'' stating that some types of pasture pens (e.g., those
with wire or partial floor covering) should not be counted as outdoor
space because these pens may prevent the natural behaviors of birds or
limit movement of birds.
(Response) AMS recognizes the concerns and has revised the
definition of ``pasture pens'' to include the phrase ``allow birds to
express their natural behaviors.'' To be considered outdoor space,
pasture pens must provide direct access to soil and allow birds to
express natural behaviors, such as scratching and dust bathing.
Producers with pasture pens must also meet requirements at Sec.
205.241(a).
Stocking Density
(Comment) Some commenters requested changing the word ``animal'' in
the proposed definition to ``bird'' because the rule only defines
stocking density for poultry, not other types of livestock.
(Response) AMS has chosen to continue using ``animal'' in the
definition of ``stocking density.'' The word ``animal'' includes birds
and is therefore suitable for discussing and describing stocking
densities of birds.
Euthanasia and Death
(Comment) Several comments requested clarification on what the term
``euthanasia'' means, and asked AMS to develop a definition for
``euthanasia,'' ``death'' or ``dead'' to clarify what methods can be
used to verify death following a euthanasia procedure.
(Response) AMS has elected not to define ``euthanasia,'' ``death,''
or ``dead'' in the rule. Section 205.238, Livestock care and production
practices standard, addresses euthanasia, including how operations must
ensure animals are dead following euthanasia. The final rule does not
require operations to use a specific method to verify death. However,
AMS does recommend that operations use methods of euthanasia and
confirmation of death consistent with the American Veterinary Medical
Association (AVMA) Guidelines for the Euthanasia of Animals. See Sec.
205.238(e) of this rule for more information on euthanasia and
livestock care practices.
Outdoor Space
(Comment) One comment expressed concern that the proposed rule's
definition of outdoor space may allow operations to consider freestall
or hoop barns with the sides up as outdoor space. The commenter
requested such structures be counted as indoor space only.
(Response) AMS amended the definition of outdoor space to
specifically clarify that ``enclosed housing structures with open sides
(e.g., open-sided freestall barns) are not to be considered outdoors or
outdoor space.'' The definition was amended to remove language about
roofed areas that are not enclosed being permitted as outdoor space.
The language was replaced with a specification that open-sided enclosed
structures are not considered outdoor space. Because such structures
may not always allow animals free access to outdoor areas, the space is
enclosed and therefore considered indoor space, not outdoor space.

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

Description of Final Policy
This final rule updates Sec. 205.238 of the USDA organic
regulations. This section discusses requirements for the care and
management of organic livestock that apply to all species of livestock.
The two following sections of this rule (Sec. Sec. 205.239 and
205.241) cover living condition requirements specific to mammalian/non-
avian and avian species, respectively. The following discussion
describes the changes that this final rule makes to Sec. 205.238.
Updates to Sec. 205.238(a) require that producers select a species
suitable for the conditions of their site, establish appropriate
housing, and provide a feed ration sufficient to the nutritional
requirements of the animal. During on-site inspections, certifying
agents must verify the suitability of the breed to its housing and
living conditions and the adequacy of the animals' diet.
AMS revises Sec. 205.238(a)(5) to clarify the conditions under
which operations may perform physical alterations on

[[Page 75410]]

livestock. Physical alterations may be performed for identification
purposes or the safety of the animal. Alterations must be done at a
young age for the species, and in a manner that minimizes the animals'
pain and stress during and after the procedure. Alterations may only be
performed by an individual who is capable of doing so in a manner than
minimizes stress and pain. Operations may use an individual's training
or experience to demonstrate that individual's capability to perform
physical alterations.
A 2009 NOSB recommendation allowed teeth clipping and tail docking
in piglets, but this proposal was retracted in the 2011 NOSB
recommendation.\66\ Section 205.238(a)(5)(i) of this final rule
restricts needle teeth clipping and tail docking. These two types of
physical alterations may not be performed on a routine basis, but they
are not prohibited in all cases. As Sec. 205.238(a)(5)(i) specifies,
needle teeth clipping and tail docking may only be performed in
response to documented instances of harm, and only with documentation
that alternative steps to prevent such harm failed. For example, an
organic swine producer who clipped needle teeth or performed tail
docking would need to document excessive needle teeth scarring on the
underline of a sow or piglets, or document tail biting on piglets in
the litter. In this case, the producer also must document that
alternative methods to prevent scarring had failed. Such alternative
methods may include, but are not limited to, cross-fostering prior to
teat fidelity across litters to minimize weight variation, providing
sufficient enrichment materials, and providing vegetation for rooting.
Teeth clipping, if performed, is limited to the top third of each
needle tooth.
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\66\ Available at <a href="https://www.ams.usda.gov/rules-regulations/organic/nosb/recommendations">https://www.ams.usda.gov/rules-regulations/organic/nosb/recommendations</a>.
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AMS adds new paragraph (a)(5)(ii) to list the physical alterations
that an organic operation must not perform. Based on 2011 NOSB
recommendations, the following physical alterations to avian species
are prohibited: de-beaking, de-snooding, caponization, dubbing, toe
clipping of chickens, toe clipping of turkeys unless with infra-red at
hatchery, and beak clipping after 10 days of age. In addition, the
following physical alterations to mammalian species are prohibited:
tail docking of cattle, wattling of cattle, face branding of cattle,
tail docking of sheep shorter than the distal end of the caudal fold,
and mulesing of sheep.
AMS adds new requirements at Sec. 205.238(a)(7) to specify that
surgical procedures on livestock to treat illness or injury must be
done in a manner that minimizes pain, stress, and suffering. The NOSB
recommended that all surgical procedures for livestock be done with the
use of anesthetics, analgesics, and sedatives. USDA organic regulations
require that all surgical procedures for treatment of disease be
undertaken in a manner that employs best management practices in order
to minimize pain, stress, and suffering. Operations may only use
synthetic anesthetics, analgesics, and sedatives if listed on the
National List of Allowed and Prohibited Substances (``National List'')
at Sec. 205.603(a) and (b), which lists the synthetic substances that
are allowed in organic livestock production.
The final rule adds new Sec. 205.238(a)(8) that requires organic
producers to actively monitor lameness within the herd or flock and to
undertake timely and appropriate treatment and mitigation strategies.
Lameness can be an issue in various livestock species, including
broilers, sheep, and dairy cattle. This requirement for producers to
create a plan for monitoring and treating lameness in the OSP will
enable them to identify and address potential problems among animals
before they become widespread.
The final rule amends Sec. 205.238(b) to state that synthetic
medications allowed under Sec. 205.603 of the National List may be
administered to alleviate pain or suffering, as well as when preventive
practices and veterinary biologics are inadequate to prevent sickness.
Similarly, parasiticides allowed by the National List may be used on
breeder stock, dairy animals, and fiber bearing animals, as allowed
under Sec. 205.603. When using these substances, operations must
follow all applicable limitations of use as listed in Sec. 205.603,
including any withholding or withdrawal periods.
AMS amends Sec. 205.238(c)(1) to clarify that milk from an animal
treated with a substance that is allowed on the National List and has a
withdrawal period may not be sold, labeled, or represented as organic
during that withdrawal period. However, that milk may be fed to organic
calves on the same operation during the withdrawal period. This is
consistent with the 2010 NOSB recommendation that a calf nursing a cow
treated topically with lidocaine or other approved synthetic with a
withdrawal period should not lose organic status. For example, if an
organic cow became injured and was treated with lidocaine to minimize
pain, she could continue to nurse her organic calf during lidocaine's
seven-day withholding period, and the calf would not lose its organic
status.
The final rule revises Sec. 205.238(c)(2) to clarify that
producers may administer allowed synthetic medication (i.e., those on
the National List at Sec. 205.603) to alleviate pain and suffering, in
addition to use for the treatment of illness.
AMS revises Sec. 205.238(c)(3) to clarify that organic livestock
producers are prohibited from administering synthetic or non-synthetic
hormones to promote growth, or for production or reproductive purposes.
Hormones listed in Sec. 205.603 could be used as medical treatments
(e.g., oxytocin). Stakeholders have noted that the USDA organic
regulations fail to address use of hormones to stimulate production or
for reproductive purposes. AMS is not aware of any hormones used by
organic producers for these purposes, and no hormones are included on
the National List for these uses. Therefore, the final rule's change
maintains the status quo; that is, it affirms and supports the current
prohibition on using hormones to promote growth, production, or
reproduction. All hormones--unless used as medical treatments and
included on the National List--are prohibited in organic production.
The final rule adds new Sec. 205.238(c)(8) to prohibit organic
livestock producers from withholding treatment designed to minimize
pain and suffering for injured, diseased, or sick animals. Injured,
diseased, or sick animals may be treated with any allowed natural
substance or synthetic medication that appears on the National List
without losing their organic status. However, if no medication allowed
for organic production suffices to ease the animal's suffering, organic
livestock producers are required to administer treatment even if the
animals subsequently lose their organic status. Euthanasia is an
acceptable practice for minimizing pain and suffering only when the
animal is suffering from disease or injury that cannot be healed by
other treatments, including treatments that would cause an animal to
lose its organic status.
AMS adds new Sec. 205.238(c)(9), which requires livestock
producers to identify and record treatment of sick and injured animals
in animal health records. Early identification can lead to more
effective prevention or treatment, which can enhance the overall health
of the livestock on that operation. Certifiers should review treatment
during on-site inspections to verify that operations are individually
identifying treated animals

[[Page 75411]]

and that treatments comply with the organic regulations.
AMS adds new Sec. 205.238(c)(10) prohibiting induced molting in
poultry production. This rule also defines induced molting at Sec.
205.2 as any type of molting that is artificially induced. Section
205.238(a)(2) of this rule requires a nutritionally sufficient feed
ration for livestock. Induced molting, a practice by which feed
restriction, severe light manipulation, or other management practices
are used to rejuvenate egg production, runs counter to the welfare
intent of this final rule. An explicit prohibition on induced molting
is consistent with the organic regulation's general animal welfare
requirements, and the fall 2009 NOSB recommendation.\67\
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\67\ Available at <a href="https://www.ams.usda.gov/rules-regulations/organic/nosb/recommendations">https://www.ams.usda.gov/rules-regulations/organic/nosb/recommendations</a>.
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AMS adds new Sec. 205.238(d) requiring organic livestock
operations to have a plan to minimize internal parasite problems in
livestock. The plan must include preventive measures such as pasture
management, fecal monitoring, and emergency measures in the event of a
parasite outbreak. Certifying agents must approve a livestock
operation's parasite control plan as part of the operation's OSP.
In certain cases, livestock may suffer from an illness or injury
where recovery is unlikely. AMS adds new Sec. 205.238(e) to address
euthanasia based on the 2011 NOSB recommendations. Section
205.238(e)(1) requires livestock producers to maintain written plans
for euthanizing sick or injured livestock suffering from irreversible
disease or injury. Section 205.238(e)(2) prohibits the following
methods of euthanasia: suffocation, manual blows to the head by blunt
instrument or manual blunt force trauma, and use of equipment that
crushes the neck (e.g., killing pliers or Burdizzo clamps). In the
event of an emergency situation where a local, State, or Federal
government agency requires the use of a non-organic method of
euthanasia, organic livestock operations would not lose organic
certification or face other penalties for that instance of euthanasia.
The NOSB recommended listing the allowable methods of euthanasia;
however, given that new humane euthanasia methods may emerge, AMS does
not intend to discourage producers from using these techniques. AMS
therefore directs organic livestock producers to use methods of
euthanasia consistent with the most recent editions of the American
Veterinary Medical Association (AVMA) Guidelines for the Euthanasia of
Animals.\68\ The list of specifically prohibited methods could be
amended to include other techniques, if needed, through future
rulemaking. AMS also requires in Sec. 205.238(e)(3) that organic
producers carefully examine livestock to ensure they are dead following
a euthanasia procedure.
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\68\ <a href="https://www.avma.org/resources-tools/avma-policies/avma-guidelines-euthanasia-animals">https://www.avma.org/resources-tools/avma-policies/avma-guidelines-euthanasia-animals</a>.
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Changes From Proposed to Final Rule
AMS has made several changes to the regulatory text of the OLPS
proposed rule when writing this final rule. Changes to the final rule
are discussed below and are followed by specific topics and themes from
public comment.
<bullet> AMS removed the phrase ``resulting in appropriate body
condition'' from the feed ration requirement in Sec. 205.238(a)(2)
because some comments found this phrase to be unnecessarily
prescriptive or confusing. Removing this phrase reinforces that this
requirement is meant to ensure operations provide adequate and
nutritional feed to organic livestock.
<bullet> AMS amended the requirements in Sec. 205.238(a)(5)
regarding physical alterations. AMS removed the phrase ``to benefit the
welfare of the animal'' as this is redundant with ``for . . . the
safety of the animal.'' In response to public comment, the final rule
clarifies who may perform alterations (``a person . . . capable of
performing the physical alteration in a manner that minimizes stress
and pain'') and when the alteration may be performed (``at a young age
for the species'').
<bullet> In response to public comment, AMS amended the surgical
procedure requirements in Sec. 205.238(a)(7). AMS clarified that
surgical procedures may be required to treat ``illness or injury.'' AMS
also clarified that the reason for using surgical best practices is to
``promote the animal's wellbeing.''
<bullet> AMS removed a requirement to record lameness and the
percent of herd suffering from lameness at Sec. 205.238(a)(8) and
revised the section to focus on a more general requirement to monitor,
treat, and prevent lameness as appropriate to the species. This
provides additional flexibility because some species are more prone to
lameness.
<bullet> To align with changes made by AMS's Origin of Livestock
final rule (April 5, 2022; 87 FR 19740) to the preventive medicine and
parasiticide livestock practice standards, AMS amended Sec.
205.238(b).
<bullet> In response to public comment, AMS clarified in Sec.
205.238(c)(1) that milk from animals treated with synthetic substances
that ``have associated withdrawal periods'' cannot be sold, labeled, or
represented as organic during the withdrawal period.
<bullet> AMS revised the language in Sec. 205.238(c)(10) that
prohibits induced molting. The proposed rule used the term ``forced
molting or withdrawal of feed to induce molting.'' AMS finds that
``induced molting'' is a more common and comprehensive term that better
captures AMS's intent for a total ban on this practice, and it also
aligns with the FDA definition of induced molting (21 CFR 118.3).
<bullet> AMS removed the sentence in Sec. 205.238(d)(1) stating
that ``Parasite control plans shall be approved by the certifying
agent.'' Because parasite control plans are part of an OSP, and
certifying agents must approve organic systems plans, the sentence was
unnecessary, and AMS removed the language to avoid confusion.
<bullet> In response to public comment, AMS revised Sec.
205.238(e)(1) to state that euthanasia is for ``sick or injured
livestock suffering from irreversible disease or injury.'' This change
clarifies that euthanasia should be used only if treatment is not an
option.
Responses to Public Comment
AMS received many public comments from stakeholders across the
organic industry discussing this section of the proposed rule. The
topics that received the most public comment were physical alterations,
body condition, induced molting, monitoring of lameness, medicines with
withholding periods, and euthanasia. AMS summarizes and responds to
those comments below.
Physical Alterations
(Comment) Several commenters requested that AMS clarify the
requirements in Sec. 205.238(a)(5) for when physical alteration is
permitted and who may perform it. Commenters found ``reasonably young
age'' (the language in the proposed rule) vague and requested a
definition or species-specific listing of ages. Similarly, commenters
said the requirement that alterations be performed ``by a competent
person'' was vague. Some proposed alternative definitions of
``competent person'' while others asked that the regulation specify the
person must be a veterinarian or that that the phrase be replaced with
language such as ``a person skilled in the procedure.
(Response) AMS agrees that ``reasonably young age'' is too vague
and has instead required that alterations

[[Page 75412]]

must be performed ``at a young age for the species.'' This clarifies
that operations should choose an age that is appropriate to the species
of livestock. Similarly, AMS has added a phrase to clarify who may
perform physical alterations: ``a person who is capable of performing
the physical alteration in a manner that minimizes stress and pain.''
This language avoids being overly prescriptive and leaves flexibility
to operations and certifiers while emphasizing that an operator's
ability to minimize the animals' stress and pain during the alteration
is the key qualification. Operations should choose a person capable of
performing physical alterations based on their training and experience.
This means that the capability of the person performing the physical
alteration should scale with the complexity of the alteration. For
example, ear tagging of cattle is a simple procedure that requires
minimal knowledge and training, while a physical alteration that
necessitates a permitted sedative and pain reliever may require the
expertise of a more experienced or specially trained individual such as
a veterinarian. These revisions clarify the use of permitted physical
alterations, but also provide appropriate flexibility for operations to
choose safe and responsible methods that best match their species of
livestock.
(Comment) Several comments asked AMS to require that pain relief be
administered--some said by a licensed veterinarian--both before and
after physical alterations.
(Response) While AMS agrees that pain relief is an important
element of physical alteration procedures, we believe that the final
rule adequately addresses this concern. The final rule at Sec.
205.238(a)(5) requires that ``physical alterations must be performed .
. . in a manner that minimizes stress and pain.'' Operations should
provide pain relief before and after physical alterations if this is
necessary to minimize the stress and pain of the livestock.
(Comment) Some commenters objected to the proposed requirement to
use anesthetics, analgesics, and sedatives for surgical procedures in
cattle and sheep. Commenters interpreted the proposed requirement as
requiring these drugs for all surgical procedures and stated the
requirement was, ``inappropriate given that FDA has not approved any
post-surgical analgesic products for pain management.''
(Response) Section 205.238(a)(7) of the final rule requires that
surgical procedures be conducted using best practices to promote animal
well-being and to minimize pain, stress, and suffering. In response to
comments about the requirement to use medications for surgical
procedures, AMS revised the final rule to clarify that medications
should be used, ``as appropriate''. This section does not require use
of anesthetics, analgesics, and sedatives for all procedures, although
some surgical procedures may require medication to minimize pain,
stress, and suffering. As to the commenters' point about lack of FDA
approval for analgesics, AMS is aware that the National List (Sec.
205.603) includes animal drugs that are not necessarily labeled (i.e.,
FDA approved) for use on all species. AMS also understands that the
Animal Medicinal Drug Use Clarification Act (AMDUCA) allows
veterinarians to prescribe ``extra-label'' use of drugs under certain
conditions (see <a href="https://www.fda.gov/animal-veterinary/guidance-regulations/animal-medicinal-drug-use-clarification-act-1994-amduca">https://www.fda.gov/animal-veterinary/guidance-regulations/animal-medicinal-drug-use-clarification-act-1994-amduca</a>),
which may include use of a drug on a species that is not included on
the approved drug label. AMS anticipates that operations will work with
veterinarians to determine the appropriate, legal, and safe drugs for
surgical procedures to minimize pain, stress, and suffering. The use of
any individual substance in Sec. 205.603 in a formulated product that
is intended or used as a medical treatment is under the authority of
FDA and must comply with all FDA regulations.
(Comment) Several comments requested that AMS add detusking to the
list of prohibited pig management practices. Commenters cited that
prohibiting tusk removal would align with third party boar welfare
standards, namely the Certified Animal Welfare Approved by AGW (AWA),
Global Animal Partnership (GAP), Regenerative Organic Certified (ROC),
and Certified Humane Standards for pigs. They argued that physical
alterations should be limited to those only necessary for an animal's
well-being.
(Response) Consistent with NOSB recommendations, the final rule
prohibits needle teeth clipping and tail docking as routine procedures
and allows them only ``with documentation that alternative methods to
prevent harm failed.'' AMS elected not to include detusking among the
prohibited practices listed at Sec. 205.238(a)(5)(ii). The NOSB
recommendations did not address detusking or recommend that the
practice be prohibited, and most pigs are slaughtered prior to an age
when tusks would be present. Although not expressly prohibited by the
final rule, an operation could only detusk if it could demonstrate it
meets the requirements at Sec. 205.238(a)(5).
Body Condition
(Comment) Several commenters pointed out that the proposed rule's
requirement in Sec. 205.238(a)(2) that feed and nutrition result in
``appropriate body condition'' was unclear. Many found the term
``appropriate'' too subjective. Others warned that the phrase ``body
condition'' could be confused with ``body condition scoring'' as used
in the livestock industry and be interpreted to mean that an animal's
body condition score would establish whether a producer complied with
the requirement.
(Response) AMS appreciates and agrees with these comments and has
removed the phrase ``resulting in appropriate body condition'' from the
final rule. By removing the phrase, the requirement correctly focuses
on an operation's ability to meet nutritional needs by providing an
appropriate food ration. Certifying agents and inspectors should verify
that operations are meeting this requirement by reviewing an
operation's feeding and nutrition practices. In some cases, a body
condition score may be an appropriate measure of compliance.
Milk From Animals Treated With Substances That Have a Withdrawal Period
(Comment) Many commenters noted that the proposed regulatory text
at Sec. 205.238(c)(1) lacked helpful language from the preamble, which
specified that milk from an animal treated with an allowed substance
``which has a withholding time'' could not be sold, labeled, or
represented as organic ``during that withholding time.'' Commenters
suggested that the language from the preamble should be included in the
regulatory text.
(Response) AMS appreciates and agrees with this editorial
suggestion. In the final rule, Sec. 205.238(c)(1) specifies that milk
from animals treated with substances ``that are allowed under Sec.
205.603 but have associated withdrawal periods'' may not be sold,
labeled, or represented as organic ``during the withdrawal period.''
Additionally, the regulatory text now says ``withdrawal period'' rather
than ``withholding time'' for consistency with the language in the
National List.
Preventive Medicines and Parasiticides
(Comment) Several comments noted that the OLPS proposed language at
Sec. 205.238(b) had not been updated to reflect changes to this
section of the regulations by a recent AMS final rule

[[Page 75413]]

on the ``Origin of Livestock'' (April 5, 2022; 87 FR 19740).
(Response) AMS acknowledges the error and has revised the language
at Sec. Sec. 205.238(b)(2) and (b)(3) to reflect the regulatory text
finalized by the Origin of Livestock final rule. The regulatory text
now simplifies the reference to dairy and includes a reference to fiber
bearing animals.
Induced (Forced) Molting
(Comment) Several comments requested a definition of the term
``forced or induced molting,'' as the term is used but not defined in
the rule. Many commenters found it unclear whether all induced molting
was prohibited, or only certain practices to induce molting. Some
comments noted that the phrase ``or withdrawal of feed to induce
molting'' may suggest that some methods of induced molting may be
allowed. Commenters overwhelmingly requested that AMS prohibit any form
of induced molting.
(Response) The final rule adopts the term ``induced molting'' as it
better aligns with existing industry standards. AMS also added
``induced molting'' as a defined term in Sec. 205.2 to mean ``molting
that is artificially initiated.'' This term aligns with the FDA's
definition of the term (21 CFR 118.3). The definition of induced
molting and the language at Sec. 205.238(c)(10) that ``An organic
livestock operation must not . . . practice induced molting,''
clarifies that no form of artificially initiated molting is permitted
in organic production.
Euthanasia
(Comment) Several commenters requested definitions for the terms
``death'' and ``euthanasia,'' which are used several times in the rule
but not defined. Some wanted clarity on how death should be properly
assessed following euthanasia.
(Response) AMS has chosen not to define ``death'' or ``euthanasia''
in the rule. AMS appreciates the feedback on this topic; however,
commenters asked AMS to require very specific methods of confirming
death. AMS believes that requiring such specific ways to confirm death
would limit the options available to operations and make the
requirement difficult to meet. AMS has chosen to keep the proposed
rule's language, which requires that euthanized livestock ``must be
carefully examined to ensure that they are dead.'' This will give
operations the flexibility needed to confirm death in a way that best
matches their livestock, production system and practices, and site-
specific conditions. AMS recommends that operations use methods of
euthanasia and confirmation of death consistent with the American
Veterinary Medical Association (AVMA) Guidelines for the Euthanasia of
Animals.
(Comment) Several commenters requested that the language in Sec.
205.238(e) clearly state that euthanasia should only be used in cases
where there is incurable illness or disease and cannot be used in lieu
of treatment that would cause an animal to lose its organic status.
Some commenters also believed that the proposed rule could be
interpreted to suggest that euthanasia is the only or preferred option
for sick or injured animals.
(Response) The final rule adds a phrase to clarify that organic
operations must have written plans for ``prompt, humane euthanasia for
sick or injured livestock suffering from irreversible disease or
injury.'' Sick or injured livestock must be treated if recovery is
possible, even if treatment would cause the animal to lose its organic
status. Section 205.238(c)(7) clearly states that operations must not
withhold medical treatment to protect organic status. AMS intends for
euthanasia to be used in the humane management of irreversibly diseased
or injured animals, not as a way to conveniently dispose of sick or
injured animals.
Lameness
(Comment) One commenter noted that the proposed rule only required
producers to monitor for lameness but that the rule did not require
producers to treat animals for lameness or to modify conditions on the
operation that might contribute to lameness. The comment requested that
AMS include these additional requirements in the final rule to better
align OLPS with third-party welfare standards.
(Response) AMS revised Sec. 205.238(a)(8) to require that, in
addition to monitoring lameness, operations provide ``timely and
appropriate treatment of lameness'' and ``mitigation of the causes of
lameness.'' Like all requirements in Sec. 205.238 and subpart C of the
organic regulations, an operation must describe in their OSP how they
meet this requirement. However, AMS is not prescribing specific types
of recordkeeping or documentation regarding lameness. The requirement
in the final rule is sufficient to address monitoring, prevention, and
treatment of lameness, while also being flexible enough that producers
can choose options that best fit their operation, species of livestock,
and site-specific conditions.
(Comment) Several comments suggested revising or removing Sec.
205.238(a)(8). One commenter stated that interpretations of lameness
can vary greatly, so additional clarification would be needed. Another
commenter stated that this requirement is redundant, as recording sick
livestock is already required in Sec. 205.238(c)(9), and recordkeeping
is required in Sec. 205.103.
(Response) AMS agrees that other recordkeeping requirements in the
rule and the existing organic regulations are sufficient to address
lameness. AMS has removed the proposed rule's requirement to keep
``records of the percent of the herd or flock suffering from lameness
and the causes.'' The final rule replaces the recordkeeping language
with requirements for ``timely and appropriate treatment of lameness
for the species; and mitigation of the causes of lameness.''
Vaccines
(Comment) Two certified operations and a veterinarian suggested
that poultry vaccines should be allowed regardless of how they are
produced.
(Response) Like the existing regulations and the proposed rule, the
final rule in Sec. 205.238(a)(6) continues to allow ``vaccines and
other veterinary biologics'' as part of a producer's preventive health
care practices. The status of specific vaccine manufacturing processes
under Sec. 205.603(a) (National List) or Sec. 205.105(e) (Excluded
Methods) is outside the scope of practice standards addressed in this
rule.

C. Mammalian and Non-Avian Livestock Living Conditions (Sec.
[thinsp]205.239)

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

[[Page 75414]]

The final rule revises Sec. [thinsp]205.239(a)(1) to remove the
requirement that all ruminant livestock must be able to feed
simultaneously. One method of feeding livestock, including ruminants,
is the use of a self-feeder or a creep-feeder. With creep-feeding and
self-feeding, feed is accessible to all livestock at all times though
they may not feed at the exact same time. Allowing self-feeding and
creep-feeding systems provides organic ruminant producers with more
flexibility and options to manage their farm and livestock in farm-
specific methods.
AMS is making no changes to the current Sec.
[thinsp]205.239(a)(3), which requires the use of appropriate, clean,
dry bedding. If roughages are used as bedding, they must be organically
produced and handled by certified operations, with the exception of
transitioning dairy producers, who may provide crops and forage from
third-year transitioning land--that is, land included in the OSP of the
dairy farm in its third year of organic management, during the 12-month
period immediately prior to the sale of organic milk and milk products
(7 CFR 205.236(a)(2)(iii)).
Section[thinsp]205.239(a)(4) describes the requirements for
livestock shelter. Shelter must have sufficient space for the animals
to lie down, stand up, and fully stretch their limbs and allow
livestock to express their normal patterns of behavior over a 24-hour
period. Shelter for livestock must provide temperatures, ventilation,
and air circulation that is appropriate to the species using the
shelter. This means that shelter must be designed to protect animals
from extreme weather conditions they may face, including extreme cold,
heat, precipitation, wind, or other conditions that could endanger the
physical safety or well-being of the animal. Shelter must also be
designed and managed in a way that reduces the potential for livestock
to be injured when using the shelter.
AMS recognizes that there are times when an animal's freedom of
movement may need to be temporarily limited for handling or management
purposes. For example, an operation may need to temporarily limit
freedom of movement for short periods of time for milking, feeding, or
to ensure the well-being of animals. Stalls for organic dairy cattle
are often designed to limit the animals from turning to the sides. This
stall design directs manure and urine into a collection system to
prevent mastitis and maintain low somatic cell counts in the milk.
Mammalian livestock may be housed for part of the day in stalls as
described in the OSP as long as they have complete freedom of movement
during significant parts of the day for grazing, loafing, and
exhibiting natural social behavior. This allowance does not permit the
use of gestation crates, farrowing crates, or other confinement systems
in which swine are housed individually in stalls that do not allow for
sufficient space and freedom to lie down, turn around, stand up, fully
stretch their limbs, and express normal patterns of behavior. If
livestock are temporarily confined indoors as permitted in Sec.
[thinsp]205.239(b), livestock must be able to move around (stand up and
lie down) and stretch their limbs. Operations must fully describe in
their OSP the use of any stalls, including their methods of stall
management and how livestock will be able to express their normal
patterns of behavior.
AMS adds Sec. [thinsp]205.239(a)(4)(iv) to set requirements for
indoor bedding and resting areas. Bedding and resting areas must be
sufficiently large and comfortable to keep livestock clean, dry, and
free of lesions. This requirement does not apply to animals raised on
pasture or range. AMS recognizes that while livestock must be provided
with shelter (defined in Sec. [thinsp]205.2), sometimes livestock on
pasture or range do not have access to traditional barns or bedded
areas and therefore do not have access to indoor space. These types of
operations may provide animals with natural forms of shelter (e.g.,
trees) to serve the same purpose as indoor shelter. Operations must
describe in their OSP how they provide shelter to their livestock in a
manner suitable for the species, stage of production, and environment.
AMS adds new requirements in Sec. [thinsp]205.239(a)(7) concerning
the individual housing of dairy young stock. Section 205.239(a)(7)
allows for the individual housing of animals until the weaning process
is complete, as long as the animals have sufficient room to turn
around, lie down, stretch out while lying down, get up, rest, and groom
themselves. In addition, individual pens for young stock must be
designed so that animals can see, smell, and hear other animals.
Once weaning is complete, an operation may no longer confine dairy
young stock for this reason. An operation may confine dairy young stock
for other reasons permitted under Sec. 205.239(c), if applicable. For
example, Sec. 205.239(c)(2) permits temporary confinement of young
dairy cattle from pasture for up to six months (prior to development of
the rumen). Certifying agents must review any confinement practices
following completion of the weaning process to determine if the
temporary confinement is justified and allowed, especially when animals
continue to be housed individually.
AMS adds three new provisions in Sec. [thinsp]205.239(a)(8) to
require the group housing of swine, with three listed exceptions: (1)
Sec. [thinsp]205.239(a)(8)(i) allows for sows to be individually
housed at farrowing and during the suckling period, except gestation
and farrowing creates are prohibited; (2) Sec.
[thinsp]205.239(a)(8)(ii) allows for boars to be individually housed to
reduce the likelihood of fights and injuries; and (3) Sec.
[thinsp]205.239(a)(8)(iii) allows for swine to be individually housed
after multiple documented instances of aggression or to allow an
individual pig to recover from a documented illness. Certified
operations should not use individual housing as the only remedy to
aggressive behavior. Operations should also attempt to mitigate
aggressive behavior by modifying practices or living conditions that
could reduce this behavior. If these fail to correct the behavior,
animals may be individually housed.
AMS adds two new provisions in Sec. [thinsp]205.239(a)(9) and (10)
concerning swine housing. Section 205.239(a)(9) prohibits the use of
flat decks or piglet cages. This provision prohibits the stacking of
piglets in flat decks in multiple layers. AMS is not aware of any
organic producers currently using these methods for organic production
but prohibits the practices to affirm that these systems do not and
cannot meet the living conditions requirements of the organic
regulations. In addition, Sec. 205.239(a)(10) requires that rooting
materials be provided at all times, except during the farrowing and
suckling period. Rooting is a natural behavior that organic swine
producers must accommodate. Rooting can be done in soil, deep packed
straw, or other materials.
AMS adds a new provision in Sec. [thinsp]205.239(a)(11) to further
clarify the use of barns or other structures with stalls. If indoor
shelter is provided by a structure with stalls, this structure must
have enough stalls to allow for the natural behaviors of the animals. A
cage does not qualify as a stall. AMS is aware that some operations use
systems that robotically feed animals that take turns entering an
individual feeding stall. AMS does not intend to prohibit such systems
since they could enhance the well-being of organic livestock.
Therefore, Sec. [thinsp]205.239(a)(11) provides an exception for this
type of system: more animals than feeding stalls may be allowed for
group-housed swine as long as all animals are fed routinely every day.

[[Page 75415]]

AMS also adds specific allowances for a variety of cattle barns,
including tie-stall barns and stanchion barns, as long as an operation
uses them in a way that is compatible with organic production. That
means that animals must be given space to lie down, turn around, stand
up, fully stretch their limbs, and express normal patterns of behavior
over a 24-hour period (see the requirement at Sec. 205.239(a)(4)(i)).
Because tie-stall and stanchion barns do not allow an animal to turn
around, an operation cannot leave an animal tied up in this type of
indoor space for more than 24 hours. Operations must describe their
practices in their OSP and demonstrate to an accredited certifying
agent that their use of these structures complies with other applicable
organic regulations.
AMS adds a new requirement for outdoor access in Sec.
[thinsp]205.239(a)(12). Organic livestock must have unencumbered access
to the outdoors year-round, unless temporary confinement is justified
under a specific reason described at Sec. 205.239(b)-(d) (e.g.,
nighttime confinement for protection from predators). When the outdoor
space includes soil, then vegetative cover must be maintained as
appropriate for the season, climate, geography, species of livestock,
and stage of production. Ruminants must have access to pasture during
the grazing season. Swine are not required to have access to soil or
vegetation; however, if a swine producer chooses to allow swine to have
access to the soil as a rooting material, then the producer must
maintain vegetative cover that is appropriate to the season, the local
environmental conditions, and the natural rooting behavior of swine.
AMS revises Sec. [thinsp]205.239(b)(7) to clarify the exemption
for temporary confinement for the purpose of breeding livestock.
Livestock may only be confined for the time required for natural
breeding or to perform artificial insemination. A group of livestock
may be confined before the procedures and while individual animals are
bred; afterward, the group must be returned to living spaces that allow
outdoor access. Livestock must not be confined to observe estrus, or
after breeding to confirm pregnancy.
AMS revises Sec. [thinsp]205.239(b)(8) to clarify the temporary
confinement exception for youth livestock projects. Because many youth
livestock projects include the sale of market animals, organic animals
that were under continuous organic management may be sold as organic
animals at youth fairs, even if the sales facility is not certified
organic. Thus, the revision includes an exemption to the Sec.
[thinsp]205.239(b)(6) requirement that a livestock sales facility be
certified as an organic operation. As an example, if a youth exhibition
and sale is held at a livestock sales facility that is not certified
organic, the livestock may be temporarily confined indoors during the
event. In this case, the youth may still sell the organic animal as an
organic animal, provided all other requirements for the organic
management of livestock are met. Otherwise, non-certified sales
facilities, such as auction barns or fairgrounds, may not sell or
represent livestock as organic. AMS includes this exception to
encourage the next generation of organic farmers.
AMS revises Sec. [thinsp]205.239(d) to mirror a revision at Sec.
[thinsp]205.239(a)(1). Specifically, the revisions remove a requirement
that ruminant slaughter stock be able to feed simultaneously during the
finishing period. The update does not require space for simultaneous
feeding but simply requires that all animals be able to feed without
crowding and without competition for feed.
Changes From Proposed to Final Rule
AMS has made several changes to the regulatory text of the OLPS
proposed rule when writing this final rule. Changes to the final rule
are discussed below and are followed by specific topics and themes from
public comment. For discussion of comments about the economic impacts
of the rule, please see the Regulatory Impact Analysis (RIA) included
in the docket.
<bullet> AMS revised the title of Sec. 205.239 from ``Mammalian
livestock living conditions'' to ``Mammalian and non-avian livestock
living conditions'' to ensure that operations producing organic
invertebrates (e.g., honeybees) can continue to do so under the
applicable standards of this rule.
<bullet> In Sec. 205.239(a)(4)(iv), AMS added language to clarify
that the indoor housing standards for ``clean and dry'' bedding and
resting areas should be applied as appropriate to the species of
livestock. This acknowledges that different species have different
bedding and resting area requirements and gives operations greater
flexibility when applying the requirement to different species.
<bullet> In response to public comment, AMS removed from Sec.
205.239(a)(7) the six-month time limit for temporary confinement of
dairy young stock during the weaning process, authorizing temporary
confinement only until the weaning process is complete. This change was
made because the weaning process is typically much shorter than six
months.
<bullet> AMS added language in Sec. 205.239(a)(8)(i) to explicitly
prohibit the use of gestation and farrowing crates for sows at
farrowing and during the suckling period. This change was made in
response to public comments requesting the explicit prohibition of
these methods of individual confinement.
<bullet> AMS revised language in Sec. 205.239(a)(8)(iii) to limit
individual confinement of swine to only animals who have shown multiple
instances of aggression or for recovery from an illness.
<bullet> AMS removed the word ``maximal'' relating to vegetative
cover in Sec. 205.239(a)(12). AMS removed this term because comments
stated that the proposed rule's use of ``maximal vegetative cover'' was
unclear and would be difficult to implement consistently. AMS refers to
``vegetation'' because that is a defined term.
<bullet> In response to requests in public comment, AMS added
language to Sec. 205.239(b)(7) to clarify that animals cannot be
confined after breeding to confirm pregnancy.
Responses to Public Comment
Naming of Section
(Comment) Several comments requested changes to the title of this
section to include non-mammalian species of livestock (e.g.,
invertebrates). Commenters indicated that many operations are currently
certified to produce organic invertebrates, such as honeybees. Those
operations have used the existing requirements at Sec. 205.239, and
comments noted that AMS's proposed revision to split Sec. 205.239 into
only mammalian and avian sections would leave out standards for non-
avian and non-mammalian operations.
(Response) AMS revises the title of this section from ``Mammalian
livestock living conditions'' to ``Mammalian and non-avian livestock
living conditions'' to avoid unintentionally excluding non-mammalian
and non-avian species of livestock (e.g., invertebrates) from this
rule. Adding ``non-avian'' clarifies that operations may use the
applicable livestock standards at Sec. 205.239 to produce organic
livestock that is not avian or mammalian (e.g., invertebrates). Adding
this term ensures that operations producing organic invertebrates can
continue to do so without interruption and allows future operations to
enter the market and produce non-mammalian and non-avian livestock
under the organic label.
Ammonia Monitoring
(Comment) Some comments requested that AMS set ammonia testing

[[Page 75416]]

requirements for mammals in addition to poultry.
(Response) AMS acknowledges that ammonia is an air contaminant that
can impact all livestock. This rule sets limits on ammonia in poultry
houses and requires regular monitoring. Compared to other livestock,
poultry are more susceptible to ammonia accumulation due to the
physical layout of poultry housing and the decomposition of uric acid
from poultry droppings. Additionally, the NOSB has not recommended
monitoring or limiting ammonia levels in mammalian livestock
production, and AMS did not propose to do so in the proposed rule.
Therefore, AMS has elected not to set ammonia requirements for mammals
in the final rule.
Bedding
(Comment) Some comments requested clarification on the use of
``clean and dry'' in relation to the requirement for bedding and
resting areas in indoor housing. Commenters explained that the
interpretation of ``clean'' is both subjective and species dependent.
(Response) AMS acknowledges that what is considered ``clean and
dry'' depends on the species of livestock. AMS revises the language in
the final rule to clarify that operations must use clean and dry
bedding ``as appropriate for the species.'' This change gives
operations the flexibility to manage bedding in a way that fits the
specific type of livestock they are raising.
Swine Standards
(Comment) Several commenters requested more specific standards for
swine, including minimum stocking density requirements and a
requirement for access to soil and vegetative cover.
(Response) This final rule includes swine-specific standards at
Sec. 205.239(a)(8)--(11). The rule requires that swine must be housed
in a group, limits when swine can be housed individually, requires
rooting materials, prohibits the use of flat decks and piglet cages,
and describes allowable types of feeding techniques. This rule also
includes many other requirements that apply to all livestock, including
swine. At this time, AMS believes these requirements are adequate to
ensure the welfare of organically raised swine, and AMS has not
included the additional swine-specific criteria in the final rule.
(Comment) Several commenters asked that the final rule's regulatory
text allow swine to be housed individually only after multiple
instances of aggression, as stated in the preamble.
(Response) AMS revises the final rule's regulatory text to specify
that swine may be individually housed only after multiple documented
instances of aggression to clarify AMS's intent. Certified operations
should not use individual housing as the only remedy to aggressive
behavior. Operations should also attempt to mitigate aggressive
behavior by modifying practices or living conditions that could reduce
this behavior. If these fail to correct the behavior, animals may be
individually housed.
(Comment) Several commenters requested that AMS specifically
prohibit gestation and farrowing crates, citing that these crates can
cause pain, reduce the weaning rate of piglets, and increase the rate
of stillbirths.
(Response) AMS revises the final rule to clarify that gestation and
farrowing crates are prohibited in organic production. AMS did not use
these terms in the proposed rule, but AMS recognizes that gestation and
farrowing crates are commonly used terms so is including them in the
final rule. Sows may be housed individually for farrowing and during
the suckling period, as proposed, and the final rule clarifies that
sows may not be confined to gestation or farrowing crates during these
time periods.
(Comment) Many commenters noted that rooting materials are not
explained, nor specific materials defined in the proposed rule. The
commenters requested additional clarification on the standard for
rooting materials. Advocacy organizations and some certifiers also
asked for clarification on whether rooting materials must be provided
both indoors and outdoors, including during temporary confinement.
(Response) AMS discusses the use of rooting materials and Sec.
205.239(a)(10) in the ``Description of final policy'' section above.
Operations must provide rooting materials to allow swine to express
their natural behavior, which includes rooting (see Sec. 205.239(a)(1)
and (4)). The final rule does not specify the allowed types of rooting
materials or where, exactly, rooting materials must be available. For a
producer to comply with general requirements to accommodate natural
behaviors at Sec. 205.239, AMS expects producers will provide rooting
opportunities in all locations, as well as during periods of temporary
confinement, when feasible. However, the rule provides operations
flexibility to choose materials and management techniques that best
accommodate natural swine rooting behavior and that best fit site-
specific conditions.
Temporary Confinement of Cattle
(Comment) Several comments asked if tie-stall and stanchion barns
are allowed in organic production. These comments noted that tie-stall
and stanchion barns do not allow animals to turn around, and that this
may conflict with the rule's requirement that animals must be able to
turn around within a 24-hour period.
(Response) Tie-stall barns and stanchion barns are permitted in
organic certification systems if an operation uses them in a way that
is compatible with organic production. That means that animals must be
given space to lie down, turn around, stand up, fully stretch their
limbs, and express normal patterns of behavior over a 24-hour period
(see the requirement in Sec. 205.239(a)(4)(i)). Because tie-stall and
stanchion barns do not allow an animal to turn around, an operation
cannot leave an animal tied up in this type of indoor space for more
than 24 hours. However, during periods of temporary confinement,
animals may remain in stalls. In this case, AMS recognizes that animals
may not be able to turn around.
(Comment) Commenters requested that some specific references to
cattle in the proposed rule be broadened so the requirements would
apply to any species. Specifically, comments requested that AMS revise
requirements related to individual housing for young dairy animals at
Sec. 205.239(a)(7) and Sec. 205.239(c)(2).
(Response) AMS agrees that animals of all species should have
sufficient space and freedom of movement. However, Sec. 205.239(a)(7)
and Sec. 205.239(c)(2) address production practices specific to dairy
animals and to dairy cattle, respectively. The more general requirement
that all organically managed animals should have ``sufficient space and
freedom to lie down, turn around, stand up, fully stretch their limbs,
and express normal patterns of behavior'' is set in Sec.
205.239(a)(4)(i).
Temporary Confinement To Confirm Breeding
(Comment) Several comments requested that AMS clarify animals may
not be confined after breeding to confirm pregnancy, as this could
allow producers to confine animals for long periods of time without any
corresponding benefit to animal health or welfare.
(Response) AMS agrees that this change would benefit the welfare of
the livestock and has added language to Sec. 205.239(b)(7) to clarify
that animals may not be confined after breeding to confirm pregnancy.

[[Page 75417]]

Individual Housing of Calves
(Comment) Several commenters disliked that the proposed rule
allowed an operation to individually house dairy young stock for up to
six months, citing that this practice does not align with consumer
expectations or third-party welfare standards. One commenter requested
a shorter time limit for individual housing of calves, referencing an
eight-week limit in both European Union organic standards and Certified
Humane standards. Other comments requested that AMS clarify how long an
operation can confine for weaning (Sec. 205.239(a)).
(Response) AMS removed the phrase ``but no later than six months of
age'' in the requirements related to housing for weaning at Sec.
205.239(a)(7). This section of the rule now specifies that dairy young
stock (of any species) may be housed individually only until completion
of the weaning process. Once weaning is complete, an operation may no
longer confine dairy young stock for this reason. An operation may
confine dairy young stock for other reasons permitted under Sec.
205.239(c), if applicable. For example, Sec. 205.239(c)(2) permits
temporary confinement of young dairy cattle from pasture for up to six
months (prior to development of the rumen). AMS is not revising the
maximum time requirement for confinement from pasture at Sec.
205.239(c)(2) in the final rule. Certifying agents must review any
confinement practices following completion of the weaning process to
determine if the temporary confinement is justified and allowed,
especially when animals continue to be housed individually.
(Comment) One commenter requested the removal of the requirement
for calves to see other calves, as this may not be feasible in some
cases where an operation has very few calves.
(Response) AMS has elected to revise this language. During
temporary confinement in individual pens, it is important for young
dairy animals to be able to see, smell, and hear other calves, or other
animals in cases where this is not feasible, such as an operation with
a single offspring.
Outdoor Space
(Comment) One commenter requested AMS set a minimum amount of
outdoor space for mammalian livestock. The commenter also asked AMS to
specify what this outdoor space should be composed of (i.e., specify
what percentage of outdoor space be soil and vegetation).
(Response) AMS had not proposed minimum outdoor space requirements
for mammalian livestock, and the NOSB has never provided minimum space
recommendations for mammals. Similarly, the final rule does not include
minimum space requirements for mammals. However, the USDA organic
regulations have included and will continue to include many provisions
related to outdoor space requirements for mammalian livestock. Section
Sec. 205.239(a) specifies that operations must provide living
conditions that accommodate the well-being and natural behavior of
mammalian livestock. This includes year-round access for all animals to
the outdoors, shade, shelter, exercise areas, fresh air, and direct
sunlight, suitable to the species, stage of life, climate, and
environment. Additionally, ruminant livestock must be provided with
daily grazing throughout the grazing season to meet feed intake
requirements (Sec. Sec. 205.237 and 205.239), and yards, feeding pads,
and feedlots must be large enough to allow all ruminant livestock to
feed without competition for food (Sec. 205.239). Finally, this rule
adds a requirement that operations maintain vegetation on outdoor space
that includes soil, and that vegetation must be appropriate for the
season, climate, geography, species of livestock, and stage of
production (Sec. 205.239(a)(12)). Together these requirements for
outdoor conditions support the welfare of organic mammalian species.

D. Avian Living Conditions (Sec. [thinsp]205.241)

Description of Final Policy
The final rule adds new Sec. 205.241, ``Avian living conditions,''
to the organic regulations. This section includes requirements for all
organic avian species, including but not limited to chickens, turkeys,
geese, quail, pheasants, and any other bird species that are raised for
organic eggs, organic meat, or other organic agricultural products.
Section 205.241(a) establishes general requirements for organic
poultry production and more detailed requirements in paragraphs (b),
(c), and (d). Section 205.241(a) requires organic poultry operations to
establish and maintain living conditions that accommodate the well-
being and natural behaviors of birds. These living conditions include
year-round access to the outdoors, soil, shade, shelter, exercise
areas, fresh air, direct sunlight, clean water for drinking, materials
for dust bathing, and adequate space to escape aggressive behaviors.
Continuous total confinement of animals is prohibited. The living
conditions provided should be appropriate to the species, its stage of
life, the climate, and the environment. These requirements, based upon
a 2009 NOSB recommendation,\69\ are largely identical to previously
established livestock requirements at Sec. 205.239(a)(1), although
they now require materials for dust bathing and adequate outdoor space
to escape aggressive behaviors.
---------------------------------------------------------------------------

\69\ <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>.
---------------------------------------------------------------------------

Section 205.241(b) requires that indoor space be sufficiently
spacious to allow all birds to move freely, stretch both wings
simultaneously, stand normally, and engage in natural behaviors. Cages
or environments that limit free movement within the indoor space are
prohibited. In addition, the indoor space must allow birds to engage in
natural behaviors such as dust bathing, scratching, and perching. The
requirements are adopted from a 2009 NOSB recommendation and modify
previously established requirements for organic livestock at Sec.
205.239(a)(4) that required ``shelter designed to allow for . . .
natural maintenance, comfort behaviors, and opportunity to exercise.''
Section 205.241(b)(2) requires producers to monitor ammonia levels
in poultry houses and implement practices to maintain ammonia levels
below 20 ppm. When ammonia levels exceed 20 ppm, producers must
implement additional practices and additional monitoring to reduce
ammonia levels below 20 ppm. Ammonia levels must not exceed 25 ppm.
Ammonia is a natural breakdown product of manure from livestock and is
harmful to birds when inhaled, especially at concentrations above 25
ppm.\70\ Inhalation of high levels of ammonia has a negative impact on
poultry welfare, causing irritation and inflammation, as well as
contributing to negative production outcomes like reduced growth. In
most cases, high levels of ammonia indicate that litter is damp, or
litter management practices require modification. For producers with
more than one poultry house, the producer should monitor ammonia levels
in each house.
---------------------------------------------------------------------------

\70\ ``Ammonia production in the poultry houses and its harmful
effects'' IU Sheikh, SS Nissa, Bushra Zaffer, KH Bulbul, AH Akand,
HA Ahmed, Dilruba Hasin, Isfaqul Hussain and SA Hussain,
International Journal of Veterinary Sciences and Animal Husbandry,
3(4): 30-33, 2018.
---------------------------------------------------------------------------

Section 205.241(b)(3) clarifies the indoor lighting requirements
for organic layers and fully feathered birds. Organic producers may
provide artificial light for up to 16 continuous hours per day (24-hour
period). Operations must provide at least eight hours of

[[Page 75418]]

continuous darkness per day, unless an operation's geographic location
does not allow for eight hours of darkness (for example, an operation
in Alaska during summer months). In that case, an operation should
provide as many dark hours as feasible for the season. The 16-hour
period must be calculated as a single continuous time period rather
than as intermittent periods. Artificial light should be lowered
gradually to encourage hens to move to perches or otherwise settle for
the night. Operations must not manipulate the light spectrum to
increase feed intake or growth rates.
Section 205.241(b)(4) describes requirements for exit areas, or
doors, on shelters so all birds can easily access both indoor and
outdoor areas. Access and utilization of outdoor areas is a core
principle of organic production systems. The organic regulations have
required ``Year-round access for all animals to the outdoors'' since
the organic regulations were established in 2001 (see 7 CFR
205.239(a)(1)). Organic avian systems must be designed so birds have
ready access to outdoor areas and are able to return indoors to roost
in the evening. Producers must provide exit doors of sufficient number
and size to enable all birds to access outdoor and indoor areas. The
standard for exit doors is set at one (1) linear foot of exit area
space for every 360 birds.
If an operation does not provide at least one linear foot of exit
area per 360 birds ratio, the operation may comply with the requirement
if it: (1) describes (in their OSP) their exit areas and how they
enable all birds to access outdoor areas; and (2) demonstrates how
ready access to the outdoors is provided for all birds. In that case,
the certifier must review the description in the OSP and verify that
exit areas meet the standard for outdoor access to determine an
operation complies with the exit area requirement. A certifier could,
for example, review time lapse videos, pictures (with time stamp data),
and/or conduct on-site inspections to verify that exit areas ensure all
birds have ready access to the outdoors.
In any case, a certifier will determine if doors are appropriately
distributed and sized, as required, by assessing if all birds have
ready access to the outdoors. This section also notes that shell egg
producers may be subject to FDA requirements in 21 CFR part 118
intended to prevent Salmonella Enteritidis (SE). Specifically, these
FDA regulations require producers to maintain biosecurity measures that
prevent stray poultry, wild birds, cats, rodents, and other animals
from entering poultry houses. AMS directs producers to consult with the
FDA's August 2022 final guidance on this subject for more information
on how to comply with the requirements while providing access to areas
outside the poultry house.\71\
---------------------------------------------------------------------------

\71\ Available at: <a href="https://www.fda.gov/regulatory-information/search-fda-guidance-documents/guidance-industry-questions-and-answers-regarding-final-rule-prevention-salmonella-enteritidis-shell-0">https://www.fda.gov/regulatory-information/search-fda-guidance-documents/guidance-industry-questions-and-answers-regarding-final-rule-prevention-salmonella-enteritidis-shell-0</a>.
---------------------------------------------------------------------------

Section 205.241(b)(5) requires perches for chicken layers at a rate
of six inches per bird for all housing. Perch space may include the
alighting rail in front of nest boxes, but it may not include floors in
houses with slatted floors. Perches are not required for broilers, meat
birds, or layers of species other than Gallus gallus. All layers must
be able to perch at the same time, except in aviary housing (see the
definition of indoor space in Sec. 205.2). Aviary housing is permitted
to have less perch space because birds in aviary housing are also able
to escape aggressive behavior by moving between tiers in the house.
Aviary housing must provide six inches of perch space for 55 percent of
the flock (i.e., 3.3 inches of perch for each bird in the flock). These
requirements are adopted from 2009 and 2011 NOSB recommendations.
Section 205.241(b)(6) specifies indoor requirements to allow for
certain natural behaviors. Except for mobile housing (defined at Sec.
205.2), indoor space must include areas that allow for scratching and
dust bathing. For mobile housing, producers may meet this requirement
by providing scratch areas and dust bathing areas outside of the mobile
housing. In that case, a mobile house may include 100% slatted or mesh
flooring (which do not allow for scratching and dust bathing). For
other types of indoor housing, litter or bedding such as wood shavings
or straw must be provided indoors. If litter or bedding will be
consumed by animals, it must be organic. Manure excreted by birds in a
poultry house alone, without additional litter material, would not be
sufficient to meet this requirement. This section also requires that
litter be maintained in a dry condition, because wet litter can lead to
a variety of problems for birds, including excess ammonia, lameness,
and pest problems.\72\ High moisture content in poultry litter can
cause negative health and welfare outcomes, including foot pad
dermatitis\73\ and increased populations of house fly leading to
disease in the birds.\74\ Wet litter also promotes bacterial growth,
which can further lead to disease and negative health outcomes in
birds.\75\ Litter may be topped off when needed to maintain sufficient
dryness. These requirements are adopted from 2009 and 2011 NOSB
recommendations.
---------------------------------------------------------------------------

\72\ ``Broiler Litter: Odor and Moisture Concerns'', Tom Tabler,
Yi Liang, Jonathan Moon, and Jessica Wells. Mississippi State
University Extension, Publication: P3515, 2020.
\73\ ``Wet litter not only induces footpad dermatitis but also
reduces overall welfare, technical performance, and carcass yield in
broiler chickens'', Ingrid C. de Jong, H. Gunnink and J.van Harn,
Journal of Applied Poultry Research, 23(1): 51-58, 2014.
\74\ ``Pests in Poultry, Poultry Product-Borne Infection and
Future Precautions'', Hongshun Yang, Shuvra K. Dey, Robert Buchanan,
and Debabrata, Biswas Practical Food Safety: Contemporary Issues and
Future Directions, 1, 2014.
\75\ ``Broiler Litter: Odor and Moisture Concerns'', Tom Tabler,
Yi Liang, Jonathan Moon, and Jessica Wells, Mississippi State
University Extension, Publication: P352020.
---------------------------------------------------------------------------

Section 205.241(b)(7) includes specific flooring requirements for
non-mobile indoor avian housing with slatted/mesh floors. These houses
must provide at least 15 percent solid flooring to allow birds indoors
to engage in natural behaviors, including scratching and dust bathing,
without crowding. This requirement does not apply to mobile houses
which, by definition (see Sec. 205.2), allow continuous access to
areas outside the structure where birds may scratch and dust bathe. The
requirement is adopted from a 2009 NOSB recommendation.
Sections 205.241(b)(8), (9), and (10) list the required minimum
indoor space for chickens (Gallus gallus) in different types of
housing. These are minimum standards, and organic producers may choose
to provide more indoor space than required. Sections 205.241(b)(8),
(9), and (10) list requirements for layers, pullets, and broilers,
respectively. Indoor space requirements for layers vary by the type of
housing provided. Section 205.2 further defines the types of housing,
including mobile housing, aviary housing, slatted/mesh floor housing,
and floor litter housing. For housing that does not fit into any of
these defined types, producers must comply with standards for ``other
housing'' at Sec. 205.241(b)(8)(v). Pasture pens that are moved
regularly and provide direct access to soil and vegetation are not
considered indoors (see definition of ``outdoors'' in Sec. 205.2). AMS
has adapted these requirements from 2009 and 2011 NOSB recommendations
and in consideration of third-party animal welfare standards.
The rule requires less indoor space per bird in houses that provide
more access to vertical space (e.g., aviary and slatted/mesh floor
housing), as birds have more room to move around in those types of
housing. Housing where bird

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