[Federal Register Volume 81, Number 71 (Wednesday, April 13, 2016)]
[Proposed Rules]
[Pages 21955-22009]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-08023]



[[Page 21955]]

Vol. 81

Wednesday,

No. 71

April 13, 2016

Part II





Department of Agriculture





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Agricultural Marketing Service





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7 CFR Part 205





National Organic Program; Organic Livestock and Poultry Practices; 
Proposed Rule

Federal Register / Vol. 81 , No. 71 / Wednesday, April 13, 2016 / 
Proposed Rules

[[Page 21956]]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 205

[Document Number AMS-NOP-15-0012; NOP-15-06PR]
RIN 0581-AD44


National Organic Program; Organic Livestock and Poultry Practices

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Proposed rule.

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

DATES: Comments must be received by June 13, 2016.

ADDRESSES: Interested parties may submit written comments on this 
proposed rule using one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Mail: Paul Lewis Ph.D., Director Standards Division, 
National Organic Program, USDA-AMS-NOP, Room 2646-So., Ag Stop 0268, 
1400 Independence Ave. SW., Washington, DC 20250-0268.
    Instructions: All submissions received must include the docket 
number AMS-NOP-15-0012; NOP-15-06PR, and/or Regulatory Information 
Number (RIN) 0581-AD44 for this rulemaking. Commenters should identify 
the topic and section of the proposed rule to which their comment 
refers. All commenters should refer to the GENERAL INFORMATION section 
for more information on preparing your comments. All comments received 
will be posted without change to http://www.regulations.gov.
    Docket: For access to the docket, including background documents 
and comments received, go to http://www.regulations.gov. Comments 
submitted in response to this proposed rule will also be available for 
viewing in person at USDA-AMS, National Organic Program, Room 2646-
South Building, 1400 Independence Ave. SW., Washington, DC, from 9 a.m. 
to 12 noon and from 1 p.m. to 4 p.m., Monday through Friday (except 
official Federal holidays). Persons wanting to visit the USDA South 
Building to view comments received in response to this proposed rule 
are requested to make an appointment in advance by calling (202) 720-
3252.

FOR FURTHER INFORMATION CONTACT: Paul Lewis, Ph.D., Director of 
Standards Division, Telephone: (202) 720-3252; Fax: (202) 205-7808.

SUPPLEMENTARY INFORMATION: 

Executive Summary

A. Purpose of Proposed Rule

    This proposed rule would create greater consistency in organic 
livestock practices. AMS has determined that the current USDA organic 
regulations (7 CFR part 205) covering livestock health care practices 
and living conditions need additional specificity and clarity to better 
ensure consistent compliance by certified organic operations and to 
provide for more effective administration of the National Organic 
Program (NOP) by AMS. One purpose of the Organic Foods Production Act 
of 1990 (OFPA) (7 U.S.C. 6501-6522) is to assure consumers that 
organically produced products meet a consistent and uniform standard (7 
U.S.C. 6501). By facilitating improved compliance and enforcement of 
the USDA organic regulations, the proposed regulations would better 
satisfy consumer expectations that organic livestock meet a uniform and 
verifiable animal welfare standard.
    Specifically, this proposed action would:
    1. Clarify how producers and handlers must treat livestock and 
poultry to ensure their health and wellbeing.
    2. Clarify when and how certain physical alterations may be 
performed on organic livestock and poultry in order to minimize stress. 
Additionally, some forms of physical alterations would be prohibited.
    3. Set maximum indoor and outdoor stocking density for avian 
species, which would vary depending on the type of production and stage 
of life.
    4. Define outdoor access to exclude the use of structures with 
solid roofing for outdoor access and require livestock and poultry to 
have contact with soil.
    5. Add new requirements for transporting livestock and poultry to 
sale or slaughter.
    6. Clarify the application of USDA Food Safety and Inspection 
Service (FSIS) requirements regarding the handling of livestock and 
poultry in connection with slaughter to certified organic livestock and 
poultry establishments and provide for the enforcement of USDA organic 
regulations based on FSIS inspection findings.

B. Summary of Provisions

    This proposed rule would provide specificity on livestock health 
care practices, such as which physical alteration procedures are 
prohibited or restricted for use on organic livestock. The proposed 
livestock health care practice standards include requirements for 
euthanasia to reduce suffering of any sick or disabled livestock. To 
improve upon the current standards, this proposed rule would set 
separate standards for mammalian and avian livestock living conditions 
to better reflect the needs and behaviors of the different species, as 
well as related consumer expectations. The proposed mammalian livestock 
standards would cover both ruminants and swine. The proposed avian 
living standards would set maximum indoor and outdoor stocking 
densities to ensure the birds have sufficient space to engage in 
natural behaviors. This proposed rule would add new requirements on the 
transport of organic livestock to sale or slaughter. This proposed rule 
would also add a new section to clarify how organic slaughter facility 
practices and FSIS regulations work together to support animal welfare.

C. Costs and Benefits

    AMS estimates the following costs and benefits of this proposed 
rule.

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                 Costs                               Benefits
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Production: $9.5-24.1 million per year   Qualitative:
 (annualized over 13 years).             Establishes a clear standard
Paperwork burden: $3.6 million            protecting the value of the
 annually..                               USDA organic seal to
                                          consumers.
                                         Facilitates level enforcement
                                          of organic livestock and
                                          poultry standards.

[[Page 21957]]

 
                                         Quantitative:
                                         $14.7-62.6 million per year
                                          (annualized over 13 years).
------------------------------------------------------------------------

Table of Contents

I. General Information
    A. Does this action apply to me?
    B. What should I consider as I prepare my comments for AMS?
II. Background
    A. Current Organic Livestock Standards
    B. NOSB Recommendations
    C. AMS Policy
    D. Related Issues
III. Overview of Proposed Amendments
    A. Livestock Health Care Practice Standard
    B. Mammalian Living Conditions
    C. Avian Living Conditions
    D. Transport to Sale and Slaughter
    E. Slaughter Requirements
    F. Other Amendments Considered
IV. Related Documents
V. Statutory and Regulatory Authority
    A. Executive Order 12866 and 13563
    i. Need for the Rule
    ii. Baseline
    iii. Alternatives Considered
    iv. Costs of Proposed Rule
    v. Benefits of Proposed Rule
    vi. Conclusions
    B. Executive Order 12988
    C. Regulatory Flexibility Act
    D. Executive Order 13175
    E. Paperwork Reduction Act
    F. Civil Rights Impact Analysis

I. General Information

A. Does this action apply to me?

    You may be potentially 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.
     Certifying agents accredited by USDA to certify organic 
livestock operations and organic livestock handling operations.
    This listing is not intended to be exhaustive, but identifies key 
entities likely to be affected by this action. Other types of entities 
could also be affected. To determine whether you or your business may 
be affected by this action, you should carefully examine the proposed 
regulatory text. If you have questions regarding the applicability of 
this action to a particular entity, consult the person listed under FOR 
FURTHER INFORMATION CONTACT.

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

    Your comments should clearly indicate whether or not they support 
the proposed action for any or all of the items in this proposed rule. 
You should clearly indicate the reason(s) for the stated position. Your 
comments should also offer any recommended language changes that would 
be appropriate for your position. Please include relevant information 
and data to further support your position (e.g. scientific, 
environmental, industry impact information, etc.).
    Specifically, AMS is requesting comments on the following topics:
    1. The clarity of the proposed requirements: Can farmers, handlers, 
and certifying agents readily determine how to comply with the proposed 
regulations?
    2. The accuracy of the assumptions and estimates in the Regulatory 
Impact Analysis and Regulatory Flexibility Analysis pertaining to 
organic poultry and egg production. In addition, the accuracy of AMS' 
assertion that the proposed requirements pertaining to mammalian 
livestock codify current practices among these organic producers
    3. The implementation approach and timeframe. AMS is proposing that 
all provisions of this rule must be implemented within one year of the 
publication date of the final rule except for the outdoor space 
requirements for avian species. AMS is proposing two distinct 
implementation timeframes for the outdoor space requirements for 
poultry: (1) Three years after the publication of the final rule any 
non-certified facility would need to comply in order to obtain 
certification; (2) all facilities certified prior to that three-year 
mark would need to comply within five years of the publication of the 
final rule.

II. Background

    This proposed rule addresses health care, transport, slaughter and 
living conditions for organic livestock. However, the provisions for 
outdoor access for poultry have a long history of agency and NOSB 
actions and are a focal issue. Outdoor access practices, particularly 
for organic layers, vary; some operations provide large, open-air 
outdoor areas, while others provide minimal outdoor space or use 
screened, covered enclosures commonly called ``porches'' to provide 
outdoor space. An audit in 2010 conducted by the USDA Office of the 
Inspector General identified inconsistencies in certification practices 
regarding the use of porches as outdoor space. To address that finding, 
AMS issued draft guidance. However, after public comment, AMS 
determined that rulemaking was necessary to resolve the divergent 
outdoor access practices for organic poultry and did not finalize the 
guidance. To assist with the rulemaking, the National Organic Standards 
Board (NOSB) developed a series of recommendations to clarify organic 
livestock healthcare, transport, slaughter, and living conditions, 
including outdoor access for poultry. The NOSB deliberation process 
revealed broad support within the organic community and consumer 
expectations for specific guidelines for animal care, including 
meaningful outdoor access for poultry.

A. Current Organic Livestock Standards

    OFPA authorizes the establishment of national standards for the 
marketing of organically produced agricultural products. AMS 
administers the National Organic Program (NOP), which oversees the 
development and implementation of the national standards for the 
production, handling and marketing of organically produced agricultural 
products. Section 6509 of OFPA authorizes the USDA to implement 
regulations regarding standards for organic livestock products. 
Furthermore, OFPA authorizes the creation of the NOSB to advise USDA 
about the implementation of standards and practices for organic 
production (7 U.S.C. 6518). The NOSB is a 15-member Federal Advisory 
Board appointed by the Secretary of Agriculture which meets in public 
twice annually. OFPA specifies the composition of the NOSB and reserves 
four NOSB seats for producers/growers, two seats for handlers/
processors. The NOSB solicits public comment on topics related to the 
USDA organic regulations to inform its public deliberations and 
decision making at the open meetings. Any NOSB recommendations to amend 
the USDA organic regulations must be implemented through the notice and 
comment rulemaking process.
    The current USDA organic regulations have broad and general 
requirements for

[[Page 21958]]

ensuring the welfare of certified organic livestock and poultry. These 
regulations accommodate various livestock production situations. For 
all livestock, the regulations require: an environment that allows 
animals to express natural behaviors; preventive health care to reduce 
the likelihood of illness; and protection from conditions that 
jeopardize an animal's well-being, such as predators and adverse 
weather.
    The management of domesticated animals requires that they be 
contained in some manner, either to prevent them from running away or 
to protect them from harm. In organic management systems, securing 
animal access areas is important to ensure animals do not come into 
contact with prohibited substances or eat nonorganic feed. However, the 
degree to which animals are restrained or contained in pens, cages, 
paddocks, or other enclosures, may affect their ability to exercise 
their natural behaviors.
    Consistent with organic farming principles, the USDA organic 
regulations require housing and living conditions that allow animals to 
freely exercise their natural behaviors. Natural behaviors are species-
specific. Therefore, for example, the USDA organic regulations require 
that ruminants graze at least 120 days per year and receive 30 percent 
of dry matter intake from grazing. The regulations also describe 
situations that warrant denying ruminant animals access to pasture or 
the outdoors, e.g., for newborn dairy cattle up to six months. This 
level of specificity, however, is not currently provided for avian 
species and some mammalian, non-ruminant livestock.
    Further, certifying agents inspect each organic operation and 
decide whether or not to certify the operation. Certifying agents must 
consider site-specific conditions, including prevalent pests and 
diseases, weather, and natural resources of the operation when 
determining the acceptability of a particular management practice. This 
flexibility, combined with numerous combinations of environmental, 
cultural, and economic factors, results in variation in the manner in 
which the regulations are applied. For example, in organic poultry 
production, outdoor access ranges from extensive pasture to roofed 
enclosures, i.e., porches with no access to soil or vegetation. This 
disparity in amounts of outdoor access has economic implications for 
producers and lessens consumer confidence in the organic label.

B. NOSB Recommendations

    Between 1994 and 2011, the NOSB made nine recommendations regarding 
livestock health and welfare in organic production. Between 1997 and 
2000, AMS issued two proposed rules and a final rule regarding national 
standards for the production and handling of organic products, 
including livestock and their products. The NOSB as well as members of 
the public commented on these rulemakings with regard to the health and 
welfare of livestock. Key actions from that period, which led to the 
development of the existing standards on organic livestock, are 
summarized below.
    (1) In June 1994, the NOSB recommended a series of provisions to 
address the care and handling of livestock on organic farms. Within 
this recommendation, the NOSB developed much of the framework for 
organic care and welfare of animals, including health care standards, 
living conditions and transportation of livestock practices.
    (2) In April and October 1995, the NOSB made a series of 
recommendations as addendums to the June 1994 recommendations. These 
recommendations further addressed various health care practices, a 
requirement for outside access, and the use of vaccines.
    (3) On December 16, 1997, AMS responded to the 1994 and 1995 NOSB 
recommendations in a proposed rule to establish the NOP (62 FR 65850). 
Consistent with the NOSB's recommendation, the proposed language would 
have required that organic livestock producers develop a preventive 
health care plan and use synthetic drugs only if preventive measures 
failed. The 1997 proposed rule also included standards for livestock 
living conditions, including when animals would be permitted to be 
confined. This proposed rule was not finalized.
    (4) In March 1998, the NOSB reaffirmed its earlier recommendations 
on animal health care and living conditions. The 1998 NOSB 
recommendation also stressed the importance of treating sick livestock 
by recommending that any organic producer who did not take specified 
actions to provide care for a diseased animal would lose certification. 
This recommendation also included provisions to clarify when livestock 
could be confined indoors and defined ``outdoors'' as having direct 
access to sunshine.
    (5) On March 13, 2000, AMS published a second proposed rule to 
establish the National Organic Program (65 FR 13512). AMS responded to 
the NOSB's March 1998 recommendation on animal health care and living 
conditions in this proposed rule. AMS proposed that organic producers 
must use disease prevention practices first, then approved synthetic 
medications only if preventive measures failed. However, a producer 
would need to use all appropriate measures to save the animal even if 
the animal lost organic status. In addition, AMS proposed that the 
living conditions for organic livestock must maintain the health of the 
animals and allow for natural behaviors, including access to the 
outdoors.
    (6) On December 21, 2000, AMS published a final rule establishing 
the USDA organic regulations (65 FR 80548). Through this action, AMS 
finalized the standards for health care practices and livestock living 
conditions. That rule became effective on February 20, 2001, and was 
fully implemented on October 21, 2002.
    (7) In May 2002, the NOSB again addressed outdoor access, stating 
this should include open air and direct access to sunshine.\1\ In 
addition, the May 2002 recommendation stated that bare surfaces other 
than soil do not meet the intent of outdoor access for poultry. This 
recommendation also included clarifications as to when livestock could 
be temporarily confined.
---------------------------------------------------------------------------

    \1\ NOSB, 2002. Recommendation Access to Outdoors for Poultry. 
Available at: http://www.ams.usda.gov/rules-regulations/organic/nosb/recommendations.
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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.'' \2\ The NOSB reasoned that ``stage of life'' would more 
appropriately allow livestock to be temporarily confined even if they 
were not producing milk or eggs at the time of confinement.
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    \2\ NOSB, 2005. Formal Recommendation by the NOSB to the NOP. 
NOSB recommendation for Rule change--``Stage of Production'' to 
``Stage of Life.'' Available at: http://www.ams.usda.gov/rules-regulations/organic/nosb/recommendations.
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    (9) On October 24, 2008, AMS published a proposed rule on access to 
pasture for ruminant livestock (73 FR 63584). AMS published the final 
rule, Access to Pasture (Livestock) (75 FR 7154), on February 17, 2010 
(75 FR 7154). This rule was based on several NOSB recommendations 
regarding ruminant livestock feed and living conditions. This rule set 
a requirement that ruminants obtain a minimum of 30 percent dry matter 
intake from grazing during the grazing season.
    (10) Between 2009 and 2011, the NOSB issued a series of

[[Page 21959]]

recommendations on animal 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.\3\ The 
NOSB recommended banning or restricting certain physical alterations 
and requiring organic producers to keep records on animals which 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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    \3\ NOSB, 2009. Formal Recommendation by the NOSB to the NOP, 
Animal Welfare. Available at: http://www.ams.usda.gov/rules-regulations/organic/nosb/recommendations.
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    (11) In October 2010, the NOSB passed a recommendation on the use 
of drugs for pain relief.\4\ The NOSB recommended changing the health 
care practice standards to allow the administration of drugs in the 
absence of illness to prevent disease or alleviate pain. The NOSB 
stated that such a change would improve the welfare of organic 
livestock.
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    \4\ NOSB, 2010. Formal Recommendation by the NOSB to the NOP, 
Clarification of 205.238(c)(2). Available at: http://www.ams.usda.gov/rules-regulations/organic/nosb/recommendations.
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    (12) In December 2011, the NOSB passed an additional animal welfare 
recommendation.\5\ The 2011 recommendation added definitions for terms 
related to livestock production and provisions for health care standard 
and living conditions. The NOSB also revised its prior recommendation 
on physical alterations to provide a more inclusive list of banned 
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.
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    \5\ NOSB, 2011. Formal Recommendation by the NOSB to the NOP, 
Animal Welfare and Stocking Rates. Available at: http://www.ams.usda.gov/rules-regulations/organic/nosb/recommendations.
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    (13) In December 2011, the NOSB passed a separate recommendation to 
add standards for transportation of livestock to slaughter facilities 
and the slaughter process.\6\ The NOSB's recommendation for transport 
included provisions for veal calves and the trailers/trucks used to 
transport animals to ensure continuous organic management. The NOSB 
recommended that slaughter facilities must meet certain performance-
based standards assessed via observations of animal handling and any 
slips, falls or vocalizations before and during slaughter.
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    \6\ NOSB, 2011. Formal Recommendation by the NOSB to the NOP, 
Animal Handling and Transport to Slaughter. Available at: http://www.ams.usda.gov/rules-regulations/organic/nosb/recommendations.
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C. AMS Policy

    On October 29, 2002, AMS issued a memorandum to clarify outdoor 
access and temporary confinement requirements for livestock under the 
USDA organic regulations.\7\ The memorandum stated that producers are 
required to balance accommodations for an animal's health and natural 
behavior with measures to ensure an animal's safety and well-being. The 
memorandum further explained that the USDA organic regulations do not 
specify an outdoor space allowance or stocking rate, nor do they 
require that all animals in the herd or flock have access to the 
outdoors at the same time. This memorandum explained how producers 
could provide evidence of compliance to support temporary confinement. 
This memorandum was incorporated into the NOP Handbook on January 31, 
2011, and is retained as current policy.
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    \7\ National Organic Program, 2002. Access to the Outdoors for 
Livestock. Retained as Policy Memo 11-5. Available in the NOP 
Handbook: http://www.ams.usda.gov/rules-regulations/organic/handbook.
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    On February 17, 2010, AMS published a final rule on Access to 
Pasture (Livestock). The final rule was in response to the 2005 NOSB 
recommendation and extensive public input requesting clear outdoor 
access requirements for ruminant livestock. The final rule established 
that ruminants obtain at least 30 percent dry matter intake from 
grazing during the grazing season. The rule provided clarity to correct 
inconsistent application and enforcement of the outdoor access 
provisions for ruminant livestock.
    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.\8\ The OIG found inconsistent certification 
practices regarding outdoor access for poultry. The OIG recommended 
that AMS issue guidance on outdoor access for livestock and poultry.
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    \8\ USDA, Office of the Inspector General. March 2010. Audit 
Report 01601-03-Hy, Oversight of the National Organic Program. 
Available at: http://www.usda.gov/oig/rptsauditsams.htm.
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    On October 13, 2010, AMS published draft guidance, Outdoor Access 
for Organic Poultry, for public comment.\9\ 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.\10\ The draft guidance informed certifying agents and 
producers that maintaining poultry on soil or outdoor runs would 
demonstrate compliance with the outdoor access requirement in Sec.  
205.239.
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    \9\ 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).
    \10\ The 2002 and 2009 NOSB recommendations included daily 
outdoor access from an early age and access to direct sunlight, open 
air and soil.
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    AMS received 69 comments on the draft guidance. Comments varied 
widely. Some supported more specific and stringent stocking densities 
and soil-based outdoor access, citing animal health and environmental 
benefits. Other comments favored maintaining an allowance for porches 
as acceptable outdoor access, citing biosecurity and animal health 
concerns.
    Commenters stated that the draft guidance was unenforceable and 
would not ensure year-round outside access for poultry. These 
commenters suggested a minimum stocking rate of 1.75 square feet per 
bird in henhouses that also provide access to perches, with an 
additional 5 square feet per bird available in vegetated outdoor runs, 
which should be accessible to all birds at the same time. A number of 
commenters, including poultry producers, supported outdoor access on 
soil, pasture or other vegetation, and described health benefits and 
protection of the environment that a pasture or other vegetated outdoor 
access area would afford.
    One trade association, some organic egg producers, and consultants 
described the use of production systems that limit outdoor access via 
the use of enclosed porches so that poultry are not in contact with 
soil or pasture. These commenters described the benefits of these 
systems: Protection from predation, pathogens that cause food safety 
problems, exposure to parasites,

[[Page 21960]]

and contact with wild birds that could carry diseases. The commenters 
asserted that these systems are consistent with the 2002 NOSB 
recommendation. They noted that organic egg producers have made 
substantial investments in facilities with porches. Some also expressed 
concerns that placing birds on soil would affect their ability to 
comply with the Food and Drug Administration's salmonella prevention 
food safety regulations (21 CFR part 118). Several producers expressed 
concern with the 2009 NOSB recommendation that pullets be given outdoor 
access at 6 weeks of age, because pullets are not fully immunized 
(including for protection against salmonella) until 16 weeks of age, 
and should not be exposed to uncontrolled environments until that time.
    Given the comments and the request for rulemaking, AMS determined 
to pursue rulemaking to clarify outdoor access for poultry and did not 
finalize the draft guidance. Because the current regulations permit a 
range of practices for providing outdoor access for livestock, AMS 
could not enforce a narrower interpretation through guidance or 
additional training for certifying agents. Instructing certifiers to 
compel compliance with requirements that are more specific than the 
regulations could only be resolved through rulemaking.

D. Related Issues

    Some organic poultry operations provide outdoor access through 
porches. These porch systems proliferated after a 2002 AMS 
administrative appeal decision ordering the certification of an 
operation that provided porches exclusively for outdoor access. If 
finalized, this rule would supersede the 2002 appeal decision.
    On July 15, 2002, an operation applied for organic certification of 
its egg laying operation with a USDA accredited certifying agent. As 
part of the application, the operation's Organic System Plan (OSP) 
stated that outdoor access would be provided through covered and 
screened porches. The certifying agent denied certification for failure 
to provide hens with access to the outdoors. The certifying agent 
stated that a porch did not provide outdoor access as required by the 
USDA organic regulations. The operation appealed the Denial of 
Certification to the AMS Administrator on October 22, 2002. The 
Administrator determined that poultry porches could be allowed because 
the regulations do not specify outdoor space requirements. The appeal 
was sustained on October 25, 2002, and the certifying agent was 
directed 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 dismissed the case for lack of standing (Massachusetts 
Independent Certification, Inc v. Johanns. 486 F.Supp.2d 105).

III. Overview of Proposed Amendments

A. Definitions in Sec.  205.2

----------------------------------------------------------------------------------------------------------------
           Section title                 Current wording           Type of action           Proposed action
----------------------------------------------------------------------------------------------------------------
205.2.............................  Terms Defined...........
205.2.............................  N/A.....................  New term...............  Beak trimming. The
                                                                                        removal of the curved
                                                                                        tip of the beak.
205.2.............................  N/A.....................  New term...............  Caponization. Castration
                                                                                        of chickens, turkeys,
                                                                                        pheasants and other
                                                                                        avian species.
205.2.............................  N/A.....................  New term...............  Cattle wattling. The
                                                                                        surgical separation of
                                                                                        two layers of the skin
                                                                                        from the connective
                                                                                        tissue along a 2 to 4
                                                                                        inch path on the dewlap,
                                                                                        neck or shoulders used
                                                                                        for ownership
                                                                                        identification.
205.2.............................  N/A.....................  New term...............  De-beaking. The removal
                                                                                        of more than the beak
                                                                                        tip.
205.2.............................  N/A.....................  New term...............  De-snooding. The removal
                                                                                        of the turkey snood (a
                                                                                        fleshy protuberance on
                                                                                        the forehead of male
                                                                                        turkeys).
205.2.............................  N/A.....................  New term...............  Dubbing. The removal of
                                                                                        poultry combs and
                                                                                        wattles.
205.2.............................  N/A.....................  New term...............  Indoors. The flat space
                                                                                        or platform area which
                                                                                        is under a solid roof.
                                                                                        On each level the
                                                                                        animals have access to
                                                                                        food and water and can
                                                                                        be confined if
                                                                                        necessary. Indoor space
                                                                                        for avian species
                                                                                        includes, but is not
                                                                                        limited to:
                                                                                       Pasture housing. A mobile
                                                                                        structure for avian
                                                                                        species with 70 percent
                                                                                        perforated flooring.
                                                                                       Aviary housing. A fixed
                                                                                        structure for avian
                                                                                        species which has
                                                                                        multiple tiers/levels
                                                                                        with feed and water on
                                                                                        each level.
                                                                                       Slatted/mesh floor
                                                                                        housing. A fixed
                                                                                        structure for avian
                                                                                        species which has both:
                                                                                        (1) A slatted floor
                                                                                        where perches, feed and
                                                                                        water are provided over
                                                                                        a pit or belt for manure
                                                                                        collection; and (2)
                                                                                        litter covering the
                                                                                        remaining solid floor.
                                                                                       Floor litter housing. A
                                                                                        fixed structure for
                                                                                        avian species which has
                                                                                        absorbent litter
                                                                                        covering the entire
                                                                                        floor.
205.2.............................  N/A.....................  New term...............  Mulesing. The removal of
                                                                                        skin from the buttocks
                                                                                        of sheep, approximately
                                                                                        2 to 4 inches wide and
                                                                                        running away from the
                                                                                        anus to the hock to
                                                                                        prevent fly strike.
205.2.............................  N/A.....................  New term...............  Outdoors. Any area in the
                                                                                        open air with at least
                                                                                        50 percent soil, outside
                                                                                        a building or shelter
                                                                                        where there are no solid
                                                                                        walls or solid roof
                                                                                        attached to the indoor
                                                                                        living space structure.
                                                                                        Fencing or netting that
                                                                                        does not block sunlight
                                                                                        or rain may be used as
                                                                                        necessary.
205.2.............................  N/A.....................  New term...............  Perch. A rod or branch
                                                                                        type structure that
                                                                                        serves as a roost and
                                                                                        allows birds to utilize
                                                                                        vertical space in the
                                                                                        house.
205.2.............................  N/A.....................  New Term...............  Pullet. A female chicken
                                                                                        or other avian species
                                                                                        being raised for egg
                                                                                        production that has not
                                                                                        yet started to lay eggs.
205.2.............................  N/A.....................  New term...............  Roost. A flat structure
                                                                                        over a manure pit that
                                                                                        allows birds to grip
                                                                                        with their toes as they
                                                                                        would on a perch.
205.2.............................  N/A.....................  New term...............  Soil. The outermost layer
                                                                                        of the earth comprised
                                                                                        of minerals, water, air,
                                                                                        organic matter, fungi
                                                                                        and bacteria in which
                                                                                        plants may grow roots.
205.2.............................  N/A.....................  New term...............  Stocking density. The
                                                                                        weight of animals on a
                                                                                        given unit of land at
                                                                                        any one time.

[[Page 21961]]

 
205.2.............................  N/A.....................  New term...............  Toe clipping. The removal
                                                                                        of the nail and distal
                                                                                        joint of the back two
                                                                                        toes of a male bird.
----------------------------------------------------------------------------------------------------------------

    AMS is proposing to add fifteen new terms to Sec.  205.2: Beak 
trimming, caponization, cattle wattling, de-beaking, de-snooding, 
dubbing, indoors, mulesing, outdoors, perch, pullet, roost, soil, 
stocking density and toe clipping.
    AMS is proposing to prohibit several physical alterations on 
organic livestock. AMS is proposing to define eight terms, below, 
related to these physical alterations so that certifying agents and 
producers may ensure that they do not inadvertently perform a 
prohibited physical alteration which may be known by a different name 
locally.
    Beak trimming would be defined as the removal of the curved tip of 
the beak.
     Caponization would be defined as the castration of chickens, 
turkeys, pheasants and other avian species.
    Cattle wattling would be defined as the surgical separation of two 
layers of the skin from the connective tissue along a 2 to 4 inch path 
on the dewlap, neck, or shoulders used for ownership identification.
    De-beaking would be defined as the removal of more than the beak 
tip.
    De-snooding would be defined as the removal of the turkey snood (a 
fleshy protuberance on the forehead of male turkeys).
    Dubbing would be defined as the removal of poultry combs and 
wattles.
    Mulesing would be defined as the removal of skin from the buttocks 
of sheep, approximately 2 to 4 inches wide and running away from the 
anus to the hock to prevent fly strike.
    Toe clipping would be defined as the removal of the nail and distal 
joint of the back two toes of a male bird.
    AMS is proposing to define ``outdoors'' to add more specificity to 
the existing requirement in the livestock living conditions section (7 
CFR 205.239(a)(1)) that livestock have access to the outdoors. 
``Outdoors'' would be defined as any area in the open air with at least 
50 percent soil, outside a building or shelter where there are no solid 
walls or solid roof attached to the indoor living space structure. 
Fencing or netting that does not block sunlight or rain may be used as 
necessary. Consistent with the NOSB recommendation, this definition 
would exclude porches and other structures attached to the indoor 
living space as outdoor areas. For biosafety and animal welfare 
purposes, fencing or overhead netting that does not block sunlight or 
rain would be permitted to prevent predators and other wild birds from 
entering the outdoor area.
    Structures for shade are permitted in the outdoor space. The area 
within a standalone, roofed, shade structure could be included as 
outdoor space area, provided it is not attached to the indoor space 
structure. Roofed areas attached to the building are not considered 
outdoor areas. This is consistent with the 2011 NOSB recommendation 
that stated that covered porches should not be considered outdoor 
access. This is also consistent with FDA's draft guidance on outdoor 
access under the FDA Prevention of Salmonella Enteritidis in Shell Eggs 
regulations \11\ which states that covered porches are part of the 
poultry house. Many producers use portable or permanent shade 
structures throughout their pastures. The area under these shade 
structures, as long as it is not attached to the structure used for 
indoor access, could be an allowed area under the outdoor access space 
requirement. The area under the eaves or under structures attached to 
the indoor space structure is not to be calculated as outdoor space 
area to ensure that porches and similar structures are not construed as 
outdoor space.
---------------------------------------------------------------------------

    \11\ Draft Guidance for Industry: Questions and Answers 
Regarding the Final Rule, Prevention of Salmonella Enteritidis in 
Shell Eggs During Production, Storage, and Transportation (Layers 
with Outdoor Access) http://www.fda.gov/food/guidanceregulation/guidancedocumentsregulatoryinformation/eggs/ucm360028.htm.
---------------------------------------------------------------------------

    The proposed definition of ``outdoors'' would specify that outdoor 
areas for all livestock have access to the soil. This supports natural 
behaviors across species. For example, soil-based outdoor access will 
encourage rooting and wallowing among swine and dust bathing and 
foraging among poultry.
    AMS is proposing to define ``soil'' as the outermost layer of the 
earth comprised of minerals, water, air, organic matter, fungi, and 
bacteria, in which plants may grow roots. Livestock producers must 
include contact with soil when providing outdoor access to livestock in 
a manner that maintains and improves natural resources.
    AMS is proposing to define ``stocking density'' as the maximum 
weight of animals on a given unit of land at any one time. 
Specifically, the minimum outdoor space requirements for poultry are 
based on stocking density as measured by the maximum pounds of bird on 
a square foot of land at a given time. AMS also considered basing the 
stocking density requirements on the minimum area per bird (i.e., 
square feet per animal). AMS proposes to measure stocking density using 
weight to compensate for different-sized avian species (chickens, 
turkeys) and varieties (e.g., different breeds of layers). Stocking 
density would be calculated on the given size of the outdoor land to 
which the birds are provided access. As an example, if one acre of land 
is divided into two half acre parcels and the birds are rotated between 
the two parcels, then the stocking density would be calculated using 
the one-half acre to which the birds have access.
    AMS is proposing to define ``indoors'' as the flat space or 
platform area under a solid roof where the animals have access to both 
food and water and can be confined if necessary. Indoor space would be 
calculated by adding the square footage of the following roofed areas: 
(1) Ground level, which may have perches embedded or placed on the 
ground; (2) multi-level platforms, which provide water and feed on each 
elevation from which the birds can freely access the outdoors; (3) 
porches, which are accessible to the birds at all times. Space in 
porches may not be included in the calculation for indoor space if the 
doors are closed due to inclement weather or threat of diseases.
    AMS is further clarifying the indoor living space requirements by 
defining several elements that will need to be included in that area. 
This proposal would define a ``perch'' as a rod- or branch-type 
structure that serves as a roost and allows birds to utilize vertical 
space in the house. This proposal would define a ``roost'' as a flat 
structure over a manure pit that allows birds to grip with their toes 
as they would on a perch.
    AMS is proposing to define ``pullet'' as a female chicken or other 
avian species being raised for egg production that has not yet started 
to lay eggs. While pullet is sometimes used to describe young broilers 
which are used for meat production, AMS is using the

[[Page 21962]]

term pullet to describe females of avian species which are being raised 
to produce eggs in the future but have not yet reached sexual maturity 
and have not begun producing eggs. Once avian females begin laying 
eggs, AMS refers to them as layers. AMS modified the definition of 
pullet, which is used by the AMS Livestock, Poultry and Seed Program, 
to include species other than chickens.

B. Livestock Health Care Practice Standard

----------------------------------------------------------------------------------------------------------------
           Section title                  Current wording          Proposed action          Proposed wording
----------------------------------------------------------------------------------------------------------------
205.238...........................  Livestock Health Care       No Change.             .........................
                                     Practice Standard.
205.238(a)........................  (a) The producer must       No change............
                                     establish and maintain
                                     preventive livestock
                                     health care practices,
                                     including:
205.238(a)(1).....................  (1) Selection of species    No change............
                                     and types of livestock
                                     with regard to
                                     suitability for site-
                                     specific conditions and
                                     resistance to prevalent
                                     diseases and parasites;
205.238(a)(2).....................  (2) Provision of a feed     Revision.............  (2) Provision of a feed
                                     ration sufficient to meet                          ration sufficient to
                                     nutritional requirements,                          meet nutritional
                                     including vitamins,                                requirements, including
                                     minerals, protein and/or                           vitamins, minerals,
                                     amino acids, fatty acids,                          protein and/or amino
                                     energy sources, and fiber                          acids, fatty acids,
                                     (ruminants);                                       energy sources, and
                                                                                        fiber (ruminants),
                                                                                        resulting in appropriate
                                                                                        body condition.
205.238(a)(3).....................  (3) Establishment of        No change............
                                     appropriate housing,
                                     pasture conditions, and
                                     sanitation practices to
                                     minimize the occurrence
                                     and spread of diseases
                                     and parasites;
205.238(a)(4).....................  (4) Provision of            No change............
                                     conditions which allow
                                     for exercise, freedom of
                                     movement, and reduction
                                     of stress appropriate to
                                     the species;
205.238(a)(5).....................  (5) Performance of          Revision.............  (5) Physical alterations
                                     physical alterations as                            may be performed to
                                     needed to promote the                              benefit the welfare or
                                     animal's welfare and in a                          hygiene of the animals,
                                     manner that minimizes                              or for identification
                                     pain and stress; and                               purposes or safety.
                                                                                        Physical alterations
                                                                                        must be performed on
                                                                                        livestock at a
                                                                                        reasonably young age,
                                                                                        with minimal stress and
                                                                                        pain and by a competent
                                                                                        person.
205.238(a)(5)(i)..................  ..........................  New..................  (i) The following
                                                                                        practices may not be
                                                                                        routinely used and must
                                                                                        be used only with
                                                                                        documentation that
                                                                                        alternatives methods to
                                                                                        prevent harm failed:
                                                                                        needle teeth trimming
                                                                                        (no more than top 1/3rd
                                                                                        of the tooth) in pigs
                                                                                        and tail docking in
                                                                                        pigs.
205.238(a)(5)(ii).................  ..........................  New..................  (ii) The following
                                                                                        practices must not be
                                                                                        performed on a certified
                                                                                        operation: de-beaking,
                                                                                        de-snooding,
                                                                                        caponization, dubbing,
                                                                                        toe trimming of
                                                                                        chickens, toe trimming
                                                                                        of turkeys unless with
                                                                                        infra-red at hatchery,
                                                                                        beak trimming after 10
                                                                                        days of age, 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.
205.238(a)(6).....................  (6) Administration of       No change............
                                     vaccines and other
                                     veterinary biologics.
205.238(a)(7).....................  ..........................  New..................  (7) All surgical
                                                                                        procedures necessary to
                                                                                        treat an illness shall
                                                                                        be undertaken in a
                                                                                        manner that employs best
                                                                                        management practices in
                                                                                        order to minimize pain,
                                                                                        stress, and suffering,
                                                                                        with the use of
                                                                                        appropriate and allowed
                                                                                        anesthetics, analgesics,
                                                                                        and sedatives.
205.238(a)(8).....................  ..........................  New..................  (8) Monitoring of
                                                                                        lameness and keeping
                                                                                        records of the percent
                                                                                        of the herd or flock
                                                                                        suffering from lameness
                                                                                        and the causes.

[[Page 21963]]

 
205.238(a)(9).....................  ..........................  New..................  (9) Ammonia levels in
                                                                                        poultry houses must be
                                                                                        less than 25 parts per
                                                                                        million indoors. When
                                                                                        ammonia levels in
                                                                                        poultry houses exceed 10
                                                                                        parts per million, an
                                                                                        operation must implement
                                                                                        additional practices to
                                                                                        reduce the ammonia
                                                                                        levels below 10 parts
                                                                                        per million.
205.238(b)........................  (b) When preventive         No change............
                                     practices and veterinary
                                     biologics are inadequate
                                     to prevent sickness, a
                                     producer may administer
                                     synthetic medications:
                                     Provided, that, such
                                     medications are allowed
                                     under Sec.   205.603.
                                     Parasiticides allowed
                                     under Sec.   205.603 may
                                     be used on:
205.238(b)(1).....................  (1) Breeder stock, when     No change............
                                     used prior to the last
                                     third of gestation but
                                     not during lactation for
                                     progeny that are to be
                                     sold, labeled, or
                                     represented as
                                     organically produced; and
205.238(b)(2).....................  (2) Dairy stock, when used  No change............
                                     a minimum of 90 days
                                     prior to the production
                                     of milk or milk products
                                     that are to be sold,
                                     labeled, or represented
                                     as organic
205.238(b)(3).....................  ..........................  New..................  (3) Synthetic medications
                                                                                        may be administered in
                                                                                        the presence of illness
                                                                                        or to alleviate pain and
                                                                                        suffering: Provided,
                                                                                        that such medications
                                                                                        are allowed under Sec.
                                                                                        205.603.
205.238(c)........................  (c) The producer of an      No change............
                                     organic livestock
                                     operation must not:
205.238(c)(1).....................  (1) Sell, label, or         Revision.............  (1) Sell, label, or
                                     represent as organic any                           represent as organic any
                                     animal or edible product                           animal or edible product
                                     derived from any animal                            derived from any animal
                                     treated with antibiotics,                          treated with
                                     any substance that                                 antibiotics, any
                                     contains a synthetic                               substance that contains
                                     substance not allowed                              a synthetic substance
                                     under Sec.   205.603, or                           not allowed under Sec.
                                     any substance that                                 205.603, or any
                                     contains a nonsynthetic                            substance that contains
                                     substance prohibited in                            a nonsynthetic substance
                                     Sec.   205.604.                                    prohibited in Sec.
                                                                                        205.604. Milk from
                                                                                        animals undergoing
                                                                                        treatment with synthetic
                                                                                        substances allowed under
                                                                                        Sec.   205.603 having
                                                                                        withholding time, cannot
                                                                                        be sold as organic but
                                                                                        may be fed to their own
                                                                                        offspring. Milk from
                                                                                        animals undergoing
                                                                                        treatment with
                                                                                        prohibited substances
                                                                                        cannot be sold as
                                                                                        organic or fed to
                                                                                        organic livestock.
205.238(c)(2).....................  (2) Administer any animal   Revision.............  (2) Administer any animal
                                     drug, other than                                   drug in the absence of
                                     vaccinations, in the                               illness or to alleviate
                                     absence of illness;                                pain or suffering, with
                                                                                        the exception of
                                                                                        vaccinations and other
                                                                                        veterinary biologics.
205.238(c)(3).....................  (3) Administer hormones     Revision.............  (3) Administer hormones
                                     for growth promotion;                              for growth promotion,
                                                                                        production or
                                                                                        reproduction.
205.238(c)(4).....................  (4) Administer synthetic    No change............
                                     parasiticides on a
                                     routine basis;
205.238(c)(5).....................  (5) Administer synthetic    No change............
                                     parasiticides to
                                     slaughter stock;
205.238(c)(6).....................  (6) Administer animal       No change............
                                     drugs in violation of the
                                     Federal Food, Drug, and
                                     Cosmetic Act; or
205.238(c)(7).....................  (7) Withhold medical        No change............
                                     treatment from a sick
                                     animal in an effort to
                                     preserve its organic
                                     status. All appropriate
                                     medications must be used
                                     to restore an animal to
                                     health when methods
                                     acceptable to organic
                                     production fail.
                                     Livestock treated with a
                                     prohibited substance must
                                     be clearly identified and
                                     shall not be sold,
                                     labeled, or represented
                                     as organically produced.

[[Page 21964]]

 
205.238(c)(8).....................  ..........................  New..................  (8) Withhold individual
                                                                                        treatment designed to
                                                                                        minimize pain and
                                                                                        suffering for injured,
                                                                                        diseased, or sick
                                                                                        animals, which may
                                                                                        include forms of
                                                                                        euthanasia as
                                                                                        recommended by the
                                                                                        American Veterinary
                                                                                        Medical Association.
205.238(c)(9).....................  ..........................  New..................  (9) Neglect to identify
                                                                                        and record treatment of
                                                                                        sick and injured animals
                                                                                        in animal health
                                                                                        records.
205.238(c)(10)....................  ..........................  New..................  (10) Practice forced
                                                                                        molting or withdrawal of
                                                                                        feed to induce molting.
205.238(d)........................  ..........................  New..................  (d) Organic livestock
                                                                                        operations must have
                                                                                        comprehensive plans to
                                                                                        minimize internal
                                                                                        parasite problems in
                                                                                        livestock. The plan will
                                                                                        include preventive
                                                                                        measures such as pasture
                                                                                        management, fecal
                                                                                        monitoring, and
                                                                                        emergency measures in
                                                                                        the event of a parasite
                                                                                        outbreak. Parasite
                                                                                        control plans shall be
                                                                                        approved by the
                                                                                        certifying agent.
205.238(e)........................  ..........................  New..................  (e) Euthanasia.
205.238(e)(1).....................  ..........................  New..................  (1) Organic livestock
                                                                                        producers must have
                                                                                        written plans for
                                                                                        prompt, humane
                                                                                        euthanasia for sick or
                                                                                        injured livestock.
205.238(e)(2).....................  ..........................  New..................  (2) The following methods
                                                                                        of euthanasia are not
                                                                                        permitted: suffocation;
                                                                                        blow to the head by
                                                                                        blunt instrument; and
                                                                                        the use of equipment
                                                                                        that crushes the neck,
                                                                                        including killing pliers
                                                                                        or burdizzo clamps.
205.238(e)(3).....................  ..........................  New..................  (3) Following a
                                                                                        euthanasia procedure,
                                                                                        livestock must be
                                                                                        carefully examined to
                                                                                        ensure that they are
                                                                                        dead.
----------------------------------------------------------------------------------------------------------------

    AMS is proposing to amend current provisions in and add new 
provisions to the health care practice standards. The proposed 
amendment to Sec.  205.238(a)(2) would specify that the sufficiency of 
the feed ration would be demonstrated by appropriate body condition of 
the livestock. Livestock producers would need to monitor their animals 
to ensure body condition is being maintained. In addition, certifying 
agents would need to verify the nutritional adequacy of the animals' 
diet by assessing the body condition of organic livestock during 
inspection. Suitable body condition varies between species, between 
breeds, and between production types. A suitable condition for dairy 
cattle may be considered too thin in beef cattle. Producers who 
routinely monitor body condition of their livestock will be more likely 
to discover a health or feed issue early, before the animal suffers. 
AMS plans to provide further information about body condition 
assessment through published guidance to assist certifiers, inspectors, 
and producers assess body condition in different species.
    AMS proposes to revise Sec.  205.238(a)(5) to clarify the 
conditions under which physical alterations may be performed on 
livestock. Physical alterations may be performed for only certain 
reasons, including an animal's welfare, hygiene, identification, or 
safety. Alterations must be done at a reasonably young age with minimal 
pain or stress to the animal, and only by a person who is competent to 
perform the procedure. Competency may be demonstrated by training or 
experience of the person performing the alterations or may be 
demonstrated by the training or experience of the person training the 
person performing the alterations.
    AMS is proposing to add a new Sec.  205.238(a)(5)(i) to list the 
physical alterations that are not allowed on a routine basis, but may 
be performed on an as-needed basis. Needle teeth trimming and tail 
docking in pigs may only be performed in response to documented animal 
welfare reasons when alternative steps to prevent harm fail. Teeth 
clipping, if performed, would be limited to the top third of the each 
needle tooth. For example, an organic swine producer who clipped needle 
teeth or performed tail docking would need to document excessive needle 
teeth scarring on the underline of the sow or piglets or document tail 
biting on piglets in the litter. Swine producers would also need to 
document that alternative methods 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.
    In the 2009 recommendation, the NOSB recommended that needle teeth 
clipping and piglet tail docking be allowed, but retracted that in its 
2011 recommendation. In consideration of NOSB preferences and producer 
needs, AMS is proposing to restrict the use of these procedures to 
situations when alternative methods of preventing injury fail and the 
producer documents the harm to animals prior to performing either 
physical alteration.
    AMS is proposing to add a new Sec.  205.238(a)(5)(ii) to list the 
physical alterations that are prohibited in an organic operation. The 
following physical alterations would be prohibited under this proposal: 
De-beaking, de-snooding, caponization, dubbing, toe trimming of 
chickens, toe trimming of turkeys unless with infra-red at hatchery, 
beak trimming after 10 days of age, 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 is proposing to add a new Sec.  205.238(a)(7) which would 
specify that surgical procedures on livestock to

[[Page 21965]]

treat an illness must be done in a manner which minimizes pain, stress, 
and suffering. The NOSB recommended that all surgical procedures for 
livestock be done with the use of anesthetics, analgesics, and 
sedatives. AMS is proposing that all surgical procedures for treatment 
of disease shall be undertaken in a manner that employs best management 
practices in order to minimize pain, stress, and suffering, and only 
with the use of anesthetics, analgesics, and sedatives listed in Sec.  
205.603.
    AMS is proposing to add a new Sec.  205.238(a)(8) to require 
organic producers to actively monitor lameness within the herd or flock 
and to document the cases of lameness. Lameness can be an issue in 
various livestock species including broilers, sheep, and dairy cattle. 
The requirement for producers to create a plan for monitoring and 
recording instances of lameness in the Organic System Plan will enable 
organic livestock producers to identify and address a problem before it 
becomes widespread among the animals. In addition, the records will 
provide an auditable trail for certifying agents to verify that 
livestock producers are monitoring this potential cause of animal 
suffering.
    AMS is proposing to add a new Sec.  205.238(b)(3) to state that 
synthetic medications may be administered in the presence of an illness 
to reduce pain and suffering, as long as those medications are allowed 
under Sec.  205.603. OFPA limits the use of synthetic medications in 
the absence of illness. AMS is proposing to follow the NOSB 
recommendation to allow the use of synthetic substances to alleviate 
pain and suffering for animals if the substances appear on the National 
List. AMS is proposing to take a broad view of illness to encompass not 
just instances of disease or injury, but also cases of inflammation due 
to physical alterations. By providing pain relief prior to performing a 
physical alteration, animal welfare is improved. In addition, by 
providing pain relief, the animal undergoing the physical alteration is 
less likely to make a sudden movement. Such movements can cause 
infection or a more severe injury. Again, the use of pain relief prior 
to the physical alteration can reduce serious complications. Physical 
alterations such as dehorning result in trauma to the target tissue. 
This trauma causes localized bleeding and inflammation, resulting in an 
illness state.
    AMS is proposing to amend Sec.  205.238(c)(1) to clarify that milk 
from an animal treated with an allowed substance in Sec.  205.603, 
which has a withholding time, may not be sold, labeled, or represented 
as organic during that holding time. However, milk from an organic 
animal or breeder stock may continue to provide milk for its own 
offspring during the withholding time. As an example, if an organic 
beef cow was nursing her organic offspring, was injured and then 
stitched by a veterinarian using lidocaine to minimize pain and stress, 
her calf could continue to nurse the dam even during the 7-day 
withholding period for lidocaine (Sec.  205.603(b)(4)), without loss of 
the calf's organic status. This means that the calf would still be 
eligible to be organic slaughter stock. This is consistent with the 
April 2010 NOSB recommendation that a calf nursing a dam treated 
topically with lidocaine, or other approved synthetic with a withdrawal 
time would not lose organic status.
    AMS is proposing to revise Sec.  205.238(c)(2) to clarify that 
other veterinary biologics, in addition to vaccines, are exempt from 
the prohibition on administering animal drugs in the absence of 
illness. The Center for Veterinary Biologics (CVB) regulates vaccines 
and all other veterinary biologics. While vaccines are commonly used to 
describe many of these products, CVB has additional categories such as 
bacterins and toxoids. In addition, this change reflects the definition 
for biologicals in Sec.  205.2. This supports Sec.  205.238(a)(6), 
which identifies the use of vaccines and other veterinary biologics as 
a required practice to improve animal health. This section again 
asserts that pain relief may be administered in the absence of illness 
prior to physical alterations.
    AMS is proposing to amend Sec.  205.238(c)(3) to clarify that 
organic livestock producers are prohibited from administering synthetic 
or nonsynthetic hormones to promote growth or for production and 
reproductive purposes. Hormones listed in Sec.  205.603 (e.g., 
oxytocin) may continue to be used to treat illnesses. Stakeholders have 
noted that the USDA organic regulations are silent on the use of 
hormones to stimulate production or for reproductive purposes. This 
addition would clarify that all hormones, unless used to treat an 
illness, are prohibited in organic production.
    AMS is proposing to add a new provision in 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 which appears on the 
National List. However, if no appropriate medication is allowed for 
organic production, organic livestock producers would be required to 
administer treatments, even if the animals would lose their organic 
status. Furthermore, euthanasia could be an acceptable practice for 
minimizing pain and suffering.
    AMS is proposing to add new Sec.  205.238(c)(9) to require 
livestock producers to identify and record treatment of sick and 
injured animals in animal health records. These records can enable 
producers and certifying agents to quickly identify a particular 
disease or ailment in an animal. Early identification can lead to more 
effective prevention or treatment, which will enhance the overall 
health of the livestock on that farm.
    AMS is proposing to add a new provision in Sec.  205.238(c)(10) to 
explicitly prohibit the practice of forced molting or withdrawal of 
feed to induce molting in poultry. Forced molting, in which feed is 
severely restricted for a period of time in order to rejuvenate egg 
production, is prohibited under Sec.  205.238(a)(2), which requires a 
nutritionally sufficient feed ration. However, forced molting was never 
explicitly prohibited under the USDA organic regulations. This change 
is consistent with the NOSB recommendation and a number of other third-
party animal welfare certification programs.
    AMS is proposing to add a new Sec.  205.238(e) to address 
euthanasia. In certain cases, livestock may be suffering from an 
illness from which recovery is unlikely. For these situations, organic 
livestock producers must maintain written plans for euthanizing sick or 
injured livestock (Sec.  205.238(e)(1)). In new a Sec.  205.238(e)(2), 
AMS is proposing to prohibit certain methods of euthanasia, including: 
Suffocation, blow(s) to the head by blunt instrument, and use of 
equipment that crushes the neck, (e.g., killing pliers or burdizo 
clamps). In the event of an emergency situation where a local, state or 
federal government agency requires the use of non-organically approved 
method of euthanasia, organic livestock operations will not lose 
organic certification or face other penalties for the use of non-
organically approved methods of euthanasia.
    AMS is further proposing, in Sec.  205.238(e)(3), that after the 
euthanasia procedure, producers must carefully examine the body to 
ensure death. The NOSB recommended listing the allowable methods of 
euthanasia. However, given that new humane euthanasia methods may 
emerge, AMS

[[Page 21966]]

would not intend to discourage producer adoption of these techniques. 
Therefore, AMS is proposing to allow organic livestock producers to use 
any method of euthanasia, except for those prohibited in Sec.  
205.238(e)(2). The list of prohibited methods could be amended to 
include other techniques, if needed, through future rulemaking.

C. Mammalian Living Conditions

----------------------------------------------------------------------------------------------------------------
 
----------------------------------------------------------------------------------------------------------------
205.239...........................  Livestock Living            Revision.............  Mammalian Livestock
                                     Conditions.                                        Living Conditions.
205.239(a)........................  (a) The producer of an      No change............
                                     organic livestock
                                     operation must establish
                                     and maintain year-round
                                     livestock living
                                     conditions which
                                     accommodate the health
                                     and natural behavior of
                                     animals, including:
205.239(a)(1).....................  (1) Year-round access for   Revision.............  (1) Year-round access for
                                     all animals to the                                 all animals to the
                                     outdoors, shade, shelter,                          outdoors, soil, shade,
                                     exercise areas, fresh                              shelter, exercise areas,
                                     air, clean water for                               fresh air, clean water
                                     drinking, and direct                               for drinking, and direct
                                     sunlight, suitable to the                          sunlight, suitable to
                                     species, its stage of                              the species, its stage
                                     life, the climate, and                             of life, the climate,
                                     the environment: Except,                           and the environment:
                                     that, animals may be                               Except, that, animals
                                     temporarily denied access                          may be temporarily
                                     to the outdoors in                                 denied access to the
                                     accordance with Sec.                               outdoors in accordance
                                     Sec.   205.239(b) and                              with Sec.  Sec.
                                     (c). Yards, feeding pads,                          205.239(b) and (c).
                                     and feedlots may be used                           Yards, feeding pads, and
                                     to provide ruminants with                          feedlots may be used to
                                     access to the outdoors                             provide ruminants with
                                     during the non-grazing                             access to the outdoors
                                     season and supplemental                            during the non-grazing
                                     feeding during the                                 season and supplemental
                                     grazing season. Yards,                             feeding during the
                                     feeding pads, and                                  grazing season. Yards,
                                     feedlots shall be large                            feeding pads, and
                                     enough to allow all                                feedlots shall be large
                                     ruminant livestock                                 enough to allow all
                                     occupying the yard,                                ruminant livestock
                                     feeding pad, or feedlot                            occupying the yard,
                                     to feed simultaneously                             feeding pad, or feedlot
                                     without crowding and                               to feed without
                                     without competition for                            competition for food in
                                     food. Continuous total                             a manner that maintains
                                     confinement of any animal                          all animals in a good
                                     indoors is prohibited.                             body condition.
                                     Continuous total                                   Continuous total
                                     confinement of ruminants                           confinement of any
                                     in yards, feeding pads,                            animal indoors is
                                     and feedlots is                                    prohibited. Continuous
                                     prohibited.                                        total confinement of
                                                                                        ruminants in yards,
                                                                                        feeding pads, and
                                                                                        feedlots is prohibited.
205.239(a)(2).....................  (2) For all ruminants,      No change............
                                     management on pasture and
                                     daily grazing throughout
                                     the grazing season(s) to
                                     meet the requirements of
                                     Sec.   205.237, except as
                                     provided for in
                                     paragraphs (b), (c), and
                                     (d) of this section.
205.239(a)(3).....................  (3) Appropriate clean, dry  Revision.............  (3) Animals must be kept
                                     bedding. When roughages                            clean during all stages
                                     are used as bedding, they                          of life with the use of
                                     shall have been                                    appropriate, clean, dry
                                     organically produced in                            bedding, as appropriate
                                     accordance with this part                          for the species. When
                                     by an operation certified                          roughages are used as
                                     under this part, except                            bedding, they must be
                                     as provided in Sec.                                organically produced and
                                     205.236(a)(2)(i), and, if                          handled in accordance
                                     applicable, organically                            with this part by an
                                     handled by operations                              operation certified
                                     certified to the NOP.                              under this part, except
                                                                                        as provided in Sec.
                                                                                        205.236(a)(2)(i), and,
                                                                                        if applicable,
                                                                                        organically handled by
                                                                                        operations certified to
                                                                                        the NOP.
205.239(a)(4).....................  (4) Shelter designed to     No change............
                                     allow for:
205.239(a)(4)(i)..................  (i) Natural maintenance,    Revision.............  (i) Sufficient space and
                                     comfort behaviors, and                             freedom to lie down in
                                     opportunity to exercise;                           full lateral recumbence,
                                                                                        turn around, stand up,
                                                                                        fully stretch their
                                                                                        limbs without touching
                                                                                        other animals or the
                                                                                        sides of the enclosure,
                                                                                        and express normal
                                                                                        patterns of behavior;
205.239(a)(4)(ii).................  (ii) Temperature level,     No change............
                                     ventilation, and air
                                     circulation suitable to
                                     the species;
205.239(a)(4)(iii)................  (iii) Reduction of          No change............
                                     potential for livestock
                                     injury.
205.239(a)(4)(iv).................  ..........................  New..................  (iv) Areas for bedding
                                                                                        and resting that are
                                                                                        sufficiently large,
                                                                                        solidly built, and
                                                                                        comfortable so that
                                                                                        animals are kept clean,
                                                                                        dry, and free of
                                                                                        lesions.
205.239(a)(5).....................  The use of yards, feeding   No change............
                                     pads, feedlots and
                                     laneways that shall be
                                     well-drained, kept in
                                     good condition (including
                                     frequent removal of
                                     wastes), and managed to
                                     prevent runoff of wastes
                                     and contaminated waters
                                     to adjoining or nearby
                                     surface water and across
                                     property boundaries.
205.239(a)(6).....................  ..........................  New..................  (6) Housing, pens, runs,
                                                                                        equipment, and utensils
                                                                                        shall be properly
                                                                                        cleaned and disinfected
                                                                                        as needed to prevent
                                                                                        cross infection and
                                                                                        build-up of disease-
                                                                                        carrying organisms.
205.239(a)(7).....................  ..........................  New..................  (7) Dairy young stock may
                                                                                        be housed in individual
                                                                                        pens under the following
                                                                                        conditions:

[[Page 21967]]

 
205.239(a)(7)(i)..................  ..........................  New..................  (i) Until weaning,
                                                                                        providing that they have
                                                                                        enough room to turn
                                                                                        around, lie down,
                                                                                        stretch out when lying
                                                                                        down, get up, rest, and
                                                                                        groom themselves;
                                                                                        individual animal pens
                                                                                        shall be designed and
                                                                                        located so that each
                                                                                        animal can see, smell,
                                                                                        and hear other calves.
205.239(a)(7)(ii).................  ..........................  New..................  (ii) Dairy young stock
                                                                                        shall be group-housed
                                                                                        after weaning.
205.239(a)(7)(iii)................  ..........................  New..................  (iii) Dairy young stock
                                                                                        over six months of age
                                                                                        shall have access to the
                                                                                        outdoors at all times,
                                                                                        including access to
                                                                                        pasture during the
                                                                                        grazing season, except
                                                                                        as allowed under
                                                                                        205.239(c).
205.239(a)(8).....................  ..........................  New..................  (8) Swine must be housed
                                                                                        in a group, except:
205.239(a)(8)(i)..................  ..........................  New..................  (i) Sows may be housed
                                                                                        individually at
                                                                                        farrowing and during the
                                                                                        suckling period;
205.239(a)(8)(ii).................  ..........................  New..................  (ii) Boars.
205.239(a)(8)(iii)................  ..........................  New..................  (iii) Swine with
                                                                                        documented instances of
                                                                                        aggression or recovery
                                                                                        from an illness.
205.239(a)(9).....................  ..........................  New..................  (10) Piglets shall not be
                                                                                        kept on flat decks or in
                                                                                        piglet cages.
205.239(a)(10)....................  ..........................  New..................  (11) Exercise areas for
                                                                                        swine, whether indoors
                                                                                        or outdoors, must permit
                                                                                        rooting, including
                                                                                        during temporary
                                                                                        confinement events.
205.239(a)(11)....................  ..........................  New..................  (12) In confined housing
                                                                                        with stalls, at least
                                                                                        one stall must be
                                                                                        provided for each animal
                                                                                        in the facility at any
                                                                                        given time. A cage must
                                                                                        not be called a stall.
                                                                                        For group-housed swine,
                                                                                        the number of individual
                                                                                        feeding stalls may be
                                                                                        less than the number of
                                                                                        animals, as long as all
                                                                                        animals are fed
                                                                                        routinely over a 24-hour
                                                                                        period.
205.239(a)(12)....................  ..........................  New..................  (13) At least 50 percent
                                                                                        of outdoor access space
                                                                                        must be soil, except for
                                                                                        temporary conditions
                                                                                        which would threaten the
                                                                                        soil or water quality
                                                                                        when outdoor access must
                                                                                        be provided without
                                                                                        contact to the soil.
205.239(b)........................  (b) The producer of an      No change............
                                     organic livestock
                                     operation may provide
                                     temporary confinement or
                                     shelter for an animal
                                     because of:
205.239(b)(1).....................  (1) Inclement weather;      No change............
205.239(b)(2).....................  (2) The animal's stage of   No change............
                                     life: Except, that
                                     lactation is not a stage
                                     of life that would exempt
                                     ruminants from any of the
                                     mandates set forth in
                                     this regulation.
205.239(b)(3).....................  (3) Conditions under which  No change............
                                     the health, safety, or
                                     well-being of the animal
                                     could be jeopardized
205.239(b)(4).....................  (4) Risk to soil or water   No change............
                                     quality;
205.239(b)(5).....................  (5) Preventive healthcare   No change............
                                     procedures or for the
                                     treatment of illness or
                                     injury (neither the
                                     various life stages nor
                                     lactation is an illness
                                     or injury);
205.239(b)(6).....................  (6) Sorting or shipping     No change............
                                     animals and livestock
                                     sales: Provided, that,
                                     the animals shall be
                                     maintained under
                                     continuous organic
                                     management, including
                                     organic feed, throughout
                                     the extent of their
                                     allowed confinement;
205.239(b)(7).....................  (7) Breeding: Except,       Revision.............  (7) Breeding: Except,
                                     that, bred animals shall                           that, animals shall not
                                     not be denied access to                            be confined any longer
                                     the outdoors and, once                             than necessary to
                                     bred, ruminants shall not                          perform the natural or
                                     be denied access to                                artificial insemination.
                                     pasture during the                                 Animals may not be
                                     grazing season;                                    confined to observe
                                                                                        estrus; and
205.239(b)(8).....................  (8) 4-H, Future Farmers of  Revision.............  (8) 4-H, National FFA
                                     America and other youth                            Organization, and other
                                     projects, for no more                              youth projects, for no
                                     than one week prior to a                           more than one week prior
                                     fair or other                                      to a fair or other
                                     demonstration, through                             demonstration, through
                                     the event and up to 24                             the event, and up to 24
                                     hours after the animals                            hours after the animals
                                     have arrived home at the                           have arrived home at the
                                     conclusion of the event.                           conclusion of the event.
                                     These animals must have                            These animals must have
                                     been maintained under                              been maintained under
                                     continuous organic                                 continuous organic
                                     management, including                              management, including
                                     organic feed, during the                           organic feed, during the
                                     extent of their allowed                            extent of their allowed
                                     confinement for the event.                         confinement for the
                                                                                        event. Notwithstanding
                                                                                        the requirements in Sec.
                                                                                          205.239 (b)(6),
                                                                                        facilities where 4-H,
                                                                                        National FFA
                                                                                        Organization, and other
                                                                                        youth events are held
                                                                                        are not required to be
                                                                                        certified organic for
                                                                                        the participating
                                                                                        animals to be sold as
                                                                                        organic, provided all
                                                                                        other organic management
                                                                                        practices are followed.

[[Page 21968]]

 
205.239(c)........................  (c) The producer of an      No change............
                                     organic livestock
                                     operation may, in
                                     addition to the times
                                     permitted under Sec.
                                     205.239(b), temporarily
                                     deny a ruminant animal
                                     pasture or outdoor access
                                     under the following
                                     conditions:
205.239(c)(1).....................  (1) One week at the end of  No change............
                                     a lactation for dry off
                                     (for denial of access to
                                     pasture only), three
                                     weeks prior to
                                     parturition (birthing),
                                     parturition, and up to
                                     one week after
                                     parturition;
205.239(c)(2).....................  (2) In the case of newborn  No change............
                                     dairy cattle for up to
                                     six months, after which
                                     they must be on pasture
                                     during the grazing season
                                     and may no longer be
                                     individually housed:
                                     Provided, That, an animal
                                     shall not be confined or
                                     tethered in a way that
                                     prevents the animal from
                                     lying down, standing up,
                                     fully extending its
                                     limbs, and moving about
                                     freely;
205.239(c)(3).....................  (3) In the case of fiber    No change............
                                     bearing animals, for
                                     short periods for
                                     shearing; and
205.239(c)(4).....................  (4) In the case of dairy    No change............
                                     animals, for short
                                     periods daily for
                                     milking. Milking must be
                                     scheduled in a manner to
                                     ensure sufficient grazing
                                     time to provide each
                                     animal with an average of
                                     at least 30 percent DMI
                                     from grazing throughout
                                     the grazing season.
                                     Milking frequencies or
                                     duration practices cannot
                                     be used to deny dairy
                                     animals pasture.
205.239(d)........................  (d) Ruminant slaughter      Revision.............  (d) Ruminant slaughter
                                     stock, typically grain                             stock, typically grain
                                     finished, shall be                                 finished, shall be
                                     maintained on pasture for                          maintained on pasture
                                     each day that the                                  for each day that the
                                     finishing period                                   finishing period
                                     corresponds with the                               corresponds with the
                                     grazing season for the                             grazing season for the
                                     geographical location:                             geographical location:
                                     Except, that, yards,                               Except, that, yards,
                                     feeding pads, or feedlots                          feeding pads, or
                                     may be used to provide                             feedlots may be used to
                                     finish feeding rations.                            provide finish feeding
                                     During the finishing                               rations. During the
                                     period, ruminant                                   finishing period,
                                     slaughter stock shall be                           ruminant slaughter stock
                                     exempt from the minimum                            shall be exempt from the
                                     30 percent DMI                                     minimum 30 percent DMI
                                     requirement from grazing.                          requirement from
                                     Yards, feeding pads, or                            grazing. Yards, feeding
                                     feedlots used to provide                           pads, or feedlots used
                                     finish feeding rations                             to provide finish
                                     shall be large enough to                           feeding rations shall be
                                     allow all ruminant                                 large enough to allow
                                     slaughter stock occupying                          all ruminant slaughter
                                     the yard, feeding pad, or                          stock occupying the
                                     feed lot to feed                                   yard, feeding pad, or
                                     simultaneously without                             feedlot to feed without
                                     crowding and without                               competition for food.
                                     competition for food. The                          The finishing period
                                     finishing period shall                             shall not exceed one-
                                     not exceed one-fifth (\1/                          fifth (\1/5\) of the
                                     5\) of the animal's total                          animal's total life or
                                     life or 120 days,                                  120 days, whichever is
                                     whichever is shorter.                              shorter.
205.239(e)........................  (e) The producer of an      No change............
                                     organic livestock
                                     operation must manage
                                     manure in a manner that
                                     does not contribute to
                                     contamination of crops,
                                     soil, or water by plant
                                     nutrients, heavy metals,
                                     or pathogenic organisms
                                     and optimizes recycling
                                     of nutrients and must
                                     manage pastures and other
                                     outdoor access areas in a
                                     manner that does not put
                                     soil or water quality at
                                     risk.
----------------------------------------------------------------------------------------------------------------

    AMS is proposing to separate mammalian living conditions from avian 
living conditions, due to the different physiology and husbandry 
practices for birds and mammals. Under this proposal, AMS would revise 
the title of Sec.  205.239 from ``Livestock living conditions'' to 
``Mammalian Livestock Living Conditions''. Avian living conditions 
would be addressed in new Sec.  205.241. By creating clear requirements 
for mammalian livestock and avian livestock, animal health and 
wellbeing can be enhanced and consumers can be assured of the integrity 
of the USDA organic seal.
    AMS is proposing to revise Sec.  205.239(a)(1) to require that food 
is provided in a manner that maintains all animals in good body 
condition while removing the requirement that all ruminant livestock 
must be able to feed simultaneously. This would support animal welfare 
by ensuring that feed rations are available to all animals so that they 
maintain good body condition. One method of feeding livestock, 
including ruminants, is the use of a self-feeder or a creep-feeder. 
With creep-feeding and self-feeding, feed is accessible to all animals 
at all times though they may not feed at the exact same time. Self-
feeding and creep-feeding provides organic ruminant producers with more 
flexibility and options to manage their farm and livestock in farm-
specific methods.
    AMS is proposing to revise Sec.  205.239(a)(3) to clarify that 
livestock producers must keep animals clean during all stages of life 
with the use of appropriate, clean, dry bedding. Ensuring animals are 
clean is a disease prevention practice. Clean animals are less likely 
to develop lesions, transmit diseases, or become cold due to matted 
hair coats. The requirement for clean animals is relative to the 
species. Swine would be allowed to exhibit natural behavior and wallow 
in mud, and ruminants grazing on lush spring grass would be expected to 
have some

[[Page 21969]]

manure on their hind quarters due to the natural behavior of grazing.
    AMS is proposing to revise Sec.  205.239(a)(4)(i) to specify that 
shelter must be designed to accommodate natural behaviors. Shelter must 
have sufficient space for the animals to lie down, stand up, and fully 
stretch their limbs without touching other animals or the sides of the 
shelter. Shelter must be designed to allow livestock to express their 
normal patterns of behavior.
    AMS is proposing to add Sec.  205.239(a)(4)(iv) to require a 
sheltered area for bedding and resting, which is sufficiently large and 
comfortable to keep the animals clean, dry, and free of lesions. This 
supports the proposed revision in Sec.  205.239(a)(3), which would 
require producers to keep livestock clean. Not all shelters would need 
to be designed to hold bedding. As an example, a shelter designed to 
provide shade may be portable, and thus incompatible with holding 
bedding.
    AMS is proposing to add new requirements in Sec.  205.239(a)(7) 
concerning the individual housing of dairy young stock. Section 
205.239(a)(7)(i) would allow for the individual housing of animals 
until weaning, as long as the animals had sufficient room to turn 
around, lie down, stretch out while lying down, get up, rest, and groom 
themselves. In addition, the individual housing of young stock would 
need to be designed so that animals could see, smell, and hear other 
animals. Furthermore, new Sec.  205.239(a)(7)(ii) would require that 
dairy young stock are group-housed after weaning, and new Sec.  
205.239(a)(7)(iii) would require that animals over six months of age 
must have access to the outdoors at all times, including access to 
pasture during the grazing season, except as allowed under Sec.  
205.239 (b) and (c). Weaning is the time at which the young are taken 
off of milk or milk replacers.
    AMS is proposing to add three new provisions in Sec.  205.239(a)(8) 
to require the group housing of swine, with several listed exceptions. 
Section 205.239(a)(8)(i) would allow for sows to be individually housed 
at farrowing and during the suckling period. Section 205.239(a)(8)(ii) 
would allow for boars to be individually housed to reduce the 
likelihood of fights and injuries. Section 205.239(a)(8)(iii) would 
allow for swine to be individually housed after documented multiple 
instances of aggression or to allow an individual pig to recover from a 
documented illness.
    AMS is proposing to add two new provisions in Sec.  205.239(a)(9) 
and (10) concerning swine housing. Section 205.239(a)(9) would prohibit 
the use of flat decks or piglet cages. This provision would prohibit 
the stacking of piglets in flat decks in multiple layers. In addition, 
Sec.  205.239(a)(10) would require that both indoor and outdoor areas 
for swine would have some space which would permit rooting. Rooting is 
a natural behavior which must be accommodated by organic swine 
producers and could be done in soil, deep packed straw, or other 
materials. Organic swine producers must also demonstrate how swine will 
be allowed to root during temporary confinement events.
    AMS is proposing to add a new provision in Sec.  205.239(a)(11) to 
further define barns or other structures with stalls. If indoor shelter 
is provided by a structure with stalls, then one stall must be provided 
for each animal at any given time. This allows for all animals to rest 
or lie down at the same time and provides a space for less dominant 
animals to escape from aggressive animals. In no case may a cage be 
considered a stall. One exception is provided for this provision. In 
group-housed swine, more animals than feeding stalls may be allowed, as 
long as all animals are able to consume sufficient quantities of feed 
to maintain good body condition. AMS is aware of some enhanced swine 
welfare systems, in which animals are robotically fed once they enter 
an individual feeding stall. Once finished, the animal may leave the 
stall and another animal enter the stall for its specific quantity of 
feed. AMS did not intend to prohibit such systems, which enhance the 
health and wellbeing of organic animals.
    AMS is proposing to add a new requirement for outdoor access in 
Sec.  205.239(a)(12). Organic livestock are required to have 
unencumbered access to the outdoors at all times, unless temporary 
confinement is justified under a specific reason described in the 
regulations (e.g., nighttime confinement for protection from 
predators). As part of the definition of the outdoors, livestock must 
have access to the soil in a manner that maintains or improves the 
natural resources of the farm, and does not degrade soil or water 
quality. To make access to soil meaningful, at least 50 percent of all 
the outdoor access area must be comprised of soil. This will benefit 
mammals, as surfaces such as concrete may lead to more joint problems 
and resulting lameness. Soil also provides an opportunity for swine to 
root and engage in other natural behaviors.
    AMS is proposing to revise Sec.  205.239(b)(7) to clarify the 
exemption for temporary confinement for the purpose of breeding 
livestock. Livestock may only be confined for the time that a natural 
or artificial breeding procedure requires. A group of livestock may be 
confined while the various individuals are bred, then the group would 
be returned to living spaces that allow outdoor access. Livestock may 
not be confined indoors to observe estrus. Section 205.239(c)(1) 
describes the time when ruminants may be denied access to pasture, but 
not access to the outdoors, before and after a breeding attempt.
    AMS is proposing to revise Sec.  205.239(b)(8) to clarify the 
temporary confinement exception for youth livestock projects. 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. This revised provision includes an exemption to the 
Sec.  205.239(b)(6) requirement that a livestock sales facility be 
certified as an organic operation. As an example, if a youth exhibition 
and sale is held at a livestock sales facility which is not certified 
organic, the youth may sell the organic animal as an organic animal, 
provided all other requirements for the organic management of livestock 
are met. Otherwise, non-certified sales facilities, such as auction 
barns or fair grounds, may not sell or represent livestock as organic. 
AMS is proposing to provide this exception to encourage the next 
generation of organic farmers.
    AMS is proposing to revise Sec.  205.239(d) to reflect the similar 
proposed changes in Sec.  205.239(a)(1). AMS would remove the phrase 
requiring that all ruminants be able to feed simultaneously. This would 
allow the use of self-feeding and creep-feeding so that the ruminants 
would have access to feed continuously over a 24-hour period.

[[Page 21970]]

D. Avian Living Conditions

------------------------------------------------------------------------
 
------------------------------------------------------------------------
205.241.......................  New..............  Avian Living
                                                    Conditions.
205.241(a)....................  New..............  (a) The producer of
                                                    an organic poultry
                                                    operation must
                                                    establish and
                                                    maintain year-round
                                                    poultry living
                                                    conditions which
                                                    accommodate the
                                                    health and natural
                                                    behavior of poultry,
                                                    including: year-
                                                    round access to
                                                    outdoors; shade;
                                                    shelter; exercise
                                                    areas; fresh air;
                                                    direct sunlight;
                                                    clean water for
                                                    drinking; materials
                                                    for dust bathing;
                                                    and adequate outdoor
                                                    space to escape from
                                                    predators and
                                                    aggressive behaviors
                                                    suitable to the
                                                    species, its stage
                                                    of life, the climate
                                                    and environment.
                                                    Poultry may be
                                                    temporarily denied
                                                    access to the
                                                    outdoors in
                                                    accordance with Sec.
                                                      205.241(d).
205.241(b)....................  New..............  Indoor space
                                                    requirements.
205.241(b)(1).................  New..............  (1) All birds must be
                                                    able to move freely,
                                                    and engage in
                                                    natural behaviors.
205.241(b)(2).................  New..............  (2) Ventilation must
                                                    be adequate to
                                                    prevent buildup of
                                                    ammonia. Ammonia
                                                    levels must not
                                                    exceed 25 ppm.
                                                    Producers must
                                                    monitor ammonia
                                                    levels on a monthly
                                                    basis. When ammonia
                                                    levels exceed 10
                                                    ppm, producers must
                                                    implement additional
                                                    practices to reduce
                                                    ammonia levels below
                                                    10 ppm.
205.241(b)(3).................  New..............  (3) For layers and
                                                    mature birds,
                                                    artificial light may
                                                    be used to prolong
                                                    the day length up to
                                                    16 hours. Artificial
                                                    light intensity must
                                                    be lowered gradually
                                                    to encourage hens to
                                                    move to perches or
                                                    settle for the
                                                    night. Natural light
                                                    must be sufficient
                                                    indoors on sunny
                                                    days so that an
                                                    inspector can read
                                                    and write when all
                                                    lights are turned
                                                    off.
205.241(b)(4).................  New..............  (4)The following
                                                    types of flooring
                                                    may be used in
                                                    shelter provided for
                                                    avian species:
205.241(b)(4)(i)..............  New..............  (i) Mesh or slatted
                                                    flooring under
                                                    drinking areas to
                                                    provide drainage;
205.241(b)(4)(ii).............  New..............  (ii) Houses,
                                                    excluding pasture
                                                    housing, with
                                                    slatted/mesh floors
                                                    must have 30 percent
                                                    minimum of solid
                                                    floor area available
                                                    with sufficient
                                                    litter available for
                                                    dust baths so that
                                                    birds may freely
                                                    dust bathe without
                                                    crowding.
205.241(b)(4)(iii)............  New..............  (iii) Litter must be
                                                    provided and
                                                    maintained in a dry
                                                    condition.
205.241(b)(5).................  New..............  (5) Poultry houses
                                                    must have sufficient
                                                    exit areas,
                                                    appropriately
                                                    distributed around
                                                    the building, to
                                                    ensure that all
                                                    birds have ready
                                                    access to the
                                                    outdoors.
205.241(b)(6).................  New..............  (6) Flat roosts areas
                                                    must allow birds to
                                                    grip with their
                                                    feet. Six inches of
                                                    perch space must be
                                                    provided per bird.
                                                    Perch space may
                                                    include the
                                                    alighting rail in
                                                    front of the nest
                                                    boxes. All birds
                                                    must be able to
                                                    perch at the same
                                                    time except for
                                                    multi-tiered
                                                    facilities, in which
                                                    55 percent of birds
                                                    must be able to
                                                    perch at the same
                                                    time. Facilities for
                                                    species which do not
                                                    perch do not need to
                                                    be contain perch and
                                                    roost space.
205.241(b)(7).................  New..............  (7) For layers, no
                                                    more than 2.25
                                                    pounds of hen per
                                                    square foot of
                                                    indoor space is
                                                    allowed at any time,
                                                    except;
205.241(b)(7)(i)..............  New..............  Pasture housing: no
                                                    more than 4.5 pounds
                                                    of hen per square
                                                    foot of indoor
                                                    space;
205.241(b)(7)(ii).............  New..............  Aviary housing: no
                                                    more than 4.5 pounds
                                                    of hen per square
                                                    foot of indoor
                                                    space;
205.241(b)(7)(iii)............  New..............  Slatted/mesh floor
                                                    housing: no more
                                                    than 3.75 pounds of
                                                    hen per square foot
                                                    of indoor space; and
205.241(b)(7)(iv).............  New..............  Floor litter housing:
                                                    no more than 3.0
                                                    pounds of hen per
                                                    square foot of
                                                    indoor space.
205.241(b)(8).................  New..............  (8) For pullets, no
                                                    more than 3.0 pounds
                                                    of pullet per square
                                                    foot of indoor space
                                                    may be allowed at
                                                    any time.
205.241(b)(9).................  New..............  (9) For turkeys,
                                                    broilers, and other
                                                    meat type species,
                                                    no more than 5.0
                                                    pounds of birds per
                                                    square foot of
                                                    indoor space is
                                                    allowed at any time.
205.241(b)(10)................  New..............  (10) All birds must
                                                    have access to
                                                    scratch areas in the
                                                    house.
205.241(b)(11)................  New..............  (11) Poultry housing
                                                    must be sufficiently
                                                    spacious to allow
                                                    all birds to move
                                                    freely, stretch
                                                    their wings, stand
                                                    normally, and engage
                                                    in natural
                                                    behaviors.
205.241(c)....................  New..............  Outdoor Space
                                                    Requirements.
205.241(c)(1).................  New..............  (1) Outside access
                                                    and door spacing
                                                    must be designed to
                                                    promote and
                                                    encourage outside
                                                    access for all birds
                                                    on a daily basis.
                                                    Producers must
                                                    provide access to
                                                    the outdoors at an
                                                    early age to
                                                    encourage (train)
                                                    birds to go
                                                    outdoors. Outdoor
                                                    areas must have
                                                    suitable enrichment
                                                    to entice birds to
                                                    go outside. Birds
                                                    may be temporarily
                                                    denied access to the
                                                    outdoors in
                                                    accordance with Sec.
                                                      205.241(d).
205.241(c)(2).................  New..............  (2) Exit areas for
                                                    birds to get outside
                                                    must be designed so
                                                    that more than one
                                                    bird at a time can
                                                    get through the
                                                    opening and that all
                                                    birds within the
                                                    house can go through
                                                    the exit areas
                                                    within one hour.
205.241(c)(3).................  New..............  (3) For layers, no
                                                    more than 2.25
                                                    pounds of hen per
                                                    square foot of
                                                    outdoor space may be
                                                    allowed at any time.
205.241(c)(4).................  New..............  (4) For pullets, no
                                                    more than 3.0 pounds
                                                    of pullet per square
                                                    foot may be allowed
                                                    at any time.
205.241(c)(5).................  New..............  (5) For turkeys,
                                                    broilers, and other
                                                    meat type species,
                                                    no more than 5.0
                                                    pounds of bird per
                                                    square foot may be
                                                    allowed at any time.
205.241(c)(6).................  New..............  (6) Space that has a
                                                    solid roof overhead
                                                    and is attached to
                                                    the structure
                                                    providing indoor
                                                    space does not meet
                                                    the definition of
                                                    outdoor access and
                                                    must not be included
                                                    in the calculation
                                                    of outdoor space.
205.241(c)(7).................  New..............  (7) Shade may be
                                                    provided by
                                                    structures, trees or
                                                    other objects in the
                                                    environment.
205.241(c)(8).................  New..............  (8) At least 50
                                                    percent of outdoor
                                                    access space must be
                                                    soil.
205.241(d)....................  New..............  (d) The producer of
                                                    an organic poultry
                                                    operation may
                                                    temporarily confine
                                                    birds. Each instance
                                                    of confinement must
                                                    be recorded.
                                                    Producers may
                                                    confine birds
                                                    because of:
205.241(d)(1).................  New..............  (1) Inclement
                                                    weather, including,
                                                    when air
                                                    temperatures are
                                                    under 40 degrees F
                                                    or above 90 degrees
                                                    F;
205.241(d)(2).................  New..............  (2) The animal's
                                                    stage of life,
                                                    including the first
                                                    4 weeks of life for
                                                    broilers and other
                                                    meat type birds and
                                                    the first 16 weeks
                                                    of life for pullets;
                                                    and
205.241(d)(3).................  New..............  (3) Conditions under
                                                    which the health,
                                                    safety, or well-
                                                    being of the animal
                                                    could be
                                                    jeopardized;
                                                    however, the
                                                    potential for
                                                    disease outbreak is
                                                    not sufficient
                                                    cause. A documented
                                                    occurrence of a
                                                    disease in the
                                                    region or relevant
                                                    migratory pathway
                                                    must be present in
                                                    order to confine
                                                    birds.
205.241(d)(4).................  New..............  (4) Risk to soil or
                                                    water quality.

[[Page 21971]]

 
205.241(d)(5).................  New..............  (5) Preventive
                                                    healthcare
                                                    procedures or for
                                                    the treatment of
                                                    illness or injury
                                                    (neither various
                                                    life stages nor egg
                                                    laying is an illness
                                                    or injury).
205.241(d)(6).................  New..............  (6) Sorting or
                                                    shipping birds and
                                                    poultry sales:
                                                    Provided, the birds
                                                    are maintained under
                                                    continuous organic
                                                    management,
                                                    throughout the
                                                    extent of their
                                                    allowed confinement.
205.241(d)(7).................  New..............  (7) Nest Box
                                                    training: Except,
                                                    that, birds shall
                                                    not be confined any
                                                    longer than two
                                                    weeks to teach the
                                                    proper behavior.
205.241(d)(8).................  New..............  (8) 4-H, National FFA
                                                    Organization, and
                                                    other youth
                                                    projects, for no
                                                    more than one week
                                                    prior to a fair or
                                                    other demonstration,
                                                    through the event,
                                                    and up to 24 hours
                                                    after the birds have
                                                    arrived home at the
                                                    conclusion of the
                                                    event. These birds
                                                    must have been
                                                    maintained under
                                                    continuous organic
                                                    management,
                                                    including organic
                                                    feed, during the
                                                    extent of their
                                                    allowed confinement
                                                    for the event.
                                                    Notwithstanding the
                                                    requirements in
                                                    paragraph (d)(6) of
                                                    this section,
                                                    facilities where 4-
                                                    H, National FFA
                                                    Organization, and
                                                    other youth events
                                                    are held are not
                                                    required to be
                                                    certified organic
                                                    for the
                                                    participating birds
                                                    to be sold as
                                                    organic, provided
                                                    all other organic
                                                    management practices
                                                    are.
205.241(e)....................  New..............  (e)The producer of an
                                                    organic poultry
                                                    operation must
                                                    manage manure in a
                                                    manner that does not
                                                    contribute to
                                                    contamination of
                                                    crops, soil, or
                                                    water by plant
                                                    nutrients, heavy
                                                    metals, or
                                                    pathogenic organisms
                                                    and optimizes
                                                    recycling of
                                                    nutrients and must
                                                    manage outdoor
                                                    access in a manner
                                                    that does not put
                                                    soil or water
                                                    quality at risk.
------------------------------------------------------------------------

    In conjunction with the proposed amendments discussed above, AMS is 
proposing to add a new Sec.  205.241, entitled ``Avian living 
conditions.'' AMS chose to divide in two the existing living condition 
section, one for mammalian and one for avian, to provide for more 
clarity and specificity for each. The proposed avian living conditions 
section would include existing provisions from the current living 
conditions requirements as well as requirements recommended by the 
NOSB. AMS made a similar decision when the pasture requirements were 
added specifically for ruminants and not simply appended onto the 
livestock feed section. The requirements in this new section would 
apply to all poultry species, including but not limited to, chickens, 
turkeys, geese, quail, pheasant, and any other species which are raised 
for organic eggs, organic meat, or other organic agricultural product. 
AMS is proposing to add Sec.  205.241(a) to require organic poultry 
operations to establish and maintain living conditions that accommodate 
the health and natural behaviors of the birds.
    In addition, a new Sec.  205.241(a) would require organic poultry 
producers to provide their birds with 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 both predators and aggressive behaviors, in a 
manner that is suitable to the species, the stage of life, and the 
environment. These general principles will be further clarified in 
Sec.  205.241(b) and (c). New Sec.  205.241(d) describes exceptions to 
the requirement for outdoor access.
    AMS is proposing to add a new Sec.  205.241(b) to specify avian 
indoor space requirements. New Sec.  205.241(b)(1) would require that 
indoor space allow all birds to move freely and engage in natural 
behaviors. This would prohibit the use of cages or environments which 
limit free movement within the indoor space. In addition, the indoor 
space must allow birds to engage in natural behaviors such as dust 
bathing or escape from aggressive birds.
    AMS is proposing to add a new Sec.  205.241(b)(2) to require 
ventilation suitable to prevent ammonia in excessive concentrations in 
the indoor space. Ammonia is a natural breakdown product of manure from 
livestock which can be harmful for birds to inhale. Producers must 
describe in the Organic System Plan methods and procedures which will 
maintain ammonia under 10 ppm. Ammonia levels would need to be 
monitored monthly to verify that ammonia concentrations remain under 10 
ppm and never exceed 25 ppm. Producers would need to implement 
additional ammonia mitigation procedures when ammonia levels exceed 10 
ppm to ensure that ammonia levels never exceed 25 ppm in the indoor 
space. Ammonia in high concentrations is harmful for birds to inhale, 
and, in many cases, is a sign that the litter is too damp, which also 
may cause lameness in the birds.
    AMS is proposing to add a new Sec.  205.241(b)(3) to clarify the 
lighting requirements for organic poultry. Organic producers may use 
artificial light to prolong the daylight up to 16 hours. No artificial 
light could be used to prolong the day if natural darkness was 8 hours 
or less. Artificial light must be lowered gradually to encourage hens 
to move to perches or otherwise settle for the night. Producers must 
design indoor spaces with access to natural light so that, on sunny 
days, inspectors can read and write when the lights are turned off. 
This requirement sets forth a performance standard that facilitates 
inspection, provides for enough lighting to accommodate natural avian 
behavior, and allows flexibility to operations in determining how to 
design their facilities for compliance.
    AMS is proposing to add a new Sec.  205.241(b)(4) to describe the 
types of flooring that may be used in all types of indoor poultry 
houses provided for avian species. Mesh flooring would be allowed under 
drinking areas to provide drainage in new Sec.  205.241(b)(4)(i). AMS 
is proposing to add new Sec.  205.241(b)(4)(ii) to allow for slatted 
floors as long as 30 percent of the flooring is solid with sufficient 
litter so that birds may dust bathe freely without crowding. Pasture 
housing is being exempted from this requirement, as birds on pasture 
will have large areas of outdoor space for dust bathing. AMS is further 
proposing in new Sec.  205.241(b)(4)(iii) that the litter must be 
provided in all types of indoor housing and maintained in a dry manner. 
Wet litter can lead to a variety of problems for birds, including 
lameness and excess ammonia concentration. Litter may be topped off 
when needed to maintain sufficient dryness.
    AMS is proposing to add a new Sec.  205.241(b)(5) to describe the 
required openings in shelters so that the birds can easily access both 
the indoor and outdoor areas. Doors or openings must be distributed 
around the building. In addition, the openings must be large enough to 
allow the passage of more than one bird at a time. Wide doors spread 
around the building provide meaningful outdoor access to the birds.
    AMS is proposing to add a new Sec.  205.241(b)(6) to require a flat 
roost area which birds may grip with their feet with a minimum of 6 
inches of perch space per bird. The perch space may include the 
alighting rail in front of nest boxes. In single story buildings, all 
birds must be able to perch at the same time. In multi-tiered 
facilities, 55 percent of the birds must be able to perch at the same 
time, and the 6-inch per hen requirement still applies.

[[Page 21972]]

Perches may be either set on the ground/platform or elevated.
    AMS is proposing to add new Sec.  205.241(b)(7), (b)(7)(i), 
(b)(7)(ii), (b)(7)(iii), (b)(7)(iv), (b)(8), and (b)(9) to list the 
required minimum avian indoor space requirements. Indoor space 
requirements apply with various minimums to all methods of production, 
including ones in which indoor space is provided with permanent 
buildings or mobile pasture units. Indoor space is further defined in 
Sec.  205.2, including pasture housing, aviary housing, floor little 
housing and slatted/mesh floor housing. In 2011, the NOSB recommended a 
minimum of 2.0 square feet per hen based on the outside perimeter of 
the indoor housing structure and in which all types of indoor housing 
would have the same space requirement. In preparation for this proposed 
rule, AMS examined a number of other animal welfare certification 
programs developed by scientific committees.\12\ These animal welfare 
certification standards varied from a minimum of 1.0 square feet per 
bird in aviaries and pasture systems to 1.8 square feet per hen with no 
more than 500 hens per barn. In addition, AMS obtained comments from 
various producer, certifying agent, and trade groups. Producers in 
colder climates stated that maintaining a warm indoor temperature 
during the winter is much more difficult with a 2.0 square foot minimum 
requirement for indoor space. Producers with aviaries cited the 
scientific committees' findings that aviaries provided enhanced welfare 
due to birds being able to utilize vertical space to engage in natural 
behaviors. Producers with slatted/mesh floors cited the reduced welfare 
concerns from lameness by keeping the litter drier. To better align 
with current scientific consensus, AMS is determining the space density 
requirements by housing type. AMS is proposing that pasture housing 
have a maximum of 4.5 pounds per square foot; aviary housing have a 
maximum of 4.5 pounds per square foot; slatted/mesh floor have a 
maximum of 3.75 pounds per square foot; and floor litter housing have a 
maximum of 3.0 pounds per square foot. As explained below, AMS is 
proposing to use pounds of laying hen per square foot to measure indoor 
space per laying hen, in order to have consistent application of this 
requirement for different avian species/varieties.
---------------------------------------------------------------------------

    \12\ AMS reviewed the following animal welfare certification 
programs: Certified Humane (Humane Farm Animal Care); Animal Welfare 
Approved; Animal American Humane Certified (American Humane 
Association); 5-Step Animal Welfare Rating Program (Global Animal 
Partnership); and United Egg Producers Certified.
---------------------------------------------------------------------------

    AMS recognizes that a wide variety of species and breeds within 
species may be used to produce eggs for human consumption. Using a 
minimum space per animal would be problematic if a producer of quail 
eggs or emu eggs were to seek organic certification. The square feet of 
space per hen metric would not be reasonable for these and other 
species. Therefore, AMS is proposing to convert the minimum square feet 
of space per hen to the construction of maximum pounds of laying hen 
per square foot of space provided, similar to format of the NOSB-
recommended minimum space for pullets and meat-type birds. To make this 
conversion, AMS determined that a majority of organic eggs are brown 
eggs. AMS determined that about 60 percent of all brown eggs are 
produced by the ISA Brown strain of chicken. Based on this, AMS made 
the assumption a majority of the organic brown eggs were produced by 
the ISA Brown strain of chicken. An average mature weight for an ISA 
Brown hen is 4.5 pounds. AMS made the following calculation to convert 
minimum square feet to maximum pounds per square foot:
(1 hen/2.0 square feet) * (4.5 pounds/1 hen) = 2.25 pounds per square 
foot
    Table 1 lists the square feet per laying hen for various housing 
types and the resulting calculation of pounds of hen per square foot 
allowed.

            Table 1--Indoor Stocking Density--Unit Conversion
------------------------------------------------------------------------
                                                           Pounds of hen
           Indoor housing type              Square feet     per square
                                          per laying hen       foot
------------------------------------------------------------------------
Pasture.................................             1.0             4.5
Aviary..................................             1.0             4.5
Floor Litter............................             1.5             3.0
Pit/mesh litter.........................             1.2            3.75
All others..............................             2.0            2.25
------------------------------------------------------------------------

    AMS is requesting comments regarding the above assumptions. 
Specifically, AMS requests comments on:
     Are most organic eggs brown?
     Are most organic laying hens from the ISA Brown strain?
     Is the mature weight of an ISA Brown hen 4.5 pounds under 
organic condition?
     What other avian species are used for organic egg 
production?
    The indoor space requirement based upon maximum pounds of laying 
hen per square foot of space will allow producers to vary the number of 
birds in a given house depending upon the size of the bird or breed of 
the bird. For example, Rhode Island Red birds are heavier than white 
leghorns or ISA Browns, and thus could not be stocked as densely 
(number of birds per unit area) in the same area.
    AMS is proposing to use the NOSB recommendation of a maximum 3 
pounds of pullet per square foot of indoor space in new Sec.  
205.241(b)(8) and a maximum of 5 pounds of meat-type species (e.g., 
broilers, turkeys, geese) per square foot of indoor space in Sec.  
205.241(b)(9). These are minimum standards, and organic producers may 
choose to provide more indoor space than required.
    AMS is proposing to add new Sec.  205.241(b)(10) and (11) to 
specify indoor requirements to meet certain natural behaviors. Indoor 
space, whether stationary or mobile, must have scratch areas which 
allow all birds access. In addition, the indoor housing must be 
sufficiently spacious to allow all birds to move freely, stand 
normally, stretch their wings and engage in natural behaviors.
    AMS is proposing to add a new Sec.  205.241(c) to specify the 
outdoor space requirements for avian species. Section 205.241(c)(1) 
would require that the outdoor space be designed to promote and 
encourage outdoor access for all birds. Producers would be required to 
train birds to go outdoors from an early age. Outdoor space 
requirements are not meaningful unless the birds go outside. Therefore, 
producers must actively and repeatedly train their birds to access the

[[Page 21973]]

outdoors and provide sufficient enrichment so that the birds stay 
outdoors. Organic producers may temporarily deny birds access to the 
outdoors space, in accordance with Sec.  205.241(d).
    AMS is proposing in Sec.  205.241(c)(1), in line with the NOSB 
recommendation, that outdoor areas must have suitable enrichment to 
entice the birds to go outside. One example of suitable enrichment 
would be a minimum 50 percent vegetative cover (living vegetation or 
harvested vegetation scattered in the area). Minimum vegetative cover 
would provide opportunities for poultry to engage in natural foraging 
behaviors. In addition, the vegetative cover would help to reduce soil 
erosion and nutrient run off. Other means of providing enrichment 
include, but are not limited to: Access to water for water birds; bales 
of straw or hay; raised platforms; cover for protection from aerial 
predators; shaded areas and trees; and loose substrate for dust 
bathing.
    AMS is proposing to add new Sec.  205.241(c)(3) through (5) to 
specify minimum outdoor space requirements. Organic layer producers 
must not exceed 2.25 pounds of hen per square foot of outdoor space 
provided. Organic pullet producers must not exceed 3 pounds of pullet 
per square foot of outdoor space provided. Organic broiler, turkey and 
other meat-type producers must not exceed 5 pounds of bird per square 
foot of outdoors space provided. AMS chose to convert the NOSB 
recommended space for layers from a minimum space per hen to a maximum 
weight of bird per square foot to provide greater flexibility in the 
regulations for organic producers that produce organic eggs from quail, 
emu, or other species using a similar calculation as shown in the 
indoor space requirement section earlier. These space requirements are 
the minimum allowed.
    AMS is proposing to add new Sec.  205.241(c)(6) and (7) to specify 
how outdoor space must be calculated. Outdoor space may not include any 
area which has a solid roof that is attached to the structure which 
provides indoor space. Areas under eaves and overhangs from the 
stationary barn or mobile unit may not be included as part of the 
outdoor space. However, the outdoor space must provide shade for the 
birds. For example, a structure with a solid roof that is not attached 
to a structure which provides indoor space may be included as part of 
the outdoor space. Shade may also be provided by trees or other objects 
in the environment.
    AMS is proposing to add a new Sec.  205.241(c)(8) to require that 
the outdoor space have a minimum of 50 percent soil. The soil would 
allow for the birds to engage in natural foraging and dust bathing 
behaviors. In addition, the soil, if covered in vegetation, would 
provide nutrition and enrichment to help draw the birds outdoors.
    AMS is proposing to add a new Sec.  205.241(d) to describe the 
conditions under which organic avian livestock producers may 
temporarily confine birds indoors. Each period of confinement must be 
separately recorded with the reasons for the confinement, the duration 
of the confinement, and the birds or flocks which were confined. AMS is 
proposing to add a new Sec.  205.241(d)(1) to provide an allowance for 
temporary confinement in response to inclement weather. Birds may be 
confined due to storms, blizzards, and other hazardous conditions. In 
addition, this provision allows for birds to be confined indoors when 
the temperature does not exceed 40 [deg]F. It also allows birds to be 
denied access or brought inside when the daytime temperature exceeds 90 
[deg]F. Producers must provide documentation for confinement due to 
inclement weather, such as an actual thermometer reading on the farm or 
a local weather forecast showing the daytime high would either not 
exceed 40 [deg]F or that the temperature exceeded 90 [deg]F. Producers 
would have to provide outdoor access during those parts of the day when 
temperatures were between 40-90 [deg]F.
    AMS is proposing to add a new Sec.  205.241(d)(2) to provide an 
allowance for temporary confinement indoors due to stage of life. 
Broilers and other meat-type birds may be confined up through 4 weeks 
of age. After the 4th week of life, broilers and other meat-type birds 
must be provided with outdoor access. Pullets may be temporarily 
confined indoors through 16 weeks of age. After the 16th week of life, 
pullets must be provided with outdoor access. The NOSB recommended that 
16 weeks of age be used before required outdoor access, so that pullets 
could complete their vaccination program before exposure to pathogens 
outdoors.
    AMS is proposing to add a new Sec.  205.241(d)(3) to provide an 
allowance for temporary indoor confinement under conditions in which 
the health, safety, or well-being of the birds could be jeopardized. 
Permanently restricting birds to the indoors is not allowed. In 
addition, confinement due to potential outbreaks is not allowed. A 
documented case of the disease in the region or migratory pathway must 
be present before a temporary confinement may begin.
    AMS is proposing to add a new Sec.  205.241(d)(4) to provide an 
allowance for indoor confinement to prevent risk to soil or water 
quality. This allowance is for temporary confinement after major rain 
events in which the soil may be excessively soft so that the birds 
could create a soil or water run off risk.
    AMS is proposing to add a new Sec.  205.241(d)(5) to provide an 
allowance for indoor confinement for preventive health care procedures 
or for the treatment of illness or injury. Neither life stages nor egg 
laying are considered an illness for confinement purposes. This 
provision would allow for producers to briefly confine a flock to 
administer vaccinations or to confine an individual animal that 
required medical treatment. This provision would also allow for an 
injured or sick animal to be confined indoors until the animal regained 
health.
    AMS is proposing to add a new Sec.  205.241(d)(6) to provide an 
allowance for indoor confinement for sorting, shipping, and poultry 
sales. However, the birds must be managed organically during the entire 
time of confinement. Confinement must be no longer than necessary to 
sort the birds or to catch the birds, place them in shipping 
containers, and conduct the sale.
    AMS is proposing to add a new Sec.  205.241(d)(7) to provide an 
allowance for indoor confinement to train pullets to use the nest box. 
However, this training period may only be a maximum of 2 weeks and must 
not be any longer than necessary to teach the birds the proper 
behavior.
    AMS is proposing to add a new Sec.  205.241(d)(8) to provide an 
allowance for indoor confinement for youth exhibitions, such as with 4-
H or the National FFA Organization. This new provision also includes an 
exemption to the Sec.  205.239(b)(6) requirement that a livestock sales 
facility being certified as an organic operation. As an example, if a 
youth exhibition and sale is held at a livestock sales facility which 
is not certified organic, a youth may sell birds there as organic, 
provided all other requirements for the organic management are met. 
Otherwise, non-certified sales facilities, such as auction barns, may 
not sell or represent livestock as organic. AMS is adding this 
exemption to encourage the next generation of organic producers.
    AMS is proposing to add a new Sec.  205.241(e) to require organic 
poultry producers to manage manure in a manner that does not contribute 
to contamination of crops, soil, or water quality by plant nutrients, 
heavy metals, or pathogenic organisms. Organic poultry producers must 
manage the

[[Page 21974]]

outdoor space in a manner that does not put soil or water quality at 
risk. In addition, organic poultry producers must comply with all other 
governmental agency requirements for environmental quality.

E. Transport and Slaughter

----------------------------------------------------------------------------------------------------------------
 
----------------------------------------------------------------------------------------------------------------
205.242...........................  ..........................  New..................  Transportation and
                                                                                        Slaughter.
205.242(a)........................  ..........................  New..................  (a) Transportation.
205.242(a)(1).....................  ..........................  New..................  (1) Certified organic
                                                                                        livestock must be
                                                                                        clearly identified as
                                                                                        organic and transported
                                                                                        in pens within the
                                                                                        livestock trailer
                                                                                        clearly labeled for
                                                                                        organic use and be
                                                                                        contained in those pens
                                                                                        for the duration of the
                                                                                        trip.
205.242(a)(2).....................  ..........................  New..................  (2) All livestock must be
                                                                                        fit for transport to
                                                                                        auction or slaughter
                                                                                        facilities.
205.242(a)(2)(i)..................  ..........................  New..................  (i) Calves must have a
                                                                                        dry navel cord and be
                                                                                        able to stand and walk
                                                                                        without human
                                                                                        assistance.
205.242(a)(2)(i)..................  ..........................  New..................  (ii) Sick, injured, weak,
                                                                                        disabled, blind, and
                                                                                        lame animals must not be
                                                                                        transported for sale or
                                                                                        slaughter. Such animals
                                                                                        may be medically treated
                                                                                        or euthanized.
205.242(a)(3).....................  ..........................  New..................  (3) Adequate and season-
                                                                                        appropriate ventilation
                                                                                        is required for all
                                                                                        livestock trailers,
                                                                                        shipping containers and
                                                                                        any other mode of
                                                                                        transportation used to
                                                                                        protect animals against
                                                                                        cold and heat stresses.
205.242(a)(4).....................  ..........................  New..................  (4) Bedding must be
                                                                                        provided on trailer
                                                                                        floors and in holding
                                                                                        pens as needed to keep
                                                                                        livestock clean, dry,
                                                                                        and comfortable during
                                                                                        transportation and prior
                                                                                        to slaughter. Poultry
                                                                                        crates are exempt from
                                                                                        the bedding requirement.
                                                                                        When roughages are used
                                                                                        for bedding they must
                                                                                        have been organically
                                                                                        produced and handled by
                                                                                        certified organic
                                                                                        operations.
205.242(a)(5).....................  ..........................  New..................  (5) Arrangements for
                                                                                        water and organic feed
                                                                                        must be made if
                                                                                        transport time,
                                                                                        including all time on
                                                                                        the mode of
                                                                                        transportation, exceeds
                                                                                        twelve hours.
205.242(a)(5)(i)..................  ..........................  New..................  (i) The producer or
                                                                                        handler of an organic
                                                                                        livestock operation must
                                                                                        transport livestock in
                                                                                        compliance with the
                                                                                        Federal Twenty-Eight
                                                                                        Hour Law (49 U.S.C.
                                                                                        80502) and the
                                                                                        regulations at 9 CFR
                                                                                        89.1-89.5.
205.242(a)(5)(ii).................  ..........................  New..................  The producer or handler
                                                                                        of an organic livestock
                                                                                        operation must provide
                                                                                        all non-compliant
                                                                                        records and subsequent
                                                                                        corrective action
                                                                                        related to livestock
                                                                                        transport during the
                                                                                        annual inspection.
205.242(a)(6).....................  ..........................  New..................  (6) Organic producers
                                                                                        must have in place
                                                                                        emergency plans adequate
                                                                                        to address possible
                                                                                        animal welfare problems
                                                                                        that might occur during
                                                                                        transport.
205.242(b)........................  ..........................  New..................  Mammalian Slaughter.
205.242(b)(1).....................  ..........................  New..................  Producers and handlers
                                                                                        who slaughter organic
                                                                                        livestock must be in
                                                                                        compliance with the
                                                                                        Federal Meat Inspection
                                                                                        Act (21 U.S.C. 603(b)
                                                                                        and 21 U.S.C. 610(b) and
                                                                                        the regulations at 9 CFR
                                                                                        part 313 regarding
                                                                                        humane handling and
                                                                                        slaughter of livestock.
205.242(b)(2).....................  ..........................  New..................  Producers and handlers
                                                                                        who slaughter organic
                                                                                        exotic animals must be
                                                                                        in compliance with the
                                                                                        Agricultural Marketing
                                                                                        Act of 1946 (7 U.S.C.
                                                                                        1621, et seq.) and the
                                                                                        regulations at 9 CFR
                                                                                        parts 313 and 352
                                                                                        regarding the humane
                                                                                        handling and slaughter
                                                                                        of exotic animals.

[[Page 21975]]

 
205.242(b)(3).....................  ..........................  New..................  Producers and handlers
                                                                                        who slaughter organic
                                                                                        livestock or exotic
                                                                                        animals must provide all
                                                                                        non-compliant records
                                                                                        related to humane
                                                                                        handling and slaughter
                                                                                        issued by the
                                                                                        controlling national,
                                                                                        federal, or state
                                                                                        authority and all
                                                                                        records of subsequent
                                                                                        corrective actions
                                                                                        during the annual
                                                                                        organic inspection.
205.242(c)........................  ..........................  New..................  (c) Avian Slaughter.
205.242(c)(1).....................  ..........................  New..................  (1) Producers and
                                                                                        handlers who slaughter
                                                                                        organic poultry must be
                                                                                        in compliance with the
                                                                                        Poultry Products
                                                                                        Inspection Act
                                                                                        requirements (21 U.S.C.
                                                                                        453(g)(5) and the
                                                                                        regulations at 9 CFR
                                                                                        381.1(b)(v), 381.90, and
                                                                                        381.65(b)).
205.242(c)(2).....................  ..........................  New..................  (2) Producers and
                                                                                        handlers who slaughter
                                                                                        organic poultry must
                                                                                        provide all non-
                                                                                        compliant records
                                                                                        related to the use of
                                                                                        good manufacturing
                                                                                        practices in connection
                                                                                        with slaughter issued by
                                                                                        the controlling
                                                                                        national, federal, or
                                                                                        state authority and all
                                                                                        records of subsequent
                                                                                        corrective actions
                                                                                        during the annual
                                                                                        organic inspection.
205.242(c)(3).....................  ..........................  New..................  (3) Producers and
                                                                                        handlers who slaughter
                                                                                        organic poultry, but are
                                                                                        exempt from or not
                                                                                        covered by the
                                                                                        requirements of the
                                                                                        Poultry Products
                                                                                        Inspection Act , must
                                                                                        ensure that:
205.242(c)(3)(i)..................  ..........................  New..................  (i) No lame birds may be
                                                                                        shackled, hung, or
                                                                                        carried by their legs;
205.242(c)(3)(ii).................  ..........................  New..................  (2) All birds shackled on
                                                                                        a chain or automated
                                                                                        system must be stunned
                                                                                        prior to exsanguination;
                                                                                        and
205.242(c)(3)(iii)................  ..........................  New..................  (3) All birds must be
                                                                                        irreversibly insensible
                                                                                        prior to being placed in
                                                                                        the scalding tank.
----------------------------------------------------------------------------------------------------------------

    Under the OFPA at 7 U.S.C. 6509(d)(2), ``Health Care,'' the NOSB 
may make recommendations ``for the care of livestock to ensure that 
such livestock is organically produced.'' As stated above, in December 
2011, the NOSB passed a recommendation to add standards for 
transportation of livestock to slaughter facilities and the slaughter 
process. AMS is proposing regulations, in a new Sec.  205.242 for 
Transportation and Slaughter, in response to this recommendation. This 
proposed section would require producers and handlers of livestock to 
maintain organic integrity and provide for animal welfare during 
transportation. Further, the proposed section would clarify the 
requirements for slaughter of livestock by certified operations. These 
requirements would include performance standards regarding the 
transportation of livestock, including a requirement that operations 
comply with the Twenty-Eight Hour Law and its implementing regulations 
as a condition of organic certification. These requirements also would 
establish as a condition of organic certification compliance with the 
Federal Meat Inspection Act (FMIA) and Poultry Products Inspection Act 
requirements concerning slaughter, as well as compliance with USDA Food 
Safety and Inspection Service (FSIS) regulatory requirements regarding 
the slaughter of exotic animals under voluntary inspection.
Transportation
    AMS is proposing to publish the transportation requirements in new 
Sec.  205.242(a). Section 205.242(a)(1) would require that all organic 
livestock be transported in a trailer/truck or in pens within the 
trailer/truck that are clearly identified for organic use, and that the 
animals remain within those pens for the duration of the trip.
    AMS is proposing a new Sec.  205.242(a)(2) to set minimum fitness 
requirements for livestock to be transported. Section 205.242(a)(2)(i) 
would require that calves have a dry navel cord, and be able to stand 
and walk without assistance, if they are to be transported. This 
provision would apply only to transport to auction facilities or 
slaughter facilities. Beef cattle and dairy cattle producers may 
transport calves on the farm before the navel is dried and the calves 
can walk. Section 205.242(a)(2)(ii) would prohibit transport of sick, 
injured, weak, disabled, blind, and lame animals to auction or 
slaughter facilities. These animals may either be given medical 
treatments and cared for until they improve or euthanized.
    AMS is proposing new Sec.  205.242(a)(3) and (4) to set minimum 
standards for the trailer, truck, or shipping container used for 
transporting organic livestock. The mode of transportation would be 
required to provide seasonal-appropriate ventilation to protect against 
cold or heat stress. This provision would require that air flow be 
adjusted depending upon the season and temperature. In addition, 
bedding would be required to be provided on trailer floors as needed to 
keep livestock clean, dry and comfortable. If roughage is used as 
bedding, the bedding would need to be organically produced and handled. 
Use of non-organic bedding would cause loss of organic status for all 
animals transported. Poultry crates would be exempted from the bedding 
requirement.
    Section 205.242(a)(5) would require that all livestock must be 
provided with organic feed and clean water if transport time exceeds 12 
hours. The 12 hour time period includes all times in which the animals 
are on the trailer/truck/shipping container but not moving. In

[[Page 21976]]

cases such as poultry slaughter where requirements do not allow feed 24 
hours before slaughter, producers and slaughter facilities would need 
to ensure that transport time did not exceed 12 hours, as the birds 
would need to be fed at that time.
    AMS is proposing new Sec.  205.242(a)(5)(i) and (ii) to clarify the 
authority of the NOP, certifying agents and State organic programs to 
initiate compliance action if certified operations are found to have 
violated the Twenty-Eight Hour Law (49 U.S.C. 80502) and its 
implementing regulations at 9 CFR 89.1 through 89.5. In general, this 
law provides that animals may not be confined for more than 28 
consecutive hours without unloading for feeding, watering and rest. The 
USDA Animal and Plant Health Inspection Service (APHIS) enforces this 
law and has approved in-transit feed, water and rest stations. 
Violators of the Twenty-Eight Hour Law are subject to civil penalties. 
In the event that a certified operation receives a non-compliance or 
civil penalty under the Twenty-Eight Hour Law, the certified operation 
must present those records to the certifier during the annual organic 
inspection.
    AMS is proposing a new Sec.  205.242(a)(6) to require operations 
which transport livestock to sales or slaughter to have in place 
emergency plans that adequately address problems reasonably possible 
during transport. Such emergency plans could include how to provide 
feed and water if transport time exceeded 12 hours, if livestock 
escaped during transport, or how to euthanize an animal hurt during 
transport. Shipping and/or receiving operations would need to include 
these plans in their OSPs.
Slaughter and the Handling of Livestock in Connection With Slaughter
    AMS is proposing a new Sec.  205.242(b), regarding mammalian 
slaughter, to clarify the authority of the NOP, certifying agents and 
State organic programs to initiate compliance action if certified 
operations are found to have violated FSIS regulations governing the 
humane handling of mammalian livestock in connection with slaughter 
(note that AMS is separating mammalian from avian slaughter 
requirements due to the differences in how mammalian and avian 
livestock are handled and slaughtered). This new section, entitled 
``Mammalian Slaughter,'' would govern the mammals defined as 
``livestock'' or ``exotic animals'' under the FSIS regulations. Under 
the FSIS regulations, ``livestock'' are cattle, sheep, swine, goat, 
horse, mule, or other equine. ``Exotic animals'' are antelope, bison, 
buffalo, cattalo, deer, elk, reindeer and water buffalo. These 
regulations govern the handling and slaughter of the majority of 
mammalian animals used for food in the United States and would apply to 
all certified organic operations that slaughter these animals.
    AMS is proposing to add a new Sec.  205.242(b)(1) to require 
certified organic slaughter facilities to be in full compliance with 
the Humane Methods of Slaughter Act (HMSA) of 1978 (7 U.S.C. 1901 et 
seq.) and its implementing FSIS regulations. The HMSA requires that 
humane methods be used for handling and slaughtering livestock and 
defines humane methods of slaughter. In the HMSA, Congress found ``that 
the use of humane methods in the slaughter of livestock prevents 
needless suffering; results in safer and better working conditions for 
persons engaged in the slaughtering industry; brings about improvement 
of products and economies in slaughtering operations; and produces 
other benefits for producers, processors, and consumers which tend to 
expedite an orderly flow of livestock and livestock products in 
interstate and foreign commerce.'' The HMSA is referenced in the FMIA 
at 21 U.S.C. 603 and is implemented by FSIS humane handling and 
slaughter regulations found at 9 CFR part 313. The FMIA provides that, 
for the purposes of preventing inhumane slaughter of livestock, the 
Secretary of Agriculture will assign inspectors to examine and inspect 
the methods by which livestock are slaughtered and handled in 
connection with slaughter in slaughtering establishments subject to 
inspection (21 U.S.C. 603(b)).
    All establishments that slaughter livestock, which include any 
certified organic operations that slaughter livestock, must meet the 
humane handling and slaughter requirements the entire time they hold 
livestock in connection with slaughter. FSIS provides for continuous 
inspection in livestock slaughter establishments, and inspection 
program personnel verify compliance with the humane handling 
regulations during each shift that animals are slaughtered, or when 
animals are on site, even during a processing only shift. The 
regulations at 9 CFR part 313 govern the maintenance of pens, driveways 
and ramps; the handling of livestock, focusing on their movement from 
pens to slaughter; and the use of different stunning and slaughter 
methods. Notably, FSIS inspection program personnel verify compliance 
with the regulations at 9 CFR part 313 through the monitoring of many 
of the same parameters proposed by the NOSB in 2011, e.g., prod use, 
slips and fall, stunning effectiveness and incidents of egregious 
inhumane handling.\13\ FSIS has a range of enforcement actions 
available regarding violations of the humane slaughter requirements for 
livestock, including noncompliance records, regulatory control actions 
and suspensions of inspection.
---------------------------------------------------------------------------

    \13\ FSIS Directive 6900.2, Revision 2, Humane Handling and the 
Slaughter of Livestock, August 15, 2011.
---------------------------------------------------------------------------

    Further, FSIS encourages livestock slaughter establishments to use 
a systematic approach to humane handling and slaughter to best ensure 
that they meet the requirements of the HMSA, FMIA, and implementing 
regulations.\14\ With a systematic approach, establishments focus on 
treating livestock in such a manner as to minimize excitement, 
discomfort, and accidental injury the entire time they hold livestock 
in connection with slaughter. Establishments may develop written animal 
handling plans and share them with FSIS inspection program personnel.
---------------------------------------------------------------------------

    \14\ Humane Handling and Slaughter Requirements and the Merits 
of a Systematic Approach To Meet Such Requirements, FSIS, 69 FR 
54625, September 9, 2004.
---------------------------------------------------------------------------

    AMS is proposing to add a new Sec.  205.242(b)(2) for those 
certified organic facilities which slaughter exotic animals and 
voluntarily request FSIS inspection. FSIS also provides, upon request, 
voluntary inspection of certain exotic animal species on a fee-for-
service basis, under the authority of the Agricultural Marketing Act of 
1946. FSIS regulates the humane handling of the slaughter of exotic 
animals under the regulations at 9 CFR part 352.10, which require that 
exotic animals be slaughtered and handled in connection with slaughter 
in accordance with the requirements for livestock at 9 CFR part 313. 
Violation of these regulations can result in a denial of service by 
FSIS.
    AMS is proposing to add Sec.  205.242(b)(3) to require that all 
certified organic slaughter facilities provide any FSIS noncompliance 
records or corrective action records relating to humane handling and 
slaughter during the annual organic inspection. Not all violations of 
FSIS regulations result in a suspension of FSIS inspection services. In 
some cases, FSIS will issue a noncompliance record and the slaughter 
facility must perform corrective actions to bring the slaughter 
facility back into compliance. These records must be presented during 
the annual organic inspection to verify that the slaughter facility is 
in full

[[Page 21977]]

compliance and has taken all corrective actions. In addition, AMS 
recognizes that in the United States some slaughter facilities are 
regulated by the State for intra-state meat sales. In foreign 
countries, foreign governments may be the appropriate regulatory 
authority for humane slaughter inspections. In all cases, the relevant 
humane slaughter noncompliance records and corrective action records 
must be provided during the annual inspection.
Slaughter and the Handling of Poultry in Connection With Slaughter
    AMS is proposing a new Sec.  205.242(c), regarding avian slaughter 
facilities. Section 202.242(c)(1) would clarify the authority of the 
NOP, certifying agents and State organic programs to initiate 
compliance action if certified operations are found to have violated 
the Poultry Products Inspection Act (PPIA) requirements regarding 
poultry slaughter, as well as the FSIS regulations regarding the 
slaughter of poultry and the use of good commercial practices in the 
slaughter of poultry. Under the PPIA and the FSIS regulations, poultry 
are defined as chickens, turkeys, ducks, geese, guineas, ratites, and 
squabs. These species constitute the majority of avian species 
slaughtered for human food in the United States. However, the organic 
standards for avian slaughter will apply to all species biologically 
considered avian or birds. The NOSB did not directly address avian 
slaughter requirements. However, AMS is proposing avian slaughter 
requirements for consistency with the proposed mammalian slaughter 
requirements and to better ensure the welfare of all animals 
slaughtered by certified operations.
    While the HMSA does not apply to poultry, under the PPIA at 21 
U.S.C. 453(g)(5), a poultry product is considered adulterated if it is 
in whole, or in part, the product of any poultry which has died 
otherwise than by slaughter. FSIS regulations, in turn, require that 
poultry be slaughtered in accordance with good commercial practices, in 
a manner that will result in thorough bleeding of the poultry carcass 
and will ensure that breathing has stopped before scalding (9 CFR 
381.65 (b)).
    In a 2005 Federal Register Notice, FSIS reminded all poultry 
slaughter establishments that live poultry:

. . . must be handled in a manner that is consistent with good 
commercial practices, which means they should be treated humanely. 
Although there is no specific federal humane handling and slaughter 
statute for poultry, under the PPIA, poultry products are more 
likely to be adulterated if, among other circumstances, they are 
produced from birds that have not been treated humanely, because 
such birds are more likely to be bruised or to die other than by 
slaughter.\15\
---------------------------------------------------------------------------

    \15\ Treatment of Live Poultry Before Slaughter, FSIS, 70 FR 
56624, September 28, 2005.

    Also in this Notice, FSIS suggested that poultry slaughter 
establishments consider a systematic approach to handling poultry in 
connection with slaughter. FSIS defined a systematic approach as one in 
which establishments focus on treating poultry in such a manner as to 
minimize excitement, discomfort, and accidental injury the entire time 
that live poultry is held in connection with slaughter. Although the 
adoption of such an approach is voluntary, it would likely better 
ensure that poultry carcasses are unadulterated.
    FSIS inspection program personnel verify that poultry slaughter is 
conducted in accordance with good commercial practices in the pre-scald 
area of slaughter establishments, where they observe whether 
establishment employees are mistreating birds or handling them in a way 
that will cause death or injury or prevent thorough bleeding or result 
in excessive bruising. Examples of noncompliant mistreatment could 
include breaking the legs of birds to hold the birds in the shackle, 
birds suffering or dying from heat exhaustion and breathing birds 
entering the scalder.\16\ Also, in 2015, FSIS issued specific 
instructions to inspection program personnel for recording 
noncompliance with the requirement for the use of good commercial 
practices in poultry slaughter.\17\
---------------------------------------------------------------------------

    \16\ FSIS Directive 6100.3, Revision 1, Ante-Mortem and Post-
Mortem Poultry Inspection, April 30, 2009.
    \17\ FSIS Notice 07-15, Instructions for Writing Poultry Good 
Commercial Practices Noncompliance Records and Memorandum of 
Interview Letters for Poultry Mistreatment, January 21, 2015.
---------------------------------------------------------------------------

    AMS is proposing a new Sec.  205.242(c)(2) to require that all 
certified organic slaughter facilities provide, during the annual 
organic inspection, any FSIS noncompliance records and corrective 
action records related to the use of good manufacturing practices in 
the handling and slaughter of poultry. Not all violations of FSIS 
regulations result in a suspension of inspection services. In some 
cases, FSIS will issue a noncompliance record and the slaughter 
facility must perform corrective actions to bring the slaughter 
facility back into compliance. These records must be presented during 
the annual organic inspection to verify that the slaughter facility is 
in full compliance and has made all corrective actions. In addition, 
AMS recognizes that in the U.S. some slaughter facilities are regulated 
by the State for intra-state poultry sales. In foreign countries, 
foreign governments may be the appropriate regulatory authority for 
poultry slaughter inspections. In all cases, the relevant noncompliance 
records and corrective action records must be presented during the 
annual organic inspection.
    Unlike the requirements for livestock slaughter inspection, 
exemptions from poultry slaughter inspection exist for some poultry 
which is going to be sold to the public. AMS is proposing handling and 
slaughter standards for such poultry that is either exempt from or not 
covered by the inspection requirement of the PPIA. Section 
205.242(c)(3) would prohibit hanging, carrying, or shackling any lame 
birds by their legs. Birds with broken legs or injured feet may suffer 
needlessly if carried or hung by their legs. Such birds must either be 
euthanized or made insensible before being shackled.
    AMS is proposing new Sec.  205.242(c)(3)(i) through (iii) to 
require that poultry slaughter operations which are either exempt or 
not covered by the requirements of the PPIA meet animal welfare 
standards that non-exempt slaughter operations must meet. AMS is 
proposing to require that no lame birds be hung on shackles by their 
feet. AMS is proposing to require that all birds that were hung or 
shackled on a chain or automated slaughter system be stunned prior to 
exsanguination. This requirement would not apply to small scale 
producers who do not shackle the birds or use an automated system and, 
instead, place the birds in killing cones before exsanguinating the 
birds without stunning. AMS is proposing a new Sec.  205.242(c)(3)(iii) 
to require that all birds be irreversibly insensible prior to being 
placed in the scalding tank.
Requests for Comment on Proposed Slaughter Regulations
    As stated above, by proposing that compliance with the FSIS 
slaughter requirements for livestock and poultry be a condition of 
organic certification, AMS would be establishing requirements that 
govern the majority of mammalian and avian species slaughtered by 
organic operations for human food in the United States. However, the 
FMIA and PPIA provide for alternatives to Federal inspection of 
slaughter not addressed by this proposal. Further, the import of meat 
and poultry products produced by slaughter establishments in other 
countries raises issues not addressed in

[[Page 21978]]

this proposal. AMS requests specific comments on these areas:
State-Inspected Slaughter Establishments
    Meat and poultry establishments have the option to apply for 
Federal or State inspection if they are located in states that operate 
under a cooperative agreement with FSIS. State programs must enforce 
requirements ``at least equal to'' those imposed under the FMIA, PPIA 
and HMSA. However, product produced under state inspection can only be 
sold or distributed in intra-state commerce, unless a State opts into 
an additional cooperative program, the Cooperative Interstate Shipment 
Program. How should AMS regulate livestock slaughter conducted at 
certified operations inspected by State inspection programs?
Poultry Exemptions
    The PPIA exempts from continuous inspection a number of types of 
establishments that slaughter poultry based on various factors, 
including volume of slaughter and the nature of operations and sales. 
In some cases, these establishments would be inspected by State or 
local government agencies. How should AMS regulate poultry slaughter at 
certified operations exempt from FSIS inspection?
Meat and Poultry Imports
    Under certain conditions, meat and poultry products may be imported 
into the United States from operations in countries whose food 
regulatory systems are determined by FSIS to be equivalent with its 
regulatory system. Equivalence would include meeting the goals of the 
humane slaughter requirements for livestock and the good commercial 
practice requirements for poultry slaughter. Verification of compliance 
with equivalent slaughter requirements would be performed by regulatory 
authorities in the exporting countries. How should AMS regulate 
livestock slaughter by certified operations in foreign countries?

F. Other Amendments Considered/Implementation

    AMS describes below where we are significantly changing or omitting 
provisions from the NOSB recommendations. The full NOSB recommendations 
which serve as the basis for this action are available on the AMS Web 
site at https://www.ams.usda.gov/rules-regulations/organic/nosb. The 
NOSB recommendations are further described in the Background section of 
this notice and in the description of the proposed amendments. In a few 
instances, AMS is incorporating NOSB requirements with minor 
alterations. For example, AMS is proposing a maximum of two weeks for 
nest box training of poultry, compared to the five weeks recommended by 
the NOSB. In general, minor alterations were made to either align with 
third-party animal welfare standards or reduce potential paperwork 
burden.
    Documentation and Lists. The NOSB recommendations included 
additional recordkeeping requirements to track practices and animal 
status. Examples included (1) an annual submissions of lists of all 
existing and purchased animals, (2) a list of animals with health 
issues and the treatment provided, and (3) a list of animals that left 
the operation and why they left. AMS did not include these explicit 
provisions in order to reduce duplication and minimize the paperwork 
burden. Producers are already required to maintain records on practices 
and procedures, and describe monitoring practices and procedures under 
the current scope of the organic system plan in Sec.  205.201. In 
addition, the current USDA organic regulations require certified 
operations to maintain records that are adapted to the particular 
business the operation is conducting and fully disclose all activities 
and transactions in Sec.  205.103(b). Therefore, the documentation and 
recordkeeping provisions that the NOSB recommended would already be met 
under the current regulations and would be sufficient to verify 
compliance with the proposed requirements.
    Avian indoor space requirements. AMS considered the NOSB 
recommendation that only the first level of indoor space be included as 
indoor space; and that perching areas and nest boxes could not be used 
in the calculation of floor space. In effect this would prohibit 
aviary-style housing, where chickens occupy multi-levels within a 
house, in organic poultry production. A sizeable portion of organic egg 
production currently comes from operations using aviary houses. AMS is 
not including that provision because the existing and proposed 
requirements for shelter and indoor space will ensure that these areas 
accommodate the birds' natural behavior regardless of housing type. To 
ensure that birds occupying the upper levels would go outside, this 
proposed rule would require that producers must train birds to go 
outside, that exit areas are of sufficient size and number to 
facilitate easy exit and that there are enticements in the outdoor 
areas to attract birds outside. Finally, AMS understands that aviary 
houses are not prohibited in other third party animal welfare 
certification programs.
    Livestock health care. AMS considered the NOSB recommendation to 
require livestock producers to use homeopathic remedies or botanicals 
before they could use appropriate, synthetic medications. AMS is not 
implementing this requirement because of the potential that this could 
delay the use of effective treatments for sick or injured animals. AMS 
examined the scientific basis for requiring homeopathic remedies or 
botanicals and found insufficient evidence that these substances would 
be more effective than conventional treatments to support a blanket 
requirement for use. The NOSB recommendation did not provide this 
information. This does not impact an organic producer's ability to use 
homeopathic remedies or botanicals on livestock as long as they do not 
contain unapproved synthetics or prohibited naturals, such as, 
strychnine from Nux vomica. However, if livestock are sick or injured, 
organic producers must not delay use of an appropriate medical 
treatment by administering an unproven remedy.
    Slaughter performance standards. The NOSB recommended a series of 
performance standards for slaughter facilities which would have 
required extensive paperwork for the facilities. However, considering 
the current shortage of organic livestock slaughter facilities, AMS is 
proposing the requirements in this document with the goal of limiting 
the burden on extant organic slaughter facilities. AMS regularly 
receives comments from organic livestock producers about the lack of 
availability of organically certified slaughter facilities. Certified 
organic livestock slaughtered in a non-certified slaughter facility 
cause the resulting meat to lose organic status. AMS consulted with 
FSIS about the specific NOSB performance standards and determined that 
most of these additional requirements would be duplicative. This 
duplication would have increased the paperwork burden and cost of 
inspection without increasing animal welfare. AMS was concerned that 
such an increased burden with no increase in animal welfare would 
further limit the availability of certified organic slaughter 
facilities. Below is a table listing some of the NOSB recommended 
slaughter performance standards and the corresponding FSIS regulations.

[[Page 21979]]



------------------------------------------------------------------------
 NOSB Recommendation or AMS preliminary
     draft proposed regulatory text               FSIS Response
------------------------------------------------------------------------
Mammalian Slaughter
(1) Slaughter plants must have non-slip  This provision is covered by 9
 flooring.                                CFR 313.1(b)--Floors of
                                          livestock pens, ramps, and
                                          driveways shall be constructed
                                          and maintained so as to
                                          provide good footing for
                                          livestock. Slip resistant or
                                          waffled floor surfaces,
                                          cleated ramps, and the use of
                                          sand, as appropriate, during
                                          winter months are examples of
                                          acceptable construction and
                                          maintenance.
(2) Gates in the live animal area must   This provision is covered by 9
 swing freely, latch securely, and be     CFR 313.1(a)--Livestock pens,
 free of sharp or otherwise injurious     driveways and ramps shall be
 parts. Gates are never to be slammed     maintained in good repair.
 on animals.                              They shall be free from sharp
                                          or protruding objects which
                                          may, in the opinion of the
                                          inspector, cause injury or
                                          pain to the animals.
(3) Adequate lighting must be in place   This provision is covered by--9
 to allow animals to be easily observed.  CFR 309.1(a)--All livestock
                                          must be examined and inspected
                                          on day of slaughter. This
                                          requires that lighting is
                                          sufficient for inspectors to
                                          easily observe the animals.
(4) Livestock slips and falls must be    This provision is covered by--9
 scored in all parts of the facility      CFR 313.2(a)--Driving
 including unloading areas, holding       livestock from the unloading
 areas, chutes, stun box and the          ramps to the holding pens and
 stunning area. No more than 1 percent    from the holding pens to the
 of livestock may slip and no more than   stunning area shall be done
 1 percent of livestock may fall at any   with a minimum of excitement
 of the parts of the facility.            and discomfort to the animals.
                                          Livestock shall not be forced
                                          to move faster than a normal
                                          walking speed.
                                         Scoring provided for in FSIS
                                          Directive 6910.1--Acceptable-
                                          No falls; Acceptable with
                                          reservations-less than 1
                                          percent.
(5) Humane treatment procedures for      This provisions is covered by--
 handling immobile and fatigued animals   9 CFR 309.3(e)--Non-ambulatory
 upon arrival at the slaughter plant      cows are to be euthanized--).
 are in place. Handlers may use sleds     FSIS has proposed to require
 and place livestock in the bucket, but   that non-ambulatory veal
 may not push them up against a wall,     calves need to be euthanized.
 gate, or any other object.               Other livestock are addressed
                                          in 9 CFR 313.2(d)--Disabled
                                          livestock and other animals
                                          unable to move.
(6) Electric prods are available if      This provision is covered--9
 needed for human safety or for medical   CFR 313.2(b)--Electric prods,
 use, i.e., in an effort to save down     canvas slappers, or other
 animals. Prod use must stop after        implements employed to drive
 three shocks interspersed with rest      animals shall be used as
 periods or if the animal does not        little as possible in order to
 attempt to rise. Prods may never be      minimize excitement and
 applied to sensitive parts of the        injury. Any use of such
 animal: eyes, nose, ears, rectum, or     implements which, in the
 reproductive organs. Prods may not be    opinion of the inspector, is
 used on animals less than twelve         excessive, is prohibited.
 months of age.                          Scoring in FSIS Directive
                                          6910.1.
(7) Plans for euthanasia of sick         This provision is covered by 9
 livestock must be described.             CFR 309.13--Condemned animals
 Euthanasia must only be performed by     are to be killed by
 trained personnel. Euthanasia            establishment and not taken
 equipment must be properly stored at     into official establishment.
 slaughter plants and maintained. Lists
 of all animal euthanized and the
 reason for euthanasia must be
 maintained.
(8) No more than 3 percent of cattle     FSIS does not have a
 vocalize as they move through the        vocalization standard.
 restrainer, stunning box and stunning    Vocalization is only as
 area. No more than 5 percent of hogs     evidence that animal was not
 squeal in the restrainer due to human    properly stunned in FSIS
 provocation. No more than 5 percent of   Directive 6910.1.
 livestock vocalize when a head holder
 is used during stunning or slaughter.
 No more than 1 percent of hogs
 vocalize due to hot wanding.
 Electrodes must not be energized
 before they are in firm contact with
 the animal.
(9) Conscious, sensible mammals must     This provision is covered by--9
 never be restrained by suspending them   CFR 313.2(f)--Stunning methods
 by their limbs. One hundred percent of   approved in 313.30 shall be
 animals are insensible prior to being    effectively applied to animals
 hung on the bleed rail.                  prior to their being shackled,
                                          hoisted, thrown, cast, or cut.
                                          FSIS Directive 6910.1 Stunning
                                          efficacy must be 100 percent.
(10) One hundred percent of mammals are  This provisions is covered by--
 insensible prior to being hung on the    9 CFR 313.2(f)--Stunning
 bleed rail.                              method approved in 9 CFR313.30
                                          shall be effectively applied.
                                         This provision is also covered
                                          in FSIS Directive 6910.1--The
                                          DVMS is to observe and verify
                                          that animals are unconscious
                                          and insensible after stunning
                                          and throughout the process of
                                          shackling, hoisting, cutting,
                                          and bleeding.
(11) Ninety-five percent of cattle and   This provisions is covered by--
 sheep are effectively stunned with one   9 CFR 313.15(a)(3),
 shot via captive bolt or gunshot.        313.16(a)(3), 313.30(a)(3)--
 Ninety-nine percent of electrodes are    Requires that animal be in
 placed correctly when livestock are      state of unconsciousness
 stunned with electricity.                immediately after first stun.
                                          This provision is also covered
                                          in FSIS Directive 6910.1--
                                          Acceptable stunning is 100
                                          percent. Acceptable with
                                          reservations is effectiveness
                                          of greater than 99 percent but
                                          less than 100 percent.
(12) When carbon dioxide (CO2) or other  This provision is covered by 9
 controlled atmosphere stunning           CFR 313.5.
 systems, including gondolas or other
 conveyances for holding a group of
 animals, are used, animals must be
 able to lie down or stand without
 being on top of one another. When head
 to tail conveyor systems are used,
 this score may be omitted.
Avian Slaughter........................  Avian slaughter is addressed in
                                          FSIS Directives 6100.3 and
                                          6910.1. Operations meet good
                                          commercial practices, 9 CFR
                                          381.65(b).
(1) No lame birds may be shackled, hung  This provisions is--included as
 or carried by their legs.                Mistreatment of poultry, which
                                          is addressed in FSIS Directive
                                          6100.3--establishment
                                          employees must not mistreat
                                          birds or handling them in a
                                          way that will cause death or
                                          injury or prevent thorough
                                          bleeding or result in
                                          excessive bruising.

[[Page 21980]]

 
(2) All birds shackled on a chain or     This provisions is addressed in
 automated system must be stunned prior   FSIS Directive 6910.1
 to exsanguination.
(3) All birds must be irreversibly       This provisions is covered by 9
 insensible prior to being placed in      CFR 381.65(b)--Poultry must be
 the scalding tank.                       slaughtered in accordance with
                                          good commercial practices in a
                                          manner that will result in
                                          thorough bleeding of the
                                          carcasses and ensure that
                                          breathing has stopped before
                                          scalding.
------------------------------------------------------------------------

    Implementation. The provisions of this proposed rule, except for 
the avian outdoor space requirements in Sec.  205.241(c), would be 
implemented one year after the publication date of the final rule. AMS 
chose a one-year period for operations and certifying agents to become 
familiar with the requirements and make modifications to their 
practices, e.g., updating organic system plans, training staff.
    AMS is proposing two distinct implementation timeframes for the 
avian outdoor space requirements. First, three years after the 
publication of the final rule any non-certified poultry house or 
facility would need to comply in order to obtain certification. This 
would include facilities that are not certified at the three-year mark, 
but subsequently become part of a certified operation. The three-year 
period would allow producers to transition the outdoor space to organic 
production.
    Second, all poultry houses and facilities certified prior to the 
three-year mark would need to comply within five years of the 
publication of the final rule. AMS is choosing a five- year compliance 
period to reduce the economic burden on existing organic producers, 
without unduly delaying the implementation of practices for improved 
animal welfare. As explained in the Regulatory Impact Analysis, the 
five-year period reflects the average time remaining to fully 
depreciate an average barn for laying hens. Since AMS expects that the 
costs associated with this rule will fall primarily on organic egg 
producers, the five-year period will allow the average producer to 
write off the capital costs on their tax returns.

IV. Related Documents

    Documents related to this proposed rule include the Organic Foods 
Production Act of 1990, as amended, (7 U.S.C. 6501-6522) and its 
implementing regulations (7 CFR part 205). The NOSB deliberated and 
made the recommendations described in this proposal at public meetings 
announced in the following Federal Register Notices: 67 FR 19375 (April 
19, 2002); 67 FR 54784 (August 26, 2002); 67 FR 62949 (October 9, 
2002); and 68 FR 23277 (May 1, 2003). NOSB meetings are open to the 
public and allow for public participation.
    AMS published a series of past proposed rules that addressed, in 
part, the organic livestock requirements at: 62 FR 65850 (December 16, 
1997); 65 FR 13512 (March 13, 2000); and 71 FR 24820 (April 27, 2006). 
Past final rules relevant to this topic were published at: 65 FR 80548 
(December 21, 2000); and 71 FR 32803 (June 7, 2006).

A. Executive Orders 12866 and 13563

    Executive Orders 12866 and 13563 direct agencies to assess all 
costs and benefits of available regulatory alternatives, and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). Executive 
Order 13563 emphasizes the importance of quantifying both costs and 
benefits, of reducing costs, of harmonizing rules, and of promoting 
flexibility. This rulemaking has been designated as a ``significant 
regulatory action'' under section 3(f) of Executive Order 12866, and, 
therefore, has been reviewed by the Office of Management and Budget 
(OMB).
Need for the Rule
    AMS is proposing this rulemaking to maintain consumer confidence in 
the high standards represented by the USDA organic seal. Specifically, 
this action is necessary to augment the USDA organic livestock 
production regulations with robust and clear provisions to fulfill a 
purpose of the OFPA, to assure consumers that organically-produced 
products meet a consistent and uniform standard (7 U.S.C. 6501). The 
added specificity would further the process, initiated with the 
enactment of OFPA, to develop detailed standards for organic livestock 
products.\18\ OFPA mandates that detailed livestock regulations be 
developed through notice and comment rulemaking and intends for NOSB 
involvement in that process (7 U.S.C. 6508(g)). In 2010, AMS published 
a final rule (75 FR 7154, February 17, 2010) clarifying the pasture and 
grazing requirements for organic ruminants, which partially addressed 
OFPA's objective for more detailed standards. This present rulemaking 
would extend that level of detail and clarity to all organic livestock 
and ensure that organic standards cover their entire lifecycle.
---------------------------------------------------------------------------

    \18\ The Senate report that accompanied the OFPA legislations 
set the expectation for greater specificity in the future for 
organic livestock standards as the industry matured: ``More detailed 
standards are enumerated for crop production than for livestock 
production. This reflects the extent of knowledge and consensus on 
appropriate organic crop production methods and materials. With 
additional research and as more producers enter into organic 
livestock production, the Committee expects that USDA, with the 
assistance of the National Organic Standards Board will elaborate on 
livestock criteria.'' Senate Committee on Agriculture, Forestry and 
Nutrition, Report of the Committee on Agriculture, Forestry and 
Nutrition to Accompany S. 2830 Together with Additional and Minority 
Views, 101st Congress, S. REP. NO. 101-357, at 289 (1990).
---------------------------------------------------------------------------

    AMS issued an administrative appeal decision in 2002 that allowed 
the certification of one operation that used porches as outdoor access 
to protect water quality. This Decision served to address a fact-
specific enforcement issue. Some certifying agents used this appeal 
decision to grant certification to poultry operations using porches to 
provide outdoor access. Thereafter, certification and enforcement 
actions have remained inconsistent and contributed to wide variability 
in living conditions for organic poultry, as well as consumer confusion 
about the significance of the organic label with regard to outdoor 
access. In accordance with OFPA, this proposed action will clarify USDA 
statutory and regulatory mandates and establish consistent, 
transparent, and enforceable requirements. Further, it will align 
regulatory language and intent to enable producers and consumers to 
readily discern the required practices for organic poultry production 
and to differentiate the products in the marketplace.
    This proposed rule would add requirements for the production, 
transport and slaughter of organic livestock. Most of these align with 
current practices of organic operations (e.g., prohibiting or 
restricting certain

[[Page 21981]]

physical alterations, euthanasia procedures, housing for calves and 
swine). The proposed provisions were developed by the NOSB in 
consideration of other animal welfare certification programs, industry 
standards, input from organic producers, and input from public 
comment.\19\ According to a survey by the Organic Egg Farmers of 
America, 76 percent of organic egg production in the U.S. participates 
in private animal welfare certification programs.\20\ Therefore, AMS 
expects that many of the requirements in this proposed rule are already 
implemented and will not produce significant costs. Producers may incur 
some costs such as increased paperwork (see the Paperwork Reduction Act 
analysis below), building additional fences, providing shade in outdoor 
areas, or creating more doors in poultry houses.
---------------------------------------------------------------------------

    \19\ NOSB, December 2011. Formal Recommendation of the National 
Organic Standards Board to the National Organic Program, Animal 
Welfare and Stocking Rates, Available at: http://www.ams.usda.gov/rules-regulations/organic/nosb/recommendations.
    At the NOSB meeting in November 2010, the NOSB explained how the 
recommended handling, transport and slaughter provisions aligned 
with the American Meat Institute's animal handling guidelines. These 
guidelines cover handling, transportation and slaughter and are 
standard industry practices. The transcripts from that meeting are 
available at: http://www.ams.usda.gov/rules-regulations/organic/nosb/meetings.
    \20\ Organic Egg Farmers of America (OEFA), Organic Poultry 
Industry Animal Welfare Survey, 2014.
---------------------------------------------------------------------------

    This proposed action includes provisions to facilitate consistent 
practices regarding stocking densities and outdoor space at organic 
poultry operations. The outdoor space issues are divisive and 
controversial among producers and other stakeholders, and, therefore, 
the scope of this analysis focuses on impacts to the organic poultry 
sector. The current practices of organic poultry operations to provide 
outdoor access and minimum indoor and outdoor space per bird vary 
widely. This disparity causes consumer confusion about the meaning of 
the USDA organic label, threatens to erode consumer confidence in the 
organic label more broadly, and perpetuates unfair competition among 
producers. This rule would enable AMS and certifying agents to 
efficiently administer the NOP. In turn, the consistency and 
transparency in certification requirements will facilitate consumer 
purchasing decisions.
    Consumer surveys indicate the need for more precise animal welfare 
standards within the USDA organic regulations. A 2014 Consumer Reports 
Organic Food Labels Survey noted that half of consumers believe that 
organic chicken living space meets minimum size requirements; 68 
percent believe there should be minimum size requirements. Further, 46 
percent believe organic chickens went outdoors; 66 percent believe the 
chickens should have gone outdoors.\21\ A second survey, designed by 
the American Society for the Prevention of Cruelty to Animals, showed 
that 63 percent of respondents believe that organic livestock have 
access to pasture and fresh air throughout the day and 60 percent 
believe that organic livestock have significantly more space to move 
than non-organic animals.\22\
---------------------------------------------------------------------------

    \21\ Consumer Reports National Research Center, Organic Food 
Labels Survey, March 2014. Nationally representative phone survey of 
1,016 adult U.S. residents.
    \22\ This phone survey was administered to 1,009 adults in 
October 2013.
---------------------------------------------------------------------------

    The majority of organic poultry producers also participate in 
private, third-party verified animal welfare certification 
programs.\23\ These certification programs vary in stringency, 
particularly for outdoor access requirements. Such widespread 
participation among organic poultry producers is evidence that 
consumers want additional label claims to provide information about 
animal welfare practices. This proposed rule would align consumer 
expectations and the production practices required to make an organic 
label claim regarding animal welfare for poultry.
---------------------------------------------------------------------------

    \23\ Organic Egg Farmers of America, 2014.
---------------------------------------------------------------------------

    The broad latitude afforded by the existing USDA organic 
regulations leads to wide variance in production practices within the 
organic egg sector (e.g., a porch in contrast to extensive outdoor area 
with diverse vegetation). These differences are not discernable to 
consumers through use of the USDA organic label. Consumers are 
increasingly aware of these varying outdoor production practices and 
either seek specific brands of organic eggs based on information about 
living conditions at individual farms, or seek animal welfare labels in 
addition to the USDA organic seal.
    AMS believes that many livestock and poultry producers would prefer 
to use the organic label to convey information about their practices to 
consumers. While sales of organic products, including eggs and poultry, 
continue to increase annually, surveys designed to measure consumer 
trust in the organic label reveal consumer confusion about the meaning 
of the label. A report on organic food and beverage shoppers states 
that one-third of the respondents indicated that the term ``organic'' 
has no real value or definition.\24\ The study concludes that consumers 
are confused by the various marketing terms, such as ``natural,'' and 
advises organic brands to convey more information to consumers. AMS 
believes that in the context of organic livestock and poultry 
production, particularly egg production, variations in practices result 
in consumers receiving inadequate and inconsistent information about 
livestock products. This is supported by the consumer survey results 
described above. By establishing clear and equitable organic livestock 
and poultry standards, this rule would help organic producers to more 
effectively market their products. It would (1) provide for consistent 
information to consumers about animal living conditions to distinguish 
organic products from competing labeling terms in the market, and (2) 
alleviate the need for multiple certifications and eliminate 
duplicative paperwork, on-site inspections and additional costs.
---------------------------------------------------------------------------

    \24\ Mintel Group Ltd., ``Organic Food and Beverage Shoppers--
US--March 2015.'' March 2015.
---------------------------------------------------------------------------

    In 2009 and 2011, the NOSB issued recommendations, as authorized by 
OFPA, for additional requirements to support animal welfare. In the 
process of developing these recommendations, the NOSB consulted with 
and received numerous public comments from authorities in the fields of 
animal welfare, consumers, livestock producers and certifying agents. 
AMS developed this proposed rule in response to the NOSB 
recommendations and stakeholder feedback.
    This action also responds to the 2010 USDA Office of Inspector 
General (OIG) audit findings of inconsistent applications of the USDA 
organic regulations for outdoor access for livestock. OIG noted the 
absence of regulatory provisions covering the length (i.e., hours per 
day) of outdoor access and the size of the outdoor area. Among organic 
poultry producers, OIG observed wide variation in the amount of outdoor 
space provided. As recommended by OIG, AMS published draft guidance, 
Outdoor Access for Organic Poultry, for public comment (75 FR 62693, 
October 13, 2010).\25\ 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. The draft 
guidance informed certifying agents and producers that maintaining 
poultry on soil or outdoor runs would demonstrate

[[Page 21982]]

compliance with the outdoor access requirement in Sec.  205.239. 
However, after extensive comments by producers, certifying agents and 
other stakeholders, including the request for rulemaking, AMS 
determined to pursue rulemaking to clarify outdoor access for poultry 
and did not finalize the guidance.
---------------------------------------------------------------------------

    \25\ The draft guidance was published on March 10, 2013 and 
posted on the NOP Web site.
---------------------------------------------------------------------------

Baseline
    This baseline focuses on the current production of organic eggs and 
the market for this commodity. AMS used multiple data sources, listed 
below, to describe the baseline and inform our assumptions for the cost 
analysis:
     2011-2014 Organic Industry Surveys, published by the 
Organic Trade Association (OTA). The Nutrition Business Journal 
conducts this annual survey on behalf of OTA to summarize market 
information and trends within the organic industry across food and non-
food sectors.\26\
---------------------------------------------------------------------------

    \26\ Organic Trade Association (OTA)/Nutrition Business Journal, 
2014 Organic Industry Survey. Nutrition Business Journal conducted a 
survey between Jan 27, 2014 and April 5, 2014 to obtain information 
for their estimates. Over 200 organic firms responded to the survey. 
NBJ used secondary data from SPINS, Nielsen, and IRI to supplement 
the survey and build market statistics.
---------------------------------------------------------------------------

     2014 Organic Survey, National Agricultural Statistics 
Service (NASS).\27\ This survey reports acreage, production and sales 
data for organic crops and livestock.
---------------------------------------------------------------------------

    \27\ The 2014 Organic Survey is accessible at: http://www.agcensus.usda.gov/Publications/Organic_Survey/.
---------------------------------------------------------------------------

     2011 Organic Production Survey, National Agricultural 
Statistics Service (NASS).\28\ This survey reports acreage, production 
and sales data for organic crops and livestock.
---------------------------------------------------------------------------

    \28\ The 2011 Organic Production Survey is accessible at: http://usda.mannlib.cornell.edu/MannUsda/viewDocumentInfo.do?documentID=1859.
---------------------------------------------------------------------------

     The National Animal Health Monitoring and Surveillance 
(NAHMS) 2013 Layers study.\29\ This study includes a section on organic 
egg production in the U.S., which provides an overview of various 
practices on organic layer operations.
---------------------------------------------------------------------------

    \29\ The NAHMS Poultry studies may be found at the following 
link: http://1.usa.gov/1IkWw22.
---------------------------------------------------------------------------

     AMS also used summary information from the USDA Livestock, 
Poultry and Grain Market News Service (Market News) egg and broiler 
market news reports from 2010 to 2014.\30\ \31\
---------------------------------------------------------------------------

    \30\ USDA AMS LPS Market News (Market News) 2010-2014 Egg Market 
News report. Available on the Market News Web site at: http://1.usa.gov/1vlDNgy.
    \31\ USDA AMS LPS Market News (Market News) 2010-2014 Broiler 
Market News report. Available on the Market News Web site at: http://1.usa.gov/1uHsme1.
---------------------------------------------------------------------------

     Organic Egg Farmers of America (OEFA), Organic Poultry 
Industry Animal Welfare Survey, 2014. OEFA independently conducted and 
submitted the results of a survey of organic egg and broiler producers. 
There were 157 survey responses, representing 8.33 million organic 
layers (77 percent of organic production) and 12 million organic 
broilers (62 percent of production). The survey was distributed to 
certified organic poultry producers in July 2014.
     Egg Industry Center (EIC) Survey of U.S. Organic Egg 
Production. EIC independently conducted and submitted this survey which 
was distributed to organic egg producers with at least 30,000 hens. 
Respondents totaled 23, representing 5.07 million hens.
     Economic Impact Analysis of Proposed Regulations for 
Living Conditions for Organic Poultry, Phase 3 Report by T. Vukina, K. 
Anderson, M.K. Muth and M. Ball. This report, prepared for the NOP, 
estimated the costs for implementing the NOSB recommendation on avian 
living conditions. The analysis in this proposed rule essentially 
updates and expands the model used by Vukina et al., to estimate 
current costs and different producer response scenarios.
The Organic Egg and Poultry Market
    According to the 2015 Organic Trade Association (OTA) Industry 
Survey, U.S. sales of organic food, fiber, and agricultural products 
totaled over $39.1 billion in 2014, up 11 percent from 2013.\32\ Sales 
of organic eggs reached $514 million in 2014, an increase of 17 percent 
over the previous year. This sector has experienced continued double-
digit sales growth since 2010, as shown in Table 2. In addition, the 
average retail price for one dozen, organic brown eggs has climbed 16.3 
percent on average, each year between 2010 and 2014. The rate of growth 
may be affected by several factors, including: (1) The price gap 
between organic and non-organic eggs based on the cost of organic and 
non-organic feed--this may slow or increase growth depending on size of 
the gap; (2) factors other than price driving consumer purchasing 
decisions, e.g., concerns about production practices; (3) competition 
from cage-free labels; and (4) accuracy in forecasting consumer demand.
---------------------------------------------------------------------------

    \32\ OTA, 2015 Organic Industry Survey.
---------------------------------------------------------------------------

    In 2014, poultry sales ($453 million) grew nearly 13 percent and 
accounted for the greatest portion (60 percent) of the organic meat, 
poultry and fish market sector. As shown in Table 2, annual sales of 
organic poultry have climbed steadily since 2010, while retail prices 
for organic boneless, skinless breasts have fallen.\33\ In comparison 
to beef, pork, and other meat products, poultry faces fewer obstacles 
to growth because feed for poultry is cheaper and time to market is 
shorter.\34\
---------------------------------------------------------------------------

    \33\ Retail prices for organic whole fryers per pound have 
fluctuated between 2010 and 2014, peaking in 2012 and falling the 
following two years.
    \34\ OTA, 2010-2014 Organic Industry Surveys.

                             Table 2--Organic Eggs and Broilers Market--Retail Sales
----------------------------------------------------------------------------------------------------------------
                                                                                        Average retail price \b\
                                                        Annual sales                        (dozen eggs \c\/
             Subcategory                    Year         (million $)   Percent growth      boneless, skinless
                                                                                                breast)
----------------------------------------------------------------------------------------------------------------
Eggs.................................        \a\ 2014             514              17  4.16.
                                                 2013             439            16.9  4.16.
                                                 2012             375            17.5  4.11.
                                                 2011             319            20.2  3.90.
                                                 2010             266            10.4  3.85.
Poultry..............................        \a\ 2014             453            12.9  7.37/lb.
                                                 2013             401             9.3  7.20/lb.
                                                 2012             367            10.8  7.38/lb.
                                                 2011             331            12.5  7.49/lb.

[[Page 21983]]

 
                                                 2010             294             6.3  7.54/lb.
----------------------------------------------------------------------------------------------------------------
\a\ As of September 5, 2014.
\b\ Based on supermarket advertised sale prices reported by AMS Livestock, Poultry and Seed Market News (see
  footnotes 19 and 20).
\c\ Brown, Large, Grade A.

    Table 3 shows the geographical distribution of organic egg and 
broiler production in the U.S., based on the USDA 2014 Organic Survey. 
There are an estimated 722 organic egg producers and 245 organic 
broiler operations. Five states are responsible for over one-third of 
organic egg production. Pennsylvania and California operations comprise 
only 7.5 percent of the total number of organic poultry producers, but 
produce 35 percent and 32 percent, respectively, of organic eggs. 
California also has 6.5 percent of U.S. organic broiler operations, 
which produce about 54 percent of organic broilers. Conversely, the 
production from states which report higher numbers of broiler 
operations, such as Wisconsin and Maine, is less than 1 percent of 
production. Several states do not report total production volume for 
broilers to protect confidentiality. Given these omissions, the data 
does not provide details of nearly 50 percent of state level production 
of organic broilers.

               Table 3--Top States With Organic Egg and Poultry Operations Compared to Production
----------------------------------------------------------------------------------------------------------------
                                                     Number of     Percent of US       Total       Percent of US
                                                    organic egg     organic egg     production      organic egg
                                                    operations      operations       (dozens)       production
----------------------------------------------------------------------------------------------------------------
                                                Organic Eggs \a\
----------------------------------------------------------------------------------------------------------------
United States...................................             722  ..............     166,313,847  ..............
Top 5 States \c\................................             334            46.1      61,157,980            36.7
Wisconsin.......................................              97            13.3       7,450,488              12
Iowa............................................              74            10.2       8,628,066              14
Maine...........................................              55             7.6       4,051,040               7
Pennsylvania....................................              54             7.5      21,623,599              35
California......................................              54             7.5      19,449,787              32
----------------------------------------------------------------------------------------------------------------
                                              Organic Broilers \a\
----------------------------------------------------------------------------------------------------------------
                                                     Number of     Percent of US       Total       Percent of US
                                                      organic         organic       production        organic
                                                      broiler         broiler         (birds)         broiler
                                                    operations      operations                    production \e\
----------------------------------------------------------------------------------------------------------------
United States...................................             245  ..............      43,255,401  ..............
Top 5 States \c\................................             130              53  \d\ 23,319,734            53.9
Wisconsin.......................................              32              13          21,104               0
Pennsylvania....................................              30            12.2             N/A             N/A
New York........................................              28            11.4             N/A             N/A
Maine...........................................              24             9.8          23,134               0
California......................................              16             6.5      23,275,496            53.8
----------------------------------------------------------------------------------------------------------------
\a\ Source: National Agricultural Statistics Service, ``2014 Organic Survey.''
\c\ States ranked by both number of farms and total production.
\d\ This total does not include production for Pennsylvania and New York. The 2014 Organic Survey does not
  disclose the broiler production data for those states. In order to protect confidentiality, any tabulation
  which identifies data reported by a respondent or allows a respondent's data to be accurately estimated is not
  disclosed.
\e\ There were other states that had higher production than the states reporting in this table, but had fewer
  organic broiler operations. Kentucky produced 27,685 broilers, but only had 7 organic broiler operations.
  Michigan produced 13,018 broilers, but had only 6 organic broiler operations.

Alternatives Considered
    AMS considered alternatives to the proposed action. Specifically, 
AMS reviewed options for indoor stocking density and outdoor space 
requirements for layers and implementation timeframes. For each 
alternative, AMS examined how the provision aligned with the animal 
welfare objectives supported by the organic community and the potential 
costs and benefits to organic producers. The options are presented and 
discussed below.

[[Page 21984]]



          Table 4--Indoor Stocking Density Options--Laying Hens
------------------------------------------------------------------------
              Alternative                             Basis
------------------------------------------------------------------------
Option 1--Minimum of 2.0 ft\2\ per       Consistent with the NOSB
 layer.                                   recommendation. This would
                                          provide more space per bird
                                          than private animal welfare
                                          standards.
Option 2--Minimum of 1.8 ft\2\ per       Provides increased space for
 layer.                                   birds while curtailing costs.
                                          On par with most stringent
                                          private third-party animal
                                          welfare standard.
Option 3--maximum 3.0 to 4.5 lbs/ft\2\   Consistent with current
 depending upon the housing system.\a\    industry practice for many
 (Proposed rule)                          organic egg producers. Aligns
                                          with the majority of private
                                          third-party animal welfare
                                          certification programs.
------------------------------------------------------------------------
\a\ This is equivalent to 1.0-1.5 ft\2\ per bird. The reasoning and
  method for converting to pounds per square foot is discussed in the
  preamble section C for Avian Living Conditions.

    The NOSB recommended indoor and outdoor space metrics for poultry 
as a component of broad measures to enhance animal welfare practices on 
organic livestock operations. Citing consumer demand for humane 
treatment of livestock, the proliferation of animal welfare 
certification labels, organic standards of major trading partners 
(e.g., Canada, the European Union), and varying practices among organic 
producers, the NOSB determined it was necessary to set maximum stocking 
densities for organic poultry.\35\ The NOSB aimed to develop stringent, 
comprehensive, and consistent animal welfare requirements for organic 
livestock and poultry production that would meet consumer demand and 
foster equitable certification decisions and fair competition among 
producers, consistent with the objectives of OFPA. The costs and 
benefits of the proposed alternatives are discussed in more detail in 
the next section below.
---------------------------------------------------------------------------

    \35\ The European Union Organic Standards and the Canadian 
Organic Regime Standards specify indoor and outdoor stocking 
densities for various types of livestock, including laying hens: 6 
birds/m\2\ indoors; 4 birds/m\2\ outdoors. After converting the 
units for the stocking densities recommended by the NOSB, the 
metrics are comparable to the EU and Canada: the NOSB would require 
slightly more space per bird indoors and slightly less outdoors. 
This proposed rule would adjust the indoor stocking density to allow 
more birds to occupy a given unit of indoor area.
---------------------------------------------------------------------------

    Indoor stocking density. AMS considered a range of indoor stocking 
densities, including 2.0 ft\2\/bird or 1.8 ft\2\/bird for all layer 
operations, or 1.0--1.5 ft\2\/bird depending on the housing system. The 
NOSB recommended a minimum of 2.0 ft\2\ per hen indoors and explained 
that the metric could be adjusted during colder months to allow 
producers to increase the density to maintain heat in poultry houses. 
In order to examine the difference in costs, AMS also considered 
setting the indoor stocking density at 1.8 ft\2\ to parallel the most 
stringent indoor stocking density of a private animal welfare 
certification standard.
    AMS is not pursuing the 2.0 ft\2\/bird or 1.8 ft\2\/bird options. 
The estimated costs to implement a 1.8 ft\2\/bird indoor stocking 
density range between $70 million to $260 million annually depending on 
various producer response scenarios.\36\ \37\ AMS considered the 
estimated costs associated with the alternatives for reduced stocking 
densities would be unduly burdensome on individual organic egg 
producers and could cause a sizeable reduction in the supply of organic 
eggs. We believe that requiring 2.0 ft\2\ or 1.8 ft\2\ per bird would 
adversely impact most organic egg production and likely cause 
approximately 80 percent of current organic egg production to exit the 
organic market. Reducing the number of layers to comply with those 
stocking densities would result in lost revenue and increased marginal 
operating costs from the reduced number of birds or compel producers to 
incur high capital costs for building additional housing to accommodate 
existing production levels.
---------------------------------------------------------------------------

    \36\ AMS evaluated the costs for 4 different producer response 
scenarios: (1) All producers incur costs to maintain their current 
level of production; (2) some producers maintain their current level 
of production and some transition to the cage-free egg production; 
(3) all producers comply with the proposed rule by maintaining their 
existing facilities (and reduce the number of birds to meet the 
indoor stocking density); and, (4) some producers comply by 
maintaining existing facilities while other producers transition to 
cage-free egg production. Producers who exit to the cage-free market 
would be expected to have lower net returns, compared to organic 
eggs, as discussed below in the Costs section.
    \37\ These cost were projected over a 10-year period versus a 
13-year period which was used for the estimated costs for the 
proposed rule provided in the section below. AMS used a 10-year 
period in the initial cost estimates to compare various 
alternatives.
---------------------------------------------------------------------------

    AMS is proposing to set the indoor stocking density based on 
housing systems as follows: 4.5 lbs/ft\2\ (equivalent to 1.0 ft\2\ per 
bird) for pastured poultry and aviary/multi-level housing; 3.75 lbs/
ft\2\ (1.2 ft\2\ per bird) for poultry houses with slatted/mesh 
flooring systems and 3.0 lbs/ft\2\ (1.5 ft\2\ per bird) for poultry 
houses with floor litter. These metrics are consistent with the 
standards of a common third-party animal welfare certification program. 
We expect that most organic poultry producers currently meet or exceed 
those levels. This proposed rule would require certain features for the 
housing, including perches and flat roosts and space for dust bathing 
and self-isolation. These measures, in conjunction with the stocking 
density, support the natural behaviors and well-being of the birds. The 
tiered indoor stocking densities will foster a consistent level of 
poultry living conditions. It would also ease any disparate burden on 
producers in colder climates while maintaining consistency throughout 
the industry and meeting consumer expectations for organic poultry 
production.
    Outdoor stocking density. The USDA organic regulations require that 
livestock have year-round access to the outdoors, fresh air, direct 
sunlight and shade (Sec.  205.239(a)). Other than identifying 
circumstances when livestock may be temporarily confined (Sec.  
205.239(b)), the regulations do not provide details on the frequency or 
duration of outdoor access or size of the outdoor space. Outdoor access 
is integral to organic production, and consumers expect that it is 
standard practice throughout the organic egg sector. Notably, outdoor 
access is not mandatory for all third-party animal welfare 
certification programs. AMS is proposing to set outdoor stocking 
densities for poultry and to clarify whether porches are acceptable for 
outdoor access.
    AMS is proposing that layers must have a maximum of 2.25 pounds/
ft\2\ in the outdoor area.\38\ Under this proposed rule, outdoor areas 
would need to be large enough to hold all birds simultaneously with a 
maximum of 2.25 pounds/ft\2\. This is consistent with the

[[Page 21985]]

NOSB recommendation for outdoor stocking density.\39\ The NOSB selected 
that minimum threshold to protect soil quality and minimize parasite 
loads.
---------------------------------------------------------------------------

    \38\ As discussed above, this is approximately equivalent to 2.0 
square feet per bird. AMS changed the units to pounds per square 
foot so that the actual space per bird is similar across birds of 
different species or breeds.
    \39\ The NOSB recommended a range of 2.0 ft\2\--5.0 ft\2\ per 
bird in the outdoor areas, explaining that a minimum of 5 ft\2\ 
would ensure the availability of vegetation to birds during the 
growing season. As discussed in the paragraph below, AMS is not 
adopting a vegetation requirement for the outdoor area. In addition, 
we believe that a minimum 5.0 ft\2\/bird outdoor stocking density 
would be untenable because of the additional land needed.
---------------------------------------------------------------------------

    The NOSB also stipulated that outdoor access areas be soil-based 
and have at least 50 percent vegetation cover. While AMS believes that 
vegetation is an important feature to encourage birds to use outdoor 
areas, we are not proposing a minimum vegetation requirement, as that 
may be difficult to maintain in certain locations with drier climates. 
However, AMS is proposing to require enrichment of the outdoor space 
which could be met with 50 percent vegetative cover. This proposed rule 
would require that the outdoor area have at least 50 percent soil. 
Chickens use soil for dust bathing, and this would support the NOSB's 
objective to encourage birds to occupy outdoor areas. This soil 
threshold would also uphold consumer expectations for outdoor access, 
while providing some flexibility for operations which currently have 
concrete or other surfaces in the outdoor area. AMS did not estimate 
the potential cost to implement this proposed requirement due to wide 
variability in the site-specific conditions. AMS does make assumptions 
about whether producers have the adequate land base to accommodate the 
outdoor stocking density and we have estimated the costs for obtaining 
needed land as discussed below. However, even producers who have the 
adequate land base may need to modify that area (e.g, install fencing) 
to provide access to the soil.
    AMS considered proposing minimum space requirements of 2.25 pounds/
ft\2\ to accommodate either 10 percent, 50 percent or 100 percent of 
layers in a house to be outdoors at one time. AMS examined the 10 and 
50 percent alternatives based upon information that only a portion of a 
flock is outdoors at any given time. Under the 10 and 50 percent 
scenarios, the maximum stocking density would be exceeded whenever more 
than 10 percent or 50 percent of the flock is outdoors. As an example, 
in the 10 percent scenarios, if 20 percent of the flock was outside, 
then stocking density would be effectively reduced by 50 percent. 
Requiring the outdoor space to accommodate only 10 percent of a flock 
would sanction the status quo, and operations which provide the least 
amount of outdoor area would be permitted to maintain those conditions.
    The monetary costs of a 10 percent or 50 percent alternative would 
be substantially lower than the estimated costs of the proposed rule. 
As discussed below, the increased outdoor access requirements for all 
birds drives the costs of the proposed rule by reducing production 
volume and increasing operating expenses (land and feed). Under these 
alternatives, most organic producers would not need to acquire 
additional land and birds would have reduced exposure to predators and 
parasites, However, selecting the lower cost alternative would 
undermine the preferences of many organic egg producers and consumers; 
the success of the organic label marketing program depends upon 
practices which reflect the preferences of the participants and 
consumers who chose organic eggs in the marketplace. Adequate outdoor 
access is a core concern among organic consumers; outdoor areas that 
accommodate relatively few birds would not align with consumer 
expectations and would perpetuate an uneven playing field among 
producers. Further, the higher density may be detrimental to soil 
quality and parasite loads.
    Requiring that the outdoor area accommodate half of the flock would 
not adequately provide for each bird to have outdoor access with space 
to express natural behaviors. This could work as a disincentive for 
birds to go outside and does not support the intent of the USDA organic 
regulations that livestock use outdoor areas. Further, consumers expect 
all organic livestock to have access to and use outdoor space, and this 
approach could have unknown, but likely negative, impacts on consumer 
confidence in the organic egg sector. Given the likelihood that more 
than half of a flock would use the outdoor area simultaneously and 
consistently, we believe that resulting crowding in the outdoor area 
from a higher stocking density would ultimately deter birds from 
occupying the outdoor space. Together, the proposed stocking density 
requirements and the requirements for birds to be outdoors at an early 
age, including that these areas provide shade and soil access, should 
encourage more than half of the flock to regularly occupy this space.
    Porches as outdoor areas. AMS also considered whether porches 
should count as outdoor space. In general, a porch is a screened-in 
area with a solid roof overhead. AMS estimates that at least 50 percent 
of organic egg production comes from operations that use porches 
exclusively to provide outdoor access. The use of porches for outdoor 
access on organic operations is contentious. The practice of using 
porches to provide outdoor access in organic poultry operations gained 
popularity following a 2002 AMS administrative appeal decision which 
allowed the certification of one poultry operation planning to provide 
outdoor access via porches. This appeal decision was used by some 
poultry producers to justify that porches may satisfy the requirement 
to provide outdoor access for poultry under the USDA organic 
regulations. Organic production systems utilizing porches to provide 
outdoor access have increased since that time.
    In 2011, the NOSB, with the support of numerous producer and 
consumer stakeholders, unanimously recommended that enclosed, covered 
porches should not be considered outdoor access. Consistent with that 
recommendation, this proposed rule specifically defines ``outdoors'' to 
exclude porches. The stipulation that porches are not outdoor space is 
consistent with the U.S. Food and Drug Administration (FDA) position. 
In July 2013, FDA published draft guidance on outdoor access under the 
FDA 2009 Prevention of Salmonella Enteritidis in Shell Eggs 
regulations.\40\ The draft guidance states that structures attached to 
the poultry houses, such as porches, would be subject to testing and 
sanitizing in the same way as the actual poultry house, while the 
ground and other outdoor areas would not be subject to those testing 
and sanitizing requirements. Notably, FDA's draft guidance states that 
covered porches are part of the poultry house.
---------------------------------------------------------------------------

    \40\ Draft Guidance for Industry: Questions and Answers 
Regarding the Final Rule, Prevention of Salmonella Enteritidis in 
Shell Eggs During Production, Storage, and Transportation (Layers 
with Outdoor Access) http://www.fda.gov/food/guidanceregulation/guidancedocumentsregulatoryinformation/eggs/ucm360028.htm.
---------------------------------------------------------------------------

    Proponents of porches state that they are essential for biosecurity 
to protect poultry from predation and disease that could result from 
contact with wild animals or feces. However, producers, consumers and 
other stakeholders who oppose porches state that porches provide a 
competitive advantage by reduced mortality to predator loss and 
decreased feed conversion rates (less feed to produce a dozen eggs). 
Opponents have challenged the contention that porches are essential to 
biosecurity, citing other disease control methods, such as the removal 
of vegetation directly outside the poultry

[[Page 21986]]

house, the use of netting over outdoor areas and placing footbaths at 
the entrances to houses. Further, the outbreak of Highly Pathogenic 
Avian Influenza (HPAI) that began in December 2014 in the U.S. was 
detected in 211 commercial flocks, which are primarily exclusively 
indoor operations. HPAI was detected in 21 backyard flocks which 
generally provide ample outdoor access.\41\
---------------------------------------------------------------------------

    \41\ USDA APHIS reports and data can be found at the following 
site: https://www.aphis.usda.gov/aphis/ourfocus/animalhealth/animal-disease-information/avian-influenza-disease/!ut/p/z1/04_iUlDg4tKPAFJABpSA0fpReYllmemJJZn5eYk5-hH6kVFm8X6Gzu4GFiaGPu6uLoYGjh6Wnt4e5mYG7mam-l76UfgVFGQHKgIAz0VrTQ!!/.
---------------------------------------------------------------------------

    AMS agrees with FDA that porches are not outdoor space. They do not 
provide contact with soil nor align with consumer expectations and NOSB 
recommendations for outdoor access. Codifying the allowance of porches 
as outdoor space in organic production would not address the wide 
disparity in outdoor access provisions within this sector. This 
disparity leads to consumer confusion about husbandry practices and 
places some producers at a competitive disadvantage, and thus would not 
meet the OFPA's intent to assure consumers that organically produced 
products meet a consistent and uniform standard. AMS is concerned that 
allowing porches as the sole area for outdoor access could erode 
consumer demand for organic eggs and lead to an exodus of consumers and 
producers for other labeling programs. Furthermore, allowing porches to 
be considered as part of an outdoor area would not substantially 
mitigate the estimated costs associated with the proposed rule. In 
comparison to the land area needed for outdoor access, porches cover a 
small portion, so a producer would still need to provide access to land 
that extends beyond the porch area.
    AMS also considered allowing awnings or overhangs which extend from 
poultry houses to count as outdoor areas. However, the distinction 
between an awning versus a porch could be confusing and present 
enforcement challenges. Given the controversy with the use of porches, 
AMS intends that the regulations clearly prohibit porches or a similar 
structure from being used as outdoor space. Implementation period. AMS 
also considered different implementation periods of three, five and ten 
years for the outdoor access and outdoor stocking density requirements 
for poultry in this proposed rule. In determining the length of an 
implementation period, we considered cost mitigation and the urgency of 
consumer expectations. For cost mitigation, we reviewed the 
depreciation rate and timeframe for layer houses. The NAHMS 2013 Layers 
study collected the age of houses on organic operations with layers: 
Nearly 40 percent were nine years old or less. AMS determined that the 
weighted average age of aviary houses is 7.6 years by using the 
midpoint of each survey bracket (i.e., less than 5 years; 5-9 years; 
10-19 years) and the percent of operations in that bracket.\42\ The 
OEFA survey reported that the average depreciation rate for layer 
houses among respondents was 12.5 years.\43\ The difference between the 
depreciation rate (12.5 years) and average age of organic aviary layer 
houses (7.6 years) is roughly 5 years. Therefore, a 5-year 
implementation period would allow organic egg producers, on average, to 
recover the costs of a poultry house. At that point, structural changes 
necessitated by this rule would align with scheduled maintenance or new 
construction.
---------------------------------------------------------------------------

    \42\ AMS understands there was 39 percent increase in the number 
of organic layers between 2013 and 2015 (3.2 million additional 
organic layers), the highest increase since this information was 
collected starting in 2007. While we expect that additional aviary 
houses may have been constructed to house the increase in the number 
of layers, we did not factor that into the average age estimate. If 
new organic aviary houses began operation in 2013-2015, this would 
lower the average age of organic aviaries.
    \43\ The OEFA survey asked, ``What is the depreciation rate (as 
reported on Federal tax Schedule F forms) of your poultry houses in 
years?''
---------------------------------------------------------------------------

    While we expect that organic egg producers will bear a greater cost 
burden for this proposed rule, this implementation period should also 
align with upgrades or new construction for broiler houses. We note 
that 15 percent of broiler houses generally are 5 years old or less and 
have a depreciation rate of 15 years.\44\ While organic broiler houses 
are likely to be newer on average, given that the NOP was not 
established until 2002, we anticipate that the majority of organic 
broiler houses would be nearing the end of useful life when this rule 
is implemented.
---------------------------------------------------------------------------

    \44\ This reflects the percentage of broiler houses in the U.S., 
not specific to organic operations that were 15 years old or less in 
2006. We applied that proportion to this analysis because the 
population of broilers has grown since that time, so houses that 
were older than 15 years are likely to have been upgraded or 
renovated in the interim. This data was reported in MacDonald, James 
M. The Economic Organization of U.S. Broiler Production. Economic 
Information Bulletin No. 38. Economic Research Service, U.S. Dept. 
of Agriculture, June 2008. The depreciation rate was reported in the 
Organic Egg Farmers of America Survey conducted in July 2014 and 
cited above.
---------------------------------------------------------------------------

    AMS also considered a three 3-year implementation period. This 
timeframe would align with the 3-year period that is required to 
transition land to organic production if there have been applications 
of prohibited substances (Sec.  205.202(b)).\45\ We believe that three 
years would not provide sufficient time for producers who need to 
expand the outdoor access areas to acquire additional land and 
potentially convert that land to organic production. We estimate that 
45 percent of organic egg production may need additional land to meet 
the outdoor access requirements. This short timeframe would impose an 
unduly immediate cost burden and deter producers from exploring options 
to remain in organic egg production, potentially causing a sharp 
reduction in the supply of organic eggs.
---------------------------------------------------------------------------

    \45\ Section 205.202(b) of the USDA organic regulations requires 
that land from which harvested crops will be represented as organic 
must have had no prohibited substances, as listed in Sec.  205.105, 
applied to it for a period of 3 years immediately preceding harvest 
of the crop. Further, organic livestock are required to have 
organically produced feed (Sec.  205.237(a)).
---------------------------------------------------------------------------

    Conversely, a 10-year implementation period could erode consumer 
demand for organic eggs if the organic label requirements do not keep 
pace with growing consumer preferences for more stringent outdoor 
living conditions. Prolonging the disparity in organic egg production 
practices and the resulting consumer confusion would be detrimental to 
the numerous organic egg producers who could readily comply with this 
proposed rule. They would continue to operate at a competitive 
disadvantage to operations which provide less outdoor access and have 
greater feed efficiencies and lower mortality rates.
    A 5-year implementation period would make these requirements more 
feasible for a greater portion of organic egg producers while keeping 
the organic label competitive in regards to animal welfare claims. We 
believe the 5-year period would coincide with the timing for 
retrofitting poultry houses in the majority of organic operations, 
regardless of this rule.
    AMS is requesting comment on the above assumption. Specifically, 
AMS requests comments on:
     The age of poultry houses used for organic egg production.
Consumer and Producer Responses as Drivers of Benefits and Costs
    Connections between costs and benefits, on the one hand, and 
potential producer and consumer responses, on the other, are set out in 
the table below.

[[Page 21987]]



------------------------------------------------------------------------
   Consumer, producer responses                    Impacts
------------------------------------------------------------------------
Producers change their practices    Costs: Incremental cost of producing
 to meet the new, more stringent     to new, more stringent organic
 organic standards; consumers        standards, relative to existing
 continue consuming organic          organic standards.
 agriculture products.              Benefits: Incremental credence
                                     benefits of consuming products
                                     produced according to new, more
                                     stringent organic standards,
                                     relative to existing organic
                                     standards.*
Producers discontinue (or avoid     Cost savings: Incremental savings of
 newly achieving) organic            producing with non-organic
 certification; consumers switch     practices, relative to existing
 from products meeting existing      organic standards
 organic standards to non-organic   Benefits (reduced): Incremental
 versions of similar products.       credence benefits of consuming
                                     products produced according to non-
                                     organic practices, relative to
                                     existing organic standards.*
Producers discontinue (or avoid     Impacts (may be positive or
 newly achieving) organic            negative): Incremental production
 certification; consumers switch     costs, incremental credence
 to dissimilar products.             benefits, incremental non-credence
                                     attributes.
------------------------------------------------------------------------
* The price premium that consumers are willing to pay for certified
  organic products correspond to benefits, as that term is used for
  purposes of analysis under Executive Orders 12866 and 13563, only if
  organic production practices yield real improvements in areas such as
  animal welfare, human health or environmental outcomes.

Benefits of the Proposed Rule
    This proposed rule would bring specificity and clarity to the 
regulations relating to animal welfare practices for organic livestock 
and poultry and address the persistent requests to AMS for further 
standards on living conditions for organic livestock and poultry. 
Greater clarity and specificity will foster the uniform application of 
the practice standards in organic production, animal transport, and 
slaughter. This, in turn, will maintain consumer confidence driving 
organic purchases. Organic products cannot be distinguished from non-
organic products based on appearance; consumers rely on process 
verification methods, such as certification to a uniform standard, to 
ensure that organic claims are true. For this reason, organic products 
have been described as ``credence goods'' in the economics 
literature.46 47 Credence goods have properties that are 
difficult to detect, both before and after purchase. Organic livestock 
products are an example of a ``credence good'' for which consistent 
verification to a common production standard across the sector supports 
continued consumer confidence. Ensuring the stability of consumer 
confidence in the organic livestock sector can also protect the 
confidence in the organic label generally.
---------------------------------------------------------------------------

    \46\ Caswell, Julie A. and Eliza M. Mojduszka. 1996. ``Using 
Informational Labeling to Influence the Market for Quality in Food 
Products.'' American Journal of Agricultural Economics. Vol. 78, No. 
5: 1248-1253.
    \47\ Zorn, Alexander, Christian Lippert, and Stephan Dabbert. 
2009. ``Economic Concepts of Organic Certification.'' Deliverable 5 
for Project CERTCOST: Economic Analysis of Certification Systems in 
Organic Food and Farming. http://www.certcost.org/Lib/CERTCOST/Deliverable/D11_D5.pdf.
---------------------------------------------------------------------------

    Consumers are increasingly interested in the treatment of animals 
raised for food, as evidenced by the proliferation of animal welfare 
certification labeling claims. This proposed rule would ensure that 
organic producers are equally competitive in this market and would 
alleviate the need to pursue additional certification to communicate 
the use of strict animal welfare practices to consumers. The existing 
animal welfare certification programs have varying requirements, even 
within individual programs, creating a range of standards in the 
marketplace.\48\ For example, these programs may include standards for 
pastured, cage-free and free-range production. However, high 
participation rates among organic livestock and poultry producers in 
these third-party animal welfare certification programs indicates that 
the organic label does not provide the level of information consumers 
need to assess whether a specific brand meets their expectations for 
animal welfare practices. We expect that private animal welfare 
certification labels on organic products serve as supplementary 
information that provides consumers with assurance of certain product 
attributes, such as minimum space requirements, which are not 
guaranteed through organic certification. Consumers who purchase these 
doubly certified products would likely not be satisfied with private 
animal welfare certification alone because organic certification 
addresses other unique attributes they seek, e.g., animals receive only 
organic feed.
---------------------------------------------------------------------------

    \48\ The Humane Farm Animal Care program has compiled a table 
comparing the requirements of selected third-party animal welfare 
certification programs for laying hens. This includes stocking 
density and outdoor standards. The comparison table is available at: 
http://certifiedhumane.org/how-we-work/fact-sheet/.
---------------------------------------------------------------------------

    Establishing clear practice standards for organic products which 
meet or exceed most of the private animal welfare certification 
requirements would foster a more efficient market for organic products. 
Narrowing the range of acceptable practices within organic egg 
production would bolster consumer confidence in the information 
conveyed by an organic label claim on these products. As the 
requirements in this proposed rule would meet or exceed most of the 
private animal welfare certification standards, we expect that 
producers would find organic certification sufficient and reduce 
participation in other certification programs. This would streamline 
the business practices of organic livestock producers by reducing 
redundant and duplicative paperwork and verification processes for 
organic certification and a separate animal welfare certification.
    Several studies show a correlation between consumer preferences/
demand for products associated with higher animal welfare standards and 
higher price premiums. We believe these studies may be applicable in 
predicting consumer behavior in the organic egg market, particularly 
for consumers who regularly purchase organic eggs. Sustained consumer 
demand for organic eggs could mitigate some costs associated with this 
rulemaking and incentivize producers to comply with this proposed rule 
and remain in the organic market.
    A study by Heng (2015) examined whether consumers are willing to 
pay a premium for livestock products associated with improved animal 
welfare.\49\ The results identified the basic living needs of hens 
(including providing outdoor access) as the most important factors for 
their welfare. The estimates also indicated that on average consumers 
placed a higher value on animal welfare issues than on potential 
environmental issues in their egg choices. In addition, the estimated 
Willingness to Pay (WTP) parameters suggested that consumers were 
willing to pay a premium in the range of $0.21

[[Page 21988]]

to $0.49 per dozen. Such premiums could serve as an incentive for 
farmers to pursue a labeling claim that signifies improved animal 
welfare practices.
---------------------------------------------------------------------------

    \49\ Yan Heng, ``Three Essays on Differentiated Products and 
Heterogeneous Consumer Preferences: The Case of Table Eggs'' (Ph.D. 
diss., Kansas State University, 2015).
---------------------------------------------------------------------------

    Another study by Heng et al., (2013) estimated the values of 
certain attributes of eggs, including outdoor access and stocking 
density.50 51 This study included a survey to assess general 
perceptions of animal welfare. Respondents with favorable perceptions 
of pro-animal welfare products rated cage-free and outdoor access as 
more important factors affecting egg quality than adjusting stocking 
density or not inducing molting.\52\ WTP parameters revealed that 89 
percent of respondents in one cohort were willing to pay a premium of 
$0.25 per dozen for eggs from hens given outdoor access; 11% of those 
respondents were not willing to pay a premium for outdoor access.\53\ 
These findings support AMS' decision to essentially keep indoor 
stocking rates consistent with current practices and focus on parity 
among organic egg producers for meaningful outdoor access. We believe 
that organic consumers generally have high regard for animal welfare-
friendly products. Therefore, we expect that focus on parity will 
resonate positively with consumer preferences for definitive outdoor 
access practices for organic layers. Further, it will be associated 
with a willingness to pay a premium for more consistency and 
transparency in how this practice is implemented.
---------------------------------------------------------------------------

    \50\ Yan Heng, et al., (2013). Consumer Attitudes toward Farm-
Animal Welfare: The Case of Laying Hens. Journal of Agricultural and 
Resource Economics 38(3):418-434.
    \51\ The study used 2 levels for outdoor access: Access or none. 
The study used three levels for stocking density: 67 square inches 
per bird (United Egg Producers standards); 138 square inches 
(average space needed for hens to fully stretch their wings) and 1.5 
square feet (third-party animal welfare standards, e.g., Certified 
Humane and Animal Welfare Approved).
    \52\ Respondents were asked whether they agreed that food 
products produced in an animal-friendly environment are: From 
healthier and happier farm animals, healthier for humans, better 
quality, better for the environment, and taste better.
    \53\ Respondents in this study were provided with additional 
information about potential environmental consequences of different 
management practices to understand how environmental concerns could 
influence consumers' valuation of layer management practices. The 
additional information suggested that cage-free and outdoor access 
systems could contribute to poorer air quality and use more energy 
to regulate temperatures. The $0.25 premium was measured among the 
group that had the environmental information. We believe this group 
is more descriptive of organic consumers generally because their 
purchases are driven by some awareness of production practices 
underlying the organic claim. The mean premium among respondents 
without that information was $0.16 for hens given outdoor access. 
Because the willingness-to-pay distributions for more outdoor access 
and space shifted positively with the additional information on 
potential environmental impacts of different housing systems, the 
study noted that consumer concerns for animal welfare issues 
surmount environmental concerns.
---------------------------------------------------------------------------

    Sumner et al., (2011) looked at the potential market impacts of 
shifting egg production from caged housing to alternative noncage 
systems.\54\ The authors note that the analysis could be extended to 
other alternatives such as free-range and pasture-based production. 
While not focusing on organic eggs, these results are illustrative of 
the impacts of mandated housing changes on supply and demand for 
eggs.\55\ The research concludes that farm price increases of 40 
percent for eggs would likely reduce consumption by less than 10 
percent. The authors note that in the U.S., egg consumption is 
relatively unresponsive to price change and egg expenditures are a very 
small share of the consumer budget. Based on other research, the study 
surmised that consumers are willing to pay more for animal welfare-
related attributes (e.g., ample space per hen, safe outdoor access) 
when they have more information about the housing systems. These 
results support the expectation for consumer willingness to pay for 
eggs perceived to be produced using alternative housing. We believe 
that the space and outdoor access requirements in this proposed rule 
would enable consumers to better differentiate the animal welfare 
attributes of organic eggs and maintain demand for these products.
---------------------------------------------------------------------------

    \54\ D.A. Sumner, et al., ``Economic and Market Issues on the 
Sustainability of Egg Production in the United States: Analysis of 
Alternative Production Systems'' (Paper presented as part of the 
Poultry Science Association Emerging Issues: Social Sustainability 
of Egg Production Symposium, Denver, Colorado, July 11-15, 2010).
    \55\ Specifically, this study looks at four parameters: Price 
elasticity of demand; willingness to pay for price increases for 
eggs produced under alternative housing systems; price elasticity of 
supply; and, change in the marginal per unit cost of production due 
to shifting to an alternative housing.
---------------------------------------------------------------------------

    Chang et al., (2010) examined prices for eggs with various labels 
about production (e.g., cage-free, free-range, organic) to assess how 
consumers value certain product attributes.\56\ This study noted that 
price premiums for cage-free and free-range eggs are 56.7 percent and 
87.5 percent higher, respectively, than conventional egg prices (the 
price premium for organic over conventional was 85 percent). Free-range 
eggs are distinguished from cage-free, for the purposes of this study, 
by the provision of outdoor access for the laying hens in free-range 
systems.\57\ This data demonstrates that consumers value living 
conditions that reflect improved animal welfare for hens, even more so 
when the birds are able to go outdoors. Using predicted prices, this 
study further estimates what portion of the price premium can be 
attributed to egg color versus production practice. The study found 
that 58 percent and 64 percent of the price premium is attributed to 
production practice rather than egg color for cage-free and organic 
eggs, respectively. Consumers of organic eggs appear willing to pay 
higher premiums for production practices than consumers of other types 
of eggs. We believe these findings could be persuasive in an organic 
egg producer's decision to comply with this proposed rule in order to 
remain in the organic market.
---------------------------------------------------------------------------

    \56\ Chang, Jae Bong, et al., (2010). The Price of Happy Hens: A 
Hedonic Analysis of Retail Egg Prices. Journal of Agricultural and 
Resource Economics 35(3):406-423.
    \57\ The study notes that organic production requires that hens 
be given outdoor access and concludes that free-range can be 
synonymous with organic.
---------------------------------------------------------------------------

    In addition, informal national surveys reveal consumer expectations 
that organic eggs are produced from hens with outdoor access. A 2014 
Consumer Reports Labeling Survey noted that 55 percent of consumers 
believe that the organic label on meat and poultry means that the 
animals went outdoors.\58\ Further, the survey measured that 72 percent 
of consumers believe the organic label should mean that the animals 
went outdoors. A second survey, designed by the American Society for 
the Prevention of Cruelty to Animals, showed that 63 percent of 
respondents believe that organic livestock have access to pasture and 
fresh air throughout the day and 60 percent believe that organic 
livestock have significantly more space to move than non-organic 
animals.\59\ This proposed rule would align consumer expectations and 
the production practices required to make an organic label claim 
regarding animal welfare for poultry.
---------------------------------------------------------------------------

    \58\ Consumer Reports National Research Center, Food Labels 
Survey, 2014. Nationally representative phone survey of 1,004 adult 
U.S. residents.
    \59\ This phone survey was administered to 1,009 adults in 
October 2013.
---------------------------------------------------------------------------

    We expect that clear, consistent requirements for avian living 
conditions can sustain consumer demand and support the growth in the 
market for organic poultry products. Several articles describe a 
positive association between the establishment of uniform regulation of 
product labels and consumer confidence. Van Loo, et al, (2011) asserts 
that uniform organic standards and certification procedures are 
essential to maintain consumer trust

[[Page 21989]]

in the validity of organic labels and willingness to pay for such 
products.\60\ They found that the magnitude of consumers' willingness-
to-pay for organic chicken breast depended on the type of organic 
label: A 35 percent premium for general organic labeled chicken breast 
versus a 104 percent premium for a chicken breast labeled as USDA 
certified organic. Smith (2009), states that governmental regulatory 
oversight of credence-type claims, such as ``organic,'' can facilitate 
the availability of improved information on food quality, deter 
irresponsible practices and provide a mechanism to prosecute 
violations.\61\ Smith also observes that governmental standards can 
address the market failure connected to uncertainty about product 
quality and prevent consumer deception and fraud. The prevalent 
participation among organic poultry producers in private animal welfare 
certification programs demonstrates that the organic certification does 
not provide the quality assurances that consumers expect for animal 
welfare attributes. Adding specificity to the USDA organic regulations 
for poultry living conditions would fill that void and add stability to 
a market sector that has widely varying production characteristics.
---------------------------------------------------------------------------

    \60\ Van Loo, Ellen J., Caputo, Vincenzina, Nayga Jr., Rodolfo 
M. (2011). Consumers' willingness to pay for organic chicken breast: 
Evidence from choice experiment. Food Quality and Preference, 
22(2011), 603-613.
    \61\ Smith, G. (2009). ''Interaction of Public and Private 
Standards in the Food Chain'', OECD Food, Agriculture and Fisheries 
Working Papers, No. 15, OECD Publishing. Retrieved from http://search.proquest.com/docview/189840535?accountid=26357.
---------------------------------------------------------------------------

    In accordance with OMB Circular A-4, the benefits of this proposed 
rule are the real improvements in attributes (e.g., animal welfare) for 
organic poultry products. Several recent consumer surveys gauge 
consumer understanding of the meaning of the organic label with respect 
to outdoor access. These surveys show that a higher proportion of 
respondents believe that organic poultry should have outdoor access 
than the percent which believe that organic poultry do have outdoor 
access.
    To monetize the benefits, AMS is using previous research that has 
measured that consumers are willing to pay between $0.21 and $0.49 per 
dozen eggs for outdoor access.\62\ AMS estimates the benefits by 
muliplying the low ($0.21), mid ($0.35) and high ($0.49) points of that 
range by the projected number (in dozens) of organic eggs produced by 
layers that are estimated to newly have outdoor access as a result of 
this rule being implemented.\63\ The National Animal Health Monitoring 
Survey (NAHMS) reports that 36 percent of organic egg operations 
surveyed currently provide at least 2 square feet per bird (equivalent 
to 2.25 lbs/ft\2\) of outdoor space and 35 percent of hens have outdoor 
access via a porch system or covered area; we do not know what 
percentage of total organic egg production this represents, so we 
calculate benefits using a range from 35 percent at the lower bound to 
64 percent (= 100%-36%) at the upper bound, and request comment on how 
to refine this aspect of the analysis.\64\ AMS estimates that the 
annual benefits would thus range between $14.7 million to $62.6 million 
annually with a mean value of $34.6 million over a 13 year 
period.65 66 The estimated benefits would not begin to 
accrue until the rule is fully implemented beginning in year 6 (the 
proposed implementation period is 5 years).
---------------------------------------------------------------------------

    \62\ Some quantity of organic egg production is diverted to 
processed foods. Applying the outdoor access price premium for 
table/shell eggs--which is captured in Table 2--to organic eggs used 
in processed foods introduces some uncertainty into the benefits 
analysis; therefore, we request comment on consumers' willingness-
to-pay for outdoor access for hens laying eggs used in organic 
processed foods.
    \63\ AMS projects that the number of organic eggs produced when 
this rule is fully implemented will be 324,374,484 dozen. The 
organic egg supply projections are discussed in the costs section 
below.
    \64\ For the estimated costs, we assume that 45% of organic 
layers do not comply with the proposed outdoor access requirements 
and will newly have outdoor access under the proposed requirements. 
This is consistent with the estimated range of organic poultry 
production that would newly have access to the outdoors, which is 
used to calculate benefits.
    \65\ The 13 year period accounts for the time needed to fully 
depreciate layer houses. We use a 13 year timeframe to align with 
the methodology used to calculate the costs, below. The 13-year 
average includes five years of zero benefits, reflecting the five 
years before compliance with the new, more stringent standard is 
required, and eight years of positive benefits.
    \66\ If there were a decrease in animal welfare associated with 
producers switching from the baseline level (considered organic 
under the current standard) to the level provided under the cage-
free standard, a necessary next step in the benefits calculation 
would be subtraction of the monetized decline in welfare. However, 
given AMS's understanding of management practices, the agency 
believes that there would be no such decline in animal welfare 
associated with switching label claims from organic to cage-free.
---------------------------------------------------------------------------

Costs of Proposed Rule
    AMS considered various alternatives for the stocking density and 
outdoor space provisions for organic egg production. AMS also 
considered how these producers might respond to the proposed stocking 
densities and outdoor access requirements and how this would impact the 
supply and demand for organic eggs. AMS did not quantify costs 
associated with some of the alternatives discussed above (e.g., 
requiring the outdoor areas to accommodate a certain percent of the 
flock, whether or not porches can be considered outdoor space), but we 
discuss the potential impacts of different choices with respect to 
those options. We do not expect the mammalian health care and living 
conditions sections, transportation, or slaughter provisions to impose 
additional costs, as we expect that these sections will largely codify 
existing industry practices. Therefore, we do not project costs for the 
implementation of those provisions. However, AMS is requesting comments 
on any impacts of those proposed requirements to check that assertion.
Assumptions--Layers
    To estimate the costs to comply with minimum indoor and outdoor 
space requirements for organic layers, AMS made assumptions about the 
current facilities and practices for organic egg production. AMS is 
proposing indoor stocking requirements that align with the current 
practices in organic egg production. Table 5 provides the proposed 
indoor stocking rates by housing type. AMS is aware that many organic 
egg producers participate in third-party animal welfare certification 
programs, in particular, the Certified Humane label program.\67\ The 
proposed indoor stocking rates for layers match the standards for the 
Certified Humane certification program which has ample organic producer 
participation across various operation sizes and housing types. 
Therefore, we believe that most organic egg producers could comply with 
the proposed indoor stocking rates with minor or no changes to their 
current operation.
---------------------------------------------------------------------------

    \67\ The Organic Egg Farmers of America (OEFA) survey reported 
that 87 percent of organic egg production is also certified to 
private animal welfare standards. The survey results do not indicate 
which animal welfare certification programs organic egg producers 
participate in, but AMS is aware that the Certified Humane label is 
a common choice.
---------------------------------------------------------------------------

    The Humane Farm Animal Care standards \68\ for egg laying hens 
specify minimum indoor and outdoor space requirements for four types of 
housing systems: Pasture-based (where birds have unlimited access to 
pasture and

[[Page 21990]]

low outdoor stocking density, approximately 40 ft[hairsp]\2\ per bird); 
loose-housing systems, which include floor litter and slatted/mesh 
floor systems (both single-story houses) and aviaries (multi-level 
platforms and perches). AMS also estimated the distribution of organic 
production among the housing types as shown in Table 5.
---------------------------------------------------------------------------

    \68\ Producers who meet the Humane Farm Animal Care (HFAC) 
standards, as verified through an application and inspection, may 
use the Certified Humane Raised and Handled logo. Participants are 
inspected and monitored by Humane Farm Animal Care. The minimum 
indoor and outdoor space requirements cited here are published in 
the 2014 HFAC Standards for Production of Egg Laying Hens. They are 
available at: http://certifiedhumane.org/how-we-work/our-standards/. 
Accessed July 7, 2015.

              Table 5--U.S. Organic Layers by Housing Type
------------------------------------------------------------------------
                                             Baseline
                                          minimum indoor    Percent of
             Housing system                    space       U.S. organic
                                          (ft[hairsp]\2\   laying flock
                                             per bird)
------------------------------------------------------------------------
Pasture housing.........................             1.0              10
Floor litter housing....................             1.5              10
Slatted/mesh floor housing..............             1.2              30
Aviary housing..........................             1.0              50
------------------------------------------------------------------------

    In this analysis, the outdoor space is the key constraint that 
drives the costs of complying with the proposed rule; we are proposing 
an outdoor stocking density of a maximum of 2.25 pounds/ft\2\ for 
layers. Many organic poultry producers currently provide an outdoor 
stocking density of 2.25 pounds/ft\2\ for layers. For these producers 
the proposed maximum outdoor stocking density will not pose additional 
costs. AMS assumes that layer operations have the equivalent of two 
layer house footprints of outdoor space available for each house. We 
considered that the land available for outdoor access could be the 
areas between and alongside of the houses and extending from the ends 
of the houses. For this analysis, we assumed that pasture housing, 
floor litter housing and slatted/mesh floor housing systems 
collectively account for 50 percent of organic egg production and 
either currently comply with the outdoor space requirements or have the 
land available to comply with the proposed outdoor stocking rate 
without significant changes to the number of birds or facilities. AMS 
is not assuming that all of these operations currently provide outdoor 
access for layers at the proposed stocking density, but that they have 
the space available to do so. Therefore, these operations could incur 
costs for fencing, installing more exits, and other measures to make 
the area usable as outdoor space.
    In addition to the above assumptions, a few producer survey results 
are notable. The National Animal Health Monitoring Survey (NAHMS) 
reports that 36 percent of organic egg operations surveyed provide at 
least 2 square feet per bird (equivalent to 2.25 lbs/ft\2\) of outdoor 
space and 35 percent of hens have outdoor access via a porch system or 
covered area. We do not know what percentage of total organic egg 
production this represents. The EIC survey reports that 15.5 percent of 
all organic layers have at least 2.0 ft\2\ outdoors and access to soil; 
the OEFA survey, reports that 59 percent of organic layers reportedly 
have at least 2.0 ft\2\ outdoors.
    In this analysis, AMS postulates that a producer will consider two 
options in response to this proposed rule: (1) Comply with the proposed 
rule and remain in the organic egg market; or (2) transition to the 
cage-free egg market. Using those potential responses, AMS constructed 
two scenarios to project how the organic egg sector would behave and 
estimated the costs for each scenario. This section explains the 
assumptions and variables used to build our estimates.
    AMS constructed enterprise budgets for representative organic egg 
operations by housing type (i.e., pasture housing, slatted floor/mesh, 
floor litter housing, aviary housing).\69\ For each representative 
operation, we identified a baseline cost structure which included 
estimated fixed and variable costs to determine the cost to produce one 
dozen eggs. We then made assumptions about how and if these values 
would change under the proposed rule. The fixed and variable costs are 
listed in Table 6.
---------------------------------------------------------------------------

    \69\ This analysis mirrors the cost estimation methodology used 
by Vukina, et al., to prepare a cost analysis for the National 
Organic Program on implementing the National Organic Standards Board 
recommendations on stocking densities and outdoor access for organic 
poultry. Vukina et al., developed the baseline cost structure by 
interviewing organic layer and broiler producers and using existing 
literature. We have used most of their assumed values for fixed and 
variable costs in this analysis. The results of that analysis were 
reported in the following articles: Tomislav Vukina, et al., 
``Economic effects of proposed changes in living conditions for 
laying hens under the National Organic Program,'' Journal of Applied 
Poultry Research 23 (1) (March 2014): 80-93. Accessed February 5, 
2016. doi:10.3382/japr.2013-00834. Also, Tomislav Vukina, et al., 
``Proposed changes in living conditions for broilers under the 
National Organic Program will have limited economic effects,'' 
Journal of Applied Poultry Research 23 (2) (June 2014): 233-243. 
Accessed February 5, 2016. doi:10.3382/japr.2013-00896.

         Table 6--Fixed and Variable Costs for Enterprise Budget
------------------------------------------------------------------------
 
-------------------------------------------------------------------------
Fixed costs:
  House
  Composter
  Equipment--total
  Cooler
  Generator
  Outdoor space (Veranda, land, plus fencing and cover)
  Organic Certification
  Insurance (0.5% of the value of the assets)
  Property tax (0.8% of the value of the assets)
Variable costs:
  Pullets
  Feed
  Wood Chips
  Utilities
  Labor
  Process and Packaging Fee
  Manure cleanout
  Miscellaneous
------------------------------------------------------------------------

    To complete the cost estimates for complying with the proposed 
rule, AMS employed the following basic assumptions and values:
    [ssquf] Simple linear (straight line) depreciation of assets with 
zero salvage value.
    [ssquf] Annual opportunity cost of capital of 3 percent.
    [ssquf] Homogenous labor hired at $13.25 per hour.\70\
---------------------------------------------------------------------------

    \70\ Labor costs were estimated using data obtained on hourly 
wages for farming, fishing, and forestry occupations published by 
the Bureau of Labor Statistics for states with high concentrations 
of organic broiler and egg production. We calculated an average 
hourly wage rate using wage rates from eight states--California, 
Iowa, Massachusetts, Michigan, New York, North Carolina, Oregon, and 
Pennsylvania--resulting in an average hourly wage rate of $13.25. 
Organic certification costs were calculated as the average of 
California Certified Organic Farmers (CCOF) and Iowa Organic 
Certification Program posted fees for each organic production sales 
range category.
---------------------------------------------------------------------------

    [ssquf] Price variability for inputs, e.g., feed, pullets, 
according to the size of the flock.\71\
---------------------------------------------------------------------------

    \71\ AMS used the following estimates for birds placed per cycle 
to calculate costs for the representative operation for each housing 
type: Aviaries--100,000 birds; slatted/mesh floor and floor litter--
16,000 birds; pastured--15,000 or less.

---------------------------------------------------------------------------

[[Page 21991]]

    [ssquf] Feed costs per ton of $574 ($710 for pasture operations).
    [ssquf] Lay rate (eggs/hen/year) of 308 (284 for pasture 
operations).
    [ssquf] Feed conversion rate of 4.0 pounds per dozen.\72\
---------------------------------------------------------------------------

    \72\ AMS estimates increased feed costs per bird due to 
increased energy expenditure outdoors. We project the feed 
conversion rate will move from the baseline 3.8 pounds per dozen to 
4.0 pounds per dozen.
---------------------------------------------------------------------------

    [ssquf] Operations can purchase additional land if needed.
    [ssquf] Annual rental rate per acre of land of $177.\73\
---------------------------------------------------------------------------

    \73\ Prices for land were constructed based on average real 
estate values for farm land per acre in 2014 (National Agricultural 
Statistics Service [NASS], 2014). Land prices were calculated as the 
average of the published land prices in the top five states for 
organic egg production. The prices for land in New York, 
Massachusetts, Michigan, North Carolina, and California were 
averaged to obtain a land price of $5,884 per acre. The annual 
rental rate was obtained by multiplying the value of land with the 3 
percent interest rate, resulting in an annual rate of $177 per acre.
---------------------------------------------------------------------------

    [ssquf] Building costs of $70 per hen.\74\
---------------------------------------------------------------------------

    \74\ This includes poultry houses, pullet housing, processing 
equipment and infrastructure improvement, but does not include costs 
to construct a new feed mill. These costs are based on information 
from organic egg producers for existing housing costs.
---------------------------------------------------------------------------

    AMS assumed that the mortality rate for hens would increase to 8 
percent from 5 percent if this proposed rule is finalized.\75\ The 
increased mortality would chiefly be attributed to increased predation, 
disease and parasites from greater outdoor access. Many organic 
producers already provide outdoor access that would comply with this 
proposed rule and would not see changes in mortality.
---------------------------------------------------------------------------

    \75\ The National Animal Health Monitoring Survey Layers 2013, 
reports that about half of organic egg producers have a 60-week 
mortality of less than 4 percent. About 20 percent of organic egg 
producers have a 60-week mortality of 7 percent or higher. For the 
10 percent of operations (pastured) which we expect already comply 
with the proposed requirements, AMS uses an estimated baseline 
mortality rate of 10 percent. We do not expect that the proposed 
requirements would affect that rate for these types of operations 
that currently provide ample outdoor access.
---------------------------------------------------------------------------

    The proposed changes to the avian living conditions, particularly 
outdoor access, reflect the input of numerous stakeholders, including 
producers and consumers, on production practices that would improve the 
overall quality of life for birds. The NOSB also recognized mortality 
rates as a key indicator of animal welfare and important to the 
economic viability of an operation. In addition, the NOSB has discussed 
specific practices to prevent and manage predation and disease in a 
production environment where outdoor access is an integral part. These 
include predator deterrents (electrified fencing, overhead netting), 
rotation of land, well-drained soil, lower stocking density, and 
selection of breeds that are suited to free range conditions.\76\ While 
the tradeoff between a higher mortality rate for greater outdoor access 
generally reflects the preferences of the organic community, organic 
producers will be required to use practices to effectively minimize 
mortality and correct excessive and preventable loss.
---------------------------------------------------------------------------

    \76\ At its September 2012 meeting, the NOSB discussed a 
guidance document for assessing animal welfare of poultry. This 
included a description of management practices that support animal 
welfare and a target mortality rate of 3 to 5 percent.
---------------------------------------------------------------------------

    The key factors that influence the enterprise budgets--and 
magnitude of the impacts to operations--are feed conversion rates, 
production volume and cost of land. Under the proposed rule, feed is 
the variable cost that would shift most notably. The cost of feed would 
increase due to lower feed conversion as birds expend more energy 
outdoors.\77\ Lower feed conversion plus higher mortality would 
ultimately reduce production volume, relative to the baseline with the 
same number of birds.
---------------------------------------------------------------------------

    \77\ In the enterprise budget, some of the variable costs 
(labor, processing and packaging fee) would decline slightly under 
the proposed rule.
---------------------------------------------------------------------------

    In regards to land, AMS assumes that single-story housing systems 
(pasture, floor litter and slatted/mesh floor housing), have the land 
area to meet the outdoor stocking density for their current production. 
Aviary operations would require a larger land area for outdoor access 
than other housing types because these are multi-level structures that 
hold more birds than single-story poultry houses. We assume that 
aviaries have an indoor space roughly three times larger than the 
footprint of the barn. Therefore, aviary houses would on average 
require the equivalent of six house footprints of outdoor space to meet 
the minimum outdoor space requirement.\78\ Therefore, AMS assumes that 
aviaries have the land base to accommodate 33 percent of current 
production at the proposed outdoor stocking rates and would need to 
acquire additional land. AMS calculates that an aviary operation would 
need an additional 3 acres of land per 100,000 birds.
---------------------------------------------------------------------------

    \78\ Aviaries generally have two to four levels; for this 
analysis we chose the midpoint--three levels. Aviaries, while more 
prevalent in larger scale egg operations, are also used for small 
and mid-size egg laying operations.
---------------------------------------------------------------------------

    In summary, the marginal cost to produce one dozen eggs would 
increase under the proposed rule for each type of housing system except 
pasture. For floor litter and slatted/mesh floor housing, AMS estimates 
the marginal costs to produce one dozen eggs would increase by 2.8%; 
for aviary systems those marginal costs would increase by 3.3%. The 
section below discusses how these costs to individual operations will 
impact the organic egg sector.
    AMS is seeking comment on the accuracy of the estimates concerning 
the available land base for outdoor access and the other assumptions 
made in the cost analysis. Is the two house footprints of outdoor space 
per layer house a valid baseline assumption? How many aviaries, and 
what proportion of organic egg production, have available outdoor space 
to comply with the proposed outdoor stocking density?
Assumptions--Broilers
    This proposed rule contains indoor and outdoor space requirements 
specific to broiler and other meat-type avian species. Similar to 
organic egg production, AMS expects that the space requirements for 
broilers are the provisions that would have cost implications. This 
proposed rule, consistent with the NOSB recommendation, would set a 
maximum of 5.0 lbs/ft\2\ for indoor and outdoor stocking density for 
broilers. According to the OEFA survey, 100 percent of responding 
broiler operations participate in private, third-party animal welfare 
certification. In order to estimate the potential costs to comply with 
the stocking density, AMS made the following key assumptions:
     AMS expects that 75 percent of organic broiler production 
complies with the proposed stocking densities.\79\ We assume that 25 
percent of organic broiler production meets a maximum of 6.5 lbs/ft\2\, 
for the indoor stocking density. That metric is based on third-party 
animal welfare certification programs which have high participation 
rates among organic operations.\80\ For

[[Page 21992]]

this analysis, we use 5.37 lbs/sq ft, indoors and outdoors, to 
represent the baseline stocking density for organic broilers generally. 
This is the weighted average of the range of current practices based on 
the assumptions described above.
---------------------------------------------------------------------------

    \79\ The OEFA survey, representing 62 percent of organic 
broilers, asked organic poultry producers whether they could comply 
with a 2.0 ft\2\/bird outdoor stocking density. According to the 
survey, 75 percent of organic broilers production could not meet 
that stocking density. However, this proposed rule would set the 
stocking density at 5.0 lbs/ft\2\. Given that the average live 
weight for organic chicken is 5.84 lbs, the survey effectively asked 
whether broilers could comply with a 2.9 lbs/ft\2\ stocking density. 
Since that is significantly more stringent than the proposed 
stocking density, we expect that the percent of organic broiler 
production which could comply is considerably higher. Further, in 
the Economic Impact Analysis of Proposed Regulations for Living 
Conditions of Organic Poultry, Vukina et al., concluded that the 
representative organic broiler operation provided a 4.275 lbs/ft\2\ 
and could meet the 5.0 lbs/ft\2\ indoor stocking density.
    \80\ The 6.5 lbs/ft\2\ is the midpoint indoor stocking density 
between the Humane Farm Animal Care standards for broilers (maximum 
6.0 lbs/sq\2\) and the American Humane Association standards for 
broilers (maximum 7.0 lbs/sq\2\).
---------------------------------------------------------------------------

     Operations which can meet the proposed indoor stocking 
density can also meet the outdoor stocking density. We expect that the 
land area around a broiler house is equivalent to the footprint of two 
broiler houses. Since broilers are not housed in multi-level aviaries 
like laying hens, the outdoor space could accommodate the same number 
of birds at the indoor stocking density.\81\
---------------------------------------------------------------------------

    \81\ Vukina et al., also assumed for their analysis that the 
representative broiler producer is in a position to buy or lease one 
acre of additional land to expand outdoor access and meet the 
proposed stocking density.
---------------------------------------------------------------------------

     The current, annual organic broiler production is roughly 
16 million birds and the average live weight of organic broilers at 
slaughter is 5.84 pounds.\82\
---------------------------------------------------------------------------

    \82\ The AMS Livestock, Poultry and Grain Market News Report, 
Weekly USDA Certified Organic Poultry and Eggs, is available at: 
http://www.ams.usda.gov/market-news/organic-market-news-reports. AMS 
Market News reported that 16 million organic broiler chickens were 
slaughtered under Federal Inspection in 2014.
---------------------------------------------------------------------------

     An organic broiler house will have 6 production cycles per 
year; each cycle is 6-8 weeks long.\83\
---------------------------------------------------------------------------

    \83\ A 6 week production cycle is more common.
---------------------------------------------------------------------------

    In addition, we applied the same assumptions for layers, 
specifically mortality rates, depreciation of assets, property tax, 
labor, insurance, etc., to the cost estimates for broilers.
Cost Estimate for Organic Egg and Poultry Production
    AMS assumes that in response to this proposed rule, affected 
producers will make operational changes to comply with the proposed 
rule and continue organic egg and poultry production. The projected net 
returns shown in Table 7 support this projection; under the proposed 
rule the net returns for organic eggs will exceed the net returns of 
selling to the cage-free market. Table 7 shows the difference in net 
returns per 100,000 dozen eggs for organic eggs under the current USDA 
organic regulations and the proposed rule, and for cage-free eggs. The 
net returns vary based on housing systems, i.e., aviary and single-
story houses.
---------------------------------------------------------------------------

    \84\ The net return estimates use the following data values/
sources: (1) Wholesale value of organic eggs ($2.64/dozen) and 
wholesale value of cage-free eggs ($1.65/dozen). These are the 
values reported to AMS Market News for Free on Board organic and 
cage-free eggs in June 2015. (2) We assumed that 20% of the eggs 
would go the breaker egg market priced at $1.00/dozen. This is the 
price reported to AMS Market News in 2015.

         Table 7--Comparison of Net Returns by Label Claim \84\
------------------------------------------------------------------------
                                                            Net return
               Label claim                  Net return     ($)--Single-
                                           ($)--Aviaries   story houses
------------------------------------------------------------------------
Certified Organic--Current Baseline.....          26,482          21,190
Certified Organic (as proposed)--.......          19,779          14,109
Cage-Free...............................           7,262             949
------------------------------------------------------------------------
\a\ All values in table are per 100,000 dozen eggs.

    AMS assumes that producers would maintain their current level of 
production (i.e., the same number of layers) and would seek additional 
land to meet the proposed outdoor stocking density. The estimated total 
costs for the organic egg sector are the sum of increased operating 
expenses and reduced production. AMS is calculating the costs over a 
13-year timeframe. AMS believes that during this period, existing 
organic layer houses would fully depreciate. AMS understands that 
producers may have other assets, such as land, feedmills, equipment, 
which are integral to their organic operation and will not have fully 
depreciated during the 13-year period. We have tied the costs to the 
house because this investment requires the most capital.
    The methodology just described reflects an assumption that costs 
accrue only to legacy organic producers. As example for which this 
assumption seems plausible, consider a producer with a fairly new 
house, located in a spot without open land; such a producer would 
likely choose to switch to cage-free eggs until the time when the house 
gets close to needing replacement, and then might build the new house 
at a location spacious enough to allow for organic production. The 
costs (i.e., consumer and producer surplus losses of cage-free relative 
to organic) associated with this type of case would decrease over time. 
For this reason, the lower bound cost estimates presented below decline 
linearly over time, with estimates approaching zero by year 14. On the 
other hand, a cost category such as increased bird loss due to 
predation is an inherent aspect of conformance to the proposed higher 
organic standard; it will not decline to zero at any point in the 
future. The upper bound cost estimates presented below, for which 
estimates (other than the upfront land expenditure of $1.1 million) are 
the same from one year to the next, reflect an assumption that this 
type of cost is predominant.
    There are no outdoor space costs for the first five years because 
layer operations would not be required to make any changes to the 
outdoor space during that time period.
    As discussed above, the operating expenses for most organic egg 
operations will increase chiefly due to higher feed costs, because of 
decreased feed efficiency, and the purchase of additional land. There 
may be added costs for maintenance of outdoor areas (e.g., fencing); 
however we have not quantified these costs due to wide variability in 
site-specific conditions. The one-time expenditure for the purchase of 
additional land is projected to be about $1.1 million for the organic 
egg sector.
    The reduced volume of eggs going to the market due to higher 
mortality and decreased lay rate and feed conversion, all associated 
with more outdoor access, will also lower net returns. In Table 8, AMS 
estimated how the proposed rule would affect total egg production while 
holding the layer numbers constant for each housing type.

[[Page 21993]]



 Table 8--Proposed Rule Impact on Organic Egg Production by Housing Type
------------------------------------------------------------------------
                                              Difference in total egg
               Housing type                    production after rule
                                               (percent decrease) \a\
------------------------------------------------------------------------
Pasture..................................  No change.
Floor litter.............................  1.5
Slatted/mesh floor.......................  1.5
Aviary...................................  1.5
------------------------------------------------------------------------
\a\ AMS estimated how the proposed rule would affect total egg
  production while holding the layer numbers constant for each housing
  type.

    For the organic egg sector, AMS estimates that the costs of this 
proposed rule will average $6 to $17 million annually. The compliance 
costs that would occur in year 1 if the entire industry had to comply 
(and each other year, for the upper bound estimates) is $28.2M. For the 
lower bound estimates, in each year, compliance costs decline by 1/13 
until they reach zero in 2014. No costs are incurred during the first 5 
years due to the 5 year implementation period for outdoor space 
requirements. By year six, 5/13ths of the layer barns will have been 
fully depreciated based on federal tax returns. Thus, the lower bound 
compliance costs incurred are reduced by 5/13ths ($10.8 million) to 
exclude all compliance costs from the barns which are fully depreciated 
prior to implementation of the outdoor space requirements. Lower bound 
costs reported are reduced by 1/13th each additional year until costs 
reported would reach $0 in year 14.
    For this analysis, AMS assumes that organic broiler producers would 
also maintain their current facilities and reduce the number of birds, 
if needed, in order to comply with the proposed stocking densities and 
remain in the organic market. In this scenario, producers would incur 
some increased expenditures, linked to increased feed costs and reduced 
feed efficiency, and reduced production. In addition, AMS estimates 
that the organic broiler flock (16 million birds) would be reduced by 7 
percent, or 1.18 million birds to comply with the proposed indoor 
stocking density. Estimated costs to producers in each of the years 
after compliance with the rule is required will exceed the projected 
annual average. For the lower bound, AMS is reducing the actual costs 
(e.g., lost revenue) from lower production by 1/13th each year 
throughout the 13-year period.\85\ In summary, the total costs AMS is 
reporting for organic broiler production is estimated to average 
between $3.4 and $6.8 million annually.
---------------------------------------------------------------------------

    \85\ It is not standard practice to categorize lost revenue as a 
cost in a society-wide cost-benefit analysis. Instead, costs should 
be calculated as lost producer and consumer surplus (that is, the 
difference between the amount consumers would be willing to pay for 
the relevant consumption units and the marginal cost of producing 
those units, summed across the units that are no longer traded in 
the market). We request comment that would allow for revision of the 
analysis along these lines.
---------------------------------------------------------------------------

    The compliance cost would be in the first year (year 1) if the 
entire industry had to comply. For the lower bound, costs are reduced 
by 1/13 of that cost every year until they reach zero in year 14. No 
costs are incurred during the first year due to the 1 year 
implementation period for indoor access requirements. By the 2nd year, 
costs reported are reduced by 1/13th ($563,000) to $6.8 million because 
1/13th of the barns will have fully depreciated. Costs reported are 
reduced by 1/13th each additional year until costs reported would reach 
$0 in year 14.
    In summary, the total reported costs for the organic egg and 
poultry sector are estimated to average $9.5 to $24.1 million annually. 
AMS estimates that the increased operating costs and lost revenue from 
decreased production volumes would result in a 3.63 percent increase in 
the break-even price for one dozen organic eggs ($2.31 to $2.39 per 
dozen). AMS expects that some organic egg and broiler producers may 
face additional costs for building new fences, providing shade in 
outdoor areas, or creating more doors in poultry houses. We have not 
quantified these costs due to the wide variability in baseline 
conditions and potential changes based on the suitability to site-
specific conditions.

[[Page 21994]]

[GRAPHIC] [TIFF OMITTED] TP13AP16.000

Impact of Egg Operations Leaving Organic Production
    Alternatively, some organic egg operations may consider leaving 
organic production for the cage-free market. AMS estimates that up to 
90 percent of organic aviaries may transition to cage-free egg 
production due to marketing opportunities and challenges of complying 
with the outdoor space requirements.\86\ Our assumptions about land 
availability, described above, and the projected net returns for 
organic eggs and cage-free eggs informed our prediction of how organic 
producers may respond. We expect that 90 percent may overestimate that 
proportion of egg production that might exit the organic market and 
seek data to refine this estimate.\87\ The estimated 90 percent of

[[Page 21995]]

organic aviaries that do not have the land available would need to 
reduce the number of birds to meet the proposed stocking density. That 
reduced production volume would result in significant net loss and 
would not be economically viable. Therefore, we project that this 
production, which accounts for 45 percent of organic egg production, 
would likely transition to the cage-free egg market. As shown in Table 
7, these producers would be able to sell their eggs as cage-free which 
has a lower cost of production but also lower premiums compared to the 
organic egg market.
---------------------------------------------------------------------------

    \86\ AMS based this assumption on a review of Organic System 
Plans for organic egg operations which have more than one level of 
living space and at least 16,000 hens. We set this criteria to 
capture aviaries. We reviewed 62 OSPs to visually gauge whether the 
land area adjacent to the houses could be sufficient to comply with 
the proposed outdoor stocking density.
    \87\ For clarification, ``exit'' is used in this analysis to 
indicate that producers would leave the organic market but would 
continue to produce eggs or poultry for the conventional market.
---------------------------------------------------------------------------

    For this analysis, we estimate the foregone profit as the 
difference in net returns for cage-free and organic eggs for a 13 year 
period. This accounts for the time needed to fully depreciate layer 
houses. Reported profit effects are decreased by 1/13th each year. We 
estimate that in aggregate producers who cannot comply with the reduced 
outdoor space requirements and move to cage free production would have 
reduced net revenues of $27 million in the first year that the rule is 
fully implemented. However, by year six, 5/13th of these aviary layer 
barns would have been fully depreciated, so none of these costs 
incurred are included in this proposed rule. In year six, 5/13ths of 
actual costs are removed leaving a reported cost of $16.6 million. Each 
subsequent year, an additional 1/13th of the actual costs are removed 
until reported profit effects reach $0 in year 14. We estimate that the 
foregone profit from the transition to the cage-free egg market would 
total $216 million of which AMS is reporting in this analysis $74.1 
million, averaging $5.7 million over 13 years.\88\
---------------------------------------------------------------------------

    \88\ Total costs incurred for the egg producers who move to the 
cage-free market are $216 million ($26,966,000 per year over 8 
years).
---------------------------------------------------------------------------

    These profit effects encompass real costs and cost savings, such as 
the savings resulting from a switch from organic feed to less expensive 
conventional feed; however, the highest-magnitude aspect of the profit 
effect is very likely the non-collection of the differential price 
premiums for organic eggs relative to cage-free eggs. As discussed 
previously, consumers pay this premium largely because they place a 
value on laying hens having access to the outdoors. However, the 
exiting producers have not been giving their animals sufficient access 
to the outdoors, so the non-payment of these price premiums does not 
correspond to changes in costs (e.g., the costs of providing outdoor 
access) or benefits (e.g., the value of animal welfare) because the 
outdoor access availability is the same with the cage-free production 
option as it is in the baseline. As such, in the context of a society-
wide cost-benefit analysis, the price payment effect associated with a 
switch to cage-free label claims--and, by extension, most of the 
overall net profit effect--would be categorized as a transfer of value 
from egg producers to egg consumers.
    To complete the estimate for this exit scenario we assume that 
organic egg producers, including the 10 percent of organic aviaries 
that do not exit to the cage-free market, have the land base to meet 
the proposed outdoor access requirement and will maintain organic egg 
production. As described in the above scenario, these producers will 
incur increased expenses for higher feed costs due to decreased feed 
efficiency and maintenance of outdoor access areas (e.g., fencing). In 
addition, we expect that aviaries will need additional land to comply 
with the outdoor stocking density and will face increased annual rent 
for land. These organic producers would also experience reduced profits 
resulting from decreased lay rate and higher mortality with increased 
outdoor access.
    Estimated costs of complying with the proposed rule, for those 
producers who do not transition to cage-free, will average $6.3 to 
$21.5 million annually for 13 years. Transfers associated with the 
switch to cage-free (by some, but not all, producers) average $5.7 
million over that time horizon. Table 10 shows how these estimated 
costs and transfers are distributed over 13 years. Note that the upper 
bound costs in the laying hens column increase over time, as producers 
who temporarily exited organic production in favor of cage-free expand 
their production space so as to allow them to satisfy the proposed 
higher organic standard and they thus incur higher costs (e.g., due to 
greater predation).

[[Page 21996]]

[GRAPHIC] [TIFF OMITTED] TP13AP16.001

Impact on Organic Egg Supply
    AMS has also considered the impact of the proposed rule on the 
organic egg supply if 90 percent of organic aviaries exit the organic 
egg market. We are using the number of layers as an indicator of 
organic egg supply. The number of organic layers grew 12.3 percent 
annually from 2007-2015.\89\ We expect that this growth rate will not 
be sustained and project that the number of organic layers will grow 2 
percent

[[Page 21997]]

annually after year 2015. The 2 percent annual growth is estimated 
based on the historical growth rate in the number of nonorganic layers 
between 2007 to 2015.\90\ Figure 1 shows the projected growth 
trajectory for each producer response scenario.
---------------------------------------------------------------------------

    \89\ USDA Livestock, Poultry and Grain Market News, 2015. This 
is the compound annual growth rate from 2007 to 2015. The growth 
from one-year to the next could have been higher or lower than the 
12.3 percent average.
    \90\ Ibid.
    [GRAPHIC] [TIFF OMITTED] TP13AP16.002
    
    We estimate that up to 90 percent of organic aviaries could exit to 
the cage-free market. In this case, we expect that the number of layers 
would drop by 43 percent relative to peak production. Peak production 
would occur 5 years after publication of the final rule and the drop in 
production would occur 6 years after publication when the rule must be 
fully implemented. After the projected decline, AMS expects that the 
organic layer population would resume growth at the 2 percent annual 
rate. This is likely a conservative estimate as unmet consumer demand 
for organic eggs would be an incentive for operations to enter organic 
egg production and for existing organic operations to expand. Assuming 
that all organic producers comply with this proposed rule and maintain 
organic production, we expect that the number of organic layers will 
grow 2 percent annually throughout and after the implementation period.
    AMS is proposing that the final rule, except for the avian outdoor 
access provisions, be implemented one year after publication. The avian 
outdoor access provisions would be implemented in two phases: (1) 
Operations/facilities/poultry houses which are initially certified 3 
years after publication would need to comply with the outdoor stocking 
density to obtain certification; (2) All operations certified before 
the 3-year mark would need to comply with the proposed outdoor stocking 
density 5 years after the publication of the final rule.
    The increased operating expenses are projected to raise the break-
even price per dozen eggs by 3.2 percent to 3.6 percent for floor 
housing systems and aviaries respectively. We use break-even price as a 
proxy for wholesale price. Based on studies, cited above, evaluating 
consumers' willingness-to-pay for outdoor access, we anticipate that 
price increases of this magnitude would not deter consumer purchases of 
organic eggs.
    AMS acknowledges that achieving consistent organic practices is 
critical to maintain consumer trust in the organic sector and may 
necessitate that some producers leave the organic market and use 
alternate labeling claims. However, we expect that updating the organic 
livestock standards in response to consumer and producer preferences 
will avert widespread, adverse impacts from maintaining the status quo. 
Persistent consumer confusion about organic labels on eggs and other 
livestock products jeopardizes consumer trust in the organic label 
generally and undermines a key purpose for establishing a national 
organic certification program. In addition to constraining the 
performance of existing organic operations, these conditions could 
discourage participation in the NOP as producers seek alternate 
certification to better convey their management practices to consumers.
    On the other hand, organic livestock production standards that are 
relevant and responsive to consumer preferences should drive demand for 
organic products and attract new entrants to the organic livestock 
market. This would have positive monetary impacts for organic livestock 
producers and other organic operations that produce/handle animal feed. 
We have not quantified the potential broader implications for not 
pursuing this action.
Impacts on Other Entities
    AMS expects that the proposed handling requirements for organic 
livestock, including transit and slaughter, are common industry 
practice and would not substantially affect producers or handlers. 
During the development and deliberation of the NOSB's animal welfare 
recommendations in 2009 and 2011, there were numerous public comments. 
Those comments did not inform of any substantial impacts of provisions 
pertaining to mammalian livestock.
    USDA's Animal and Plant Health Inspection Service (APHIS) already 
has requirements to support animal health during transit. With regard 
to slaughter, USDA's Food Safety and Inspection Service (FSIS) already 
requires that mammalian slaughter facilities meet

[[Page 21998]]

similar requirements as those recommended by the NOSB, per the Humane 
Methods of Slaughter Act within the Federal Meat Inspection Act.
    Some small mammalian slaughter facilities may not currently be 
inspected by FSIS; for example, those operations that sell meat intra-
state only. However, AMS understands that humane slaughter practices in 
compliance with the Humane Methods of Slaughter Act are industry 
standard. AMS expects that costs incurred to comply with the proposed 
rule would not be a substantial barrier. Such costs could include those 
related to training staff, developing record-keeping materials, making 
minor facility renovations, and documenting and analyzing the 
facility's compliance with the proposed rule. Therefore, AMS does not 
expect that existing organic slaughter facilities would incur 
substantial costs or make onerous changes to current facilities or 
procedures in order to comply with the proposed rule.
    AMS understands that it is possible that a subset of the existing 
certified organic slaughter facilities could surrender their organic 
certification as a result of this action, which could impact organic 
livestock producers. However, AMS cannot predict the number of such 
entities, if any, that would surrender organic certification and the 
corresponding impact to organic producers. Similarly, certain 
businesses currently providing livestock transport services for 
certified organic producers or slaughter facilities may be unwilling to 
meet and/or document compliance with the proposed livestock transit 
requirements. AMS is requesting comments specifically on the proposed 
regulations for slaughter.
    As discussed below in the Paperwork Reduction Act section, this 
proposed rule would impose additional paperwork requirements. Organic 
livestock and poultry producers and handlers must develop and maintain 
an organic system plan. This is a requirement for all organic 
operations, and the USDA organic regulations describe what information 
must be included in an organic system plan (Sec.  205.201). This 
proposed rule describes the additional information (Sec. Sec.  205.238, 
205.239, 205.241, and 205.242) that will need to be included in a 
livestock operation's organic system plan in order to assess 
compliance. AMS estimates the annual cost to compile this information 
will be $400 per organic livestock producer. AMS expects that as 
producers adapt to the requirements introduced by the amendments at 
Sec. Sec.  205.238, 205.239, 205.241, and 205.242, the number of labor 
hours per year for currently certified operators will decrease.
    This proposed rule would also impose a minor burden on certifying 
agents. These entities will need to become familiar with the 
requirements of the proposed rule and update organic system plan forms.
    AMS does not expect that this proposed rule would impose any unique 
cost burdens on foreign-based livestock operations that are USDA 
certified organic due to the extremely limited number of foreign 
certified poultry operations. There are less than 5 producers and 
handlers of USDA certified egg or chicken operations outside of the 
U.S. according to the NOP's Organic Integrity database. There are less 
than 70 USDA certified organic operations that have mammalian livestock 
and operation outside of the U.S.; most of these are cattle operations 
in Australia.
    AMS did not estimate costs for impacts to third-party animal 
welfare certification programs. As discussed above, we expect that 
organic producers may opt to no longer participate in these 
certification programs once this proposed rule is finalized. AMS 
believes that these private certification programs have a participant 
base that is broader than organic producers and offer a unique service 
for producers who want to convey specific information about animal 
welfare practices to consumers.
Conclusions
    This proposed rule will maintain consumer trust in the value and 
significance of the USDA organic seal, particularly on organic 
livestock products. Clear and consistent standards for organic 
livestock practices, especially maximum stocking density and outdoor 
access for poultry, are needed and broadly anticipated by most 
livestock producers, consumers, trade groups, certifying agents, and 
OIG. This action completes the process, as intended by OFPA and 
reiterated in the USDA organic regulations, to build more detailed 
standards for organic livestock. By resolving the ambiguity about 
outdoor access for poultry, this action furthers an objective of OFPA: 
Consumer assurance that organically produced products meet a consistent 
standard. In turn, it also provides assurance to producers that organic 
certification standards reflect the expectations of the consumer base. 
Augmenting the animal welfare practice standards for organic livestock 
would provide a foundation for efficient and equitable compliance and 
enforcement and facilitate fair competition among organic livestock 
producers. AMS is providing a 5-year implementation period for the 
outdoor access provisions for poultry in consideration of the average 
time needed to finish depreciating the capital costs of aviary houses, 
production realities and cost to producers who invested in organic 
production facilities.
    AMS is seeking comments on the economic impacts, both costs and 
benefits, of this action on the industry. We are specifically 
interested in validating the accuracy of assumptions about available 
outdoor space, and more precise estimates of the number and size of egg 
layer and broiler operations that may be affected by this action. The 
costs and benefits are summarized in the Executive Summary and were 
described in detail in this section.

B. Executive Order 12988

    Executive Order 12988 instructs each executive agency to adhere to 
certain requirements in the development of new and revised regulations 
in order to avoid unduly burdening the court system. This proposed rule 
is not intended to have a retroactive effect.
    States and local jurisdictions are preempted under the OFPA from 
creating programs of accreditation for private persons or State 
officials who want to become certifying agents of organic farms or 
handling operations. A governing State official would have to apply to 
USDA to be accredited as a certifying agent, as described in section 
6514(b) of the OFPA. States are also preempted under sections 6503 and 
6507 of the OFPA from creating certification programs to certify 
organic farms or handling operations unless the State programs have 
been submitted to, and approved by, the Secretary as meeting the 
requirements of the OFPA.
    Pursuant to section 6507(b)(2) of the OFPA, a State organic 
certification program may contain additional requirements for the 
production and handling of organically produced agricultural products 
that are produced in the State and for the certification of organic 
farm and handling operations located within the State under certain 
circumstances. Such additional requirements must: (a) Further the 
purposes of the OFPA, (b) not be inconsistent with the OFPA, (c) not be 
discriminatory toward agricultural commodities organically produced in 
other States, and (d) not be effective until approved by the Secretary.
    Pursuant to section 6519(f) of the OFPA, this proposed rule would 
not alter the authority of the Secretary under the Federal Meat 
Inspection Act (21 U.S.C. 601-624), the Poultry Products Inspection Act 
(21 U.S.C. 451-

[[Page 21999]]

471), or the Egg Products Inspection Act (21 U.S.C. 1031-1056), 
concerning meat, poultry, and egg products, nor any of the authorities 
of the Secretary of Health and Human Services under the Federal Food, 
Drug and Cosmetic Act (21 U.S.C. 301-399), nor the authority of the 
Administrator of the EPA under the Federal Insecticide, Fungicide and 
Rodenticide Act (7 U.S.C. 136-136(y)).
    Section 6520 of the OFPA provides for the Secretary to establish an 
expedited administrative appeals procedure under which persons may 
appeal an action of the Secretary, the applicable governing State 
official, or a certifying agent under this title that adversely affects 
such person or is inconsistent with the organic certification program 
established under this title. The OFPA also provides that the U.S. 
District Court for the district in which a person is located has 
jurisdiction to review the Secretary's decision.

C. Regulatory Flexibility Analysis

    The Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612) requires 
agencies to consider the economic impact of each rule on small entities 
and evaluate alternatives that would accomplish the objectives of the 
rule without unduly burdening small entities or erecting barriers that 
would restrict their ability to compete in the market. The purpose is 
to fit regulatory actions to the scale of businesses subject to the 
action.
    The RFA permits agencies to prepare the initial RFA in conjunction 
with other analyses required by law, such as the Regulatory Impact 
Analysis (RIA). AMS notes that several requirements to complete the RFA 
overlap with the RIA. For example, the RFA requires a description of 
the reasons why action by the agency is being considered and an 
analysis of the proposed rule's costs to small entities. The RIA 
describes the need for this proposed rule, the alternatives considered 
and the potential costs and benefits of this proposed rule. In order to 
avoid duplication, we combine some analyses as allowed in section 
605(b) of the RFA. The RIA explains that the scope of that analysis is 
the impact on the organic egg sector. AMS believes that other types of 
organic livestock and poultry production would not face significant 
costs to comply with this proposed rule because the proposed provisions 
generally codify current practices. As explained below, AMS expects 
that the vast majority of organic egg producers and broiler producers 
that could be impacted by this proposed rule would qualify as small 
businesses. In the RIA, the discussion of alternatives and the 
potential costs and benefits pertain to impacts upon all entities, 
including small entities. Therefore, the scope of those analyses is 
applicable to the RFA. The RIA should be referred to for more detail.
Why is AMS proposing this rule?
    The Organic Food Production Act (OFPA) provides general 
requirements for organic livestock production, and directs USDA to 
provide more detailed provisions through rulemaking. The current USDA 
organic regulations have broad and general requirements for ensuring 
the welfare of certified organic livestock and poultry. Organic 
livestock and poultry must be raised in a way that accommodates their 
health and natural behavior and reduces stress. Specifically, organic 
livestock and poultry producers must provide access to the outdoors, 
shade, clean and dry bedding, shelter, space for exercise, fresh air, 
clean drinking water, and direct sunlight (Sec.  205.239(a)). 
Additionally, the organic regulations describe allowed and prohibited 
livestock healthcare practices and specify requirements for organic 
livestock living conditions (Sec.  205.239(b)). AMS began the process 
of adding more specificity to the livestock provisions with the 
publication of the 2010 final rule on access to pasture for ruminants. 
This action would fulfill the expectations set forth in OFPA and 
anticipated by the organic community for more clarity on production 
practices for poultry and other livestock species.
    The USDA organic regulations for livestock and poultry are general 
and can apply to various production situations. However, as described 
above, varying interpretations of these regulations have resulted in 
different practices, particularly concerning outdoor access for 
poultry. One of the main disparities in practice is the use of porches 
to provide outdoor access versus an uncovered area with soil and/or 
vegetation. This disparity in outdoor access has economic implications 
for the operations and jeopardizes consumer confidence in the organic 
label.
    AMS has received formal complaints from organic poultry farmers who 
provide outdoor access through pasture-based systems. These operations 
have cited that they are at a competitive disadvantage compared to 
operations that are providing more limited access to the outdoors.\91\ 
To resolve this divergence in practices, the NOSB, organic trade 
groups, and consumer groups have pressed AMS to intervene and set clear 
guidelines regarding outdoor access, minimum space requirements, and 
other livestock and poultry provisions. With this proposed rule, AMS is 
proposing more specific requirements for organic livestock and poultry, 
including specific minimum indoor and outdoor space requirements for 
organic poultry, and provisions for handling during transportation and 
slaughter. These proposed requirements are largely based on 
recommendations from the NOSB which were developed with substantive 
input from stakeholders, including producers and consumers. In the RIA, 
AMS explains that the outdoor access requirements for poultry are 
expected to have cost impacts for organic egg and broiler producers. 
Therefore, this analysis focuses on those production sectors. The other 
proposed requirements for mammalian living conditions, healthcare 
practices and handling during transport and slaughter would essentially 
codify existing practices and are not considered in this analysis. The 
scope of the analysis is also explained in the RIA.
---------------------------------------------------------------------------

    \91\ Increased outdoor access is associated with increased 
mortality due to predation and decreased feed efficiency.
---------------------------------------------------------------------------

    Consumers have become increasingly interested in how their food is 
produced and make purchasing decisions based on the method of 
production. Based on public comments received in response to the NOSB's 
recommendations on animal welfare, AMS understands that consumers 
expect, and are willing to pay more for, animal welfare requirements 
that are more stringent than conventional products. This includes 
outdoor access for organic poultry. AMS believes that the costs 
incurred by producers in complying with this proposed action are 
necessary to reflect consumer expectations for organic products. If 
implemented, this action would, as discussed in the benefits portion of 
the RIA, support consumer expectations related to practices for organic 
livestock. AMS believes that the long-term economic impact of not 
implementing this proposed rule could undermine the integrity of the 
USDA organic seal, if there is ambiguity regarding how the USDA organic 
regulations must be applied across the organic livestock and poultry 
sector.
Would I be affected by the rule?
    AMS has considered the economic impact of this proposed action on 
small entities. Small entities include avian and mammalian livestock 
producers and slaughter facilities that currently hold or are 
considering certification to the USDA organic regulations, as well as

[[Page 22000]]

organic certifying agents. While the proposed action would affect all 
operations involved in the production, handling, and certification of 
organic livestock, AMS believes that the cost of implementing the 
proposed rule will fall primarily on current and prospective organic 
egg and broiler producers, including: (1) Individuals or business 
entities that are considering starting a new egg or poultry operation 
and that plan to seek organic certification for that operation, (2) 
existing egg and broiler producers that plan to seek organic 
certification for that operation, and (3) existing egg and broiler 
producers that are currently certified organic under the USDA organic 
regulations.
    The RFA requires, with some exception, that AMS define small 
businesses according to its size standards. The Small Business 
Administration (SBA) sets size standards for defining small businesses 
by number of employees or amount of revenues for specific industries. 
These size standards vary by North American Industry Classification 
System (NAICS) code (13 CFR part 121.201). For the RFA analysis, AMS 
focused on estimating how different size organic layer and broiler 
operations (small versus large) would be impacted as a result of 
meeting the proposed indoor and outdoor space requirements.
    AMS does not expect that the proposed rule would substantially 
affect other stakeholders, including (1) operations that produce other 
organic poultry, (2) operations that produce mammalian livestock, (3) 
operations that handle organic livestock, and (4) organic certifying 
agents. These determinations are based on a number of assumptions 
described below and explained in the RIA. This analysis focused on the 
impact of the proposed rule on small businesses in the United States.
What are the estimated costs for organic layer operations?
    Small egg producers are listed under NAICS code 112310 (Chicken Egg 
Production) as grossing less than $15,000,000 per year. AMS estimates 
that out of 722 operations reporting sales of organic eggs, 4 exceed 
that threshold.\92\ However, we estimate that large producers account 
for 25 percent of organic egg production.
---------------------------------------------------------------------------

    \92\ The National Agricultural Statistics Service's 2014 Organic 
Survey provides the number of farms reporting sales of organic eggs 
and those reporting sales of organic broilers. AMS requested a 
special tabulation from NASS to obtain the number of organic egg and 
organic broiler operations which exceed the Small Business 
Administration sales criterion for small businesses in each of these 
production categories.
---------------------------------------------------------------------------

    The availability of adjacent land for egg laying operations to meet 
the proposed outdoor access requirements is the main determinant of 
costs to implement this rule. AMS projects that organic egg and broiler 
producers would be able to meet this proposed rule with only modest 
costs. We assume that these producers have or can acquire adequate 
outdoor space to meet the proposed outdoor stocking density. For these 
producers, the increased costs are due primarily to increased 
mortality, reduced feed efficiency associated with increased outdoor 
access, maintenance of outdoor areas (e.g., fencing) and for broilers, 
reduced number of birds to meet the indoor stocking density.\93\ The 
reported cost estimates for this scenario are provided in the RIA in 
Table 9. We project the reported costs would total $4.5 million for 
small layer operations and $1.5 million for large layer operations. Per 
operation, we estimate the total annual cost would be slightly over 
$6,000 for small operations and $380,000 for large operations.\94\
---------------------------------------------------------------------------

    \93\ Due to increased mortality, producers may need to have more 
birds to offset the losses. In addition, birds may expend more 
energy with increased outdoor access requiring more feed per bird.
    \94\ The per operation totals are calculated using 722 as the 
total number of organic layer operations; 718 qualify as small and 4 
qualify as large per the SBA size standards.

  Table 11--Estimated Costs for Organic Layer Operations Based on Size
------------------------------------------------------------------------
                                               Small           Large
                                            operations      operations
                                          (less than $15   ($15 million
                                            million in      or more in
                                              sales)          sales)
------------------------------------------------------------------------
Reported costs annualized over 13 years            $4.56           $1.52
 (million)..............................
Average, 13 year annualized reported               6,350         380,000
 cost per operation.....................
------------------------------------------------------------------------

    AMS recognizes that the reported costs exclude the majority of 
compliance costs current organic layer operations will face. For 
organic layers operations, the compliance costs incurred will be $21.12 
million each year after implementation for small operations and $7 
million each year after implementation for large operations. Each small 
layer operation will incur compliance costs of $29,400 each year after 
implementation and each large layer operation will incur compliance 
costs of $1.76 million each year after implementation.
    AMS expects that the costs to comply with the proposed outdoor 
space requirements would be more burdensome for larger organic layer 
producers and would increase the likelihood for these operations to 
transition to a cage-free label. Since nearly all of the organic 
producers qualify as small businesses, we expect that there is 
considerable variation in the size of operations in this category. 
These operations would require significantly more land and would be 
less likely to have that area available for expansion.
    As previously stated, however, producers could choose to surrender 
their organic certification and move to alternate labels such as cage-
free, which would reduce both their annual profits and their annual 
operating costs. AMS estimated the cost for the potential scenario in 
which 90 percent of organic aviary operations transition to the cage-
free market in response to this proposed rule. Because aviary houses 
hold more birds, these operations will require a larger land base to 
comply with the outdoor stocking density. Therefore, we expect that any 
operations would which exit the organic egg market would not qualify as 
small businesses per SBA criteria. AMS estimates that if a 100,000-
dozen-egg, aviary facility transitioned from the current USDA organic 
regulations to the cage-free label, the operation would, on average, 
have reduced annual profits ($7,262 versus $26,482).
Organic Broiler Producers
    Small chicken producers are listed under NAICS code 11230 (Broilers 
and Other Meat Type Chicken Production) as grossing less than $750,000 
per year. According to the NASS special

[[Page 22001]]

tabulation, AMS estimates that 27 of the 245 operations reporting sales 
of organic broilers would not qualify as small businesses. AMS 
estimates that the large businesses represent 25 percent of the organic 
broiler market. AMS reports that the proposed indoor and outdoor space 
requirements would impose average costs of $3.4 million per year.

 Table 12--Estimated Costs for Organic Broiler Operations Based on Size
------------------------------------------------------------------------
                                               Small
                                            operations         Large
                                            (less than      operations
                                            $750,000 in   (over $750,000
                                           annual sales)     in annual
                                                \a\           sales)
------------------------------------------------------------------------
Reported costs annualized over 13 years.   $2.53 million        $845,000
Average, 13 year annualized, reported             11,600          31,300
 cost per operation.....................
------------------------------------------------------------------------

    AMS recognizes that the reported costs exclude the majority of 
compliance costs current organic broiler operations will face. For 
organic broiler operations, the compliance costs incurred will be $5.5 
million each year after implementation for small operations and $1.8 
million each year after implementation for large operations. Each small 
layer operation will incur compliance costs of $25,200 each year after 
implementation and each large layer operation will incur compliance 
costs of $68,000 each year after implementation.\95\
---------------------------------------------------------------------------

    \95\ The per operation totals are calculated using 245 as the 
total number of organic layer operations; 218 qualify as small and 
27 qualify as large per the SBA size standards.
    .
---------------------------------------------------------------------------

Would other organic livestock producers and handlers be substantially 
affected?
    Based on available data, AMS does not expect that other organic 
livestock producers and handlers would be substantially affected by 
this proposed action. As explained in the RIA, we expect the proposed 
provisions for mammalian living conditions and health care practices, 
and handling and transport to slaughter, would codify existing industry 
practices. These determinations are based on a series of assumptions 
described below.
Organic Mammalian Livestock Producers
    AMS believes the proposed clarifications for organic mammalian 
livestock, including provisions related to animal treatment and 
physical alternations, are common industry practice and would not have 
a substantial impact on such producers. AMS previously addressed major 
living condition changes for ruminant livestock in its final rule, 
Access to Pasture (Livestock) (75 FR 7154, February 17, 2010).
Organic Livestock Handling Operations
    Based on available information, AMS understands that, in practice, 
all handling operations for organic livestock are small businesses. We 
expect that the proposed handling requirements for organic livestock, 
including transit and slaughter, are common industry practice and would 
not substantially affect handlers. USDA's Animal and Plant Health 
Inspection Service (APHIS) already has requirements to support animal 
welfare during transit. AMS understands that the proposed additional 
requirements related to transit are of industry standard. Also, 
operations providing transit services for organic livestock are not 
required to be certified to the USDA organic standard. Therefore, while 
operations providing transit services would need to comply with the 
proposed transit requirements, they would not be directly subject to 
additional certification requirements.
    Both small livestock slaughter facilities (NAICS code 311611) and 
poultry slaughter facilities (NAICS code 311615) are defined as those 
grossing less than $500,000,000 per year. AMS understands that most of 
the approximately 114 U.S.-based livestock slaughter facilities 
certified to the USDA organic regulations are small businesses. With 
regard to slaughter, USDA's Food Safety and Inspection Service (FSIS) 
already requires that mammalian slaughter facilities meet similar 
requirements as those recommended by the NOSB, per the Humane Methods 
of Slaughter Act within the Federal Meat Inspection Act. Some small 
mammalian slaughter facilities may not currently be inspected by FSIS; 
for example, those operations that sell meat intra-state only. However, 
AMS understands that humane slaughter practices in compliance with the 
Humane Methods of Slaughter Act are industry standard. In addition, 
some small poultry slaughter facilities which are exempt from FSIS 
inspection already observe the good commercial practices that would 
align with the Poultry Products Inspection Act and FSIS regulations. 
AMS expects that costs incurred to comply with the proposed rule would 
not be a substantial barrier. Such costs could include those related to 
training staff, developing record-keeping materials, making minor 
facility renovations, and documenting and analyzing the facility's 
compliance with the proposed rule. Therefore, AMS does not expect that 
existing organic slaughter facilities would incur substantial costs or 
make onerous changes to current facilities or procedures in order to 
comply with the proposed rule.
    AMS understands that it is possible that a subset of the existing 
certified organic slaughter facilities could surrender their organic 
certification as a result of this action, which could impact organic 
livestock producers. However, AMS cannot predict the number of such 
entities, if any, that would surrender organic certification and the 
corresponding impact to organic producers. Similarly, certain 
businesses currently providing livestock transport services for 
certified organic producers or slaughter facilities may be unwilling to 
meet and/or document compliance with the proposed livestock transit 
requirements.
What is the impact for organic certifying agents?
    This proposed rule would also affect certifying agents that certify 
organic livestock operations. The Small Business Administration (SBA) 
defines small agricultural service firms, which includes certifying 
agents, as those having annual receipts of less than $7,500,000 (North 
American Industry Classification System Subsector 115--Support 
Activities for Agriculture and Forestry). There are currently 79 USDA-
accredited certifying agents; based on a query of the NOP certified 
organic operations database, there are approximately 41 certifying 
agents who are currently involved in the certification of organic 
livestock

[[Page 22002]]

operations. AMS believes that these certifying agents would meet the 
criterion for a small business, though some are agencies of state 
governments. While certifying agents are small entities that will be 
affected by this proposed rule, we do not expect these certifying 
agents to incur substantial costs as a result of this action. 
Certifying agents must already comply with the current regulations, 
e.g., maintaining certification records for their clients. Their 
primary new responsibility under this proposal would be to determine if 
organic livestock producers are meeting the requirements proposed in 
this rule, including but not limited to the minimum indoor and outdoor 
space requirements for organic poultry.
How would the proposed implementation period affect small businesses?
Minimum Outdoor Space Requirements
    AMS understands that, based on the analysis above, both small and 
large organic layer operations and broiler operations may incur costs 
in order to comply with the proposed minimum indoor and outdoor space 
requirements. While our analysis demonstrates that large poultry 
operations would have significantly higher compliance costs than small 
operations on average, we understand that small producers that are 
closer to the 245,000-hen threshold or the 150,000 broiler threshold 
may still incur substantial costs to comply with the proposed rule. 
Therefore, AMS is seeking to reduce the economic burden to organic 
producers, including small businesses, without unduly delaying the 
improved animal conditions.
    AMS is proposing a 5-year implementation period for the minimum 
outdoor space requirements for poultry. A facility which is certified 
before 3 years after publication of the final rule would have 5 years 
to come into compliance. Producers and poultry houses which are not 
certified prior to 3 years after publication of the final rule would 
need to meet all of the requirements in order to obtain organic 
certification. Such new operations and poultry houses would include: 
(1) all poultry houses that first became certified organic 3 years or 
more after the final rule was published; and (2) new or replacement 
poultry houses operated by existing organic layer operations if such 
facilities were built 3 years or more after the final rule was 
published.
    By providing an implementation period, both large and small 
existing organic producers would have additional time to implement the 
necessary changes in order to comply with the proposed rule. For 
example, operations choosing to expand will need land for the outdoor 
space. This new land would need to be certified organic before organic 
poultry could have access to it. Since land that has been treated with 
a prohibited substance in the past 3 years is not eligible for organic 
certification, the implementation period would allow organic producers 
to transition additional land to organic production. The 5-year 
implementation is based upon our estimate that the average age of an 
organic layer house is 7.6 years and has depreciated over 13 years for 
tax purposes. Therefore, a 5-year implementation period would allow 
organic egg producers, on average, to recover the costs of a poultry 
house. While we expect that organic egg producers will bear a greater 
cost burden for this proposed rule, this implementation period should 
also align with upgrades to or new construction for broiler houses. We 
expect that 15 percent of broiler houses generally are 5 years old or 
less and have a depreciation rate of 15 years.\96\ While organic 
broiler houses are likely to be newer on average, given that the NOP 
was not established until 2002, we anticipate that the majority of 
organic broiler houses would be nearing the useful life of the broiler 
house when this rule is implemented.
---------------------------------------------------------------------------

    \96\ This reflects the percentage of broiler houses in the U.S., 
not specific to organic operations that were 15 years old or less in 
2006. We applied that proportion to this analysis because the 
population of broilers has grown since that time, so houses that 
were older than 15 years are likely to have been upgraded or 
renovated in the interim. This data was reported in MacDonald, James 
M. The Economic Organization of U.S. Broiler Production. Economic 
Information Bulletin No. 38. Economic Research Service, U.S. Dept. 
of Agriculture, June 2008. The depreciation rate was reported in the 
Organic Egg Farmers of America Survey conducted in July 2014 and 
cited above.
---------------------------------------------------------------------------

All Other Requirements
    For all other provisions of the proposed rule, AMS is proposing an 
implementation date of one year after the publication of the final 
rule. AMS chose a one-year period because all livestock and slaughter 
operations will need to change their Organic System Plans (OSPs) to 
meet the proposed requirements. During the one-year implementation 
period, certifying agents would need to update their OSP forms and make 
modifications to their certification processes in order to evaluate 
compliance with the proposed new requirements. This would include 
training staff and inspectors. AMS believes one year is adequate for 
organic operations, including for small businesses, to implement these 
changes.
Do these requirements overlap or conflict with other federal rules?
    AMS has not identified any relevant Federal rules that are 
currently in effect that duplicate, overlap, or conflict with this 
proposed rule. AMS has reviewed rules administered by other Federal 
agencies, including APHIS and FSIS, and revised the proposed rule to 
avoid duplication. This action provides additional clarity on the 
animal welfare requirements for organic livestock that are specific and 
limited to the USDA organic regulations.

D. Executive Order 13175

    This proposed rule has been reviewed in accordance with the 
requirements of Executive Order 13175, ``Consultation and Coordination 
with Indian Tribal Governments.'' Executive Order 13175 requires 
Federal agencies to consult and coordinate with tribes on a government-
to-government basis on policies that have tribal implications, 
including regulations, legislative comments or proposed legislation, 
and other policy statements or actions that have substantial direct 
effects on one or more Indian tribes, on the relationship between the 
Federal Government and Indian tribes or on the distribution of power 
and responsibilities between the Federal Government and Indian tribes.
    AMS has assessed the impact of this rule on Indian tribes and 
determined that this rule does not, to our knowledge, have tribal 
implications that require tribal consultation under E.O. 13175. If a 
Tribe requests consultation, AMS will work with the Office of Tribal 
Relations to ensure meaningful consultation is provided where changes, 
additions and modifications identified herein are not expressly 
mandated by Congress.

E. Paperwork Reduction Act

    In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 
3501-3520) (PRA), AMS is requesting OMB approval for a new information 
collection totaling 119,957 hours for the reporting and recordkeeping 
requirements contained in this proposed rule. OMB previously approved 
information collection requirements associated with the NOP and 
assigned OMB control number 0581-0191. AMS intends to merge this new 
information collection, upon OMB approval, into the approved 0581-0191 
collection. Below, AMS has described and estimated the annual burden, 
i.e., the amount of time and cost of labor, for entities to prepare and 
maintain information to participate

[[Page 22003]]

in this proposed voluntary labeling program. The OFPA, as amended, 
provides authority for this action.
    Title: National Organic Program; Organic Livestock and Poultry 
Practices.
    OMB Control Number: 0581-NEW.
    Expiration Date of Approval: 3 years from OMB date of approval.
    Type of Request: New collection.
    Abstract: Information collection and recordkeeping is necessary to 
implement reporting and recordkeeping necessitated by amendments to 
Sec. Sec.  205.238, 205.239, 205.241, and 205.242 for additional animal 
welfare standards for organic livestock production under the USDA 
organic regulations. OFPA authorizes the further development of 
livestock production standards (7 U.S.C. 6513(c)). This action is 
necessary to address multiple recommendations provided to USDA by the 
NOSB to add specificity about animal welfare practices with the purpose 
of ensuring consumers that conditions and practices for livestock 
products labeled as organic encourage and accommodate natural behaviors 
and utilize preventive health care slaughter practices.
    All certified organic operations must develop and maintain an 
organic system plan for certification (Sec.  205.201). The OSP must 
include a description of practices and procedures to be performed and 
maintained, including the frequency with which they will be performed. 
Under the proposed rule, organic livestock operations would be subject 
to additional reporting requirements. The amendments to Sec. Sec.  
205.238, 205.239, 205.241, and 205.242 require livestock operations to 
provide specific documentation as part of an organic system plan to 
include conditions on livestock living conditions to permit natural 
behavior, including minimum space, outdoor access and utilize 
preventive health care practices (e.g. physical alterations, 
euthanasia).
    The PRA also requires AMS to measure the recordkeeping burden. 
Under the USDA organic regulations each producer is required to 
maintain and make available upon request, for 5 years, such records as 
are necessary to verify compliance (Sec.  205.103). Certifying agents 
are required to maintain records for 5 to 10 years, depending on the 
type of record (Sec.  205.510(b)) and make these records available for 
inspection upon request (Sec.  205.501(a)(9)). The new information that 
livestock operations must provide for certification will assist 
certifying agents and inspectors in the efficient and comprehensive 
evaluation of these operations and will impose an additional 
recordkeeping burden for livestock operations. Certifying agents 
currently involved in livestock certification are required to observe 
the same recordkeeping requirements to maintain accreditation, 
therefore AMS expects that this proposed rule would not impose a 
different recordkeeping burden on certifiers.
    Reporting and recordkeeping are essential to the integrity of the 
organic certification system. A clear paper trail is a critical tool to 
verify that practices meet the mandate of OFPA and the USDA organic 
regulations. This information supports the AMS mission, program 
objectives, and management needs by enabling us to assess the 
efficiency and effectiveness of the NOP. The information affects 
decisions because it is the basis for evaluating compliance with OFPA 
and USDA organic regulations, and for administering the NOP, management 
decisions and planning, and establishing the cost of the program. It 
also supports administrative and regulatory actions to address 
noncompliance with OFPA and USDA organic regulations.
    This information collection is only used by the certifying agent 
and authorized representatives of USDA, including AMS and NOP staff. 
Certifying agents, including any affiliated organic inspectors, and 
USDA are the primary users of the information.
Respondents
    AMS has identified three types of entities (respondents) that would 
need to submit and maintain information in order to participate in 
organic livestock certification. For each type of respondent, we 
describe the general paperwork submission and recordkeeping activities 
and estimate: (1) The number of respondents; (2) the hours they spend, 
annually, completing the paperwork requirements of this labeling 
program; and, (3) the costs of that activity.
    1. Certifying agents. Certifying agents are State, private, or 
foreign entities accredited by USDA to certify domestic and foreign 
livestock producers and handlers as organic in accordance with OFPA and 
USDA organic regulations. Certifying agents determine if a producer or 
handler meets organic requirements, using detailed information from the 
operation about its specific practices and on-site inspection reports 
from organic inspectors. Currently, there are 77 certifying agents 
accredited under NOP; many of which certify operations based in the 
U.S. and abroad. AMS assumes all currently accredited certifying agents 
evaluate livestock operations for compliance with the USDA organic 
regulations and will therefore be subject to the amendments at 
Sec. Sec.  205.238, 205.239, 205.241, and 205.242.
    Each entity seeking to continue USDA accreditation for livestock 
will need to submit information documenting its business practices 
including certification, enforcement and recordkeeping procedures and 
personnel qualifications (Sec.  205.504). AMS will review that 
information during its next scheduled on-site assessment to determine 
whether to continue accreditation for the scope of livestock. 
Certifying agents will need to annually update the above information 
and provide results of personnel performance evaluations and the 
internal review of its certification activities (Sec.  205.510).
    AMS projects that the additional components of organic system plans 
for livestock may entail longer review times than those for other types 
of organic system plans. AMS estimates the annual collection cost per 
certifying agent will be $3,000.94. This estimate is based on an 
estimated 91.8 labor hours per year at $32.69 per hour for a total 
salary component of $3,000.94 per year. This value is assumed to be an 
underestimate as the certifier bears a portion of the burden of the 
inspector and certifiers employ varying numbers of inspectors. The 
source of the hourly rate is the National Compensation Survey: 
Occupational Employment and Wages, May 2014, published by the Bureau of 
Labor Statistics. The rate is the mean hourly wage for compliance 
officers. This classification was selected as an occupation with 
similar duties and responsibilities to that of a certifying agent.\97\
---------------------------------------------------------------------------

    \97\ Compliance officers examine, evaluate, and investigate 
eligibility for or conformity with laws and regulations governing 
contract compliance of licenses and permits, and perform other 
compliance and enforcement inspection and analysis activities not 
classified elsewhere. Bureau of Labor Statistics, Occupational 
Employment and Wages, May 2014, 13-1041 Compliance Officers.
---------------------------------------------------------------------------

    2. Organic Inspectors. Inspectors conduct on-site inspections of 
certified operations and operations applying for certification and 
report the findings to the certifying agent. Inspectors may be the 
agents themselves, employees of the agents, or individual contractors. 
Certified operations will be inspected annually; a certifying agent may 
call for additional inspections on an as needed basis (Sec.  
205.403(a)). Any individual who applies to conduct inspections of 
livestock operations will need to submit information documenting their 
qualifications to the certifying agent (Sec.  205.504(a)(3)). 
Inspectors will need to

[[Page 22004]]

provide an inspection report to the certifying agent for each operation 
inspected (Sec.  205.403(e)). AMS projects that on average, inspectors 
will spend 3 hours longer than average (10 hours) to complete an 
inspection report for livestock operations. This estimate is due to the 
additional components of the organic system plan that will need to be 
inspected. Inspectors do not have recordkeeping obligations; certifying 
agents maintain records of inspection reports.
    According to the International Organic Inspectors Association 
(IOIA), there are approximately 250 inspectors currently inspecting 
crop, livestock, handling and/or wild crop operations that are 
certified or have applied for certification. AMS assumes that 
approximately half (125) of these inspectors inspect livestock 
operations.
    AMS estimates the annual collection cost per inspector to be 
$6,731.37. This estimate is based on an estimated 321 additional labor 
hours per year at $20.97 per hour for a total salary component of 
$6,731.37 per year. The source of the hourly rate is the National 
Compensation Survey: Occupational Employment and Wages, May 2014, 
published by the Bureau of Labor Statistics. The rate is the mean 
hourly wage for agricultural inspectors (occupation code 45-2011).
    3. Producers and handlers. Domestic and foreign livestock producers 
and handlers will submit the following information to certifying 
agents: an application for certification, detailed descriptions of 
specific practices, annual updates to continue certification, and 
changes in their practices. Handlers include those who transport or 
transform aquaculture products and may include bulk distributors, food 
and feed manufacturers, processors, or packers. Some handlers may be 
part of a retail operation that processes organic products in a 
location other than the premises of the retail outlet.
    In order to obtain and maintain certification, livestock producers 
and handlers will need to develop and maintain an organic system plan. 
This is a requirement for all organic operations and the USDA organic 
regulations describe what information must be included in an organic 
system plan (Sec.  205.201). This proposed rule describes the 
additional information (Sec. Sec.  205.238, 205.239, 205.241, and 
205.242) that will need to be included in a livestock operation's 
organic system plan in order to assess compliance. Certified operations 
are required to keep records about their organic production and/or 
handling for 5 years (Sec.  205.103(b)(3)).
    AMS used the NOP 2014 List of Certified Operations to estimate the 
number of livestock operations that would be affected by this proposed 
action. On that basis, AMS estimates that 4,177 currently certified 
foreign and domestic livestock operations who will be subject to the 
amendments at Sec. Sec.  205.238, 205.239, 205.241, and 205.242.\98\ To 
estimate the number of livestock operations that will apply for and 
become certified, AMS assumed that the proportion of livestock 
operations to all operations will be consistent with that as reported 
in information collection 0581-0191. On that basis, AMS estimates there 
will be 59 operations that will apply for certification and become 
certified organic livestock producers or handlers.
---------------------------------------------------------------------------

    \98\ NOP 2014 List of certified USDA organic operations. 
Available on the NOP Web site, http://apps.ams.usda.gov/nop/.
---------------------------------------------------------------------------

    AMS estimates the annual collection cost per organic livestock 
producer to be $400.19. This estimate is based on an estimated 11.47 
labor hours per year at $34.89 per hour for a total salary component of 
$400.19 per year. AMS estimates that as producers adapt to the 
requirements introduced by the amendments at Sec. Sec.  205.238, 
205.239, 205.241, and 205.242, the number of labor hours per year for 
currently certified operators will decrease. The source of the hourly 
rate is the National Compensation Survey: Occupational Employment and 
Wages, May 2014, published by the Bureau of Labor Statistics. The rate 
is the mean hourly wage for farmers, ranchers and other agricultural 
managers (occupation code 11-9013). Administrative costs for reporting 
and recordkeeping will vary among certified operators. Factors 
affecting costs include the type and size of operation, and the type of 
systems maintained. AMS also recognizes that operators bear a portion 
of the cost burden for the inspection which varies between certifiers.
Reporting Burden
    Estimate of Burden: Public reporting burden for the collection of 
information is estimated to be 22 hours per year.
    Respondents: Certifying agents, inspectors and livestock 
operations.
    Estimated Number of Respondents: 4,438.
    Estimated Number of Responses: 39,021.
    Estimated Total Annual Burden on Respondents: 95,781 hours.
    Total Cost: $2,767,692.
Recordkeeping Burden
    Estimate of Burden: Public recordkeeping burden is estimated to be 
an annual total of 5.12 hours per respondent.
    Respondents: Certifying agents and livestock operations.
    Estimated Number of Respondents: 4,719.
    Estimated Total Annual Burden on Respondents: 24,176 hours.
    Total Cost: $843,498.
    Comments: AMS is inviting comments from all interested parties 
concerning the information collection and recordkeeping required as a 
result of the proposed amendments to 7 CFR part 205. Comments are 
invited on: (1) Whether the proposed collection of information is 
necessary for the proper performance of the functions of the agency, 
including whether the information will have practical utility; (2) the 
accuracy of the agency's estimate of the burden of the proposed 
collection of information including the validity of the methodology and 
assumptions used; (3) ways to enhance the quality, utility, and clarity 
of the information to be collected; and (4) ways to minimize the burden 
of the collection of information on those who are to respond, including 
the use of appropriate automated, electronic, mechanical, or other 
technological collection techniques or other forms of information 
technology.
    Comments that specifically pertain to the information collection 
and recordkeeping requirements of this action should be sent to Paul 
Lewis Ph.D., Director Standards Division, National Organic Program, 
USDA-AMS-NOP, Room 2642-So., Ag Stop 0268, 1400 Independence Ave. SW., 
Washington, DC 20250-0268 and to the Desk Officer for Agriculture, 
Office of Information and Regulatory Affairs, Office of Management and 
Budget, New Executive Office Building, 725 17th Street NW., Room 725, 
Washington, DC 20503. Comments on the information collection and 
recordkeeping requirements should reference the date and page number of 
this issue of the Federal Register. All responses to this notice will 
be summarized and included in the request for OMB approval. All 
comments will become a matter of public record. The comment period for 
the information collection and recordkeeping requirements contained in 
this proposed rule is 60 days.

F. Civil Rights Impact Analysis

    AMS has reviewed this proposed rule in accordance with the 
Department Regulation 4300-4, Civil Rights Impact Analysis (CRIA), to 
address any major civil rights impacts the rule might have on 
minorities, women, and persons with disabilities. After a careful 
review of the rule's intent and provisions, AMS has

[[Page 22005]]

determined that this rule would only impact the organic practices of 
organic producers and that this rule has no potential for affecting 
producers in protected groups differently than the general population 
of producers. This rulemaking was initiated to clarify a regulatory 
requirement and enable consistent implementation and enforcement.
    Protected individuals have the same opportunity to participate in 
the NOP as non-protected individuals. The USDA organic regulations 
prohibit discrimination by certifying agents. Specifically, Sec.  
205.501(d) of the current regulations for accreditation of certifying 
agents provides that ``No private or governmental entity accredited as 
a certifying agent under this subpart shall exclude from participation 
in or deny the benefits of the NOP to any person due to discrimination 
because of race, color, national origin, gender, religion, age, 
disability, political beliefs, sexual orientation, or marital or family 
status.'' Section 205.501(a)(2) requires ``certifying agents to 
demonstrate the ability to fully comply with the requirements for 
accreditation set forth in this subpart'' including the prohibition on 
discrimination. The granting of accreditation to certifying agents 
under Sec.  205.506 requires the review of information submitted by the 
certifying agent and an on-site review of the certifying agent's client 
operation. Further, if certification is denied, Sec.  205.405(d) 
requires that the certifying agent notify the applicant of their right 
to file an appeal to the AMS Administrator in accordance with Sec.  
205.681. These regulations provide protections against discrimination, 
thereby permitting all producers, regardless of race, color, national 
origin, gender, religion, age, disability, political beliefs, sexual 
orientation, or marital or family status, who voluntarily choose to 
adhere to the rule and qualify, to be certified as meeting NOP 
requirements by an accredited certifying agent. This proposed rule in 
no way changes any of these protections against discrimination.

List of Subjects in 7 CFR Part 205

    Administrative practice and procedure, Agriculture, Animals, 
Archives and records, Imports, Labeling, Organically produced products, 
Plants, Reporting and recordkeeping requirements, Seals and insignia, 
Soil conservation.

    For the reasons set forth in the preamble, 7 CFR part 205 is 
proposed to be amended as follows:

PART 205--NATIONAL ORGANIC PROGRAM

0
1. The authority citation for 7 CFR part 205 continues to read:

    Authority:  7 U.S.C. 6501-6522.

0
2. Section 205.2 is amended by adding definitions for ``Beak 
trimming'', ``Caponization'', ``Cattle wattling'', ``De-beaking'', 
``De-snooding'', ``Dubbing'', ``Indoors'', ``Mulesing'', ``Outdoors'', 
``Perch'', ``Pullet'', ``Roost'', ``Soil'', ``Stocking density'', and 
``Toe clipping'' in alphabetical order to read as follows:


Sec.  205.2  Terms defined.

* * * * *
    Beak trimming. The removal of the curved tip of the beak.
* * * * *
    Caponization. Castration of chickens, turkeys, pheasants and other 
avian species.
    Cattle wattling. The surgical separation of two layers of the skin 
from the connective tissue for along a 2 to 4 inch path on the dewlap, 
neck or shoulders used for ownership identification.
* * * * *
    De-beaking. The removal of more than the beak tip.
    De-snooding. The removal of the turkey snood (a fleshy protuberance 
on the forehead of male turkeys).
* * * * *
    Dubbing. The removal of poultry combs and wattles.
* * * * *
    Indoors. The flat space or platform area which is under a solid 
roof. On each level the animals have access to food and water and may 
be confined if necessary. Indoor space for avian species includes, but 
is not limited to:
    (1) Pasture housing. A mobile structure for avian species with 70 
percent perforated flooring.
    (2) Aviary housing. A fixed structure for avian species which has 
multiple tiers/levels with feed and water on each level.
    (3) Slatted/mesh floor housing. A fixed structure for avian species 
which has both a slatted floor where perches, feed and water are 
provided over a pit or belt for manure collection; and litter covering 
the remaining solid floor.
    (4) Floor litter housing. A fixed structure for avian species which 
has absorbent litter covering the entire floor.
* * * * *
    Mulesing. The removal of skin from the buttocks of sheep, 
approximately 2 to 4 inches wide and running way from the anus to the 
hock to prevent fly strike.
* * * * *
    Outdoors. Any area in the open air with at least 50 percent soil, 
outside a building or shelter where there are no solid walls or solid 
roof attached to the indoor living space structure. Fencing or netting 
that does not block sunlight or rain may be used as necessary.
* * * * *
    Perch. A rod or branch type structure that serves as a roost and 
allows birds to utilize vertical space in the house.
* * * * *
    Pullet. A female chicken or other avian species being raised for 
egg production that has not yet started to lay eggs.
* * * * *
    Roost. A flat structure over a manure pit that allows birds to grip 
with their toes as they would on a perch.
* * * * *
    Soil. The outermost layer of the earth comprised of minerals, 
water, air, organic matter, fungi and bacteria in which plants may grow 
roots.
* * * * *
    Stocking density. The weight of animals on a given unit of land at 
any one time.
* * * * *
    Toe clipping. The removal of the nail and distal joint of the back 
two toes of a male bird.
* * * * *
0
3. Section 205.238 is revised to read as follows:


Sec.  205.238  Livestock health care practice standard.

    (a) The producer must establish and maintain preventive health care 
practices, including:
    (1) Selection of species and types of livestock with regard to 
suitability for site-specific conditions and resistance to prevalent 
diseases and parasites.
    (2) Provision of a feed ration sufficient to meet nutritional 
requirements, including vitamins, minerals, protein and/or amino acids, 
fatty acids, energy sources, and fiber (ruminants), resulting in 
appropriate body condition.
    (3) Establishment of appropriate housing, pasture conditions, and 
sanitation practices to minimize the occurrence and spread of diseases 
and parasites.
    (4) Provision of conditions which allow for exercise, freedom of 
movement, and reduction of stress appropriate to the species.
    (5) Physical alterations may be performed to benefit the welfare or 
hygiene of the animals, or for identification purposes or safety. 
Physical alterations, if used, must be performed on livestock at a 
reasonably

[[Page 22006]]

young age, with minimal stress and pain by a competent person.
    (i) The following practices must not be routinely used on pigs and 
must be used only with documentation that alternative methods to 
prevent harm failed: needle teeth trimming (no more than top one-third 
of the tooth) and tail docking.
    (ii) The following practices must not be performed on a certified 
operation: de-beaking, de-snooding, caponization, dubbing, toe trimming 
of chickens, toe trimming of turkeys unless with infra-red at hatchery, 
beak trimming after 10 days of age, 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.
    (6) Administration of vaccines and other veterinary biologics.
    (7) All surgical procedures necessary to treat an illness must 
employ best management practices to minimize pain, stress and 
suffering, with the use of appropriate and allowed anesthetics, 
analgesics and sedatives.
    (8) Monitoring of lameness and keeping records of the percent of 
the herd or flock suffering from lameness and the causes.
    (9) Ammonia levels in poultry houses must be less than 25 parts per 
million indoors. When ammonia levels in poultry houses exceed 10 parts 
per million, an operation must implement additional practices to reduce 
the ammonia levels below 10 parts per million.
    (b) When preventive practices and veterinary biologics are 
inadequate to prevent sickness, an operation may administer synthetic 
medications allowed under Sec.  205.603. Parasiticides allowed under 
Sec.  205.603 may be used on:
    (1) Breeder stock, when used prior to the last third of gestation 
but not during lactation for progeny that are to be sold, labeled, or 
represented as organically produced.
    (2) Dairy stock, when used a minimum of 90 days prior to the 
production of milk or milk products that are to be sold, labeled, or 
represented as organic.
    (3) Synthetic medications may be administered in the presence of 
illness or to alleviate pain and suffering: Provided, that such 
medications are allowed under Sec.  205.603.
    (c) An organic livestock operation must not:
    (1) Sell, label, or represent as organic any animal or edible 
product derived from any animal treated with antibiotics, any substance 
that contains a synthetic substance not allowed under Sec.  205.603, or 
any substance that contains a nonsynthetic substance prohibited in 
Sec.  205.604. Milk from animals undergoing treatment with synthetic 
substances allowed under Sec.  205.603 having withholding time cannot 
be sold as organic but may be fed to their own offspring. Milk from 
animals undergoing treatment with prohibited substances cannot be sold 
as organic or fed to organic livestock.
    (2) Administer any animal drug in the absence of illness or to 
alleviate pain or suffering; with the exception of vaccinations and 
other veterinary biologics.
    (3) Administer hormones for growth promotion, production or 
reproduction.
    (4) Administer synthetic parasiticides on a routine basis.
    (5) Administer synthetic parasiticides to slaughter stock.
    (6) Administer animal drugs in violation of the Federal Food, Drug, 
and Cosmetic Act.
    (7) Withhold medical treatment from a sick animal in an effort to 
preserve its organic status. All appropriate medications must be used 
to restore an animal to health when methods acceptable to organic 
production fail. Livestock treated with a prohibited substance must be 
clearly identified and neither the animal nor its products shall be 
sold, labeled, or represented as organically produced.
    (8) Withhold individual treatment designed to minimize pain and 
suffering for injured, diseased or sick animals, which may include 
forms of euthanasia as recommended by the American Veterinary Medical 
Association.
    (9) Neglect to identify and record treatment of sick and injured 
animals in animal health records.
    (10) Practice forced molting or withdrawal of feed to induce 
molting.
    (d) Organic livestock operations must have comprehensive plans to 
minimize internal parasite problems in livestock. The plan will include 
preventive measures such as pasture management, fecal monitoring, and 
emergency measures in the event of a parasite outbreak. Parasite 
control plans shall be approved by the certifying agent.
    (e) Euthanasia. (1) Organic livestock operations must have written 
plans for prompt, humane euthanasia for sick or injured livestock.
    (2) The following methods of euthanasia are not permitted: 
suffocation; blow to the head by blunt instrument; and the use of 
equipment that crushes the neck, including killing pliers or burdizzo 
clamps.
    (3) Following a euthanasia procedure, livestock must be carefully 
examined to ensure that they are dead.
0
4. Section 205.239 is revised to read as follows:


Sec.  205.239  Mammalian livestock living conditions.

    (a) The producer of an organic livestock operation must establish 
and maintain year-round livestock living conditions which accommodate 
the health and natural behavior of animals, including:
    (1) Year-round access for all animals to the outdoors, soil, shade, 
shelter, exercise areas, fresh air, clean water for drinking, and 
direct sunlight, suitable to the species, its stage of life, the 
climate, and the environment: Except, that, animals may be temporarily 
denied access to the outdoors in accordance with paragraphs (b) and (c) 
of this section. Yards, feeding pads, and feedlots may be used to 
provide ruminants with access to the outdoors during the non-grazing 
season and supplemental feeding during the grazing season. Yards, 
feeding pads, and feedlots shall be large enough to allow all ruminant 
livestock occupying the yard, feeding pad, or feedlot to feed without 
competition for food in a manner that maintains all animals in a good 
body condition. Continuous total confinement of any animal indoors is 
prohibited. Continuous total confinement of ruminants in yards, feeding 
pads, and feedlots is prohibited.
    (2) For all ruminants, management on pasture and daily grazing 
throughout the grazing season(s) to meet the requirements of Sec.  
205.237, except as provided for in paragraphs (b), (c), and (d) of this 
section.
    (3) Animals must be kept clean during all stages of life with the 
use of appropriate, clean, dry bedding, as appropriate for the species. 
When roughages are used as bedding, they must be organically produced 
and handled in accordance with this part by certified operations except 
as provided in Sec.  205.236(a)(2)(i).
    (4) Shelter designed to allow for:
    (i) Sufficient space and freedom to lie down in full lateral 
recumbence, turn around, stand up, fully stretch their limbs without 
touching other animals or the sides of the enclosure, and express 
normal patterns of behavior;
    (ii) Temperature level, ventilation, and air circulation suitable 
to the species;
    (iii) Reduction of potential for livestock injury; and
    (iv) Areas for bedding and resting that are sufficiently large, 
solidly built, and comfortable so that animals are kept clean, dry, and 
free of lesions.
    (5) The use of yards, feeding pads, feedlots and laneways that 
shall be well-

[[Page 22007]]

drained, kept in good condition (including frequent removal of wastes), 
and managed to prevent runoff of wastes and contaminated waters to 
adjoining or nearby surface water and across property boundaries.
    (6) Housing, pens, runs, equipment and utensils shall be properly 
cleaned and disinfected as needed to prevent cross infection and build-
up of disease-carrying organisms.
    (7) Dairy young stock may be housed in individual pens under the 
following conditions:
    (i) Until weaning, providing that they have enough room to turn 
around, lie down, stretch out when lying down, get up, rest, and groom 
themselves; individual animal pens shall be designed and located so 
that each animal can see, smell, and hear other calves.
    (ii) Dairy young stock shall be group-housed after weaning.
    (iii) Dairy young stock over six months of age shall have access to 
the outdoors at all times including access to pasture during the 
grazing season, except as allowed under paragraph (c) of this section.
    (8) Swine must be housed in a group, except:
    (i) Sows may be housed individually at farrowing and during the 
suckling period.
    (ii) Boars.
    (iii) Swine with documented instance of aggression or recovery from 
an illness.
    (9) Piglets shall not be kept on flat decks or in piglet cages.
    (10) Exercise areas for swine, whether indoors or outdoors, must 
permit rooting, including during temporary confinement events.
    (11) In confined housing with stalls, at least one stall must be 
provided for each animal in the facility at any given time. A cage must 
not be used as a stall. For group-housed swine, the number of 
individual feeding stalls may be less than the number of animals as 
long as all animals are fed routinely over a 24-hour period.
    (12) At least 50 percent of outdoor access space must be soil, 
except when conditions threaten the soil or water quality, outdoor 
access without soil must be provided temporarily.
    (b) The producer of an organic livestock operation may provide 
temporary confinement or shelter for an animal because of:
    (1) Inclement weather;
    (2) The animal's stage of life. Lactation is not a stage of life 
that would exempt ruminants from any of the mandates set forth in this 
part;
    (3) Conditions under which the health, safety, or well-being of the 
animal could be jeopardized;
    (4) Risk to soil or water quality;
    (5) Preventive healthcare procedures or for the treatment of 
illness or injury (neither the various life stages nor lactation is an 
illness or injury);
    (6) Sorting or shipping animals and livestock sales, provided that 
the animals shall be maintained under continuous organic management, 
including organic feed, throughout the extent of their allowed 
confinement;
    (7) Breeding. Animals shall not be confined any longer than 
necessary to perform the natural or artificial insemination. Animals 
may not be confined to observe estrus; and
    (8) 4-H, National FFA Organization, and other youth projects, for 
no more than one week prior to a fair or other demonstration, through 
the event and up to 24 hours after the animals have arrived home from 
the event. These animals must have been maintained under continuous 
organic management, including organic feed, during the extent of their 
allowed confinement for the event. Notwithstanding the requirements in 
paragraph (b)(6) of this section, facilities where 4-H, National FFA 
Organization, and other youth events are held are not required to be 
certified organic for the participating animals to be sold as organic, 
provided all other organic management practices are followed.
    (c) The producer of an organic livestock operation may, in addition 
to the times permitted under paragraph (b) of this section, temporarily 
deny a ruminant animal pasture or outdoor access under the following 
conditions:
    (1) One week at the end of a lactation for dry off (for denial of 
access to pasture only), three weeks prior to parturition (birthing), 
parturition, and up to one week after parturition;
    (2) In the case of newborn dairy cattle for up to six months, after 
which they must be on pasture during the grazing season and may no 
longer be individually housed: Except, That, an animal shall not be 
confined or tethered in a way that prevents the animal from lying down, 
standing up, fully extending its limbs, and moving about freely;
    (3) In the case of fiber bearing animals, for short periods for 
shearing; and
    (4) In the case of dairy animals, for short periods daily for 
milking. Milking must be scheduled in a manner to ensure sufficient 
grazing time to provide each animal with an average of at least 30 
percent DMI from grazing throughout the grazing season. Milking 
frequencies or duration practices cannot be used to deny dairy animals 
pasture.
    (d) Ruminant slaughter stock, typically grain finished, shall be 
maintained on pasture for each day that the finishing period 
corresponds with the grazing season for the geographical location. 
Yards, feeding pads, or feedlots may be used to provide finish feeding 
rations. During the finishing period, ruminant slaughter stock shall be 
exempt from the minimum 30 percent DMI requirement from grazing. Yards, 
feeding pads, or feedlots used to provide finish feeding rations shall 
be large enough to allow all ruminant slaughter stock occupying the 
yard, feeding pad, or feed lot to feed without crowding and without 
competition for food. The finishing period shall not exceed one-fifth 
(\1/5\) of the animal's total life or 120 days, whichever is shorter.
    (e) The producer of an organic livestock operation must manage 
manure in a manner that does not contribute to contamination of crops, 
soil, or water by plant nutrients, heavy metals, or pathogenic 
organisms and optimizes recycling of nutrients and must manage pastures 
and other outdoor access areas in a manner that does not put soil or 
water quality at risk.
0
5. Section 205.241 is added to read as follows:


Sec.  205.241  Avian living conditions.

    (a) General requirement. An organic poultry operation must 
establish and maintain year-round poultry living conditions which 
accommodate the health and natural behavior of poultry, including: 
Year-round access to outdoors; shade; shelter; exercise areas; fresh 
air; direct sunlight; clean water for drinking; materials for dust 
bathing; adequate outdoor space to escape from predators and aggressive 
behaviors suitable to the species, its stage of life, the climate and 
environment. Poultry may be temporarily denied access to the outdoors 
in accordance with paragraph (d) of this section.
    (b) Indoor space requirements. (1) All birds must be able to move 
freely, and engage in natural behaviors.
    (2) Ventilation must be adequate to prevent build-up of ammonia. 
Ammonia levels must not exceed 25 parts per million. Operations must 
monitor ammonia levels monthly. When ammonia levels exceed 10 parts per 
million, operations must implement additional practices to reduce 
ammonia levels below 10 parts per million.
    (3) For layers and mature birds, artificial light may be used to 
prolong the day length up to 16 hours. Artificial light intensity must 
be lowered

[[Page 22008]]

gradually to encourage hens to move to perches or settle for the night. 
Natural light must be sufficient indoors on sunny days so that an 
inspector can read and write when all lights are turned off.
    (4) The following types of flooring may be used in shelter for 
avian species:
    (i) Mesh or slatted flooring under drinking areas to provide 
drainage.
    (ii) Houses, excluding pasture housing, with slatted/mesh floors 
must have 30 percent minimum of solid floor area available with 
sufficient litter available for dust baths so that birds may freely 
dust bathe without crowding.
    (iii) Litter must be provided and maintained in a dry condition.
    (5) Poultry houses must have sufficient exit areas, appropriately 
distributed around the building, to ensure that all birds have ready 
access to the outdoors.
    (6) Flat roosts areas must allow birds to grip with their feet. Six 
inches of perch space must be provided per bird. Perch space may 
include the alighting rail in front of the nest boxes. All birds must 
be able to perch at the same time except for multi-tiered facilities, 
in which 55 percent of birds must be able to perch at the same time. 
Facilities for species which do not perch do not need to have perch or 
roost space.
    (7) For layers, no more than 2.25 pounds of hen per square foot of 
indoor space is allowed at any time, except:
    (i) Pasture housing. No more than 4.5 pounds of hen per square foot 
of indoor space.
    (ii) Aviary housing. No more than 4.5 pounds of hen per square foot 
of indoor space.
    (iii) Slatted/mesh floor housing. No more than 3.75 pounds of hen 
per square foot of indoor space.
    (iv) Floor litter housing. No more than 3.0 pounds of hen per 
square foot of indoor space.
    (8) For pullets, no more than 3.0 pounds of pullet per square foot 
of indoor space is allowed at any time.
    (9) For turkeys, broilers and other meat type species, no more than 
5.0 pounds of birds per square foot of indoor space is allowed at any 
time.
    (10) All birds must have access to scratch areas in the house.
    (11) Poultry housing must be sufficiently spacious to allow all 
birds to move freely, stand normally, stretch their wings and engage in 
natural behaviors.
    (c) Outdoor space requirements. (1) Outside access and door spacing 
must be designed to promote and encourage outside access for all birds 
on a daily basis. Producers must provide access to the outdoors at an 
early age to encourage (train) birds to go outdoors. Outdoor areas must 
have suitable enrichment to entice birds to go outside. Birds may be 
temporarily denied access to the outdoors in accordance with paragraph 
(d) of this section.
    (2) Exit areas must be designed so that more than one bird can exit 
at a time and all birds in the house can exit within one hour.
    (3) For layers, no more than 2.25 pounds of bird per square foot of 
outdoor space is allowed at any time.
    (4) For pullets, no more than 3.0 pounds of pullet per square foot 
of outdoor space is allowed at any time.
    (5) For turkeys, broilers and other meat type species, no more than 
5.0 pounds of bird per square foot of outdoor space is allowed at any 
time.
    (6) Space that has a solid roof overhead and is attached to the 
structure providing indoor space is not outdoor access and must not be 
included in the calculation of outdoor space.
    (7) Shade may be provided by structures, trees, or other objects in 
the environment.
    (8) At least 50 percent of outdoor access space must be soil, 
except when conditions threaten the soil or water quality, outdoor 
access without soil must be provided temporarily.
    (d) The producer of an organic poultry operation may temporarily 
confine birds. Each instance of confinement must be recorded. 
Operations may confine birds because of:
    (1) Inclement weather, including when air temperatures are under 40 
degrees F or above 90 degrees F.
    (2) The animal's stage of life, including the first 4 weeks of life 
for broilers and other meat type birds and the first 16 weeks of life 
for pullets.
    (3) Conditions under which the health, safety, or well-being of the 
animal could be jeopardized, however the potential for disease outbreak 
is not sufficient cause. A documented occurrence of a disease in the 
region or relevant migratory pathway must be present in order to 
confine birds.
    (4) Risk to soil or water quality.
    (5) Preventive healthcare procedures or for the treatment of 
illness or injury (neither various life stages nor egg laying is an 
illness or injury).
    (6) Sorting or shipping birds and poultry sales. Provided the birds 
are maintained under continuous organic management throughout the 
extent of their allowed confinement.
    (7) Nest box training. Birds shall not be confined any longer than 
two weeks to teach the proper behavior.
    (8) 4-H, National FFA Organization, and other youth projects, for 
no more than one week prior to a fair or other demonstration, through 
the event and up to 24 hours after the birds have arrived home at the 
conclusion of the event. These birds must have been maintained under 
continuous organic management, including organic feed, during the 
extent of their allowed confinement for the event. Notwithstanding the 
requirements in paragraph (d)(6) of this section, facilities where 4-H, 
National FFA Organization, and other youth events are held are not 
required to be certified organic for the participating birds to be sold 
as organic, provided all other organic management practices are 
followed.
    (e) The producer of an organic poultry operation must manage manure 
in a manner that does not contribute to contamination of crops, soil, 
or water by plant nutrients, heavy metals, or pathogenic organisms and 
optimizes recycling of nutrients and must manage outdoor access in a 
manner that does not put soil or water quality at risk.
0
6. Section 205.242 is added to read as follows:


Sec.  205.242  Transport and slaughter.

    (a) Transport. (1) Certified organic livestock must be clearly 
identified as organic, transported in pens within the livestock trailer 
clearly labeled for organic use and be contained in those pens for the 
duration of the trip.
    (2) All livestock must be fit for transport to auction or slaughter 
facilities.
    (i) Calves must have a dry navel cord and be able to stand and walk 
without human assistance.
    (ii) Sick, injured, weak, disabled, blind, and lame animals must 
not be transported for sale or slaughter. Such animals may be medically 
treated or euthanized.
    (3) Adequate and season-appropriate ventilation is required for all 
livestock trailers, shipping containers and any other mode of 
transportation used to protect animals against cold and heat stresses.
    (4) Bedding must be provided on trailer floors and in holding pens 
as needed to keep livestock clean, dry, and comfortable during 
transportation and prior to slaughter. Poultry crates are exempt from 
the bedding requirement. When roughages are used for bedding, they must 
have been organically produced and handled by a certified organic 
operation(s).
    (5) Arrangements for water and organic feed must be made if 
transport time exceeds twelve hours.
    (i) Organic livestock operations must transport livestock in 
compliance with the Federal Twenty-Eight Hour Law (49

[[Page 22009]]

U.S.C. 80502) and the regulations at 9 CFR 89.1 through 89.5.
    (ii) The producer or handler of an organic livestock operation must 
provide all non-compliant records and subsequent corrective action 
related to livestock transport during the annual inspection.
    (6) Organic operations must have in place emergency plans to 
address possible animal welfare problems that might occur during 
transport.
    (b) Mammalian slaughter. (1) Organic operations that slaughter 
organic livestock must be in compliance with the Federal Meat 
Inspection Act (21 U.S.C. 603(b) and 21 U.S.C. 610(b) and the 
regulations at 9 CFR part 313) regarding humane handling and slaughter 
of livestock.
    (2) Organic operations that slaughter organic exotic animals must 
be in compliance with the Agricultural Marketing Act of 1946 (7 U.S.C. 
1621, et seq.) and the regulations at 9 CFR parts 313 and 352 regarding 
the humane handling and slaughter of exotic animals.
    (3) Organic operations that slaughter organic livestock must 
provide all non-compliant records related to humane handling and 
slaughter issued by the controlling national, federal or state 
authority and all records of subsequent corrective actions during the 
annual organic inspection.
    (c) Avian slaughter. (1) Organic operations that slaughter organic 
poultry must be in compliance with the Poultry Products Inspection Act 
requirements (21 U.S.C. 453(g)(5) and the regulations at 9 CFR 
381.1(b)(v), 381.90, and 381.65(b)).
    (2) Organic operations that slaughter organic poultry must provide 
all non-compliant records related to the use of good manufacturing 
practices in connection with slaughter issued by the controlling 
national, federal or state authority and all records of subsequent 
corrective actions during the annual organic inspection.
    (3) Organic operations that slaughter organic poultry, but are 
exempt from or not covered by the requirements of the Poultry Products 
Inspection Act, must ensure that:
    (i) No lame birds may be shackled, hung or carried by their legs;
    (ii) All birds shackled on a chain or automated system must be 
stunned prior to exsanguination; and
    (iii) All birds must be irreversibly insensible prior to being 
placed in the scalding tank.

    Dated: April 4, 2016.
Elanor Starmer,
Administrator, Agricultural Marketing Service.
[FR Doc. 2016-08023 Filed 4-12-16; 8:45 am]
 BILLING CODE 3410-02-P