[Federal Register Volume 82, Number 12 (Thursday, January 19, 2017)]
[Rules and Regulations]
[Pages 7042-7092]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-00888]



[[Page 7041]]

Vol. 82

Thursday,

No. 12

January 19, 2017

Part VII





Department of Agriculture





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





Agricultural Marketing Service





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





7 CFR Part 205





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

  Federal Register / Vol. 82 , No. 12 / Thursday, January 19, 2017 / 
Rules and Regulations  

[[Page 7042]]


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

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 205

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


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

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule.

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

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

DATES: Effective Date: This rule becomes effective March 20, 2017.
    Implementation Dates: This rule will be fully implemented March 20, 
2018. There are two exceptions:
    (1) Organic egg operations that are certified before March 20, 2020 
need to implement the outdoor access requirements by March 21, 2022. 
Organic egg operations that become certified after March 20, 2020 need 
to comply with the outdoor access requirements in order to obtain 
certification.
    (2) Organic broiler operations must fully implement the indoor 
space requirements by March 20, 2020.

FOR FURTHER INFORMATION CONTACT: Paul Lewis, Ph.D., Director of 
Standards Division, Telephone: (202) 720-3252; Fax: (202) 260-9151.

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. Executive Summary
    A. Purpose of the Final Rule
    B. Summary of Provisions
    C. Costs and Benefits
II. General Information
    A. Does this Action Apply to Me?
III. Background
IV. Comments Received
    A. Regulatory Authority of the Final Rule
    B. Regulatory Clarity of the Final Rule
    C. Consumer Education and Outreach
    D. International Trade Agreements
    E. Meat and Poultry Imports
V. Related Documents.
VI. Definitions (Sec.  205.2)
    A. Description of Regulations
    B. Discussion of Comments Received
VII. Livestock Health Care Practices (Sec.  205.238)
    A. Description of Regulations
    B. Discussion of Comments Received
VIII. Mammalian Living Conditions (Sec.  205.39)
    A. Description of Regulations
    B. Discussion of Comments Received
IX. Avian Living Conditions (Sec.  205.241)
    A. Description of Regulations
    B. Discussion of Comments Received
X. Transport (Sec.  205.242(a))
    A. Description of the Final Rule
    B. Discussion of Comments Received
XI. Slaughter (Sec.  205.242(b) and (c))
    A. Description of Regulations
    B. Discussion of Comments Received
XII. Executive Orders 12866 and 13563--Executive Summary
XIII. Retrospective Analysis
XIV. Executive Order 12988
XV. Executive Order 13175
XVI. Paperwork Reduction Act
    A. Summary
    B. Discussion of Comments Received
XVII. Civil Rights Impact Analysis

List of Subjects in 7 CFR Part 205

I. Executive Summary

A. Purpose of the Final Rule

    This final rule creates greater consistency in organic livestock 
and poultry practice standards. Based on recommendations from the 
Office of Inspector General and the National Organic Standards Board, 
AMS determined that the current USDA organic regulations (7 CFR part 
205) covering livestock care and production practices and living 
conditions needed 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).

B. Summary of Provisions

    Specifically, this final rule:
    1. Clarifies how producers and handlers participating in the NOP 
must treat livestock and poultry to ensure their wellbeing.
    2. Clarifies 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 are prohibited.
    3. Sets maximum indoor and outdoor stocking densities for organic 
chickens, which vary depending on the type of production and stage of 
life.
    4. Defines outdoor space and requires that outdoor spaces for 
organic poultry include soil and vegetation.
    5. Adds new requirements for transporting organic livestock and 
poultry to sale or slaughter.
    6. Clarifies 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 provides for the enforcement of USDA organic 
regulations based on FSIS inspection findings.
    7. AMS has only established indoor space requirements for chickens 
in this final rule. AMS may propose space requirements for other avian 
species in the future. Other avian species must meet all other indoor 
requirements including exit doors, ammonia levels, and lighting.

C. Costs and Benefits

    AMS estimates the following costs and benefits for this final rule.

----------------------------------------------------------------------------------------------------------------
                                                                      Costs,         Benefits,      Transfers,
         Assumed conditions              Affected population       millions \a\      millions        millions
----------------------------------------------------------------------------------------------------------------
All producers remain in organic      Organic layer and organic       $28.7-$31.0     $16.3-$49.5             N/A
 market; Organic layer and broiler    broiler production at full
 populations continue historical      implementation of rule,
 growth rates after rule.             i.e., 2022 for layers;
                                      2020 for broilers.
50% of organic layer production in   Organic layer and organic       $11.7-$12.0      $4.5-$13.8     $79.5-$86.3
 year 6 (2022), moves to the cage-    broiler production at full
 free market. Organic layer and       implementation of rule,
 broiler populations continue         i.e., 2022 for layers;
 historical growth rates after rule.  2020 for broilers.

[[Page 7043]]

 
50% of current organic layer         Current organic layer                  $8.2      $4.1-$12.4     $45.6-$49.5
 production moves to the cage-free    production; organic
 market in year 6 (2022). There are   broiler production at full
 no new entrants after publication    implementation of rule in
 of this rule that cannot comply.     2020.
----------------------------------------------------------------------------------------------------------------
    Other impacts: Estimated paperwork burden: $3.9 million.....................................................
----------------------------------------------------------------------------------------------------------------
\a\ All values in the costs, benefits and transfer columns of this table are annualized and discounted at 3% and
  7% rates.

II. General Information

A. Does this action apply to me?

    You may be affected by this action if you are engaged in the meat, 
egg, poultry, dairy, or animal fiber industries. 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 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.

III Background

    This final rule addresses care and production practices, transport, 
slaughter, and living conditions for organic livestock and poultry.\1\ 
The provisions in this rule on outdoor access for organic poultry have 
a significant history of AMS actions that are based on National Organic 
Standards Board (the NOSB) recommendations. Outdoor access is a 
prominent issue in this final rule. Poultry practices for outdoor 
access currently vary, especially practices implemented for layer 
operations. Some organic poultry operations provide large, open-air 
outdoor areas, while other operations provide minimal outdoor space or 
use screened and covered enclosures commonly called ``porches'' to meet 
outdoor access requirements. In a 2010 audit, the USDA Office of 
Inspector General identified inconsistencies in how accredited 
certifying agents (or ``certifiers'') consider porches under outdoor 
access while implementing certification of organic poultry operations. 
AMS initially responded to this audit finding by publishing draft 
guidance on outdoor access for organic poultry. However, after 
receiving public comment on the draft guidance, AMS determined that 
rulemaking was necessary to reduce the variation in outdoor access 
practices for organic poultry; therefore, AMS did not finalize the 
draft guidance. To assist with this rulemaking, the NOSB developed a 
series of recommendations to further clarify organic livestock and 
poultry care and production practices, transport, slaughter, and living 
conditions, including outdoor access for poultry. The NOSB 
deliberations on these recommendations revealed that there is 
considerable support for these recommendations within the organic 
community and consumers have specific expectations for organic 
livestock care, which includes outdoor access for poultry.
---------------------------------------------------------------------------

    \1\ As defined in Sec.  205.2, the term ``livestock'' includes 
any cattle, sheep, goats, swine, poultry, or equine animals used for 
food or in the production of food, fiber, feed, or other 
agricultural-based consumer products. In this final rule, the terms 
``livestock'' and ``livestock and poultry'' are used throughout the 
preamble. Unless otherwise specified, the term ``livestock'' refers 
to both mammalian livestock and avian livestock.
---------------------------------------------------------------------------

    On April 13, 2016 AMS issued a proposed rule to amend organic 
livestock and poultry practices. Background on current organic 
livestock standards, NOSB recommendations contributing toward the 
development of the proposed rule, AMS policy, and related issues are 
described in preamble of that action.\2\
---------------------------------------------------------------------------

    \2\ https://www.federalregister.gov/documents/2016/04/13/2016-08023/national-organic-program-organic-livestock-and-poultry-practices.
---------------------------------------------------------------------------

IV. Comments Received

    In response to AMS's request for comments on the proposed rule, a 
total of 6,675 written comments were received. Approximately 78 percent 
of the submitted comments--or 5,182 comments--consisted of form 
letters. There were 1,493 individual comments on the proposed rule. 
Comments were received from producers, producer associations, handlers, 
certifying agents, consumers and consumer groups, animal welfare 
organizations, veterinarians, state government agencies, foreign 
government agencies, and trade associations or organizations. AMS 
analysis and response to comments is described in the following 
preamble sections of the final rule.

A. Regulatory Authority of the Final Rule

    (Comment) Several comments argued that USDA does not have 
sufficient regulatory authority under OFPA to publish final rules for 
livestock living conditions and animal welfare as described in the 
proposed rule. They argued that the livestock section of OFPA only 
provides authority to prepare regulations regarding feeds and animal 
health care issues.
    (Response) AMS affirms that USDA has the authority to conduct this 
rulemaking; this action falls within our purview to implement the 
Organic Foods Production Act. AMS is issuing these regulations to 
strengthen the USDA organic livestock production regulations with clear 
provisions to fulfill one purpose of OFPA: to assure consumers that 
organically-produced products meet a consistent and uniform standard (7 
U.S.C. 6501). In accordance with OFPA, this action will clarify USDA 
statutory and regulatory mandates and establish consistent, 
transparent, and enforceable requirements. Two provisions within OFPA 
convey the intent for the USDA to develop more specific standards for 
organic livestock production; that purpose was also explained in the 
accompanying Senate Committee report.\3\ Section 6509(d)(2) authorizes

[[Page 7044]]

the NOSB to recommend standards in addition to the OFPA provisions for 
livestock health care to ensure that livestock is organically produced. 
Further, section 6509(g) directs the Secretary to develop detailed 
regulations through notice and comment rulemaking to implement 
livestock production standards. AMS has already exercised this 
authority to implement additional regulations regarding feed and living 
conditions for organic livestock (see Access to Pasture, 75 FR 7154 
(February 17, 2010)). Therefore, the statute contemplated that the 
assurance of organic integrity for livestock products would require 
more specific guidelines and provided the authority for that future 
regulatory activity.
---------------------------------------------------------------------------

    \3\ The Senate report that accompanied the OFPA legislation set 
the expectation for greater specificity in the future for organic 
livestock standards as the industry matured: ``More detailed 
standards are enumerated for crop production than for livestock 
production. This reflects the extent of knowledge and consensus on 
appropriate organic crop production methods and materials. With 
additional research and as more producers enter into organic 
livestock production, the Committee expects that USDA, with the 
assistance of the National Organic Standards Board will elaborate on 
livestock criteria.'' 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).
---------------------------------------------------------------------------

    This rule would continue the process initiated with the Access to 
Pasture rulemaking to establish clear and comprehensive requirements 
for all organic livestock, consistent with recommendations provided by 
USDA's Office of Inspector General and nine separate recommendations 
from the NOSB. 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.

B. Regulatory Clarity of the Final Rule

    (Comment) The proposed rule sought comments on the clarity of the 
proposed requirements by posing the following specific question: ``Can 
farmers, handlers, and certifying agents readily determine how to 
comply with the proposed regulations?''
    Though they did not directly answer the question posed in the 
proposed rule, a few comments nevertheless commented more generally on 
the clarity of the proposed rule. Speaking specifically of the 
revisions to mammalian living conditions, one comment indicated that 
the proposed rule was needed as a means to strengthen vague organic 
livestock standards. This comment did, however, highlight areas that 
continue to be unclear, claiming inconsistencies in the interpretation 
of standards upon implementation of the rule. Another commenter 
provided general support for the proposed rule, as rulemaking clarity 
will lead to consistent compliance by certified operations while 
addressing consumer expectations and demand. In contrast, one comment 
stated that that rule is confusing specifically addressing mammals and 
avian species. Another comment stated that only organic certifiers with 
limited livestock experience will find the current the organic 
regulations clear and concise in contrast to the more seasoned organic 
inspector community. This commenter further stated that those 
experienced in the organic industry realize the challenge to promulgate 
universal standards. The comment also asserted that creating new 
standards will make it difficult for certifiers to be effective in 
their work.
    (Response) Where appropriate, AMS has amended sections of the final 
rule to clarify the requirements based on comments, with the goal of 
making the requirements readily understandable for organic 
stakeholders.

C. Consumer Education and Outreach

    (Comment) A few comments stated that USDA should do more to inform 
consumers about what organic means and doesn't mean, and that educating 
consumers about the existing standards would be better than changing 
the regulations.
    (Response) AMS agrees that consumer education is important to 
ensure that organic consumers understand the limitations of the 
existing organic regulations. However, numerous comments and the NOSB 
have requested that AMS clarify the current regulatory text and add 
sufficient detail in support of consistent enforcement of the USDA 
organic regulations that affect the welfare of organic livestock and 
poultry. Therefore, AMS has opted to proceed with this rulemaking. AMS 
received a number of comments which addressed how the variability in 
outdoor access practices among organic producers threatens consumer 
confidence in the organic label. This is discussed more fully in the 
Executive Orders 12866 and 13563 section--see Impact of Consumer 
Confusion.

D. International Trade Agreements

    (Comment) A number of comments asked how the final rule would 
impact existing organic trade agreements, such as equivalency 
agreements and recognition agreements. For example, some comments 
highlighted where specific standards in the proposed rule differ from 
existing standards in specific countries. It was also asked whether 
existing equivalency agreements would require renegotiation as a result 
of a final rule.
    (Response) When the USDA organic regulations are amended, the USDA 
notifies the trading partner in accordance with the terms established 
in the international organic equivalency arrangement. In addition, the 
proposed regulations are shared with the World Trade Obligations (WTO) 
pursuant to the WTO Agreement on Technical Barriers to Trade. Under the 
current organic equivalency arrangements, the USDA notifies the trading 
partner in advance of any final USDA organic regulation that may affect 
the terms of the existing equivalency determination. The foreign 
country reviews the information, and may initiate discussion to 
determine whether a renegotiation of the equivalence arrangement is 
needed. With recognition arrangements, the certification bodies in the 
foreign country are accredited by the recognized foreign government 
authority to certify operations under the USDA organic regulations. As 
a result, the USDA notifies the foreign government of the final USDA 
organic regulation, and the foreign government authority informs its 
accredited certification bodies of the final regulation. AMS will 
provide training and technical assistance during the implementation 
period to assist foreign governments and accredited certification 
bodies.

E. Meat and Poultry Imports

    (Comment) USDA received comments regarding meat and poultry imports 
and how AMS will regulate livestock slaughter by certified operations 
in foreign countries. One comment provided country-specific 
recommendations regarding cattle to stipulate that while cattle are in 
Australia, ``they must abide by the standards and guidelines prescribed 
in the Australian Animal Welfare Standards for the Land Transport of 
Livestock (The Standards).'' Additionally, a comment indicated that 
U.S. certifiers are currently unequipped to verify compliance with 
these other rules/laws for producers outside of the U.S.
    (Response) Products certified under the USDA organic regulations 
must first comply with the requirements of the Food and Drug 
Administration (FDA) and Food Safety and Inspection Service (FSIS). In 
other countries, FSIS has memorandums of understanding that recognize 
other countries' processes for safe and humane livestock handling and 
slaughter. Generally, USDA organic requirements go beyond minimum 
regulatory requirements for humane handling and slaughter. For NOP 
requirements, certifiers must ensure inspectors are qualified to 
evaluate compliance of applicants for organic certification. Certifiers 
are not responsible for verifying compliance

[[Page 7045]]

with regulations other than those for organic certification. AMS did 
not amend the proposed rule based on these comments.

V. Related Documents

    Documents related to this final 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); 74 FR 46411 (September 9, 2009); 75 FR 57194 (September 20, 
2010); and 76 FR 62336 (October 7, 2011). NOSB meetings are open to the 
public and allow for public participation.
    AMS published a series of past proposed rules that addressed, in 
part, the organic livestock requirements at: 62 FR 65850 (December 16, 
1997); 65 FR 13512 (March 13, 2000); 71 FR 24820 (April 27, 2006); and 
73 FR 63584 (October 24, 2008). Past final rules relevant to this topic 
were published at: 65 FR 80548 (December 21, 2000); 71 FR 32803 (June 
7, 2006); and 75 FR 7154 (February 17, 2010). AMS published the most 
recent proposed rule at 81 FR 21956 (April 13, 2016).

VI. Definitions (Sec.  205.2)

A. Description of Regulations

1. Summary of the Final Rule
    This final rule adds sixteen new terms to Sec.  205.2: beak 
trimming, caponization, cattle wattling, de-beaking, de-snooding, 
dubbing, indoors or indoor space, mulesing, non-ambulatory, outdoors or 
outdoor space, perch, pullet, ritual slaughter, soil, toe clipping, and 
vegetation. Six of these terms--caponization, cattle wattling, de-
snooding, dubbing, mulesing, and soil--remain unchanged from the 
proposed rule. The definitions of seven additional terms were revised 
in response to comments: beak trimming, de-beaking, indoors or indoor 
space, outdoors or outdoor space, perch, pullets, and toe clipping. The 
term roost, which was included in the proposed rule, has been removed 
from the final rule in response to comments. Three terms that were not 
included in the proposed rule, non-ambulatory, ritual slaughter, and 
vegetation, have been added to the final rule.
Physical Alterations
    The final rule prohibits several physical alterations on organic 
livestock. Eight terms related to these physical alterations are 
defined in the final rule 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.
Indoors or Indoor Space
    The final rule defines ``indoors or indoor space'' as the space 
inside of an enclosed building or housing structure that has a solid, 
slatted, or perforated floor. The term ``indoors'' from the proposed 
rule was modified to include ``or indoor space'' because both of these 
terms are used interchangeably throughout the rule. While all organic 
livestock must be provided with species-appropriate shelter, structures 
providing indoor space are not required. If indoor spaces are provided 
to organic livestock, then species-specific requirements for the indoor 
space must be met. Indoor spaces are differentiated from outdoor spaces 
based upon the structure being enclosed so that livestock may be 
confined within the footprint of the building.
    Indoor space is enclosed so that livestock may be confined within 
the building or housing structure; outdoor space is the area outside of 
the enclosed building or enclosed housing structure, but includes 
roofed areas that are not enclosed. One of the key considerations 
distinguishing indoor space from outdoor space is how the livestock are 
managed in that space. How livestock are managed may determine whether 
space is considered indoors, outdoors, or neither indoors nor outdoors. 
As an example, a screened in and roofed porch to which the (enclosed) 
birds always have access, including during temporary confinement 
events, would be considered indoor space. That same porch would be 
considered neither indoors nor outdoors if the birds did not have 
continuous access to the space during temporary confinement events. If 
the screens were removed from that porch so that the birds could freely 
access other outdoor space, then the porch would be considered outdoor 
space (see ``Outdoors or outdoor space,'' below). These distinctions 
provide flexibility for producers to work with their certifying agents 
when developing their organic system plans (OSPs), yet still aligns 
with the position that enclosed porches are not considered to be 
outdoor space.
    The final rule defines four types of avian indoor space. These 
indoor housing types are defined because each housing type has a 
differing indoor space requirement. AMS continues to include an indoor 
space requirement at Sec.  205.241(b)(8)(v) for housing that does not 
fit within one of the types defined in Sec.  205.2.
    The final rule further clarifies the requirements for avian species 
indoor space requirements by defining the term ``perch'' as a rod or 
branch type structure or flat space above the floor of the house that 
accommodates roosting, allowing birds to utilize vertical space in the 
house.
Outdoors or Outdoor Space
    The final rule defines ``outdoors or outdoor space'' to clarify the 
meaning of outdoor areas for mammalian and avian species. The term 
``outdoors'' from the proposed rule was modified to include ``or 
outdoor space'' because these two terms are used interchangeably 
throughout the rule. ``Outdoors or outdoor space'' is defined as any 
area outside of an enclosed building or enclosed housing structure, but 
including roofed areas that are not enclosed. In this definition, 
``outdoors or outdoor space'' includes all of the non-enclosed space 
encompassing soil-based areas such as pastures, pens, or sacrifice 
lots; hardened surface areas such as feedlots, walkways, or loafing 
sheds; and areas providing outdoor shelter such as windbreaks and shade 
structures.
    The outdoor space has species-specific requirements. For example, 
this rule sets the requirement that 50 percent of the outdoor space for 
avian species must be soil-based and that the soil be maximally covered 
with vegetation. Vegetative cover must be maintained in a manner that 
does not provide harborage for rodents and other pests. For avian 
species, the definition of outdoors has been revised to include pasture 
pens, which are floorless pens that are moved regularly and provide 
direct access to soil and vegetation. These pens may consist of solid 
roofing over all or part of the pen to provide shelter for the birds. 
For further discussion see ``Pasture Pens vs. Other Mobile Housing'' in 
section IX. Avian Living Conditions.
    To assist with the mitigation of biosecurity and predation risks, 
fencing, netting, or other materials are permitted over all or part of 
the outdoor areas to prevent predators and other wild birds from 
entering the outdoor area. Many producers also use portable or 
permanent shade structures throughout their pastures. Structures for 
shade are also permitted in the outdoor space. For example, the area 
within a standalone, roofed shade structure could be included as 
outdoor space area. Areas under the eaves or the awning of a building, 
with a roof attached to the outer wall of the indoor space structure,

[[Page 7046]]

can also be considered outdoors. While these areas may have solid roofs 
overhead, they can offer the same quality of outdoor space as uncovered 
outdoor areas, including natural ventilation/open air, direct sunlight, 
soil, vegetation, and open access to uncovered areas beyond.
    The final rule defines ``soil'' as the outermost layer of the earth 
comprised of minerals, water, air, organic matter, fungi, and bacteria, 
in which plants may grow roots. Soil is defined to distinguish these 
areas from impervious areas such as concrete or pavement. Soil may 
consist of bare ground but is generally covered with vegetation. As 
described in the mammalian and avian living condition sections, maximum 
vegetative cover should be maintained on the soil as appropriate for 
the species, season, geography, and climate. Designated sacrifice areas 
or dry lots are permitted. Outdoor areas must be maintained in a manner 
that maintains or improves natural resources, including soil and water 
quality. Temporary confinement may be provided to protect soil and 
water quality.
Non-Ambulatory
    The final rule adds the term ``non-ambulatory'' and references the 
definition in 9 CFR 309.2(b). FSIS defines non-ambulatory as 
``livestock that cannot rise from a recumbent position or that cannot 
walk, including, but not limited to, those with broken appendages, 
severed tendons or ligaments, nerve paralysis, fractured vertebral 
column, or metabolic conditions.'' Any non-ambulatory livestock on 
organic farms must be medically treated, even if the treatment causes 
the livestock to lose organic status or be humanely euthanized.
Pullets
    AMS modified the definition of pullets, which is used by the AMS 
Livestock, Poultry, and Seed Program, to include species other than 
chickens. This final rule defines ``pullets'' as female chickens or 
other avian species being raised for egg production that have not yet 
started to lay eggs. Once avian females begin laying eggs, AMS refers 
to them as layers. The term ``pullets'' does not describe young 
broilers used for meat production.
Stocking Density
    The final rule defines ``stocking density'' as the weight of 
animals on a given area or unit of land. This term is used to describe 
the indoor and outdoor space requirements for organic livestock. For 
example, the final rule establishes maximum stocking densities for 
avian species, and the producer must ensure that the area provided is 
large enough to not exceed the established maximum stocking density 
when all birds in the flock are on the given area (i.e., indoors) or 
unit of land.
Ritual Slaughter
    The final rule adds the term ``ritual slaughter'' and references 
the definition in the Humane Methods of Slaughter Act (7 U.S.C. 
1902(b)). This Act defines ritual slaughter as ``slaughtering in 
accordance with the ritual requirements of the Jewish faith or any 
other religious faith that prescribes a method of slaughter whereby the 
animal suffers loss of consciousness by anemia of the brain caused by 
the simultaneous and instantaneous severance of the carotid arteries 
with a sharp instrument and handling in connection with such 
slaughtering.''
    Organic livestock and handling operations may use ritual slaughter 
to convert their livestock to meat or poultry without loss of organic 
status.
Vegetation
    The final rule adds the term ``vegetation'' and defines it as 
living plant matter that is anchored in the soil by roots and provides 
ground cover. This term applies to the requirement for vegetation in 
outdoor areas, which is central to protecting soil and water quality as 
well as providing for livestock to exhibit their natural behaviors. The 
roots of vegetation provide stability and structure to soil. Vegetation 
helps water soak into the soil rather than running off, which can cause 
erosion. Livestock also have natural behaviors of grazing, rooting, 
nesting, etc., which require vegetation.

B. Discussion of Comments Received

1. Definition of Beak Trimming
    (Comment) The term beak trimming was included in the proposed rule 
and was defined as the removal of the curved tip of the beak. Many 
comments expressed that the definition for this term was vague and that 
the difference between beak trimming and de-beaking was unclear. 
Comments also shared that it is common within the industry to use the 
terms beak trimming and de-beaking interchangeably and that a more 
quantitative measure should be included if the intent of the rule is to 
control the amount of beak trimmed. One comment requested additional 
clarification with regards to trimming the bottom of the beak. Some 
comments suggested revisions to the definition to provide clarity, 
including the American Veterinary Medical Association (AVMA) which 
recommended the following definition: ``Beak trimming (formerly de-
beaking) is the removal of approximately one-quarter to one-third of 
the upper beak, or both upper and lower beak, of a bird in order to 
control injurious pecking and cannibalism.'' Four comments suggested 
that the proposed definition be revised to specify the anatomical name 
of the portion of the beak that is removed in beak trimming. Other 
comments stated that the definition should specify the age at which 
beak trimming can be performed.
    (Response) AMS agrees with the majority of comments which expressed 
that the definition of beak trimming should be clarified. We have 
replaced the definition from the proposed rule with a definition 
similar to the one provided by AMVA which specifies that beak trimming 
is ``the removal of approximately one-quarter to one-third of the upper 
beak, or both upper and lower beak''. For the purposes of these 
regulations, AMS modified the AVMA definition to replace the word 
``approximately'' with ``not more than'' in order to ensure that beak 
trimming is clearly distinguished from de-beaking. We believe that this 
definition adequately addresses the comments received and is both 
accurate and clear without being overly prescriptive. AMS does not 
believe that it is necessary to refer to anatomical names for portions 
of the beak in this definition since these terms are not used in the 
regulatory text. Other comments in response to the age at which beak 
trimming can be done are addressed in the avian living conditions 
section of the final rule.
2. Definition of De-Beaking
    (Comment) The term de-beaking was included in the proposed rule and 
was defined as ``the removal of more than the beak tip.'' The comments 
received regarding the term beak trimming also addressed de-beaking, 
expressing that the proposed definition was vague and that the 
distinction between beak trimming and de-beaking was not clear. One 
comment requested that the definition of de-beaking be removed entirely 
as the industry has taken steps to eliminate this practice.
    (Response) In response to comments, AMS amended the definition of 
de-beaking in the final rule to make it more specific. AMS believes 
that it is important to define de-beaking in order to differentiate it 
from beak trimming. Comments did not provide a suggested definition for 
the term, and as a result AMS decided to define de-beaking as anything 
that goes beyond what is defined in this rule as beak trimming.

[[Page 7047]]

Thus, the amended definition of de-beaking clarifies that it is the 
removal of more than one-third of the upper beak, or more than one-
third of both the upper and lower beaks of a bird.
3. Definition of Caponization
    (Comment) AMS received two comments stating that the definition for 
``caponization'' should not be included in the final rule. Comments 
stated that it is unnecessary for AMS to define ``caponization'' 
because it beyond the purview of the AMS.
    (Response) This final rule prohibits caponization, as defined, 
based upon a recommendation from the NOSB. Thus, it is within AMS's 
purview. AMS believes that, because caponization is prohibited, it is 
necessary to clearly define what it is so that certifying agents and 
producers can ensure that they do not inadvertently perform this 
physical alteration.
4. Definition of Indoors
    (Comment) AMS received a range of comments on the proposed 
definition of indoors. A number of comments suggested that the term 
``indoors'' be replaced by the term ``indoors for avian species'' since 
the definition of the term is specifically related to avian living 
spaces. Other comments recommended changing the term ``pasture 
housing'' to ``mobile housing.'' These comments pointed out that there 
are fixed housing systems that offer pasture to birds. They also noted 
that the term ``pasture-raised'' is defined by other third-party animal 
welfare standards, and those standards allow fixed housing to be used 
in combination with a spoke-and-wheel pasture rotation for pasture-
raised poultry. Thus, they felt that the term ``mobile housing'' is 
more accurate based on the type of housing that AMS intended to 
describe in the proposed definition.
    Two comments recommended that the reference to 70% perforated 
flooring be removed from the description of pasture housing since this 
requirement is restrictive when considering that different types of 
pasture housing (or mobile housing) vary in design. These comments 
suggested that the definition instead focus on the mobility of the 
housing and its frequent movement.
    Various comments expressed that more clarity is needed in the 
definition of ``indoors'' in order to define exactly what counts as 
indoors and outdoors for the various types of pasture-based systems 
used. These comments recommended that definitions for ``moveable 
pasture pen'' and ``day range system'' be added in order to provide 
additional clarity and to better represent the actual types of pasture 
housing used in pastured-poultry operations. Commenters used 
``Salatin'' style housing, ``Prairie Schooners,'' and simple hoop 
structures as examples of moveable pasture pens. The comments described 
these systems as providing direct access to soil and vegetation; having 
walls and roofs made of mesh, plastic, wood, and other materials; and 
having mobility. Birds in these systems are on pasture 24 hours per 
day, while roofing on all or part of the structure provides shade and 
protection. These commenters argued that these systems are unique, 
provide access to the soil and vegetation, and allow birds to exhibit 
natural behavior, and should be specifically permitted and addressed in 
the requirements.
    (Response) AMS agrees that the proposed definition for indoors 
focuses specifically on describing what qualifies as indoor areas for 
avian species. Rather than creating a new term, ``indoors for avian 
species,'' AMS determined that it would be best to define indoors more 
broadly, and provide a separate sub-category of terms that define what 
is indoors specifically for avian species. Having a broadly applicable 
definition of indoors helps to clearly distinguish it from the meaning 
of outdoors. Further defining indoor areas for avian species within the 
definition of indoors allows AMS to provide more specificity where it 
is needed. As a result, AMS revised the basic definition of indoors to 
define it as the space inside of an enclosed building or housing 
structure with solid, slatted, or perforated flooring.
    AMS also agrees with comment that stated that the term ``mobile 
housing'' is more appropriate to describe pasture housing that is 
regularly moved to provide birds with access to new pasture. In various 
situations, the term ``pasture housing'' may be applied to stationary 
housing that provides access to pasture, and this could cause confusion 
for producers, certifying agents, and inspectors. In response to 
comments, AMS replaced the term ``pasture housing'' with ``mobile 
housing'' in the final rule.
    Additionally, AMS removed the reference to 70% perforated flooring 
from the definition of mobile housing. AMS agrees with comments that 
defining mobile housing without specifying what its flooring is made of 
is more applicable given the diversity of structures used in mobile 
housing systems.
    AMS made several revisions in the final rule in response to 
comments requesting more clarity around the definitions of indoors and 
outdoors as they apply to pasture-based systems. AMS agrees with 
comments that the proposed definitions for these terms did not 
adequately consider pastured poultry systems where birds are contained 
within a lightweight, floorless enclosure such as a pen that provides 
the birds in the pen with direct contact to soil and vegetation. As 
such, these systems did not clearly fall under either definition that 
AMS proposed for indoors or outdoors. AMS has clarified that pasture 
pens are outdoors or outdoor space by revising the definition in 
section 205.2. For further discussion of this topic, see section IX. 
Avian Living Conditions, ``Pasture Pens vs. Other Mobile Housing.''
    Organic livestock must be provided with outdoor space as the 
default living space, along with shelter. Organic producers may choose 
to provide indoor covered, enclosed and floored space as shelter if 
needed for the health and wellbeing of the birds, but it is not 
required. In addition to revising the broad definition of indoors, AMS 
responded to these comments by providing a separate definition of 
pasture pens under the definition of outdoors at section 205.2. The 
definition of outdoors, similar to the definition of indoors, defines 
pasture pens in a sub-category of terms describing outdoors for avian 
species.
Nest Box Areas and Other Indoors Comments
    (Comment) A small number of comments stated that it was unclear 
from the proposed rule whether accessible nest box areas could be 
included in indoor space calculations. These comments suggested adding 
``and accessible nest boxes'' to the first sentence of the definition 
for indoors. Some comments requested that the definition of indoors 
clarify that the term includes porches and lean-to type structures 
attached to the building or housing structure. One comment questioned 
the reference to feed and water on each level in the description of 
aviary housing. This comment noted that it is not necessary to include 
this specific requirement in case producers prefer to keep food and 
water on the main level of housing to encourage birds to move around 
and go outdoors. One comment suggested a new definition for ``indoors'' 
as: ``The flat space or platform areas which are under a solid roof and 
contained within a solid wall.'' Another comment that the definition 
for indoors specify that it may not contain prohibited materials.
    (Response) AMS did not add ``accessible nest boxes'' to the 
definition of indoors as some comments requested. Most third-party 
animal welfare

[[Page 7048]]

standards consider nest boxes to be distinct from usable floor areas of 
the house where birds can move around freely. These third-party 
standards use indoor space calculation methods that do not include nest 
boxes. AMS believes that aligning with other third-party animal welfare 
standards by excluding nest boxes from indoor space calculations is the 
most sensible approach. Since many organic egg producers participate in 
other third-party verified animal welfare programs, this approach 
avoids creating separate requirements for producers which could be 
confusing and burdensome.\4\ In addition, AMS' approach aligns with the 
NOSB's 2011 recommendation stating that nest boxes cannot be included 
in the calculation of indoor space.\5\ Therefore, AMS did not change 
the definition of ``indoors'' to include nest boxes. AMS also clarified 
in Sec.  205.241(b)(7) that nest boxes cannot be included in indoor 
space calculations.
---------------------------------------------------------------------------

    \4\ United Egg Producers: http://www.unitedegg.org/information/pdf/UEP-Animal-Welfare-Guidelines2016.pdf.
    Humane Farm Animal Care: http://certifiedhumane.org/wp-content/uploads/2014/01/Std14.Layers.6A.pdf.
    Global Animal Partnership: http://gapstaging.blob.core.windows.net/standards/DRAFT%205-Step%20Animal%20Welfare%20Rating%20Pilot%20Standards%20for%20Laying%20Hens.pdf.
    American Humane Certified: http://www.humaneheartland.org/index.php?option=com_content&view=article&id=3&Itemid=106&jsmallfib=1&dir=JSROOT/Animal+Welfare+Full+Standards+%2B+Supplements.
    \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.
---------------------------------------------------------------------------

    AMS determined that a specific reference to porches and enclosed 
lean-to type structures is not necessary in the definition of 
``indoors.'' AMS believes that the definition adequately covers these 
types of structures and that including them in a broader list of 
housing categories would be confusing. However, AMS does provide 
clarification in the regulatory text under Avian Living Conditions 
(Sec.  205.241) that these structures can be counted as indoor space 
provided that they are fully accessible to birds at all times, 
including during temporary confinement.
    AMS removed ``feed and water on each level'' from the definition of 
aviary housing in the definition of ``indoors or indoor space'' at 
Sec.  205.2. Not all avian housing is designed this way, and this 
revision allows producers to work with their certifying agents to 
determine the best location for food and water depending on their 
housing system.
5. Definition of Outdoors
Soil/Vegetation Requirement
    (Comment) Many comments stated that the definition of outdoors 
should include a requirement for vegetation instead of soil. These 
comments expressed concern about soil and water quality in the absence 
of vegetation in outdoor areas used by livestock. Many also felt that 
vegetation is important for animal health and natural behaviors. Other 
comments requested that the 50 percent soil requirement in the 
definition of outdoors should be removed. These comments felt that this 
reference contradicted the use of feeding pads and feeding yards, which 
are specifically allowed under the rule. They also expressed concern 
that including a requirement specifically for 50 percent soil in the 
definition of outdoors could negatively impact soil and water quality 
during winter or dry months.
    Various comments questioned the statement in the proposed 
definition indicating that areas with solid walls or a solid roof 
attached to the outer wall of an indoor living space cannot be 
considered outdoors. Comments questioned how these areas (such as eaves 
or awnings) are different from an outdoor space that has a solid roof 
and no walls and is not connected to the structure providing the indoor 
space. They reasoned that these areas provide the same quality of 
outdoor space and are important for providing shade and protection. 
Other comments stated that allowing areas under the eaves of buildings 
and awnings to be counted as outdoors would simplify outdoor space 
calculations.
    Some comments stated that porches should be included in the 
definition of outdoors. They cited the need to calculate porches as 
outdoor space due to producer costs, biosecurity concerns, mortality 
rates, and environmental concerns.
    (Response) AMS agrees with comments that it is important that 
outdoor areas for livestock include vegetation to protect soil and 
water quality and promote animal health and natural behaviors. AMS is 
also in agreement with comments that requested that the reference to 
soil be removed from the definition of outdoors. In response to these 
comments, AMS in conjunction with Natural Resource Conservation 
Service, determined that requirements for soil and vegetation in 
outdoor access areas should be included in the sections of the final 
rule that address mammalian and poultry living conditions rather than 
in the definition of outdoors. Including a requirement for vegetation 
in the definition for outdoors may make it difficult for some producers 
to meet outdoor access requirements during certain times of the year 
(i.e. winter months, dry seasons), in certain regions, or for certain 
species.
    AMS agrees that outdoor areas that are partially covered, such as 
areas under the eaves or the awning of a building, can be considered 
outdoors. These areas can offer the same qualities of outdoor space 
(such as natural ventilation, soil, vegetation, and open access to 
uncovered outdoor areas) as independent shade structures. In response 
to comments, AMS revised the definition of outdoors to remove the 
statement that disqualifies areas where there is a solid wall or roof 
attached to the indoor living space. This revision is intended 
specifically to accommodate for features of an avian housing structure 
that may provide cover but are in areas that are truly outdoors. In 
these areas, birds have access to soil and vegetation, natural 
ventilation, and open access to uncovered outdoor areas beyond. AMS 
considers these areas as distinct from porches specifically because 
they are not fully enclosed.
    For further discussion about porches see ``Porches'' in the 
Discussion of Comments Received, section IX. Avian Living Conditions.
6. Definition of Perch and Roost
    (Comment) AMS received a number of comments about the proposed 
definitions of the terms ``perch'' and ``roost.'' Comments stated that 
the terms in the proposed rule were confusing and are used 
interchangeably within the proposed rule and within the industry. Some 
comments suggested replacing the word roost with the word slats, to 
refer to raised slats positioned over a manure pit. Other comments 
stated that the reference to manure pit(s) should be removed from the 
definition of roost entirely, as not all roosts are located over one.
    (Response) AMS recognizes that using both terms ``perch'' and 
``roost'' could be confusing, as the terms can be used interchangeably 
by producers and industry. AMS determined that it is only necessary to 
include the term ``perch'' in the final rule. As defined, this term is 
intended to refer to various features in poultry housing, such as rods, 
branch type structures, and flat roost slats that accommodate roosting 
and are elevated to allow birds to stay off the floor of the house. 
Perches may be over a manure pit but this is not a requirement. AMS 
also removed ``roost'' from the definitions section and regulatory text 
section based on

[[Page 7049]]

comment feedback that the term was not necessary.
7. Definition of Soil
    (Comment) A small number of comments expressed confusion over the 
proposed definition of soil and asked whether soil, as defined, is 
required to be bare since the definition did not include a reference to 
vegetation. One of these comments suggested revising the definition to 
add ``which may be bare or vegetated'' in order to provide 
clarification. Another comment requested that the definition of soil be 
revised to describe it as being vegetated, citing soil and water 
quality concerns. Other comments expressed concern about conflicts with 
other definitions of soil currently in use. One of these comments 
suggested replacing the proposed definition of ``soil'' with a more 
technical definition from the Natural Resources Conservation Service 
(NRCS), while another comment suggested using the term ``certified 
ground.'' A separate commenter thought that the impact of the proposed 
rule was limited without an adequate definition of soil that clearly 
states the quality, depth, and presence of vegetation.
    (Response) After considering the comments received, we have 
retained the definition of soil from the proposed rule because we 
believe that it is an accurate and a commonly understood description of 
the term. AMS believes that a more complex or overly technical 
definition of soil is unnecessary and could contribute to confusion. 
However, AMS recognizes that the intent of some comments was to avoid 
circumstances in which animals on bare soil could create soil or water 
quality problems, and the Agency agrees that avoiding such an outcome 
is paramount. The final rule provides additional clarification in the 
avian and mammalian living conditions sections regarding the various 
requirements for soil and vegetation in outdoor areas to differentiate 
between the needs and management of avian and mammalian species.
8. Definition of Stocking Density
    (Comment) AMS received various comments identifying that the 
reference to ``unit of land'' in the definition for stocking density is 
limiting, since it applies to both outdoor and indoor space. Comments 
suggested that the definition refer to ``area of space'' instead of to 
``unit of land.'' One comment suggested that AMS also remove the phrase 
``at any one time'' from the definition of stocking density. The 
comment stated that this phrase could be interpreted to allow space 
requirements to be calculated by applying the stocking density to a 
percentage of animals that might be in an area at a point in time, 
rather than applying the stocking density to the total flock.
    (Response) In the final rule, AMS has removed the phrase ``at any 
one time'' from the definition to reduce the chance of confusion over 
the intended meaning and application of the term. AMS has also revised 
the term to include ``given area'' in response to comments that the 
term is used for both indoor and outdoor areas.
    For further discussion about space calculations, please see AMS's 
response to comments in Avian Living Conditions.
9. Definition of Toe Clipping
    (Comment) AMS received various comments questioning whether toe 
clipping is the same as toe trimming. Toe clipping was a new term 
defined and used in the proposed rule. Toe trimming, a similar term, 
was also used in various places throughout the proposed rule and 
brought forth questions about interchangeability between the terms.
    A number of comments also pointed out that toe clipping can be 
performed on both male and female birds. These comments said that the 
definition of the term would be more accurate if the specific reference 
to a male bird was removed.
    (Response) AMS recognizes that the proposed rule defined toe 
clipping and used the term toe trimming in the proposed rule. AMS also 
recognizes that toe clipping can be done on both male and female birds. 
In response to comments, the final rule defines toe clipping as the 
removal of the nail and distal joint of the back two toes of a bird 
without reference to the sex of the bird. Additionally, the term ``toe 
clipping'' is used consistently throughout the final rule and ``toe 
trimming'' has been removed.
10. Miscellaneous Comments
Scratch Area
    Two comments asked for clarification about of the definition and 
composition of a scratch area. AMS has removed the term ``scratch 
area'' from the regulatory text. Since the term ``scratch area'' is not 
included in the regulatory text, AMS sees no need to define the term.
Enrichment/Suitable Enrichment
    A small number of comments asked AMS to define the term enrichment 
or the phrase suitable enrichment. AMS has not defined the term, as we 
have removed the requirement for suitable enrichment in the final rule. 
For further discussion, see AMS's response to comments in the section 
on FDA regulations and food safety.
Willful Acts of Abuse
    One comment requested that the rule provide a definition of 
``willful acts of abuse.'' The comment noted that this definition was 
included in the NOSB's 2011 recommendation on transport and slaughter. 
Since the term ``willful acts of abuse'' is not included in the 
regulatory text, AMS sees no need to define the term.
Litter
    One comment requested that AMS include a definition of litter in 
the rule. This comment stated that it is unclear if litter is intended 
to mean bedding or if it can consist solely of dehydrated manure. AMS 
determined that the term ``litter'' is commonly used by avian producers 
to describe substrates used to absorb moisture and dilute manure, as 
well as to provide birds the opportunity to express natural behaviors 
such as foraging and dust bathing. AMS did not provide a definition for 
litter in the final rule. Instead, litter is described in more detail 
in the avian living section of the rule.
Dubbing
    Four comments stated that the definition of dubbing does not 
include the removal of the wattles. AMS reviewed the uses of the term 
dubbing and found some references that included the removal of wattles 
and others that only referred to combs. Other sources refer to the 
practices separately as ``wattle trimming'' and ``comb trimming.'' AMS 
retained the definition of dubbing in the final rule to include the 
removal of both combs and wattles.
Swine Aggression
    One comment requested that the final rule define ``swine 
aggression'' to prevent unnecessary confinement of pigs. This commenter 
stated that without a definition for the term, the provision of the 
rule allowing for individual housing for swine in cases where 
aggression is documented could be used for unnecessary confinement of 
pigs. AMS determined that it would be challenging to develop a 
definition for ``swine aggression'' that would be applicable across 
stages of production, and the diverse realities that exist on each 
farm. Instead, producers should work with their certifying agents to 
describe the types of aggression that would warrant individual housing 
on their operation as they develop an OSP.

[[Page 7050]]

VII. Livestock Health Care Practices (Sec.  205.238)

A. Description of Regulations.

1. Summary of the Final Rule
    AMS amended current provisions and added new provisions to the 
organic livestock care and production practice standards. The amendment 
to Sec.  205.238(a)(2) specifies that the sufficiency of the feed 
ration be demonstrated by appropriate body condition of the livestock. 
Livestock producers are required to monitor their animals to ensure 
body condition is being maintained. In addition, certifying agents need 
to verify the nutritional adequacy of the animals' diet by assessing 
the body condition of organic livestock during inspection. Suitable 
body condition varies between species, between breeds, and between 
production types; for example, a suitable condition for dairy cattle 
may be considered too thin in beef cattle. AMS plans to publish 
guidance to assist certifying agents, inspectors, and producers in 
assessing body condition for different species.
    AMS revised Sec.  205.238(a)(5) to clarify the conditions under 
which physical alterations may be performed on livestock. Physical 
alterations may only be performed for an animal's welfare, 
identification, or safety. Alterations must be done at a reasonably 
young age with minimal pain or stress to the animal, and may only be 
performed by a person who can competently perform the procedure. 
Competency in performing physical alterations may be demonstrated by 
appropriate training or experience of the person.
    A 2009 NOSB recommendation allowed teeth clipping and tail docking 
in piglets, but this revision was retracted in the 2011 NOSB 
recommendation. In this final rule, AMS added Sec.  205.238(a)(5)(i), 
which restricts needle teeth clipping and tail docking in pigs. These 
two types of physical alterations may not be performed on a routine 
basis, but may be performed as needed to improve animal welfare, as 
listed below.
    Needle teeth clipping and tail docking in pigs may only be 
performed in response to documented animal welfare reasons after 
alternative steps to prevent harm fail. Teeth clipping, if performed, 
is limited to the top third of each needle tooth. For example, an 
organic swine producer who clipped needle teeth or performed tail 
docking would need to document excessive needle teeth scarring on the 
underline of a sow or piglets, or document tail biting on piglets in 
the litter. Swine producers would also need to document that 
alternative methods to prevent scarring had failed. Such alternative 
methods may include, but are not limited to, cross-fostering prior to 
teat fidelity across litters to minimize weight variation, providing 
sufficient enrichment materials, and providing vegetation for rooting.
    AMS is finalizing Sec.  205.238(a)(5)(ii) to list the physical 
alterations that are prohibited in an organic operation. Based on the 
2011 NOSB recommendations, the following physical alterations to avian 
species are prohibited: De-beaking, de-snooding, caponization, dubbing, 
toe clipping of chickens, toe clipping of turkeys unless with infra-red 
at hatchery, and beak clipping after 10 days of age. In addition, the 
following physical alterations to mammalian species are prohibited: 
Tail docking of cattle, wattling of cattle, face branding of cattle, 
tail docking of sheep shorter than the distal end of the caudal fold, 
and mulesing of sheep.
    AMS added a new Sec.  205.238(a)(7) which specifies that surgical 
procedures on livestock to treat an illness must be done in a manner 
that minimizes pain, stress, and suffering. The NOSB recommended that 
all surgical procedures for livestock be done with the use of 
anesthetics, analgesics, and sedatives. USDA organic regulations 
require that all surgical procedures for treatment of disease be 
undertaken in a manner that employs best management practices in order 
to minimize pain, stress, and suffering, and only with the use of 
anesthetics, analgesics, and sedatives as listed in Sec. Sec.  
205.603(a) and 205.603(b).
    AMS added a new Sec.  205.238(a)(8) that requires organic producers 
to actively monitor and document lameness within the herd or flock. 
Lameness can be an issue in various livestock species, including 
broilers, sheep, and dairy cattle. The requirement for producers to 
create a plan for monitoring and recording instances of lameness in the 
organic system plan enables organic livestock producers to identify and 
address potential problems among animals before they become widespread. 
In addition, documentation of lameness will provide an auditable trail 
for certifying agents to verify that livestock producers are monitoring 
these potential causes of animal suffering.
    AMS revised Sec.  205.238(b) to state that synthetic medications 
allowed under Sec.  205.603 may be administered to alleviate pain or 
suffering. In addition, synthetic medications allowed under Sec.  
205.603 may be administered when preventative practices and veterinary 
biologics are inadequate to prevent sickness.
    AMS amended 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, organic animals or breeder stock may 
continue to provide milk for organic calves on the same operation 
during the withholding time. This is consistent with the 2010 NOSB 
recommendation that a calf nursing a cow treated topically with 
lidocaine or other approved synthetic with a withdrawal time would not 
lose organic status. For example, if an organic beef cow was nursing 
her organic calf and the cow became injured, her calf could continue to 
nurse the cow even during the seven-day withholding period if lidocaine 
was used to minimize pain and stress during her treatment. In this 
scenario, the calf would not lose organic status.
    AMS revised 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 USDA Center 
for Veterinary Biologics (CVB) regulates vaccines and all other 
veterinary biologics. While vaccines are commonly referred to as 
veterinary biologics, the CVB also categorizes bacterins and toxoids as 
biologics. This change is consistent with the definition for biologics 
in Sec.  205.2 and supports Sec.  205.238(a)(6), which identifies the 
use of vaccines and other veterinary biologics as a required practice 
to improve animal health.
    AMS revised 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. However, 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 do not mention the use of hormones to 
stimulate production or for reproductive purposes. This addition 
clarifies that all hormones--unless used to treat an illness--are 
prohibited in organic production.
    AMS added a new Sec.  205.238(c)(8) to prohibit organic livestock 
producers from withholding treatment designed to minimize pain and 
suffering for injured, diseased, or sick animals. Injured, diseased, or 
sick animals may be treated with any allowed natural substance or 
synthetic medication that appears on the National List. However, if no 
appropriate medication is allowed for

[[Page 7051]]

organic production, organic livestock producers are required to 
administer treatment even if the animals subsequently lose their 
organic status. Furthermore, as recommended by the American Veterinary 
Medical Association, some forms of euthanasia may be an acceptable 
practice for minimizing pain and suffering.
    AMS added a new Sec.  205.238(c)(9) that requires livestock 
producers to identify and record treatment of sick and injured animals 
in animal health records. Early identification can lead to more 
effective prevention or treatment, which will enhance the overall 
health of the livestock on that operation.
    AMS added a new Sec.  205.238(c)(10) that prohibits the practice of 
forced molting in poultry. Section 205.238(a)(2) of this final rule 
requires a nutritionally sufficient feed ration for livestock. Forced 
molting, a practice in which feed is severely restricted for a period 
of time in order to rejuvenate egg production, runs counter to this 
provision. The new 205.238(c)(10) was added to be consistent with the 
NOSB recommendation.
    AMS added a new Sec.  205.238(d) that requires organic livestock 
operations to minimize internal parasite problems in livestock. The 
plan to minimize internal parasites must include preventative measures 
such as pasture management, fecal monitoring, and emergency measures in 
the event of a parasite outbreak. Livestock producers must also work 
with their certifying agents to approve a parasite control plan.
    In certain cases, livestock may suffer from an illness or injury 
from which recovery is unlikely. AMS added a new Sec.  205.238(e) to 
address euthanasia based on the 2011 NOSB recommendations. Section 
205.238(e)(1) requires livestock producers to maintain written plans 
for euthanizing sick or injured livestock. Section 205.238(e)(2) 
prohibits the following methods of euthanasia: Suffocation, manual 
blows to the head by blunt instrument or manual blunt force trauma, and 
use of equipment that crushes the neck (e.g., killing pliers or 
Burdizzo clamps). In the event of an emergency situation where a local, 
State, or Federal government agency requires the use of a non-organic 
method of euthanasia, organic livestock operations will not lose 
organic certification or face other penalties for the use of non-
organic methods of euthanasia. The NOSB recommended listing the 
allowable methods of euthanasia, however, given that new humane 
euthanasia methods may emerge, AMS does not intend to discourage 
producer adoption of these techniques. Therefore, AMS allows organic 
livestock producers to use any method of euthanasia except for those 
prohibited in section 205.238(e)(2). The list of prohibited methods 
could be amended to include other techniques, if needed, through future 
rulemaking. AMS added a new Sec.  205.238(e)(3) which states that after 
the euthanasia procedure, livestock must be examined to ensure that 
they are dead.

B. Discussion of Comments Received

1. Selection of Breeds
    (Comment) AMS received one comment requesting that we prohibit 
selective breeding of livestock and poultry for characteristics that 
may compromise their health and natural behaviors. The comment stated 
that some chicken breeds that are bred for increased white meat may 
have difficulty walking due to the size of their breasts relative to 
the strength/size of their legs.
    (Response) Animal breeding is frequently conducted on non-certified 
operations, outside the scope of organic certification. Day-old birds 
are often selected and purchased by organic producers before the 
animals are brought into organic management. Selection of species and 
types of livestock with regard to suitability for site-specific 
conditions and resistance to prevalent diseases and parasites is a 
requirement under Sec.  205.238(a). Some species or types of livestock 
or poultry may not be suitable for organic production. Under existing 
regulations, certifying agents should verify that producers have 
selected breeds that are suitable for their site-specific conditions 
and that are resistant to prevalent diseases and parasites.
2. Provision of Feed Ration Resulting in Appropriate Body Condition
    (Comment) One comment stated that the language proposed at Sec.  
205.238(a)(2) ``. . . resulting in appropriate body condition'' should 
be the sole indicator of the sufficiency of feed rations. Other 
comments, while expressing support for the inclusion of this additional 
language, argued that ``appropriate body condition'' is difficult to 
quantify. One comment requested that body condition standards be 
specified in the final rule. Other comments requested that body 
condition assessment guidance accompany the final rule.
    (Response) Livestock body condition may vary greatly depending on 
the livestock breed, age, season of the year, or stage of production. 
The primary requirement under this section is to require livestock to 
receive a feed ration that is sufficient to meet nutritional 
requirements. This would generally be verified by comparing the net 
energy and other nutrient requirements for the animal with the diet 
provided. AMS has added ``. . . resulting in appropriate body 
condition'' as a secondary assessment factor within the regulations for 
inspectors to use to gauge the nutritional status of an individual 
animal or group of animals. Because qualified organic inspectors should 
have sufficient livestock experience to evaluate the nutritional 
condition of livestock as part of their qualifications to inspect an 
organic livestock operation, we agree that guidance on how to assess 
appropriate body condition by species would be helpful for training 
purposes. AMS will provide such guidance after publication of the final 
rule.
3. Physical Alterations--General, Surgeries, and Pain Management
    AMS received a number of comments requesting specific changes in 
words and phrases regarding the first part of Sec.  205.238(a)(5): 
Physical alterations may be performed to benefit the welfare or hygiene 
of the animals, for identification 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. These specific 
comments will be addressed one by one in the following discussion of 
comments.
    (Comment) AMS received many comments proposing that the word 
``hygiene'' be removed from Sec.  205.238(a)(5). Comments believed that 
a broad interpretation of hygiene could create conflict among 
regulatory provisions, resulting in a loophole where farmers could seek 
to justify physical alterations even when prohibited under proposed 
Sec.  205.238(a)(5)(ii). For example, hygiene is the main reason the 
tails of cows are docked on dairy farms, and thus hygiene should not be 
a justification for physical alterations.
    (Response) AMS agrees that the term hygiene could be used to 
justify physical alterations otherwise prohibited, and has removed 
hygiene from this section of the final rule.
    (Comment) AMS received comments that ``reasonably young age'' in 
Sec.  205.238(a)(5) was too vague. These comments requested that we 
provide target ages for all physical alterations for all livestock.
    (Response) The appropriate age of animals for performing 
alterations may depend on several factors, such as the nature of the 
physical alteration, temperature, season, species breed, and

[[Page 7052]]

health and condition of the animal. Certifying agents will need to work 
with producers on a case-by-case basis to assess the specific issues, 
needs, and justifications related to physical alterations on their 
operation by species and breed for inclusion in their organic system 
plans within the parameters provided in the final rule. Identifying 
target ages on every species for every possible physical alteration 
would be overly prescriptive and would unnecessarily impede operators 
in the humane management of their livestock. Therefore, AMS has not 
made changes in the final rule based on this comment.
    (Comment) AMS received comments that ``by a competent person'' is 
too subjective to evaluate and should be removed from Sec.  
205.238(a)(5). Comments requested further that ``competent person'' be 
replaced with ``licensed veterinarian.''
    (Response) While AMS did not define a ``competent person,'' AMS 
will rely on certifying agents to assess the requisite expertise of the 
individual. Most routine physical alterations, such as dehorning, 
castration, and beak clipping are not conducted by licensed 
veterinarians. Livestock operators perform these operations, often on a 
daily basis. Requiring all physical alterations to be conducted by a 
licensed veterinarian would result in significant expense and 
inconvenience to an organic livestock operator. The proposed rule 
requires that physical alterations be conducted by a ``competent 
person.'' This would generally be understood to be someone who has the 
education, training, and experience necessary to conduct physical 
operations quickly and easily, with minimal stress and pain for the 
animal. Certifying agents will assess the competence of personnel 
conducting physical operations and determine if they have the necessary 
competencies based on the complexity of the alteration to be performed. 
AMS has not made any changes in the final rule based on this comment.
    (Comment) For Sec.  205.238(a)(5), AMS received many comments that 
the phrase ``minimal stress and pain'' was not an explicit enough 
description of how physical alterations must be performed on livestock. 
These comments requested that the use of synthetic pain medications 
allowed on Sec.  205.603 be mandatory. Similar comments were made 
regarding the language at Sec.  205.238(a)(7). Again, comments 
requested that USDA organic regulations mandate the use of synthetic 
pain medication rather than simply allow them.
    (Response) AMS agrees that, in many situations, pain medications 
may be the best way to minimize stress and pain. While certified 
operations are permitted to use pain medications to treat or prevent 
pain caused by performing allowed physical alterations, pain 
medications may not be necessary for some allowed physical alterations. 
Therefore, AMS has not made any changes based on these comments.
    (Comment) AMS received one comment requesting that we add ``where 
effective non-physical methods are not available'' to Sec.  
205.238(a)(5).
    (Response) Under this final rule, physical alterations may be 
performed to benefit the welfare of the animals, for identification 
purposes, or for safety purposes. This comment suggests an additional 
broad requirement that a producer would need to provide justifications 
for routine, allowed physical alterations, which were not recommended 
by the NOSB and were not presented for public comment in the proposed 
rule. Therefore, AMS has not made any changes based on this comment.
4. Physical Alterations--Swine
    (Comment) Many comments requested a complete prohibition of needle 
teeth clipping and tail docking in swine. Some comments supported the 
principle that needle teeth clipping and tail docking in pigs should 
not be routinely used, but could be permitted with documentation that 
alternative methods to prevent harm failed, as proposed in Sec.  
205.238(a)(5)(i). One comment supported the provisions regarding tail 
docking and needle teeth clipping in swine but requested clarification 
as to whether proof was required at the operation level or on a by 
litter basis. This comment felt that requiring proof to be provided at 
a by litter basis seemed excessive and potentially harmful to the 
welfare of the sows in that operation.
    (Response) AMS does not agree with a complete prohibition of needle 
teeth clipping and tail docking in swine due to possible animal welfare 
impacts. AMS is retaining this provision based on consideration of 
recommendations by the NOSB. AMS will allow certifying agents to 
determine whether the specific need for physical alterations are 
sufficiently justified by producers on an operation, litter, or 
individual animal basis in their organic system plans.
5. Physical Alterations--Specific Prohibitions
    (Comment) AMS received several comments regarding both the proposed 
language at Sec.  205.238(a)(5)(ii) and the specific physical 
alterations proposed as prohibited for livestock and poultry. Many 
comments were supportive of the physical alterations proposed as 
prohibited, with some comments offering refinements or requesting 
clarification. Many comments requested that additional practices be 
prohibited, and other comments argued that some of the practices that 
were proposed as prohibited should be allowed.
    AMS received comments that the opening sentence of Sec.  
205.238(a)(5)(ii), ``The following practices must not be performed on a 
certified operation,'' creates a loophole in which practices can be 
performed during the one-year transition of a dairy animal.
    (Response) AMS has clarified the regulatory text in the final rule 
to state:
    ``The following practices are prohibited . . .'' The discussion of 
comments on the specific physical alterations proposed as prohibited is 
divided into avian and mammalian sections.
Avian Physical Alteration Prohibitions
    (Comment) AMS received comments identifying that we used the terms 
``toe clipping'' and ``toe trimming'' interchangeably and 
inconsistently in reference to altering the toes of male turkeys in the 
proposed rule. These comments also said that the proposed rule 
incorrectly defined this physical alteration practice as applying only 
to the toes of male turkeys, rather than all turkeys, in Sec.  205.2 
and Sec.  205.238(a)(5)(ii) of the rule text. Another comment stated 
that toe trimming, toe cutting, and de-clawing are all essentially the 
same toe treatment. AMS also received a separate comment requesting 
that we prohibit toe clipping in turkeys, or only permit the use of 
infra-red, rather than a hot blade or electric cauterization.
    (Response) The definition of ``toe clipping'' is addressed in this 
final rule in the Discussion of Comments Received for Sec.  205.2. To 
be consistent with the changes made to the definition of ``toe 
clipping'' in Sec.  205.2, the rule text at Sec.  205.238(a)(5)(ii) ``. 
. . toe clipping of male turkeys unless with infra-red at hatchery . . 
.'' has been changed to ``. . . toe clipping of turkeys unless with 
infra-red at hatchery . . .'' AMS received an NOSB recommendation 
advising the complete prohibition of toe clipping for chickens. Turkeys 
or other poultry were not included in this prohibition of toe clipping. 
Methods of both toe clipping and beak clipping are addressed together 
in a separate discussion following the below discussion of comments 
regarding beak clipping.
    (Comment) AMS received various comments on beak trimming. Many

[[Page 7053]]

comments requested that all beak trimming be prohibited, one requested 
that we only allow infra-red beak treatments, and another comment asked 
if re-trimming of beaks would be allowed. One comment suggested that 
AMS limit beak trimming to no more than the thickness of a dime. Some 
comments were opposed to the prohibition on de-beaking.
    (Response) AMS is not completely prohibiting beak trimming in 
poultry in the final rule due to animal welfare and economic impacts to 
poultry producers. This physical alteration is allowed at up to 10 days 
of age. Re-trimming of beaks is allowed at up to 10 days of age, but is 
not permitted after 10 days of age. In addition, beak trimming cannot 
be limited to a specific measurement because of the wide variability in 
beaks of bird species and breeds. Therefore, AMS is retaining the 
definition of beak trimming in Sec.  205.2 as the removal of the curved 
tip of the beak as recommended by the NOSB. AMS is also retaining de-
beaking as defined in Sec.  205.2, and de-beaking remains prohibited in 
Sec.  205.238(a)(5)(ii) of the final rule as recommended by the NOSB. 
AMS received many requests about the methods of beak trimming, toe 
clipping, and toe cutting, which are addressed immediately below.
Methods of Beak Trimming, Toe Clipping, and Toe Cutting
    (Comment) A few comments inquired about various methods of beak 
clipping, toe trimming, and toe clipping, including the use of 
traditional mechanical devices, such as knives or scissors, and more 
modern methods, such as electric cauterization (also called a cautery 
knife), the hot blade, and infra-red. Some comments stated that the use 
of infra-red is less invasive and painful, causes less tissue damage, 
and results in fewer chronic pain issues compared with other methods of 
poultry beak trimming, toe trimming, and toe clipping. One comment 
stated that all forms of beak trimming, toe trimming, and toe clipping 
are inhumane. Other comments asked for guidance on methods of beak 
trimming.
    (Response) Following a review of recent poultry periodicals and 
literature, AMS notes that infra-red is the newest technology being 
used for beak trimming, toe clipping, and toe cutting. Articles report 
that infra-red appears to be more humane and is gradually being adopted 
over electric cauterization and the hot blade.\6\ The final rule does 
not require all beak trimming and toe clipping to use only the infra-
red method since AMS did not include this restriction in the proposed 
rule and AMS does not know the availability, cost, or impact of only 
allowing infra-red technology in organic production systems. AMS may 
request that NOSB provide additional advice and recommendations on 
methods of poultry beak trimming, toe clipping, and toe cutting if 
conditions warrant in the future.
---------------------------------------------------------------------------

    \6\ American Veterinary Medical Association, Literature Review 
on the Welfare Implications of Beak Trimming, February 2010. https://www.avma.org/KB/Resources/LiteratureReviews/Documents/beak_trimming_bgnd.pdf.
---------------------------------------------------------------------------

    (Comment) AMS received two comments requesting that the final rule 
exclude wattles from the definition of dubbing in Sec.  205.2. They 
also asked that we remove the prohibition of dubbing in Sec.  
205.238(a)(5)(ii). One comment reported that dubbing is used in 
research to mitigate comb injuries, and is not currently used by the 
layer industry. This comment stated that with the push for outdoor 
access in regions where cold weather is a certainty, dubbing may be 
needed to stop frostbite and other comb injuries that could occur when 
birds are outdoors.
    (Response) AMS disagrees with the comment and is retaining the 
definition of dubbing that includes both wattles and combs in Sec.  
205.2 along with the prohibition of dubbing in Sec.  205.238(a)(5)(ii) 
of the final rule. Dubbing is the practice of cutting off the comb, 
wattle and earlobes of chickens. The practice of dubbing, sometimes 
carried out by poultry operators without anaesthetic, is a cause of 
pain and distress. Blood circulating from the comb to the wattles helps 
the bird to regulate its body temperature during hot weather. Removing 
either wattle or comb provides no benefit to the bird.
Mammalian Physical Alteration Prohibitions
    (Comment) AMS received various comments regarding prohibiting the 
use of some physical alterations of livestock and mandating pain-
relieving medications for other physical alterations. Many comments 
requested that the final rule prohibit or restrict de-horning, yet 
allow disbudding of cattle. Some comments supported the allowance of 
dehorning or disbudding, but only if performed by a licensed 
veterinarian and with pain relief mandated. One comment noted that 
while caponization was prohibited in poultry, castration of cattle, 
sheep, pigs, or other animals was not mentioned. This comment requested 
that castrations be performed by licensed veterinarians with pain 
relief mandated. Another comment proposed that castration be prohibited 
after two months of age.
    (Response) Dehorning and castration of livestock are important 
practices for animal welfare and farm management. For example, dehorned 
livestock are easier and less dangerous to handle and transport; can 
present a lower risk of interference from dominant animals at feeding 
time; and can pose a reduced risk of injury to udders, flanks, and eyes 
of other animals. Castration is also an important practice from a safe 
handling and product quality perspective. Castrated male cattle 
(steers) are less aggressive, are easier to handle, and yield better 
marbled, more tender beef. Therefore, AMS is not prohibiting these 
practices in the final rule.
    While best management practices suggest that dehorning and 
castration should be done at the earliest age practical to minimize 
pain and suffering,\7\ this suggestion is vague and, as such, would be 
difficult to enforce. Further, requiring alterations to be performed 
before a specific age may unnecessarily exclude some animals from 
further management as organic if alterations were delayed for reasons 
beyond a certified operation's control. Therefore, AMS did not make 
these changes in the final rule.
---------------------------------------------------------------------------

    \7\ American Veterinary Medical Association, Castration and 
Dehorning of Cattle. https://www.avma.org/KB/Policies/Pages/Castration-and-Dehorning-of-Cattle.aspx.
---------------------------------------------------------------------------

    While the final rule does not mandate the use of allowed synthetics 
to manage pain, it does not prohibit the use of pain medications when 
performing allowed physical alterations. The final rule allows 
operations to work with their certifying agents to agree on a physical 
alteration process that uses medications, as needed, to meet the 
regulatory requirement to perform alterations while minimizing pain and 
stress.
    (Comment) AMS received one comment seeking to prohibit all 
branding, and not just face branding. This same comment offered that 
there are many alternative animal identification methods such as ear 
tags, ear notches, back tags, neck chains, tail tags, freeze brands, 
tattoos, paint marks, leg bands, and electronic identification methods 
(e.g., electronic ear tags, microchips, electronic collars). Another 
comment stated that our prohibition of face branding would place 
operations at odds in states with regulations that require face 
branding of steers from Mexico. Nevada was provided as the example.\8\
---------------------------------------------------------------------------

    \8\ Nevada State regulations, Chapter 571--Diseased Animals; NAC 
571.040 Cattle and bison, 2. (e) (1) http://www.leg.state.nv.us/NAC/NAC-571.html#NAC571Sec002.

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

[[Page 7054]]

    (Response) In its recommendation on animal welfare, the NOSB 
recommended a prohibition specific to face branding. Therefore, the 
scope of the proposed rule submitted for public comment was limited to 
that aspect. AMS did not make changes based on this comment. In the 
future, if the NOSB recommends a prohibition on all branding, we will 
consider that aspect for proposed rulemaking, with opportunity for 
public comment.
    With consideration to the comment regarding state requirements for 
face branding of imported cattle, AMS has considered this comment and 
has amended the final rule to provide an exception for these state 
requirements. We have amended paragraph 205.238(a)(5)(ii) to prohibit 
face branding, except as required by state or federal law.
6. Monitoring and Recordkeeping Regarding Lameness and Treatment
    (Comment) AMS received various comments on the proposed new section 
Sec.  205.238(a)(8) that requires organic producers to actively monitor 
lameness within the herd or flock, to document cases and causes of 
lameness, and to describe how they were managed or treated. One comment 
from the dairy industry remarked that we do not provide a definition or 
a consistent system for identifying and assessing the degree and 
severity of lameness, and as a result, producer observations and 
recordkeeping will not be universal or consistent. For example, some 
operations may appear to have more cases because they are addressing a 
potentially worsening condition at an earlier stage, while less 
observant and less aggressively managed operations may not be as 
effective at identifying lameness. This comment described a private 
industry example of a system that offers consistency with a 5-point 
locomotion scoring (LS) scale in which an animal with a normal walk and 
no sign of lameness scores as one (1) with the scale progressing to a 
score of five (5) as a `severely lame' cow.\9\
---------------------------------------------------------------------------

    \9\ Zinpro Performance Minerals, Locomotion Scoring of Dairy 
Cattle, www.zinpro.com/lameness/dairy/locomotion-scoring.
---------------------------------------------------------------------------

    A few comments suggested that we develop thresholds to assist 
producers with developing plans to reduce the incidence of lameness. As 
an example, one comment suggested that if greater than 10% of a herd or 
flock for more than two years experienced lameness, the producer must 
implement a plan to reduce the incidence of lameness. Another comment 
suggested we collect data to establish the average percentage of 
lameness by species and then require producers to stay below that 
percentage.
    Some comments expressed opposition to this proposed requirement. 
One comment reported that certifying agents are not trained or 
qualified to ``identify a particular disease or ailment'' and that this 
requirement would violate the certifying agents' prohibition on 
consulting. Other comments stated that USDA organic regulations already 
require livestock producers to maintain treatment records for sick and 
injured animals per the requirements of Sec.  205.103, and that adding 
this additional record-keeping requirement was too prescriptive and 
would do little to ``lead to effective prevention or treatment.''
    (Response) AMS included this new requirement in response to an NOSB 
recommendation, and it will be retained in the final rule. AMS agrees 
that a species-based system for scoring lameness will follow the final 
rule as guidance. AMS agrees with comments that establishing a 
percentage of herd or flock lameness threshold connected to species 
averages could be valuable, and we will consider requesting that the 
NOSB provide additional advice and recommendations on herd or flock 
lameness thresholds.
7. Ammonia Levels in Poultry Houses
    (Comment) AMS received comments that it was redundant to include 
ammonia requirements in both Sec.  205.238 and Sec.  205.241, and 
comments recommended we keep the requirement in only one section. Other 
comments suggested we make the requirement in Sec.  205.238 apply to 
all types of livestock production rather than limit the requirement to 
poultry production.
    (Response) AMS agrees it is not necessary to include both sections 
as proposed. In the final rule, we have retained the requirement in 
Sec.  205.241 and removed the requirement in Sec.  205.238.
    With regard to ammonia levels in other types of operations, the 
NOSB recommendations and subsequent proposed rule focused primarily on 
the ammonia levels in poultry houses. While AMS recognizes that ammonia 
levels may be relevant for other types of livestock production, we have 
not broadened the requirement to cover other types of operations in 
this final rule. AMS may consider future rulemaking to establish 
ammonia-level action thresholds if recommended by the NOSB and 
supported by public comment and available evidence.
    The remaining discussion of comments regarding ammonia can be found 
in the discussion of comments in Avian Living Conditions at Sec.  
205.241.
8. Use of Milk From Animals Undergoing Treatments
    (Comment) AMS received comments on the use of milk from animals 
undergoing treatment with allowed medications on the National List in 
Sec.  205.603. Some of these comments asked if milk from cows treated 
with synthetic parasiticides could be provided to a cow's calf or other 
young calves in the same operation. One comment requested that the USDA 
organic regulations include nonsynthetic substances not prohibited on 
Sec.  205.604 but require an FDA withholding period for milk when these 
substances are administered. A few comments did not want the milk from 
treated animals fed to any calf.
    In addition, another comment requested the removal of the word 
``edible'' from Sec.  205.238(c)(1). This comment argued that including 
this word could allow the sale of fiber products as organic from 
animals that have been treated with antibiotics or other prohibited 
substances.
    (Response) AMS concurs with the comments on allowing milk from 
animals treated with synthetic substances that are included on the 
National List in Sec.  205.603 to be fed to a treated cow's calf or to 
other calves in the same operation. AMS also agrees with the comment 
indicating that the word ``edible'' may provide a loophole in the 
regulations that would allow the sale of fiber products as organic from 
animals that have been treated with antibiotics or other prohibited 
substances. The word ``edible'' has been removed from this regulation 
in the final rule.
    AMS does not agree with comments on restricting the sale of milk 
from animals treated with nonsynthetic substances that are not included 
on the National List in Sec.  205.604 but have an FDA-required 
withholding period. AMS is not aware of any nonsynthetic substance that 
is categorized as a drug with a required withholding period. The USDA 
organic regulations, in Sec.  205.105(b), prohibit the use of 
nonsynthetic substances that are on the National List in Sec.  205.604. 
Currently, under USDA organic regulations, if a nonsynthetic substance 
is not listed in Sec.  205.604, it may be used in organic livestock 
production, provided its use complies with all regulation requirements 
that supersede the USDA organic regulations. Since USDA organic 
regulations require prohibited nonsynthetic substances to be listed in 
Sec.  205.604, AMS cannot include a

[[Page 7055]]

prohibition of nonsynthetic substances not listed in Sec.  205.604 
under Sec.  205.238(c)(1).
    Accordingly, Sec.  205.238(c)(1) in the final rule prohibits an 
operation to ``sell, label, or represent as organic any animal or 
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 cannot be sold as organic but 
may be fed to a treated animal's calf or to calves on the same 
operation. Milk from animals undergoing treatment with prohibited 
substances cannot be sold as organic or fed to organic livestock.
9. Administering Synthetic Medications for Disease
    (Comment) AMS received comments on the rule revisions proposed for 
Sec.  205.238(b). Some of these comments argued that the addition of 
Sec.  205.238(b)(3), regarding regulation requirements for the use of 
parasiticides, created confusion. Other comments addressed concerns for 
physical alterations and surgical procedures and requested that AMS 
mandate, rather than simply allow, the use of pain medications to 
relieve pain. One comment requested that AMS add the term ``injury'' to 
the conditions for which administering synthetic medications is allowed 
in organic livestock production under Sec.  205.603.
    A few comments addressed the prohibition on administering animal 
drugs in the absence of illness since the scope of the phrase ``animal 
drug'' as defined by the FDA includes preventative procedures or 
products. These comments argued that the USDA organic regulations 
prohibit producers from utilizing drugs that are designed to keep 
animals healthy and prevent illness. One comment asked if antibiotics 
could be used to treat pain.
    (Response) AMS agrees with the comments that stated that the 
amendment to Sec.  205.238(b), as proposed, is confusing and should be 
clarified. In the final rule, Sec.  205.238(b)(3) has been deleted and 
the requirements for this provision have been incorporated under Sec.  
205.238(b). Producers may administer medications that are allowed under 
Sec.  205.603 to alleviate pain or suffering and when preventive 
practices and veterinary biologics are inadequate to prevent sickness. 
This amendment to Sec.  205.238(b) includes allowing the administration 
of synthetic medications when animals are injured or undergo surgery. 
The requirements for the use of parasiticides under Sec.  205.238(b) is 
not changed in the final rule; parasiticides allowed under Sec.  
205.603 may be used on: (1) breeder stock, when used prior to the last 
one-third of gestation but not during lactation for progeny that are to 
be sold, labeled, or represented as organically produced; and (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. AMS does not agree with comments that addressed the 
prohibition on administering animal drugs, including antibiotics, in 
the absence of illness to keep animals healthy and prevent illness. 
Under the USDA organic regulations, a livestock producer must establish 
and maintain preventive health care practices as prescribed in Sec.  
205.238(a). This requirement has been included within the USDA organic 
regulations since these regulations were published on December 21, 
2000. This final rule has not changed this requirement. When preventive 
practices have been inadequate to prevent illness, a producer may 
administer synthetic medications that are listed in Sec.  205.603. The 
USDA organic regulations do allow synthetic medications listed in Sec.  
205.603 to be used during surgery for the animal's welfare.
    (Comment) One comment stated that it is inconsistent and confusing 
to allow other veterinary biologics, in addition to vaccines, to be 
exempt from the prohibition on administering animal drugs in the 
absence of illness. This comment argued that many vaccines contain 
compounded drugs, which may include prohibited chemicals such as 
hormones or anti-inflammatories.
    (Response) AMS disagrees with this comment. The final rule does not 
add any new substances to the National List of Allowed and Prohibited 
Substances. Currently, vaccines are the only synthetic biologic 
substance on the National List. All other synthetic biologics are 
prohibited. Additionally, the USDA organic regulations require 
synthetic animal drugs that are allowed for use in organic livestock 
production to be manufactured with excipients (non-active drug 
ingredients) according to regulation requirements described under Sec.  
205.603(f).
    (Comment) AMS received comments indicating that the requirements 
for use of synthetic medications allowed in Sec.  205.238(c)(2) should 
be the same as the requirements for use of synthetic medications 
allowed in Sec.  205.238(b)(3). These comments argued that the language 
in these regulation sections should be consistent because they both 
address circumstances in which synthetic medications can and cannot be 
administered.
    (Response) AMS agrees with these comments and has amended the final 
rule by inserting changes into Sec.  205.238(b) to clarify when 
synthetic medications can be administered in organic livestock 
production. AMS also revised Sec.  205.238(c)(2) to be consistent with 
paragraph (b) in this section and to describe the exceptions under 
which the use of synthetic medications are permitted.
10. Prohibitions on the Use of Hormones
    (Comment) AMS received comments asking if the new regulations in 
Sec.  205.238(c)(3), which prohibit the administration of hormones for 
growth promotion, production, or reproduction, include oxytocin, which 
may be used in postparturition therapeutic applications. Comments 
expressed concern that the addition of the terms ``production'' and 
``reproduction'' may cause confusion with the allowed use of oxytocin 
as a medical treatment in aiding cows after calving.
    (Response) AMS agrees with comments about the potential for 
confusion when producers or certifying agents interpret the terms 
``production'' and ``reproduction'' in applications of oxytocin for 
therapeutic use following calving. In the final rule, AMS amended Sec.  
205.238(c)(3) to provide clarification on the allowed use of oxytocin 
by adding the condition, ``except as provided in Sec.  205.603.'' The 
inclusion of this condition clarifies the allowed use of oxytocin in 
organic livestock production for therapeutic applications.
11. Prohibition on Withholding Treatment To Minimize Pain and Suffering
    (Comment) AMS received comments on Sec.  205.238(c)(7) recommending 
that the USDA organic regulations require livestock producers to have a 
written marketing plan for diverted animals that have been treated with 
antibiotics or other prohibited substances. These comments added that 
such marketing plans might encourage medical treatment of illness or 
injury. A comment from a certifying agent proposed that Sec.  
205.238(c)(7) be amended to state that operations cannot: ``Withhold 
medical treatment designed to minimize pain and suffering from an ill 
or injured 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 and 
products

[[Page 7056]]

from livestock treated with a prohibited substance must be clearly 
identified and shall not be sold, labeled, or represented as 
organically produced.''
    (Response) AMS disagrees with these comments and did not add the 
requirement for a written marketing plan for diverted animals to Sec.  
205.238(c)(7). Under OFPA, AMS does not have the authority to require 
this type of marketing plan. AMS recognizes that a written marketing 
plan for diverted animals treated with prohibited substances would be a 
beneficial component of an organic system plan for producers and 
certifying agents. Certifying agents can encourage producers to include 
a component for marketing diverted animals in their organic system 
plan, however this is not required under USDA organic regulations. 
Organic livestock producers should clearly identify and separate any 
animal that has been treated with a prohibited substance. Products from 
livestock treated with a prohibited substance must be clearly 
identified and shall not be sold, labeled, or represented as organic. 
In addition, AMS has determined that Sec.  205.238(c)(7), as described 
in the proposed rule, requires producers to apply all appropriate 
medications to restore an animal to health when methods acceptable to 
organic production fail. The amendment proposed by the certifying agent 
requiring producers to use all appropriate medications to restore an 
animal to health when methods acceptable to organic production fail is 
adequately addressed within Sec.  205.238(c)(7).
12. Prohibition on Forced Molting
    (Comment) AMS received comments indicating that Sec.  
205.238(c)(10), which prohibits the ``practice of forced molting or 
withdrawal of feed to induce molting,'' is too general. Some comments 
proposed details and definitions about humane methods of molting to 
better manage the natural molting behaviors of a flock. A certifying 
agent suggested that AMS add the following language: ``. . . or other 
interventions'' to Sec.  205.238(c)(10). This comment indicated that 
including this phrase would clarify that the USDA organic regulations 
prohibit all forms of induced or forced molting. An additional comment 
suggested that forced molting be defined as the starvation of laying 
hens to make them enter the next laying cycle.
    (Response) AMS disagrees with comments proposing that additional 
language is needed to indicate that all procedures of forced molting 
are prohibited under Sec.  205.238(c)(10). This regulation specifies 
that organic producers must not practice forced molting or withdrawal 
of feed to induce molting. Forced molting practices, including but not 
limited to the starvation of laying hens, not allowing birds to 
exercise full range of motion, or the disposal of male chicks or live 
unhatched eggs by suffocation, are prohibited under Sec.  
205.238(c)(10). Because the regulation under Sec.  205.238(c)(10) 
already includes the prohibition of forced molting or the withdrawal of 
feed to induce molting, AMS does not agree that additional language is 
needed to clarify this regulation.
13. Comprehensive Parasite Management Plan
    (Comment) AMS received a number of comments in support of the 
requirement that producers have a comprehensive parasite management 
plan as required in Sec.  205.238(d). A certifying agent commented in 
support of the internal parasite management plan, but argued that 
requiring producers to create a separate plan would be redundant and 
burdensome to producers. One comment stressed that a parasite 
management plan should be developed in conjunction with a comprehensive 
pest management plan.
    (Response) AMS agrees with comments in support of a comprehensive 
pest management plan in livestock and poultry operations that also 
addresses management of all vectors of internal parasites, illness, and 
disease. Livestock producers should describe their comprehensive 
parasite management plan within their overall organic system plan. 
Under Sec.  205.238(d), livestock producers would describe their 
parasite management plan as an integral component of comprehensive 
plans for mammalian living condition practices in Sec.  205.239, or 
avian living condition practices in Sec.  205.241.
    AMS disagrees with comments indicating that a comprehensive plan to 
minimize internal parasites requires livestock producers to create a 
separate plan from their organic system plan, which would be redundant 
and burdensome. The USDA organic regulations do not require producers 
to create a separate plan, outside of their organic system plan, for 
comprehensive parasite management.
14. Humane Euthanasia Plan and Prohibited Methods
    (Comment) AMS received comments that were in support of the new 
regulations on humane and prohibited methods of euthanasia described 
under Sec.  205.238(e). Some comments also sought more details and 
clarification on methods of euthanasia. The USDA organic regulations 
specify only three euthanasia methods as prohibited in Sec.  
205.238(e)(2) and provide no other parameters for selecting an 
appropriate euthanasia method. In their comment on the proposed rule, 
the American Veterinary Medical Association (AVMA) indicated that 
organic livestock operations culling livestock should implement 
euthanasia methods according to the most recent edition of the AVMA 
Guidelines for the Euthanasia of Animals. AVMA argued that the 
guidelines are widely accepted scientific and ethical standard for 
euthanasia. Other comments included a request that the USDA organic 
regulations prohibit the practice of euthanizing piglets by manual 
blunt force trauma. Another comment asked that we reconsider the 
banning of Burdizzo devices for emergency euthanasia if other methods 
are not available. This comment indicated that properly used Burdizzo 
devices are effective as an emergency euthanasia device for larger 
animals. One comment requested that we clarify whether poultry 
operations who cull flocks using onsite euthanasia must adhere to the 
euthanasia requirements, and requested that we consider developing 
guidance on culling poultry flocks.
    (Response) This final rule specifies, under Sec.  205.238(e)(2), 
that the following methods of euthanasia are not permitted for use in 
organic livestock production: suffocation, manual blow to the head by 
blunt instrument or manual blunt force trauma, and use of equipment 
that crushes the neck, including killing pliers or Burdizzo clamps. 
Blow(s) to the head by blunt instrument as prohibited at Sec.  
205.238(e)(2) does apply to piglets. AMS disagrees with the comment to 
allow Burdizzo clamps and retains the prohibition of these clamps under 
Sec.  205.238(e)(2). AMS agrees with the AVMA comment on euthanasia 
methods. The final rule, in Sec.  205.238(c)(8), references the AVMA 
guidelines on euthanasia.
15. Out of Scope Comments
Disposal of Male Chicks or Live Unhatched Eggs by Suffocation
    (Comment) One comment asked if we could prohibit the common 
practice of the disposal of male chicks or live unhatched eggs by 
suffocation.
    (Response) Under the USDA organic regulations, poultry or edible 
poultry products must be sourced from poultry that has been under 
continuous organic management beginning no later than the

[[Page 7057]]

second day of life. Male chicks or live unhatched eggs that are under 
continuous organic management can only be euthanized by methods 
described in Sec.  205.238(e).

VIII. Mammalian Living Conditions (Sec.  205.39)

A. Description of Regulations

1. Summary of the Final Rule
    AMS separated mammalian living conditions from avian living 
conditions due to the different physiology and husbandry practices for 
birds and mammals. As a result, AMS revised the title of Sec.  205.239 
from ``Livestock Living Conditions'' to ``Mammalian Livestock Living 
Conditions.'' By creating clear requirements for mammalian livestock 
and avian livestock, animal wellbeing can be enhanced and consumers can 
be assured of the integrity of the USDA organic seal. Information 
regarding avian living conditions are addressed in new Sec.  205.241.
    The final rule revised Sec.  205.239(a)(1) to remove the 
requirement that all ruminant livestock must be able to feed 
simultaneously. One method of feeding livestock, including ruminants, 
is the use of a self-feeder or a creep-feeder. With creep-feeding and 
self-feeding, feed is accessible to all animals at all times though 
they may not feed at the exact same time. Self-feeding and creep-
feeding provide organic ruminant producers with more flexibility and 
options to manage their farm and livestock in farm-specific methods.
    AMS is maintaining the current Sec.  205.239(a)(3), which requires 
the use of appropriate, clean, dry bedding. If roughages are used as 
bedding, they must be organically produced and handled by certified 
operations, with the exception of transitioning dairy producers.
    AMS revised Sec.  205.239(a)(4)(i) to specify that shelter must be 
designed to accommodate natural behaviors over every 24-hour period. 
Shelter must have sufficient space for the animals to lie down, stand 
up, and fully stretch their limbs and allow livestock to express their 
normal patterns of behavior over a 24-hour period. AMS recognizes that 
there are times when animals will be constrained for livestock handling 
or management purposes. An animal may be limited in its freedom of 
movement during parts of the day for a variety of reasons, including 
milking, feeding, or other handling purposes. Animals may be 
constrained for limited amounts of time to ensure hygiene and wellbeing 
of the animals. Stalls for organic dairy cattle are often designed to 
limit the animals from turning to the sides. This stall design directs 
manure and urine into a collection system to prevent mastitis and 
maintain low somatic cell counts in the milk. Mammalian livestock may 
be housed for part of the day in stalls as described in the organic 
system plan as long as they have complete freedom of movement during 
significant parts of the day for grazing, loafing, and exhibiting 
natural social behavior. This allowance does not permit the use of 
gestation crates or other confinement systems in which swine would be 
housed individually in stalls for months at a time. However, if 
livestock are temporarily confined indoors as permitted in Sec.  
205.239(b), livestock must be able to move around, turn around, and 
stretch their limbs indoors for part of the day. Operations will need 
to fully describe the use of any stalls, methods used in stall 
management, and how livestock are able to express their normal patterns 
of behavior.
    AMS added Sec.  205.239(a)(4)(iv) to set requirements for an indoor 
space for bedding and resting that is sufficiently large and 
comfortable to keep the animals clean, dry, and free of lesions, with 
the exception of animals raised on pasture or range. Because livestock 
on pasture or range may not have access to traditional barns or bedded 
areas, AMS recognizes that while livestock do need to be provided with 
shelter (defined in Sec.  205.2), livestock do not need to be provided 
with indoor space. These types of operations may use windbreaks or 
other methods to provide shelter for the livestock. Additionally, not 
all man-made shelters are designed to hold bedding; for example, a 
shelter designed to provide shade may be portable and thus incompatible 
with holding bedding. Operations need to describe in their OSP how they 
will provide shelter to their livestock in a manner suitable for the 
species, stage of production, and environment.
    AMS added new requirements in Sec.  205.239(a)(7) concerning the 
individual housing of dairy young stock. Section 205.239(a)(7) allows 
for the individual housing of animals until the weaning process is 
complete but no longer than six months, as long as the animals have 
sufficient room to turn around, lie down, stretch out while lying down, 
get up, rest, and groom themselves. In addition, the individual housing 
of young stock needs to be designed so that animals can see, smell, and 
hear other animals.
    AMS added three new provisions in Sec.  205.239(a)(8) to require 
the group housing of swine, with three listed exceptions: Sec.  
205.239(a)(8)(i) allows for sows to be individually housed at farrowing 
and during the suckling period; Sec.  205.239(a)(8)(ii) allows for 
boars to be individually housed to reduce the likelihood of fights and 
injuries; and Sec.  205.239(a)(8)(iii) allows for swine to be 
individually housed after multiple documented instances of aggression 
or to allow an individual pig to recover from a documented illness.
    AMS added two new provisions in Sec. Sec.  205.239(a)(9) and (10) 
concerning swine housing. Section 205.239(a)(9) prohibits the use of 
flat decks or piglet cages. This provision prohibits the stacking of 
piglets in flat decks in multiple layers. In addition, Sec.  
205.239(a)(10) requires that both indoor and outdoor areas for swine 
have some space that permits rooting. Rooting is a natural behavior 
that must be accommodated by organic swine producers and could be done 
in soil, deep packed straw, or other materials. Organic swine producers 
must also demonstrate how swine will be allowed to root during 
temporary confinement periods.
    AMS added a new provision in Sec.  205.239(a)(11) to further 
clarify the use of barns or other structures with stalls. If indoor 
shelter is provided by a structure with stalls, then there must be a 
sufficient number of stalls that allow for the natural behavior of the 
animals. In no case may a cage be considered a stall. One exception is 
provided for this provision: In the case of group-housed swine, more 
animals than feeding stalls may be allowed as long as all animals are 
fed routinely every day. 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 may enter for its specific quantity of feed. AMS 
does not intend to prohibit such systems, which enhance the wellbeing 
of organic animals. AMS also added specific allowances for a variety of 
cattle barns, including tie stall barns, stanchion barns, and free 
stall barns. While these barns can all be suitable for organic 
certification systems, the specific procedures used by producers with 
these barns may be incompatible with organic production. If a producer 
provides too few stalls in a free stall barn or leaves an animal tied 
up for 24 hours per day in a tie stall barn, these methods would not be 
permitted under USDA organic regulations.
    AMS added a new requirement for outdoor access in Sec.  
205.239(a)(12). Organic livestock are required to have unencumbered 
access to the outdoors year-round, unless temporary confinement is 
justified under a specific

[[Page 7058]]

reason described in the regulations (e.g., nighttime confinement for 
protection from predators). When the outdoor space includes soil, then 
maximal vegetative cover must be maintained as appropriate for the 
season, climate, geography, species of livestock, and stage of 
production. Ruminants must have access to graze during the growing 
season. Swine are not required to have access to the soil or 
vegetation; however, if a swine producer chooses to allow swine to have 
access to the soil as a rooting material, then the producer must 
maintain as much vegetative cover as possible given the natural 
behavior of swine to root, the season, and local environmental 
conditions.
    AMS revised Sec.  205.239(b)(7) to clarify the exemption for 
temporary confinement for the purpose of breeding livestock. Livestock 
may only be confined for the time required for natural or artificial 
breeding. A group of livestock may be confined before the procedures 
and while the various individuals are bred; afterward, the group shall 
be returned to living spaces that allow outdoor access. Livestock may 
not be confined indoors to observe estrus or until they are determined 
to be pregnant. 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 revised Sec.  205.239(b)(8) to clarify the temporary 
confinement exception for youth livestock projects. Because many youth 
livestock projects include the sale of market animals, organic animals 
that were under continuous organic management may be sold as organic 
animals at youth fairs, even if the sales facility is not certified 
organic. Thus, the 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 that 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. 
During the youth event, the livestock may be temporarily confined 
indoors. Otherwise, non-certified sales facilities, such as auction 
barns or fairgrounds, may not sell or represent livestock as organic. 
AMS provided this exception to encourage the next generation of organic 
farmers.
    AMS revised Sec.  205.239(d) to reflect the similar proposed 
changes in Sec.  205.239(a)(1). AMS removed the phrase requiring that 
all ruminants be able to feed simultaneously. This change 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.

B. Discussion of Comments Received

1. Opposition To Changes in the Mammalian Living Conditions Section/
Make No Changes for Ruminants
    (Comment) A number of comments were opposed any changes to the 
mammalian living conditions section. Some comments indicated that 
current organic regulations were sufficient and no more were needed. 
Other comments noted that the sections pertaining to ruminants were 
sufficient and that no changes needed to be made to them.
    (Response) AMS revised the mammalian living conditions sections to 
clarify a number of provisions for mammals, including ruminants. These 
changes were recommended by the NOSB through an open public comment 
process. In addition, livestock living conditions have always been a 
part of the USDA organic regulations. AMS received many questions from 
certifying agents and organic producers concerning livestock living 
conditions that needed clarification in the regulatory text. Due to the 
NOSB recommendations and the need to clarify livestock living condition 
requirements, AMS believes that the changes are needed.
2. Outdoor Area Requirements
    Many comments were opposed to requiring soil as part of the outdoor 
access requirement for all mammals. These comments provided many 
reasons for excluding soil from the outdoor requirement, including 
environmental, soil quality, animal health, and disease transmission 
concerns. Commenters opposed soil for dairy animals during the non-
growing season and for swine at any time, though some commenters 
supported soil for swine. Comments opposing soil as a requirement of 
outdoor access came from producers, certifying agents, trade 
associations, and others.
Environmental Concerns
    (Comment) Comments showed concern that dairy cattle during the non-
growing season or during times when the cattle could be temporarily 
confined during the grazing season would cause environmental damage to 
the soil and surrounding waters if dairy cattle were required to be on 
the soil. Comments cited a variety of conditions (e.g., during winter 
when the ground may become very muddy). Cattle walking and standing on 
the soil would destroy any vegetation and cause the soil to wash away 
during subsequent rain events. Comments cited that USDA NRCS provided 
funding to build hardened outdoor spaces for dairy cattle to use so as 
to prevent damage to soil and prevent nutrients in the soil being 
washed into streams and rivers. These comments already noted that in 
the pasture rule response to comments, AMS recognized that sacrifice 
areas (soil-based areas that are designed for livestock to be held in 
during wet or winter conditions) are not possible in all regions and 
thus cannot be required.
    Some comments were also concerned about the environmental damage 
that swine could do if the outdoor area included access to soil. 
Natural behavior of swine includes rooting of the soil, which destroys 
the vegetation and root structure of the vegetation. If swine are left 
too long on the land, the land loses vegetation and runoff could occur.
    Other comments called for minimum outdoor space allowance for swine 
in order to protect the soil. These comments noted that if there was 
sufficient space, a minimum vegetative cover could be maintained, which 
would minimize or prevent any environmental damage the swine may cause. 
These comments suggested that the NOSB evaluate how much space is 
required for swine outdoors and then pass a recommendation that AMS 
could act upon. Other comments suggested that AMS use a space allowance 
that the NOSB livestock subcommittee had discussed but which had never 
been passed by the full board.
    (Response) USDA organic regulations prohibit organic producers from 
reducing soil and water quality. The regulations also provide for 
temporary confinement of livestock to protect soil and water quality. 
AMS agrees with comments that livestock should be kept off of soil-
covered areas during times of the year when livestock could damage soil 
and vegetation. In response to comments and consultation with NRCS 
regarding best practices, AMS removed ``soil'' as part of the outdoor 
requirements but requires that ruminants have access to pasture during 
the grazing season. However, outside of the grazing season, soil based 
outdoor areas are not required. Operations must provide year-round 
outdoor access, using either hardened surfaces or soil based areas 
unless the livestock are temporarily confined indoors.
    AMS also agrees with some comments that thought the NOSB should 
reevaluate swine living conditions and determine minimum outdoor space 
requirements. AMS recognizes that if swine are placed in too small of 
an area

[[Page 7059]]

with soil, environmental problems may occur. AMS is including this 
topic area in the list of issues that the NOSB may address in a future 
recommendation.
Health Concerns
    (Comment) Some comments expressed concern regarding health 
implications for swine if soil access was required as part of the 
outdoor space requirements. These comments noted that a number of 
diseases that had been eradicated in domestic swine, such as 
pseudorabies, were still present in feral swine. With outdoor space 
that requires soil access, domestic swine are more likely to come in 
contact with feral swine and contract one of these diseases. In the 
event that these diseases are detected in the domestic swine herd, 
there would be trade implications as countries may close their markets 
to U.S. pork.
    These comments also discussed health concerns related to consumer 
safety. Trichinosis, a parasite in pork, has essentially been 
eradicated in the domestic swine herd. Comments expressed concerns that 
with outdoor access, swine could become infected with this parasite and 
could then infect consumers of this pork with this painful condition.
    (Response) AMS also agrees with some comments that thought the NOSB 
should reevaluate swine living conditions and determine minimum outdoor 
space requirements. Therefore, the final rule requires year-round 
outdoor access for swine but does not require access to soil-covered 
areas. AMS recognizes that if swine are placed in too small of an area 
with soil, environmental problems may occur. AMS is including this 
topic area in the list of issues that the NOSB may address in a future 
recommendation. As part of the review process, the NOSB can take into 
consideration the presence of diseases in the soil or in feral hog 
populations, which if transmitted to domestic swine, may cause loss of 
foreign markets to organic and conventional pork producers.
3. Indoor Housing Requirements
    Comments expressed concern with several topics regarding indoor 
housing for mammalian species, including stalls, space for natural 
behaviors, space for young dairy animals, swine confinement, the 
requirement that all mammals have access to indoors, and the use of 
bedding.
    (Comment) Comments noted opposition to the proposed requirement 
that livestock be able to lie down in full lateral recumbence, turn 
around, and fully stretch their limbs. These comments stated that most 
dairy producers use a type of stall housing--whether free stall, tie 
stall, or stanchion barns--that would not provide the indoor space for 
a dairy cow to lie down in full lateral recumbence. Most comments 
wanted organic dairy producers to have the flexibility to use their 
existing barns and structures as part of an organic system plan 
approved by their certifying agent. These comments explained that 
cattle rarely lie down in that manner and usually only do so to sun 
themselves in a pasture. Many comments preferred the current language 
for natural maintenance, comfort behaviors, and an opportunity to 
exercise.
    (Comment) Comments also showed concern with the proposed 
requirements for dairy young stock. Comments agreed with the 
description of the housing for dairy young stock, but these comments 
differed on the timing of when dairy young stock must be group-housed. 
Some comments wanted the dairy young stock to be group-housed by eight 
weeks of age while others wanted group housing to occur at six months 
of age. Those preferring a lower age for group housing cited EU organic 
standards, which include lower age requirements. The comments 
preferring six months of age discussed how weaning--the removal of milk 
from the diet of a young animal--is not a good stopping point as calves 
may retain the suckling impulse. Comments described how a calf can ruin 
the udder of a heifer by suckling on her in response to the suckling 
impulse, and these comments tended to prefer six months as the cutoff 
for group housing, which coincides with when dairy young stock must be 
provided with pasture or outdoor access if outside the growing season.
    (Comment) Comments also addressed indoor housing for swine. Many 
comments were opposed to the use of farrowing crates or stalls and 
called for AMS to specifically prohibit their use. These comments 
wanted to ensure that swine had the opportunity to turn around, lie 
down, and move around, even during the farrowing period. Other comments 
were concerned that producers would individually house swine after 
documented cases of aggression. These comments requested that AMS 
define aggression so producers did not individually house swine 
unnecessarily. Comments were split on the requirement for bedding or 
rooting materials during the farrowing period. Some wanted to require 
rooting and nesting materials specifically during that time frame while 
others wanted to remove the requirement for bedding or rooting 
materials during the farrowing period to reduce disease and maintain 
cleanliness of the hogs.
    (Comment) Comments were split on the issue of a cleanliness 
standard. Some comments supported such a standard if appropriate 
guidance was issued. Other comments opposed a cleanliness standard 
based on the rationale that during certain stages of production--such 
as ruminants on early spring pastures or swine with access to the soil 
during rainy periods--animals will be healthy yet also be dirty with 
manure or mud. Comments that opposed this standard preferred the 
requirement for clean, dry bedding to be provided. One comment was 
concerned about the requirement for a shelter that can hold bedding. 
This comment noted that many cattle are raised in pasture or range 
conditions that would not include access to the indoors, though may 
include shade and windbreaks for animal wellbeing.
    (Response) AMS agrees with the comments that indicated that indoor 
space requirements to allow for full lateral recumbence and turning 
around without touching the enclosure may negatively affect many 
current producers without enhancing animal well-being. To clarify this 
issue, AMS revised the standard to specifically state that over a 24-
hour period, mammalian livestock must have the opportunity to move, 
turn around, and exhibit natural behaviors.
    AMS also stated that tie stalls, free stalls, stanchion barns, 
compost pack, and bed pack barns are all suitable facilities for cattle 
and can be used as part of an Organic System Plan. As part of the OSP, 
mammalian livestock producers must describe how livestock, over a 24-
hour period of time, will be able to turn around, move, lie down, and 
exhibit natural behaviors. AMS recognizes that certain stall facilities 
designed for animal comfort and cleanliness purposefully minimize the 
ability of the animal to turn around. Livestock cannot be confined to 
these stalls all day, even if the animal may be temporarily confined 
indoors. As an example, if during the winter, livestock are temporarily 
confined indoors in a tie stall barn due to a snow storm, the livestock 
must have the opportunity to move around, turn around, and exhibit 
natural behaviors.
    AMS has declined to clarify individual housing in response to swine 
aggression. The threshold for aggression to allow for individual 
housing may differ depending on the facilities, the operation, the 
producer, and the breeds of swine involved. Swine producers must 
describe their response to aggression in their OSP, which must be

[[Page 7060]]

approved by their certifying agent. AMS chooses to provide flexibility 
to organic swine producers to work with their certifying agents to 
develop a plan for when swine may be individually housed due to 
aggression.
    AMS has chosen to keep the requirement for rooting materials but 
has removed the requirement that rooting must be available in exercise 
areas. Rooting is a natural behavior for swine and must be provided by 
organic swine producers. However, AMS agreed with the comments that 
requested that bedding and rooting material not be required during the 
farrowing period when swine may be individually housed. Swine producers 
may choose to use bedding and rooting material during the farrowing 
period, but it is not required.
    AMS is clarifying that the USDA organic regulations for livestock 
require outdoor space as the default living space. Indoor space may be 
provided as a type of shelter, but it does not have to be provided to 
organic livestock. If indoor space is provided, then the structure must 
include space for appropriate bedding. However, in range or pasture 
conditions where no indoor space is required, the requirements for the 
indoor space do not apply, and bedding does not need to be provided. 
This does not allow producers to deny livestock access to the indoors 
if required by law or if it is necessary for the welfare of the 
animals. However, AMS recognizes that in many production systems, beef 
cattle, sheep, and some dairy animals may be routinely raised outdoors 
without indoor spaces. Shade and shelter must be provided based on what 
is appropriate for the animal species, season, and environmental 
condition.

IX. Avian Living Conditions (Sec.  205.241)

A. Description of Regulations

1. Summary of the Final Rule
    The new Sec.  205.241, entitled ``Avian living conditions,'' 
includes requirements for all organic avian (``bird'' or ``poultry'') 
species, including but not limited to, chickens, turkeys, geese, quail, 
pheasant, and any other species that are raised for organic eggs, 
organic meat, or other organic agricultural products.
    New Sec.  205.241(a) establishes general requirements for organic 
poultry production. These general principles are further clarified in 
Sec. Sec.  205.241(b), (c), and (d). Section 205.241(a) requires 
organic poultry operations to establish and maintain living conditions 
that accommodate the wellbeing and natural behaviors of the birds. 
These living conditions include: Year-round access to the outdoors, 
soil, shade, shelter, exercise areas, fresh air, direct sunlight, clean 
water for drinking, materials for dust bathing, and adequate space to 
escape aggressive behaviors. The living conditions provided should be 
appropriate to the species, its stage of life, the climate, and the 
environment. These requirements, based upon a 2009 NOSB 
recommendation,\10\ are largely identical to previously established 
livestock requirements at Sec.  205.239(a)(1), although AMS has added 
requirements for materials for dust bathing and for adequate outdoor 
space to escape aggressive behaviors.
---------------------------------------------------------------------------

    \10\ https://www.ams.usda.gov/sites/default/files/media/NOP%20Final%20Sunset%20Rec%20Animal%20Welfare.pdf.
---------------------------------------------------------------------------

    New Sec.  205.241(b) specifies the indoor space requirements for 
avian species. While shelter must always be provided to birds, indoor 
space is not a requirement. If indoor space is provided to the birds, 
then the indoor space requirement must be followed. New Sec.  
205.241(b)(1) requires that indoor space be sufficiently spacious to 
allow all birds to move freely, stretch their wings, stand normally, 
and engage in natural behaviors. Cages or environments that limit free 
movement within the indoor space are prohibited. In addition, the 
indoor space must allow birds to engage in natural behaviors such as 
dust bathing, scratching, and perching. The requirements are adopted 
from a 2009 NOSB recommendation and modify previously established 
requirements for organic livestock at Sec.  205.239(a)(4) that 
required, ``shelter designed to allow for . . . natural maintenance, 
comfort behaviors, and opportunity to exercise''.
    Section 205.241(b)(2) requires producers to monitor ammonia levels 
at least monthly and implement practices to maintain ammonia levels 
below 10 ppm. When ammonia levels exceed 10 ppm, producers must 
implement additional practices and additional monitoring to reduce 
ammonia levels below 10 ppm. Ammonia levels above 25 ppm are not in 
compliance with organic avian living conditions. Ammonia is a natural 
breakdown product of manure from livestock and is harmful to birds when 
inhaled, especially at concentrations above 25 ppm. In most cases, high 
levels of ammonia indicate that litter is damp or litter management 
practices require modification.
    New Sec.  205.241(b)(3) clarifies the lighting requirements for 
organic layers and fully feathered birds. Organic producers may use 
artificial light for up to 16 hours per day (24-hour period). The 16-
hour period must be calculated as a single continuous time period. 
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-based 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.
    Section 205.241(b)(4) describes the required exit areas, or doors, 
on shelters so that the birds can easily access both indoor and outdoor 
areas. Access and utilization of outdoor areas is a core principle of 
organic production systems. Organic avian systems must be designed so 
birds have ready access to outdoor areas and so birds are able to 
return indoors to roost in the evening. Producers must provide exit 
doors and door sizes to enable all birds to access outdoor and indoor 
areas. Door size and appropriate placement must provide meaningful 
outdoor access to the birds. Exit doors must be designed and managed in 
a manner that prevents movement of wild birds, rodents, and other 
animals into the poultry house.
    New Sec.  205.241(b)(5) requires perches for chicken layers at a 
rate of six inches per bird for all housing, with the exception of 
aviary housing. Perch space may include the alighting rail in front of 
nest boxes. Perches are not required for broilers, meat birds, or 
layers of non-Gallus gallus species. Aviary housing must provide six 
inches of perch space for 55 percent of the flock (i.e., 3.3 inches of 
perch for each bird in flock). Perch requirements for aviary housing 
have been adjusted, as birds in aviary housing are also able to escape 
aggressive behavior by moving between tiers in the house. These 
requirements are adopted from 2009 and 2011 NOSB recommendations.
    New Sec.  205.241(b)(6) specifies indoor requirements to allow for 
certain natural behaviors. Indoor space must include areas that allow 
for scratching and dust bathing. Litter (i.e., bedding), such as wood 
shavings or straw, must be provided indoors. Manure excreted by birds 
in a poultry house alone, without additional litter, would not be 
sufficient to meet this requirement. This section also requires that 
litter be maintained in a dry manner. Wet litter can lead to a variety 
of problems for birds, including excess ammonia, lameness, and pest 
problems. Litter may be topped off

[[Page 7061]]

when needed to maintain sufficient dryness. The requirements are 
adopted from 2009 and 2011 NOSB recommendations.
    Section 205.241(b)(7) includes specific flooring requirements for 
indoor avian housing with slatted/mesh floors. These houses must 
provide at least 30 percent solid flooring to allow birds indoors to 
engage in natural behaviors, including scratching and dust bathing, 
without crowding. The requirement is adopted from a 2009 NOSB 
recommendation.
    New Sec. Sec.  205.241(b)(8), 205.241(b)(9), and 205.241(b)(10) 
list the required minimum indoor space requirements for different types 
of housing. These are minimum standards, and organic producers may 
choose to provide more indoor space than required. The indoor space 
requirements apply to chickens (Gallus gallus), with layer requirements 
at Sec.  205.241(b)(8), pullet requirements at Sec.  205.241(b)(9), and 
broiler requirements at Sec.  205.241(b)(10). Indoor space requirements 
for layers vary by the type of housing provided. The types of housing 
are further defined in Sec.  205.2 and include: Mobile housing, aviary 
housing, slatted/mesh floor housing, and floor litter housing. For 
housing that does not fit into any of these defined types, the indoor 
space requirement is no more than 2.25 pounds of hen per square foot. 
Pasture pens that are moved regularly and provide direct access to soil 
and vegetation are not considered indoors (see definition of 
``outdoors'' in Sec.  205.2). These requirements are adapted from 2009 
and 2011 NOSB recommendations, and made in consideration of third-party 
animal welfare standards.
    AMS has established indoor space requirements for common types of 
poultry housing. Less indoor space is required per bird in houses that 
provide more access to vertical space in the house, as birds have more 
room to move around (e.g., aviary and slatted/mesh floor housing). 
Housing where birds have more limited access to vertical space (e.g., 
floor litter housing) must provide more indoor space per bird. AMS has 
also allowed for higher stocking densities in mobile housing, as birds 
managed in these systems spend more time outdoors, and mobile housing 
must be relatively small and light, as it is moved frequently.
    AMS has only established indoor space requirements for chickens in 
this final rule. AMS may propose space requirements for other avian 
species in the future. Other avian species must meet all other indoor 
requirements including exit doors, ammonia levels, and lighting.
    AMS is using pounds of bird per square foot to establish space 
requirements. In other words, the minimum space that must be provided 
depends on the average weight of birds at that time. All weight 
references in Sec. Sec.  205.241(b) and (c) refer to the weight of live 
birds and not the weight of processed birds, for example. By stating 
the requirement in pounds per square foot, the application of the space 
requirement is more consistent between breeds, where the average weight 
per bird can vary significantly. This unit of measurement (pounds per 
square foot) was recommended by the NOSB in 2011 for pullets and 
broilers, and AMS is extending this same unit of measurement to layers. 
Under this final rule, larger breeds (i.e., heavier on a per bird 
basis) must be provided with more indoor space than smaller birds, on a 
per bird basis. For example, Rhode Island Red birds are heavier than 
White Leghorns or ISA Browns, and thus cannot be stocked as densely, in 
terms of number of birds per unit area.
    For example, a layer in a floor litter housing system that is 32 
weeks of age and weighs 4.3 pounds must be provided with 1.43 square 
feet per bird (equivalent to 3.0 pounds of bird for each one square 
foot); however, at 80 weeks of age and a weight of 4.5 pounds, each 
bird must be provided with 1.5 square feet per bird (3.0 pounds of bird 
for each one square foot). In other words, for each 10,000 square feet, 
a producer could stock 6,993 birds at 32 weeks of age (bird weight of 
4.3 pounds) but only 6,667 birds at 80 weeks of age (bird weight of 4.5 
pounds). Although older and heavier birds require more space, natural 
mortalities over time may result in compliance with the space 
requirements over a production cycle. To calculate the weight of birds, 
an average weight may be established for the flock by taking weights of 
a representative sample of the flock. The requirement is not specific 
to each individual bird in a flock. AMS understands that many producers 
already monitor and track bird weight closely during the production 
cycle to monitor bird development and health and calculate feed 
requirements. However, if weight is not monitored by a producer, the 
producer will need to establish the weight of birds based on objective 
criteria to determine the space required indoors and outdoors. 
Certifiers may also weigh birds at inspections to verify compliance 
with the requirements.
    New Sec.  205.241(b)(11) specifies how the area of the indoor space 
is calculated. Indoor space must be calculated to ensure that birds are 
provided with adequate indoor space to meet the space requirements at 
Sec. Sec.  205.241(b)(8) through (10). The total size of the indoor 
space is calculated by including all flat areas in a house, excluding 
nest boxes. Elevated round perches, for example, are not flat areas and 
could not be included as indoor space. These requirements match various 
third-party animal welfare standards, which consider nest boxes to be 
distinct from useable floor areas of the house where birds can move 
around freely. They also align with the 2009 and 2011 NOSB 
recommendations.
    New Sec.  205.241(b)(12) clarifies that indoor space may include 
enclosed porches and lean-to type structures (e.g. screened in, roofed) 
provided that the birds always have access to the space, including 
during temporary confinement events. The same porch must not be counted 
as indoor space if the birds do not have continued access to the space 
during temporary confinement events. This ensures that enclosed porches 
that are not fully accessible to birds are not counted in indoor space 
calculations.
    Section 205.241(c) establishes the requirements for outdoor areas 
for organic avian species, including the amount of outdoor space that 
must be provided to organic avian species. The requirements of section 
205.241(c) are adopted or adapted from previously established 
requirements at section 205.239, 2009 and 2011 NOSB recommendations, 
and third-party animal welfare organization standards. Section 
205.241(c)(1) requires that the outdoor space be designed to promote 
and encourage outdoor access for all birds. Producers are required to 
provide access to the outdoors at an early age. This section requires 
door spacing to be designed to promote and encourage outdoor access and 
requires outdoor access to be provided on a daily basis (further 
described at Sec.  205.241(b)(4)). Outdoor access may only be 
temporarily restricted in accordance with Sec.  205.241(d).
    Section 205.241(c)(2) requires outdoor areas for poultry to have a 
minimum of 50 percent soil and that the soil portion of the outdoor 
area include maximal vegetative cover. Vegetative cover must be 
maintained in a manner that does not provide harborage for rodents and 
other pests. For example, a producer may mow vegetation to ensure that 
tall vegetation does not provide harborage for pests. A maximum of 50 
percent of the outdoor area may be gravel, concrete, or surfaces other 
than soil or soil with vegetative cover. Maximal vegetation is 
required, as vegetation protects soil and water quality and

[[Page 7062]]

allows birds to engage in natural behaviors, including foraging, 
pecking, and scratching. The amount of vegetation present will depend 
on the season, climate, geography, species, and the stage of 
production.
    Section 205.241(c)(3) clarifies how producers may provide shade to 
meet the general requirements of Sec.  205.241(a). Shade may be 
provided in outdoor areas by trees, shade structures, or other 
appropriate objects. This section addresses shade in outdoor areas; it 
does not permit structures that do not meet the definition of 
``outdoors'' (Sec.  205.2) to be included in calculations of outdoor 
space.
    New Sec. Sec.  205.241(c)(4) through (6) specify minimum outdoor 
space requirements for chickens (Gallus gallus). AMS has only 
established outdoor stocking densities for chickens in this final rule. 
AMS may propose space requirements for other species in the future.
    Organic layer producers must provide at least one square foot of 
outdoor space for every 2.25 pounds of bird in the flock. For example, 
if birds average 4.5 pounds, a producer must provide 2.0 square feet of 
outdoor space for each bird in the flock. Organic pullet producers must 
provide at least one square foot of outdoor space for every 3.0 pounds 
of bird in the flock. Organic broiler producers must provide at least 
one square foot of outdoor space for every 5.0 pounds of bird in the 
flock. Outdoor space must be provided for all birds in the flock (i.e., 
a producer must assume that all birds are outdoors at once to calculate 
the outdoor space that must be provided). All weight references in 
Sec. Sec.  205.241(b) and (c) refer to the weight of live birds and not 
the weight of processed birds.
    New Sec.  205.241(c)(7) clarifies that porches and lean-to type 
structures that are not enclosed (e.g. with a roof, but with screens 
removed) and allow birds to freely access other outdoor areas can be 
counted as outdoor space. This ensures that enclosed porches are not 
counted as outdoor space, while providing flexibility for producers to 
use modified porches as outdoor space when they are open to larger 
outdoor areas that the birds can access.
    New Sec.  205.241(d) describes the conditions under which organic 
avian livestock producers may temporarily confine birds indoors 
(``temporary'' and ``temporarily'' further defined at Sec.  205.2). 
Producers must record confinement, and should do so in a manner that 
will demonstrate compliance with the regulations (also see Sec.  
205.103). Records could include the reason for the confinement, the 
duration of the confinement, and the flocks that were confined. Records 
should be sufficient for a certifier to determine if birds were 
confined in compliance with this section. The requirements of section 
205.241(d) are adopted or adapted from previously established 
requirements for organic livestock at section 205.239(b), 2009 and 2011 
NOSB recommendations, and third-party animal welfare organization 
standards.
    New Sec.  205.241(d)(1) provides an allowance for temporary 
confinement in response to inclement weather, which is defined at Sec.  
205.2. In addition, this provision allows birds to be confined indoors 
when the temperature does not exceed 40 [deg]F. It also allows birds to 
be denied outdoor access or be brought inside when the daytime 
temperature exceeds 90 [deg]F. In this case, producers have to provide 
outdoor access during parts of the day when temperatures are between 
40-90 [deg]F, unless other forms of inclement weather occur. Weather 
may still qualify as inclement weather (Sec.  205.2) within the 40-90 
[deg]F temperature range. For example, excessive precipitation and very 
violent weather can occur when temperatures are within 40 [deg]F and 90 
[deg]F. Likewise, weather may meet the definition of inclement weather 
within the range of 40 [deg]F and 90 [deg]F if the relative humidity is 
very high and the air temperature is nearing 90 [deg]F, or under 
extremely windy conditions. As inclement weather is defined, in part, 
as weather than can cause physical harm to a species, a producer would 
still be in compliance with Sec.  205.241(d)(1) if birds were confined 
at temperatures that did not exceed 90 [deg]F, if the weather could 
cause physical harm.
    Section 205.241(d)(2) provides an allowance for temporary 
confinement indoors due to a bird's stage of life. In this section, AMS 
has established specific requirements for confining chicken broilers 
and chicken pullets due to their stage of life (``stage of life'' 
previously defined at Sec.  205.2). Additionally, the section includes 
a general provision for confining other avian species until fully 
feathered. Chicken broilers may be confined through 4 weeks of age and 
chicken pullets may be temporarily confined indoors through 16 weeks of 
age. The NOSB recommended 16 weeks of age as the age after which 
outdoor access is required to provide adequate time for pullets to 
complete their vaccination program before exposure to pathogens 
outdoors. Any confinement beyond the time when birds are fully 
feathered must be in accordance with Sec.  205.241(d).
    New Sec.  205.241(d)(3) provides an allowance for temporary indoor 
confinement under conditions in which the health, safety, or well-being 
of the birds could be jeopardized. Temporary confinement must be 
recorded, and to confine birds under this provision, a producer must 
have sufficient justification to demonstrate that an animal's health, 
safety, or well-being could be jeopardized by access to the outdoors. 
Certifiers will verify compliance with this requirement. Producers and 
certifiers should consult with animal health officials, as appropriate, 
to determine when confinement of birds is warranted to protect the 
health, safety, or well-being of the birds. Animal health officials are 
also encouraged to reach out to certifiers and to AMS to discuss 
specific health concerns. AMS will continue to engage animal health 
officials, including State Departments of Agriculture and State 
Veterinarians, about risks to bird health and provide appropriate 
guidance to certifiers or producers, as necessary.
    New Sec.  205.241(d)(4) provides an allowance for indoor 
confinement to prevent risk to soil or water quality. This provision 
allows for confinement of birds when the outdoor area is being managed 
to reestablish vegetation. As outdoor areas must be maximally 
vegetated, producers may need to occasionally confine birds to meet the 
vegetation requirement at Sec.  205.241(c)(2).
    Section Sec.  205.241(d)(5) provides an allowance for indoor 
confinement for preventive health care procedures and for the treatment 
of illness or injury. Neither life stages nor egg laying are considered 
an illness for confinement purposes. For example, this provision allows 
producers to briefly confine a flock to administer a vaccine or to 
confine an individual animal that requires medical treatment.
    New Sec.  205.241(d)(6) provides an allowance for indoor 
confinement for sorting, shipping, and poultry sales. Birds must be 
managed organically during the entire time of confinement. For example, 
any feed provided during confinement must be organic. Confinement must 
be no longer than necessary to sort the birds or to catch the birds, 
place them in shipping containers, and conduct the sale.
    New Sec.  205.241(d)(7) provides an allowance for indoor 
confinement to train pullets to lay eggs in nest boxes, with a maximum 
period of five weeks allowed for confinement. The training period must 
not be any longer than required to establish the proper behavior. As 
soon as the behavior is established, birds must be provided

[[Page 7063]]

with access to the outdoors, except when confined in accordance with 
other provisions under Sec.  205.241(d).
    Section 205.241(d)(8) provides an allowance for indoor confinement 
for youth exhibitions, such as with 4-H or the National FFA 
Organization. This provision also includes an exemption to the 
requirement that a livestock sales facility be certified as an organic 
operation. As an example, if a youth exhibition and sale is held at a 
livestock sales facility that is not certified organic, a youth may 
sell birds there as organic, provided all other requirements for 
organic management are met. During the youth event, the livestock may 
be temporarily confined indoors. Otherwise, non-certified sales 
facilities, such as auction barns, may not sell or represent livestock 
as organic. AMS is adding these provisions at Sec.  205.241(d)(8) to 
encourage the next generation of organic producers.
    New Sec.  205.241(e) requires 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 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. The requirements of this 
section are adapted from previously established requirements for 
organic livestock at section 205.239(e).

B. Discussion of Comments Received

1. Ammonia Levels
    (Comment) AMS received several comments noting that it was 
redundant to include ammonia requirements in both Sec.  205.238 and 
Sec.  205.241, and recommending that we keep the requirement in only 
one section. Other comments suggested we make the requirement in Sec.  
205.238 apply to all types of livestock production rather than limit 
the requirement to poultry production.
    (Response) AMS agrees it is not necessary to include both sections 
as proposed. In the final rule, we have retained the requirement in 
Sec.  205.241(b)(2) and removed the requirement in Sec.  205.238. AMS 
recognizes that ammonia levels may be relevant for other types of 
livestock production, but we have not broadened the requirement in the 
final rule. AMS may seek the NOSB's recommendation on this topic at a 
later date.
    (Comment) We received comments that it was not clear if AMS was 
establishing a maximum ammonia limit of 10 ppm or 25 ppm. These 
comments noted that the consequences of exceeding 25 ppm were not 
clearly different than the consequences for exceeding 10 ppm. Other 
comments stated that birds could be continuously exposed to ammonia 
levels in excess of 10 ppm but below 25 ppm without any consequences, 
limiting the benefits to animal welfare from this requirement.
    (Response) The final rule is modified to clarify that producers 
must implement practices to maintain ammonia levels below 10 ppm. The 
10 ppm level is established so that organic birds live in an indoor 
environment without excessive ammonia levels, which can be harmful to 
bird health. If required monthly monitoring indicates ammonia levels 
are above 10 ppm, then the producer must conduct additional monitoring 
and implement additional practices to bring ammonia levels to below 10 
ppm.
    The rule also establishes a maximum ammonia level of 25 ppm. 
Ammonia levels above 25 ppm would be a violation of the organic 
requirements and lead to appropriate compliance actions, including 
potential loss of organic certification. The ammonia levels described 
in the final rule are consistent with the NOSB's recommendation and the 
thresholds established by a number of animal welfare standards.
    (Comment) We received some comments that a maximum ammonia level of 
25 ppm was too high and that AMS should revise the upper limit to 20 
ppm to better protect animal health.
    (Response) AMS has not revised the requirement in the final rule 
because the 25 ppm level limit was established based on NOSB's 
recommendation. This limit is also consistent with various third-party 
animal welfare standards. Furthermore, AMS notes that a producer is 
required to implement additional practices to reduce ammonia levels 
when levels exceed 10 ppm. With this 10 ppm action level, AMS does not 
think it is necessary to reduce the upper limit to be below 25 ppm.
    (Comment) We received comments related to the monitoring and 
measurement of ammonia levels. One comment argued that measurement of 
ammonia with an objective tool such as test strips or meters should not 
be required and that the rule should allow for subjective measures 
(e.g., a smell test). Another comment noted that the human nose cannot 
reliably or accurately detect levels of ammonia and recommended AMS 
clarify that subjective measurement is not sufficient to determine 
ammonia levels. We also received comments that monthly testing may not 
be adequate to verify compliance with the limits proposed.
    (Response) In the final rule, AMS has not specified how ammonia 
levels are to be measured. Producers and certifiers may use a number of 
methods to measure ammonia levels, including test strips, continuous 
monitoring devices, or handheld meters. Given the minimal cost of the 
simplest methods to test ammonia levels and that action is required by 
producers at a relatively low level (above 10 ppm), producers must use 
a non-subjective method to measure ammonia levels.
    AMS agrees that monthly monitoring may not be sufficient when 
ammonia levels exceed 10 ppm. AMS has revised the final rule at Sec.  
205.241(b)(2) to specify that additional monitoring is required when 
ammonia levels exceed 10 ppm. The additional requirement is included to 
ensure that the additional practices implemented by the producer lower 
ammonia levels below 10 ppm. A producer may return to monthly ammonia 
monitoring when ammonia levels fall below 10 ppm.
2. Lighting
    (Comment) AMS received many form letter comments stating that the 
regulations should require 8 hours of continuous darkness each day for 
all birds. The comments appear to prefer this to the language proposed 
at Sec.  205.241(b)(3) that states, ``artificial light may be used to 
prolong the day length up to 16 hours.'' Comments suggested the rule as 
proposed would not ensure a period of darkness.
    (Response) AMS has revised the final rule to state, ``artificial 
light may be used to prolong the day length, to provide up to 16 hours 
of continuous light.'' AMS has included the word ``continuous'' to 
ensure that layers and mature birds are not subjected to multiple 
periods of light and dark over the course of a 24-hour day. In most 
locations, except for locations in extreme latitudes during summer 
months, this requirement ensures that birds are provided with an 8-hour 
period of continuous darkness per day, as requested by comments. 
Producers located in extreme latitudes are not required by the final 
rule to provide 8 hours of total darkness.
    (Comment) Several comments requested clarification about whether 
the time period for dimming artificial light is to be included in the 
16-hour time period described in Sec.  205.241(b)(3).
    (Response) Artificial light may be used to provide up to 16 hours 
of

[[Page 7064]]

continuous light. The rule does not allow for additional use of 
artificial light outside of this continuous 16-hour time period. If 
artificial lights are dimmed, the time that artificial lights are on 
(dim or not) must be included within the allowed 16-hour time period.
    (Comment) Several comments noted that the method for evaluating the 
level of natural light in a poultry house (Sec.  205.241(b)(3)) was 
overly subjective, including a comment that different inspectors may 
require different light levels to read and write. Comments suggested 
that the requirement could be difficult to enforce or that differences 
between inspectors could lead to inconsistent enforcement of the 
requirement. Several comments requested we set a specific light 
requirement that could be verified with a light meter.
    (Response) AMS considered alternatives to the requirement as 
proposed, including a requirement to measure light quantitatively. This 
alternative would have required producers and organic inspectors to use 
light meters to monitor and verify the amount of light in a poultry 
house. While a specific minimum light level could be established, AMS 
does not believe it is necessary to meet the objective of providing 
natural light and would impose an additional cost on producers or 
certifiers. AMS decided that a qualitative assessment of natural light 
by inspectors, as specified in the proposed rule, is adequate to ensure 
poultry houses include sufficient natural light. The final rule, 
therefore, is unchanged.
    (Comment) AMS received some comments that the requirement to dim 
artificial light intensity gradually was not necessary and could 
require producers to install new equipment. One comment suggested we do 
not require that lights be dimmed but only recommend it, by changing 
the wording from, ``must be lowered gradually,'' to ``should be lowered 
gradually.'' Other comments stated that continuous dim lighting be 
prohibited.
    (Response) To protect bird welfare by ensuring that birds are 
provided with a period of time to move to perches or settle for the 
night, AMS has retained the requirement that artificial light be 
lowered gradually at night. AMS notes that producers may turn off 
artificial light before the end of the natural day to allow natural 
light in the house to lower gradually. In this case, the total length 
of the day, including any use of artificial light, would not exceed 16 
hours for layers and mature birds except for operations located in 
extreme latitudes, where natural day lengths may exceed 16 hours per 
day. The requirement at Sec.  205.241(b)(3) applies only to layers and 
fully feathered birds.
    (Comment) We received one comment that stated that AMS should 
require windows on poultry houses to be evenly distributed to allow for 
natural light throughout the house.
    (Response) The final rule requires that natural light be provided 
in housing for layers and mature birds, such that natural light indoors 
is sufficient for an inspector to read and write when all lights are 
turned off. As this requirement applies to indoor space and could be 
applied to any location indoors, AMS has not included additional 
requirements in the final rule for windows and skylights to be 
distributed evenly in a house. Housing where natural light is 
sufficient (i.e., to read and write) in only a few localized places 
within the house would not meet the requirement. Natural light must be 
sufficient for an inspector to read and write throughout the house when 
all artificial lights are off in the house.
    (Comment) Several comments asked why AMS only discussed ``layers 
and mature birds'' in the section on use of artificial light. Comments 
requested clarification on the use of artificial light for production 
of meat birds (e.g., broilers, turkeys) and for immature layers (e.g., 
pullets). Comments stated that continuous light has negative effects on 
all birds and that AMS should not limit the requirement to layers and 
mature birds only. Similarly, several comments noted that it was 
unclear if the requirements for natural light indoors applied only to 
layers and mature birds, or if the natural light requirement applied to 
all poultry houses.
    (Response) AMS has clarified that layers and fully feathered birds, 
including fully feathered broilers and fully feathered turkeys, are 
subject to the artificial light requirement (Sec.  205.241(b)(3).
3. Exit Areas
    (Comment) Comments suggested AMS simplify the final rule by 
describing all requirements about exit areas (i.e., doors) in a single 
section. As proposed, AMS described requirements for exit areas in 
Sec. Sec.  205.241(b)(5) and 205.241(c)(2).
    (Response) AMS agrees with these comments. In the final rule, all 
requirements for exit areas appear at Sec.  205.241(b)(5). All 
requirements proposed at Sec.  205.241(c)(2) have been moved to Sec.  
205.241(b)(5).
    (Comment) AMS received several comments to eliminate the 
requirement that all birds within the house be able go through the exit 
areas within one hour. Comments stated the one-hour requirement would 
not be easy to verify. Other comments stated that verifying compliance 
by forcing birds outdoors would cause birds stress. Some comments 
suggested that AMS establish more specific requirements for exit areas, 
such as a minimum width, height, and number of doors per house. 
Comments argued that this would allow producers to design facilities 
that would absolutely meet the regulations and would allow certifiers 
to more easily verify compliance with specific requirements.
    (Response) In the final rule, AMS has removed the requirement, as 
proposed, that exit areas be designed so that all birds within the 
house can go through the exit areas within one hour. AMS removed the 
one hour requirement, as it is not feasible for certifying agents to 
verify compliance with this requirement or take enforcement actions. 
AMS considered specifying the number and dimensions of exit doors, but 
decided that setting a clear performance standard for ready access to 
the outdoors is preferable to specific number and size requirements. In 
the final rule, AMS is establishing a clear performance standard so 
organic poultry producers will have the flexibility to design exit 
doors that provide ready access to the outdoors for birds, based on the 
design of the poultry house and the outdoor space. In any case, exit 
areas must: (1) Be sized to allow all birds to exit and enter the 
house, (2) be distributed to ensure birds have ready access to the 
outdoors, and (3) be designed and managed in a manner that prevents 
movement of wild birds, rodents, and other animals into the poultry 
house. Appropriate distribution ensures that all birds are close enough 
to a door to be able to readily gain access to the outdoors.
    (Comment) AMS received comments on the distribution of exit areas 
on poultry houses. Some comments recommended AMS specify that exit 
areas must be provided on every side of the poultry house, while others 
suggested AMS clarify that exit areas are only required on sides of the 
house adjacent to the outdoor area. Other comments recommended that AMS 
specify a maximum distance between a bird inside and the nearest exit 
area.
    (Response) To clarify the requirement, AMS has revised the phrase, 
``distributed around the building.'' The final rule requires, ``Poultry 
houses must have sufficient exit areas that are appropriately 
distributed to ensure that all birds have ready access to the outdoors 
. . .'' This requirement is

[[Page 7065]]

reinforced at Sec.  205.241(c)(1) which requires, ``door spacing must 
be designed to promote and encourage outside access for all birds on a 
daily basis.'' For some producers, it may be necessary to provide exit 
areas on all sides of a house to provide ``ready access to the 
outdoors'' and to ``promote and encourage outside access,'' as required 
under Sec.  205.241(c)(1). However, other producers may be able to 
provide exit areas to meet the requirements without providing exit 
areas on every side of a house. The appropriate size, design, and 
distribution of exit areas on a building will be different for 
different types of buildings. Exit areas will need to be managed and 
maintained in a manner that complies with the FDA Egg Safety Rule (74 
FR 33030, July 9, 2009).
4. Perches and Roosts
    (Comment) AMS received many comments related to how the requirement 
for perches applies to broilers. Additionally, AMS received several 
comments about the perch requirement for turkeys, as well as comments 
about how the requirement will be determined for different species or 
breeds. We also received comments that noted that some types of 
poultry, including meat type chickens, will use perches when young but 
then stop using perches as their weight increases, preferring to spend 
time on flat surfaces at that time. Other comments noted that meat type 
chickens can sustain leg injuries moving between perches or roosts and 
the ground, especially if perches or roosts are too high off the 
ground.
    (Response) In the final rule, AMS has not included a requirement 
for perch space for broilers or turkeys. The final rule specifies that 
six inches of perch space per bird is required for layers of species 
Gallus gallus. AMS may undertake further work on this topic, with the 
assistance of the NOSB, as appropriate.
    (Comment) Some comments stated that the requirement of six inches 
of perch space per bird is excessive and that, at this rate, some perch 
space would be unused by birds. Other comments stated that all birds in 
a flock may not perch simultaneously and therefore six inches per bird 
is not necessary.
    (Response) AMS recognizes that all birds in a house may not perch 
simultaneously. However, we have kept a requirement for six inches per 
layer in the final requirement. This requirement recognizes that each 
layer likely requires more than six inches per layer but that not all 
layers will be perching at the same time.
    (Comment) We received many comments that AMS's terms ``perch'' and 
``roost'' are confusing, as the terms can be used interchangeably by 
producers and industry. Other comments stated that the definition of 
``roost'' in Sec.  205.2 was too narrowly stated, as roosts are not 
always found over manure pits. One comment stated that the proposed 
requirement at Sec.  205.241(b)(6) was too narrowly stated, as roosts 
in poultry houses can be flat, round, or oval. The comment suggested 
that AMS revise the requirement to simply state that roosts must allow 
birds to grip with their feet. Another comment suggested AMS change the 
term ``roost'' to ``slats'' in Sec.  205.2 and maintain the same 
definition.
    (Response) AMS recognizes that using both terms ``perch'' and 
``roost'' could be confusing, as the terms can be used interchangeably 
by producers and industry. In the final rule, AMS has removed the term 
``roost'' but retained the term ``perch'' in Sec.  205.2. As defined, 
this term is intended to refer to various features in poultry housing, 
such as rods, branch type structures, and flat roost slats that 
accommodate roosting and are elevated to allow birds to stay off the 
floor of the house. Perches may be over a manure pit but this is not a 
requirement.
    (Comment) AMS received a comment that questioned why the perch 
requirement is different for multi-tiered facilities than for other 
facilities.
    (Response) We have included a perch requirement in multi-tiered 
facilities that is different from single-level facilities because 
multi-tiered facilities are designed to allow birds to utilize vertical 
space. Since birds in these facilities may move between levels to 
escape aggressive behaviors and engage in natural behaviors, less perch 
space per bird provides the same benefit.
5. Indoor Space Requirements
    (Comment) AMS received many comments that AMS did not require 
enough indoor space. These comments argued that the requirements are 
similar to current space allowances used in the organic poultry 
industry and the rule would therefore not improve consumer confidence 
in the organic seal. Many comments recommended birds be provided with 
at least 1.5 square feet per bird, regardless of size. Other comments 
noted the requirements proposed by AMS fell short of the 2.0 square 
feet of indoor space recommended by the NOSB. Some comments stated AMS 
should not include different indoor space requirements for different 
types of production or housing systems (e.g., pasture housing, aviary 
housing, slatted/mesh floor housing, floor litter housing). These 
comments suggested a single requirement for all housing systems.
    (Response) In this final rule, AMS has included indoor space 
requirements that are based on pounds per square feet rather than 
square feet per layer. These requirements are equivalent to (for a 4.5 
pound layer): 1.5 square feet per bird for floor litter housing; 1.2 
square feet per bird for slatted/mesh floor housing; and 1 square foot 
per bird for mobile and aviary housing. The requirements were developed 
by considering the NOSB's recommendations, commonly-used third-party 
animal welfare standards, and current practices of certified organic 
producers. They were designed to balance the need for clear guidance 
that could be applied across different breeds and types of bird, the 
goal of safeguarding the value of the organic seal, and the cost of 
diverging significantly from common practice among organic operations 
certified to third-party animal welfare standards. AMS also determined 
that the indoor space requirements differ based on housing design. Less 
indoor space is required per bird in houses that provide more access to 
vertical space in the house, as birds have more room to move around 
(e.g., aviary and slatted/mesh floor housing). Housing where birds have 
more limited access to vertical space (e.g., floor litter housing) must 
provide more indoor space per bird. We have also allowed for higher 
stocking densities in mobile housing, as birds managed in these systems 
spend more time outdoors, and mobile housing must be relatively small 
and light because it is moved frequently.
    (Comment) We received numerous comments that the indoor space 
requirement for turkeys was too large and did not align with current 
practices of organic turkey producers, including a comment that AMS did 
not take into account that houses are designed to ensure all turkeys 
have easy access to feed and water.
    (Response) AMS proposed a maximum indoor stocking rate for turkeys 
of 5.0 pounds per square foot. AMS established the proposed space 
requirements for turkeys based on a preliminary recommendation included 
in a ``Proposed Discussion Document'' by the NOSB, which was presented 
at the NOSB's spring 2012 meeting.\11\ The

[[Page 7066]]

NOSB never issued a final recommendation to AMS on space requirements 
for turkeys. In the final rule, AMS has removed the specific space 
requirements for turkeys and other avian species in light of: (1) 
Numerous comments from turkey producers that the proposed stocking 
density requirements would have a major impact due to current industry 
practices; (2) the absence of an NOSB recommendation; and (3) 
information that the proposed requirements were more stringent than 
other third-party animal welfare standards. AMS intends to address 
space requirements for turkeys in future rulemaking. Producers of 
organic turkey and other avian species are still subject to all other 
requirements of the final rule, including all other indoor space 
requirements at Sec.  205.241(b), outdoor space requirements at Sec.  
205.241(c), and the general requirements at Sec.  205.241(a). This 
includes the requirement at Sec.  205.241(b)(1) that, ``Poultry housing 
must be sufficiently spacious to allow all birds to move freely, 
stretch their wings, stand normally, and engage in natural behaviors.'' 
Certifiers should verify that producers are in compliance with these 
requirements. For example, producers that do not provide birds with 
outdoor access are not in compliance with the regulations, unless birds 
are temporarily confined in compliance with Sec.  205.241(d).
---------------------------------------------------------------------------

    \11\ U.S. Department of Agriculture, Agricultural Marketing 
Service. ``NOSB Meetings.'' https://www.ams.usda.gov/rules-regulations/organic/nosb/meetings.
---------------------------------------------------------------------------

6. Outdoor Space Requirements
    (Comment) AMS received many comments that the outdoor space 
required for birds was not large enough. Comments noted that additional 
outdoor space would be required to ensure vegetation would not be 
removed entirely from the outdoor area. Some comments stated the size 
of the outdoor area was insufficient to prevent buildup of manure, 
which could lead to contamination of nearby surface water and of the 
soil in the outdoor area. Additionally, some comments stated that more 
outdoor area was required to ensure birds could be rotated around the 
outdoor areas since rotation serves important functions, including 
vegetation regrowth, parasite and disease reduction, and nutrient 
management. Further, AMS also received comments claiming that this rule 
would not protect small farmers and was more advantageous to larger 
producers. These comments remarked that the indoor and outdoor stocking 
density requirements for layers are weak which threatens consumer 
confidence in the organic label and continues the economic disadvantage 
for farmers using more stringent practices.
    (Response) AMS recognizes that a larger outdoor area requirement 
than proposed could have benefits as described by comments. AMS, 
however, retained the proposed outdoor space requirement in the final 
rule. The requirement aligns with the recommendation by the NOSB and is 
established to meet consumer expectations while recognizing the land 
constraints that were raised by many other commenters (see below). AMS 
emphasizes that the regulations established here do not limit producers 
from providing a larger outdoor area for birds.
    (Comment) Some comments stated the outdoor space required for 
poultry was too large. Specifically, some comments from producers noted 
that all birds in a house do not go outdoors at any one time and 
requested that AMS reduce the outdoor area requirement to recognize 
this observation. Several comments noted that producers may not have 
the amount of land required for outdoor space, or that the land 
available may not be near the barns, and that these producers would be 
forced to cease organic production.
    (Response) AMS recognizes that an entire flock may not occupy the 
outdoor area at the same time, as a percentage of the flock may choose 
to remain inside, even when presented with the opportunity to go 
outdoors. However, AMS has not revised the outdoor space requirements 
in the final rule. The outdoor space requirements in the final rule 
ensure birds have adequate space outdoors if all birds in the flock do 
go outdoors. When all birds do not use the outdoor area simultaneously, 
the birds that are outdoors will effectively have more space per bird. 
This space requirement aligns with the recommendation by the NOSB. NOSB 
recommendations were guided by public comment that highlighted consumer 
expectations, or that sought to preserve the value of the organic seal 
to consumers. For further discussion of land availability and costs to 
producers, see discussion of comments below in section titled 
``Assumption about Two Barn Footprints''.
    (Comment) AMS received comments that stated the outdoor area 
required for turkeys was too large. Comments from some organic 
producers said they would need to increase the size of the outdoor area 
by 80 percent to meet the proposed requirement.
    (Response) AMS proposed a maximum outdoor stocking rate for turkeys 
of 5 pounds per square foot based on a preliminary recommendation 
included in a ``Proposed Discussion Document'' by the NOSB, which was 
presented at their spring 2012 meeting.\12\ In the absence of a final 
NOSB recommendation on space requirements for turkeys and in light of 
the numerous comments AMS received on the topic, AMS has removed the 
specific space requirements for turkeys in the final rule. AMS intends 
to address space requirements for turkeys in future rulemaking, once we 
have received additional input from the NOSB. Producers of organic 
turkey are still subject to all other requirements of the final rule, 
including all other outdoor space requirements at Sec.  205.241(c), 
indoor space requirements at Sec.  205.241(b), and the general 
requirements at Sec.  205.241(a). Certifiers should verify that 
producers are in compliance with these requirements. For example, 
producers that do not provide turkeys with outdoor access are not in 
compliance with the regulations, unless birds are temporarily confined 
in compliance with Sec.  205.241(d).
---------------------------------------------------------------------------

    \12\ U.S. Department of Agriculture, Agricultural Marketing 
Service. ``NOSB Meetings.'' https://www.ams.usda.gov/rules-regulations/organic/nosb/meetings.
---------------------------------------------------------------------------

    (Comment) AMS received several comments that the general 
requirement for ``adequate space to escape from predators and 
aggressive behaviors'' proposed in Sec.  205.241(a) should be revised. 
These comments stated that space outdoors does not necessarily help 
poultry escape from predators and recommended that AMS remove the 
language ``escape from predators.''
    (Response) In the final rule, AMS has revised the wording in this 
section to remove the requirement for adequate space to escape 
predators. This should not be interpreted to mean that AMS does not 
recognize the importance of birds having a place to escape from 
predators, but simply that outdoor space may not meet this goal. The 
section continues to require ``adequate outdoor space to escape 
aggressive behaviors . . .'' (Sec.  205.241(a)), as outdoor space may 
allow birds to escape from the aggressive behaviors of other birds in 
the flock.
    (Comment) Some comments requested that we clarify calculations for 
birds kept in mobile housing units that provide direct contact with the 
ground. Comments asked whether birds in these production systems also 
require additional outdoor space.
    (Response) See ``Pasture pens vs. other mobile housing'' comment 
and response.
7. Space Calculations--General
    (Comment) AMS received many comments requesting that we describe

[[Page 7067]]

the requirements for indoor and outdoor space using square feet per 
bird instead of setting a maximum pounds of bird per square foot, as 
AMS proposed. Comments stated that using square feet per bird would be 
more intuitive or easier to use when verifying compliance with the 
regulations.
    (Response) AMS understands that it is simpler to think about space 
requirements on a per bird basis rather than as a number of pounds per 
square feet. However, AMS has not revised the description of the space 
requirements in the final rule, as pounds per square foot most fairly 
addresses differences between species and breeds. From comments 
received, AMS identified approximately half a dozen layer breeds 
commonly used for organic production, not including heritage breeds 
used by some organic producers. Each breed has slightly different 
characteristics, including the average weight per bird. By retaining 
the space requirements expressed as maximum pounds per square foot, AMS 
believes the requirement will be most equitable across species and 
breeds.
    (Comment) Many comments discussed whether a porch could be 
calculated as either indoor or outdoor space. Some comments questioned 
when a porch could be included in calculations as either indoor or 
outdoor space (i.e., whether access to the porch must be available at 
all times). Other comments opposed allowing porches as either indoor or 
outdoor space, stating that counting porches as indoor space would be a 
loophole that would result in less indoor space.
    (Response) AMS disagrees with comments that space within a porch 
should never be allowed to count as space for birds. If a porch is 
always available to birds when inside, the porch space could be 
utilized by birds and the space should have the same benefits as other 
indoor space. However, if a porch is not accessible to birds at all 
times, it may not be included as indoor space. Space in porches may not 
be included in the calculation for indoor space if birds cannot access 
the porch for any reason, for example, if doors are closed due to 
inclement weather or threat of diseases. When calculating the space 
available to birds outdoors, only space that is outside an enclosed 
building or housing structure (see definition of ``outdoors'' at Sec.  
205.2), may be included as part of the outdoor area. However, in 
response to comments, AMS has added Sec.  205.241(c)(7) to clarify that 
unenclosed porches and lean-to type structures (e.g. with roof, but 
with screens removed) that allow birds to access the rest of the 
outdoor area can be included in the calculation of outdoor space.
    (Comment) Several comments requested that AMS clarify what was 
meant by ``at any time'' when referring to indoor and outdoor space 
requirements in Sec. Sec.  205.241(b) and (c). Some comments thought 
that this section could be interpreted to mean that space requirements 
apply only to the birds in the outdoor area at a specific moment rather 
than to all birds in the flock. Comments noted that different 
interpretations of the phrase could influence the amount of space 
provided, as all birds in a house may not be outdoors at the same time.
    (Response) In the final rule, AMS has revised the wording in 
Sec. Sec.  205.241(b) and (c) to remove the phrase ``at any time'' and 
to clarify that space must be provided at the established rates for all 
birds in the flock. In Sec.  205.241(c), we specified that outdoor 
space must be provided for all birds in the flock. We have not 
specified that indoor space is to be calculated for every bird in the 
flock, as all birds in a flock are regularly indoors at the same time 
and the method of calculating is clear.
    (Comment) Some comments requested clarification about when birds 
should be weighed to calculate the indoor and outdoor space 
requirements. Other comments asked if the rule requires that birds be 
weighed to determine space requirements.
    (Response) AMS notes that the space requirements are not linked to 
any specific age. At any time in a production cycle, producers must 
meet the requirements. For example, a layer in a floor litter housing 
system that is 32 weeks of age and weighs 4.3 pounds must be provided 
with 1.43 square feet per bird (equivalent to 3.0 pounds of bird for 
each one square foot); however, at 80-weeks of age and a weight of 4.5 
pounds, each bird must be provided with 1.5 square feet per bird (3.0 
pounds of bird for each one square foot). In other words, for each 
10,000 square feet, a producer could stock 6,993 birds at 32 weeks of 
age (bird weight of 4.3 pounds) but only 6,667 birds at 80 weeks of age 
(bird weight of 4.5 pounds). Although older and heavier birds require 
more space, natural mortalities over time may result in compliance with 
the space requirements over a production cycle. To calculate the weight 
of birds, an average weight may be established for the flock by taking 
weights of a representative sample of the flock. The requirement is not 
specific to each individual bird in a flock. AMS understands that many 
producers already monitor and track bird weight closely during the 
production cycle to monitor bird development and health and calculate 
feed requirements. However, if weight is not monitored by a producer, 
the producer and/or certifier will need to establish the weight of 
birds based on objective criteria to determine the space required 
indoors and outdoors.
8. Space Calculations--Indoors
    (Comment) Some comments requested clarification about whether the 
area occupied by nest boxes in poultry houses could be included in the 
calculation of the available indoor space.
    (Response) In the final rule, AMS has clarified in Sec.  
205.241(b)(11) how indoor space is to be calculated and that nest boxes 
may not be included in the calculation of indoor space. This 
clarification aligns with the NOSB's December 2011 recommendation on 
indoor space, as well as with the methods for calculating indoor space 
used by animal welfare groups and third-party production standards. The 
total size of the indoor space is calculated by including all flat 
areas in a house, excluding nest boxes. Elevated round perches, for 
example, are not flat areas and could not be included as indoor space.
    (Comment) We received some comments that asked what types of 
housing would be subject to the indoor requirement of 2.25 pounds of 
hen per square foot. Another comment stated that AMS could hinder 
innovation by implementing a stricter requirement (i.e., more indoor 
space per bird) than for other types of housing defined in Sec.  205.2.
    (Response) AMS is not aware of housing that does not fit within one 
of our housing definitions included in Sec.  205.2, and disagrees that 
the requirement would disadvantage any type or size production system. 
In the final rule, AMS continues to include an indoor space requirement 
at Sec.  205.241(b)(8)(v) for housing that does not fit within one of 
the types defined in Sec.  205.2 as ``indoors'' or ``outdoors.'' AMS 
also notes that requirements for new housing types could be included in 
the requirements at a later date, at the recommendation of the NOSB, as 
appropriate. If housing does not fit within one of the types described 
in Sec.  205.2 and included at Sec. Sec.  205.241(b)(8)(i) to (iv), 
producers must provide an indoor stocking density of no more than 2.25 
pounds of hen per square foot.
9. Space Calculations--Outdoors
    (Comment) Some comments requested that AMS clarify how to calculate 
the

[[Page 7068]]

outdoor stocking density. Comments asked whether producers could rotate 
birds around the outdoor area when this would result in a higher 
stocking density, as long as the stocking density as calculated over 
the entire outdoor area met the requirement.
    (Response) The outdoor area requirement is to be calculated as the 
outdoor area available to all birds in the flock at any given time. For 
example, if a producer rotates birds between two outdoor areas, each 
area must be large enough to meet the stocking density requirement. 
Performing the calculation in this way ensures that birds are provided 
with the outdoor space required at all times. AMS has not revised the 
final rule in response to this comment.
    (Comment) AMS received several comments about how the area of the 
outdoor space is to be calculated. Comments stated that AMS's intent to 
prohibit porches as outdoors was clear but that the proposed 
prohibition for including outdoor areas under a solid roof if attached 
to the structure was either confusing or overly restrictive. Some 
comments stated that large overhangs or other covered areas can 
actually encourage birds to go outdoors, as these areas provide a 
degree of safety for birds (i.e., safety from aerial predators). Other 
comments mentioned that producers may create shade structures by 
leaning lumber against the side of building. Comments requested that 
AMS clarify that these areas are outdoors and can be included in 
outdoor space calculations.
    (Response) AMS recognizes that overhangs, eaves, or other covered 
areas may encourage use of outdoor areas by providing overhead 
protection. In the final rule, AMS has removed the requirement as 
proposed at Sec.  205.241(c)(6).
    Additionally, AMS has revised the definition of ``outdoors'' to, 
``Any area in the open air, outside a building or housing structure.'' 
AMS also revised the definition of ``indoors'' to, ``the space inside 
of an enclosed building or housing structure.'' Any outdoor space that 
meets the definition may be included in outdoor space calculations. AMS 
has also added Sec.  205.241(c)(7), which clarifies that porches and 
lean-to type structures that are not enclosed, but allow free access to 
other outdoor areas can be counted in outdoor space calculations. These 
changes do not affect the decision that an enclosed porch cannot be 
counted as outdoor space. See AMS's response to comments on Definitions 
for further discussion.
    (Comment) Some comments requested that AMS clarify whether 
producers must have outdoor areas if they only raise pullets and the 
pullets are sold or moved to another location prior to 16 weeks of age.
    (Response) Section 205.241(d) includes requirements for temporarily 
confining birds from the outdoors. When birds are temporarily confined 
from the outdoors in compliance with the requirements at Sec.  
205.241(d), outdoor space is not required. To establish if confinement 
from the outdoors is in compliance with the requirements, a producer 
must, as required by Sec.  205.201, ``develop an organic . . . system 
plan that is agreed to by the producer . . . and an accredited 
certifying agent.'' Beyond 16 weeks of age, all layer producers must 
have land available for outdoor access at the maximum stocking rate of 
2.25 pounds per square foot, unless birds are temporarily confined in 
accordance with Sec.  205.241(d). Producers may not confine birds in an 
indefinite manner to avoid or bypass outdoor space requirements.
10. Porches
    (Comment) AMS received many comments that stated that porches 
should be considered as outdoor space in organic poultry production. 
Comments received in favor of porches as outdoor space argued that they 
allow producers to better protect bird health by reducing contact 
between organic birds and other animals that can carry disease (e.g., 
wild birds, rodents, insects, cats, other animals); reducing contact 
between organic birds and pathogens in soil (e.g., parasites, bacteria, 
viruses); and limiting predation. Additionally, many comments argued 
that production costs and, in turn, retail costs would increase if 
porches were prohibited. Some of the comments in favor of porches as 
outdoor space noted that porches also provide conditions similar to the 
outdoors (e.g., sunlight, fresh air), and others stated that porches do 
in fact meet consumer expectations, as demonstrated by demand for 
organic eggs, many of which are produced in porch-based systems. Some 
comments in favor of porches recommended they be considered outdoor 
space for currently certified organic producers indefinitely. Another 
comment recommended that AMS allow porches as outdoor space but require 
enrichments on the porch to encourage birds to use porches.
    AMS also received many comments that were opposed to any use of 
porches as outdoor space in organic production, including many comments 
stating they were unaware that currently, operations that provide 
porches as the only outdoor space for birds are allowed to be certified 
organic. Generally, these comments expressed that birds should be 
outside as much as possible on soil or on pasture with sunshine, fresh 
air, and adequate space in order to maximize opportunities for birds to 
exhibit natural behavior as recognized by animal welfare experts, 
consume a diverse diet, and meet consumer expectations for birds raised 
organically. Many stated that shoppers pay more for organic food and 
that animals should be raised in a manner that is more in line with 
consumer expectations, including access to soil and vegetated areas.
    (Response) In the final rule, AMS has retained a requirement for 
outdoor access, and AMS has defined the outdoors (Sec.  205.2) to 
clarify that birds must be in the open air, outside an enclosed 
building or housing structure, to be considered outdoors. AMS disagrees 
with comments that argued that consumers are satisfied with the use of 
porches, or that demand for organic eggs is evidence of their 
satisfaction. AMS received a vast number of comments that indicate that 
consumers are unaware that porches have been used for outdoor access in 
organic production. The comments received indicate that there is a gap 
between how consumers think birds are raised on organic farms and the 
actual practices of some--but not all--organic producers. One of the 
key objectives in implementing this final rule is to assure consumers 
that the practices used to produce organic products meet a consistent 
standard, including outdoor access for poultry. This objective is 
guided by the NOSB recommendations and public and expert comment 
received during those deliberations that indicated a risk to the 
integrity and value of the organic seal from the gap between consumer 
expectation and current industry practice.
    For further discussion of porches, including comments and cost 
impacts, see section XII, ``Porches as Outdoor Areas.''
11. Biosecurity
    (Comment) A number of comments stated that the proposed rule would 
compromise biosecurity measures and increase exposure of birds to 
disease and infection by requiring access to the outdoors. Comments 
stated that there would be increased exposure of organic birds to wild 
birds and the feces of wild birds, which could harbor and transmit 
diseases. Additionally, comments noted the requirements would expose 
organic birds to more contact with soil, other animals (e.g., rodents, 
cats), or insects

[[Page 7069]]

(e.g., flies, ticks, mites, lice) that can harbor and transmit disease 
to domestic poultry. Comments stated that increased exposure to disease 
vectors, including viruses, parasites, and bacteria, would increase 
bird morbidity and mortality, negatively affect production, put other 
farms at risk, or force producers to decide between protecting bird 
health and maintaining organic certification. Comments noted that soil 
cannot be disinfected in the same way a house can be disinfected, which 
could lead to an increase in disease and mortality over time. Many 
comments stated that rearing birds in the controlled environment of a 
poultry house is best for bird health.
    However, several comments also noted that confinement of poultry to 
the indoors is not a guarantee that birds will be protected from 
disease. A comment noted that in the 2015 outbreak of highly pathogenic 
avian influenza (HPAI) in the United States, the affected poultry farms 
were non-organic operations that permanently confine birds from the 
outdoors. Commenters urged AMS to consider that outdoor access is only 
one component of a comprehensive biosecurity plan and that factors 
other than outdoor access have been implicated in confirmed cases of 
HPAI (e.g., cross-contamination due to persons or equipment moving 
between poultry houses or between farms).
    (Response) In the final rule, AMS has retained the requirement for 
outdoor access for organic birds, but the Agency engaged in extensive 
deliberations to align these requirements with the best practices of 
federal agencies focused on biosecurity and food safety. Outdoor space 
requirements have also been retained for layers, pullets, and broilers 
of species Gallus gallus. AMS recognizes that certain conditions may 
require the temporary confinement of birds to protect bird health and 
prevent disease and has preserved the ability of producers to take 
these precautionary measures, in consultation with their certifiers. 
AMS believes that outdoor access should be provided when conditions do 
not jeopardize bird health, safety, or well-being and that outdoor 
access requirements can be factored into comprehensive biosecurity 
plans. Finally this rule does not obviate the necessity to comply with 
all other applicable laws and regulations, including animal health 
regulations of APHIS.
    The final rule continues to allow producers to temporarily confine 
birds because of conditions under which the health, safety, or well-
being of the animal could be jeopardized. This provision has been 
included to protect animal health. AMS also recognizes that specific 
disease risks may require temporary confinement to protect bird health, 
in the absence of a documented occurrence of disease. In response to 
comments, AMS has removed a provision from this section that would have 
required a documented occurrence of disease in the region or migratory 
pathway to temporarily confine animals. By revising the requirement, 
AMS is providing producers with additional options to address disease 
risks. This provision to temporarily confine birds must be part of an 
Organic System Plan approved by the producer's accredited certifying 
agent. Additional requests for temporary confinement, outside of the 
approved Organic System Plan, must be approved by the certifying agent. 
AMS encourages state departments of agriculture to coordinate with NOP 
and certifiers on occasions where temporary confinement may be 
necessary to protect animal health. See AMS's discussion of comments on 
``Temporary confinement--disease'' for further discussion of confining 
animals under this provision.
12. Pasture Pens vs. Other Mobile Housing
    (Comment) Several comments requested that AMS clarify how the 
regulations apply to poultry producers that use certain types of mobile 
pasture-based systems. The comments described these systems as 
providing direct access to soil and vegetation; having walls and roofs 
made of mesh, plastic, wood, and other materials; and having mobility. 
Birds in these systems are on pasture, however, roofing on all or part 
of the structure provides shade and protection. These comments argued 
that these systems should meet the definition of outdoors because they 
provide access to soil and vegetation and allow for natural behaviors 
(scratching, pecking, foraging, etc.).
    (Response) For further discussion, see AMS's response to comments 
in the Definitions section. AMS made several revisions in the final 
rule in response to comments requesting more clarity around the 
definitions of indoors and outdoors as they apply to pasture-based 
systems. We revised the definition of outdoors in Sec.  205.2 to 
clarify that pasture pens are outdoors. Additionally, we use the term 
``mobile housing'' in Sec.  205.241(b)(8)(1) of the final rule to 
distinguish pasture pens from mobile housing. Mobile housing provides 
indoor space while pasture pens are considered outdoors.
    Birds raised in pasture pen systems must be provided with space to 
meet outdoor space requirements at Sec. Sec.  205.241(c)(4) through 
(6); specifically, space for chickens must be provided at a rate of no 
less than one square foot for every 2.25 pounds of layer, 3.0 pounds of 
pullet, or 5.0 pounds of broiler in the flock. Species other than 
chickens must be provided with outdoor space to meet the requirements 
of Sec. Sec.  205.241(c)(1) through (3). AMS has determined that this 
type of production, which provides animals with constant access to 
pasture, also meets consumer expectations of organically produced 
birds, and expects that the outdoor space requirement ensures birds in 
these systems have sufficient space to express natural behaviors and 
meet the requirements of Sec.  205.241(a).
13. FDA Regulations and Food Safety
    (Comment) AMS received numerous comments stating that the proposed 
rule would compromise egg producers' efforts to prevent Salmonella 
enterica serotype Enteritidis (SE) from contaminating eggs, as required 
by FDA regulations (21 CFR part 118). FDA requirements include: 
preventing stray poultry, wild birds, cats, and other animals from 
entering poultry houses; using appropriate methods to control rodents 
and flies (when monitoring indicates unacceptable activity); and 
removing vegetation and debris outside a poultry house that may provide 
harborage for pests (21 CFR 118.4). Comments stated the AMS 
requirements for outdoor access and for enrichments in outdoor areas 
would conflict with current FDA requirements to prevent SE.
    (Response) AMS engaged in extensive deliberations to reduce the 
likelihood that requirements under this rule would jeopardize or impact 
practices that poultry producers have implemented to meet FDA 
requirements to prevent SE (21 CFR part 118) published on July 9, 2009 
(74 FR 33030). Under the FDA requirements, producers must have and 
implement a written SE prevention plan and take measures to prevent 
introduction or transfer of SE into or among poultry houses (21 CFR 
118.4). Under FDA regulations, the minimum requirements to prevent SE 
include, but are not limited to: preventing stray poultry, wild birds, 
cats, and other animals from entering poultry houses; and removing 
debris within a poultry house and vegetation and debris outside a 
poultry house that may provide harborage for pests. Enrichments in the 
outdoor area could provide harborage for rodents, and thus, could 
conflict with FDA requirements at 21 CFR 118.4(c)(3).

[[Page 7070]]

    In the final rule, AMS has removed the proposed requirement, 
``outdoor areas must have suitable enrichment to entice birds to go 
outside.'' This requirement has been removed in the final rule to 
remove conflict with FDA rules to prevent SE contamination. Section 
205.241(c)(1) requires that ``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 (i.e., train) birds to go outdoors.''
    Additionally, AMS has amended the rule at Sec.  205.241(c)(2) to 
require at least half of the outdoor area to be soil with vegetative 
cover, which encourages birds to come outdoors and accommodates natural 
behaviors. Organic producers must ensure that vegetation does not 
provide harborage to pests, as required under FDA requirements (21 CFR 
118.4(c)(3)). For example, vegetation in outdoor areas must be kept at 
a short enough height to ensure it does not harbor pests. FDA draft 
guidance \13\ recommends that vegetation should be maintained to less 
than 6 inches in height.
---------------------------------------------------------------------------

    \13\ U.S. FDA. 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). Available at http://www.fda.gov/Food/GuidanceRegulation/GuidanceDocumentsRegulatoryInformation/ucm360028.htm.
---------------------------------------------------------------------------

    (Comment) Comments also stated that doors, as required by AMS, 
would directly conflict with the FDA requirement to prevent stray 
poultry, wild birds, cats, and other animals into poultry houses. 
Comments stated that any door to allow organic birds to move between 
the indoors and outdoors would inevitably lead to the movement of other 
animals between the outdoors and indoors, and that failure to prevent 
this movement would conflict with the FDA requirements.
    (Response) The FDA SE rule includes required measures to prevent SE 
contamination, including biosecurity and pest control measures (21 CFR 
part 118). Under this final rule, organic producers must provide access 
to the outdoors (Sec. Sec.  205.241(a), 205.241(c)(1)). To also comply 
with FDA requirements, organic producers need to take measures to 
prevent wild animals and pests from moving freely between the outdoors 
and indoors. For example, producers could: use visual deterrents to 
discourage wild birds in or around housing; set traps for pests 
outdoors and indoors; use perimeter fences to keep stray or wild 
animals out of outdoor areas; reduce access to feed indoors by managing 
spilled feed; or design exit areas on housing to prevent wild birds 
from entering the house.
    (Comment) Several comments noted that soil can be contaminated with 
persistent synthetic chemicals, including dioxins, and specifically, 
polychlorinated dibenzo-p-dioxins (PCDDs), polychlorinated 
dibenzofurans (PCDFs), and polychlorinated biphenyls (PCBs). The 
comments noted that the requirement for birds to be outdoors on soil 
would result in elevated levels of these substances in organic eggs--
through ingestion of soil or vegetation by birds--and subsequently pose 
health risks to humans that ingest organic eggs. Comments noted that 
dioxins are widespread and persistent in the environment, and comments 
cited studies that found that eggs from free range hens contain higher 
levels of dioxins. Additionally, comments noted risks of 
bioaccumulation into eggs of heavy metals such as lead and mercury, as 
well as DDT, when birds are outdoors on soil.
    (Response) No provision under this rule allows for the sale of eggs 
that contain substances--including dioxins, heavy metals, and PCBs--in 
excess of levels established by the FDA or other agencies. This rule 
does not change the requirement that producers, regardless of whether 
or not they are organic, must comply with FDA requirements. 
Additionally, organic regulations at Sec.  205.671 address unavoidable 
residual environmental contamination (further defined at Sec.  205.2) 
and do not allow for the sale of contaminated agricultural products as 
organic. For more information on action levels published by the FDA, 
see FDA's Guidance for Industry: Action Levels for Poisonous or 
Deleterious Substances in Human Food and Animal Feed.\14\
---------------------------------------------------------------------------

    \14\ http://www.fda.gov/food/guidanceregulation/ucm077969.htm.
---------------------------------------------------------------------------

14. Vegetation in Outdoor Areas
    (Comment) AMS received many comments stating that vegetation should 
be required in outdoor areas for birds. Comments noted that vegetation 
is important for birds to engage in the natural behavior of foraging 
and that denuded soil increases health risks for flocks. Additionally, 
comments noted that vegetated soil benefits soil and water quality 
compared to bare soil by reducing water runoff, preventing erosion, and 
taking up nutrients. Most comments recommended the outdoor area be 
covered with at least 50 percent vegetation, while some comments 
recommended AMS require up to 90 or 100 percent vegetative cover in 
outdoor areas.
    (Response) AMS agrees that vegetation in outdoor areas has benefits 
that warrant this requirement. We have revised the final rule at Sec.  
205.241(c)(2) as follows: ``at least 50 percent of outdoor space must 
be soil. Outdoor space with soil must include maximal vegetative cover 
appropriate for the season, climate, geography, species of livestock, 
and stage of production . . .'' This requirement recognizes the 
important function and role of vegetation in the outdoor space, 
including its benefits to soil health and to birds by allowing for the 
expression of natural behaviors. Vegetation in outdoor areas must be 
maintained to ensure it does not provide harborage for rodents and 
other pests. For example, vegetation in outdoor areas must be kept at a 
short enough height to ensure it does not harbor pests. FDA draft 
guidance recommends that vegetation should be maintained to less than 6 
inches in height.\15\
---------------------------------------------------------------------------

    \15\ http://www.fda.gov/Food/GuidanceRegulation/GuidanceDocumentsRegulatoryInformation/ucm360028.htm.
---------------------------------------------------------------------------

    Additionally, AMS has included at Sec.  205.241(d)(4) an allowance 
to temporarily confine birds for ``risk to soil or water quality, 
including to establish vegetation by reseeding the outdoor space.'' 
Birds may not be confined any longer than required to seed the area and 
allow for the vegetation to establish itself. This allowance for 
temporary confinement was included by AMS to acknowledge that some 
producers may need to reseed outdoor areas to meet the vegetation 
requirement included in Sec.  205.241(c)(2) and that birds may need to 
be kept off the area to allow seeds to germinate and establish. The 
minimum outdoor space requirements do not apply when birds are 
temporarily confined under this provision, and a producer may still 
allow birds outdoors. For example, if 50 percent of the outdoor area is 
covered by gravel, birds may be allowed into this portion of the 
outdoor area. Providing a smaller outdoor area when confining animals 
to reseed the outdoor area and establish vegetation would be in 
compliance with the provision at Sec.  205.241(d)(4).
    (Comment) AMS received a number of comments that contact with 
gravel or pavement does not allow chickens to exhibit their natural 
instinctive behaviors. Many comments requested we reduce the amount of 
outdoor area that can be anything but soil (including soil with 
vegetative cover) from 50 percent to 25 percent or less.

[[Page 7071]]

    (Response) AMS has retained the requirement as proposed that 
outdoor areas be at least 50 percent soil, but we have also revised the 
requirement to add a requirement for maximal vegetative cover in the 
outdoor soil area. We think this revision communicates the importance 
of contact with the ground yet still provides an allowance for 
producers to use other surfaces as necessary. For example, gravel 
surfaces may be necessary to ensure adequate drainage adjacent to a 
house. A producer could still provide a surface or materials in this 
outdoor area that would accommodate the natural behavior of birds, 
including scratching and dust bathing.
    (Comment) AMS received many comments about whether vegetation would 
be permitted in outdoor areas, since the proposed rule stated at 
section 205.241(c)(8), ``At least 50 percent of outdoor access space 
must be soil''. Comments stated that bare soil could lead to 
degradation of soil and the runoff from bare soil could contaminate 
nearby water resources.
    (Response) AMS understands from comments received that there was 
confusion about whether outdoor areas could be vegetated or if AMS 
would require outdoor areas to be cleared of vegetation. In the final 
rule, AMS has revised the outdoor space requirement to clarify that 
outdoor soil areas must be covered with vegetation given site-specific 
conditions.
    (Comment) AMS received a few comments about whether land used for 
outdoor access for poultry must be certified organic and meet the same 
requirements as land used in the production of organic crops or 
pasture. One comment recommended that producers not be allowed to 
remove the top soil from the outdoor area and replace it with another 
fill material to forego the land transition period requirement (i.e., a 
three-year period without prohibited synthetic substances).
    (Response) AMS agrees that land used to provide outdoor access to 
poultry must be certified as part of an organic system plan. The USDA 
organic regulations require that organic agricultural products fed to 
livestock be organically produced. Additionally, the regulations 
require that crops be produced from land to which no prohibited 
substances, including synthetic chemicals, have been applied during the 
three years immediately preceding the harvest of the agricultural 
product. As birds may consume vegetation from land used to provide 
outdoor access, this land must meet the same requirements as used to 
produce any other organic crop. The implementation period for this 
final rule takes into account the possibility that producers may need 
to transition land to meet outdoor space requirements.
15. Enrichments and Bird Training
    (Comment) AMS received many comments that the requirement for 
``suitable enrichment'' in outdoor areas was too subjective. Some 
comments recommended AMS remove this part of the requirement, while 
other comments recommended AMS specify the number and types of 
enrichments required. Many other comments noted that enrichments 
outdoors would attract other animals and violate FDA requirements for 
shell egg producers to prevent SE contamination of eggs. Some comments 
requested AMS clarify how the requirement for suitable enrichment 
outdoors applies to broiler production.
    (Response) In response to comments, AMS has removed the requirement 
that outdoor areas must have suitable enrichment to entice birds to go 
outside in the final rule. See AMS's response to comments about FDA 
regulations in the section above on FDA regulations and food safety. 
AMS has, however, amended the rule at Sec.  205.241(c)(2) to require at 
least half of the outdoor area to be soil with vegetative cover, which 
provides an environment that encourages birds to come outdoors. 
Additionally, we have retained the requirement in the final rule that 
outside access and door spacing be designed to promote and encourage 
outside access for all birds on a daily basis. Producers must still 
meet the general requirements of Sec.  205.241(a) and provide living 
conditions that accommodate the health and natural behavior of birds, 
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 aggressive 
behaviors.
    (Comment) Several comments noted that suitable enrichments should 
be required indoors for broilers. A comment stated that perches are of 
questionable benefit to broiler-type birds and that a general 
requirement for indoor enrichment for broilers would be beneficial. A 
comment recommended that beneficial indoor features might include straw 
bales, string, deep litter, and dust baths.
    (Response) In the final rule, AMS has not included a perch or 
indoor enrichment requirement for broilers. AMS may undertake further 
work on this topic, with the assistance of the NOSB, as appropriate. 
However, broiler producers must meet the requirement at Sec.  
205.241(b)(1), which requires that birds be able to engage in natural 
behaviors indoors. Producers should work with their certifier to 
determine if birds are able to engage in natural behaviors indoors.
    (Comment) Several comments noted the benefits of covered areas in 
the outdoor space for birds and recommended AMS require these features 
in outdoor areas. Comments noted that birds will be encouraged to go 
outdoors if they can seek and find safety from overhead predators under 
trees, roofs, or other structures.
    (Response) AMS agrees that protection from predators could be 
important to encourage birds to use outdoor areas. Furthermore, 
overhead protection could reduce mortality by reducing predation. 
However, in the final rule, AMS has not included a specific requirement 
to provide covered areas outdoors. Producers are required to promote 
and encourage outside access in the final rule (Sec.  205.241(c)(1)), 
and overhead protection may be used to meet this requirement. However, 
AMS has not specified exactly how producers must promote and encourage 
outside access. We believe this flexibility is important to allow 
producers to implement practices that are best suited to their 
operations, while still establishing a clear standard for producers to 
promote and encourage outdoor access and while protecting birds from 
disease and predation.
16. Temporary Confinement--Weather
    (Comment) AMS received many comments about temporary confinement 
for air temperatures that are under 40 [deg]F or above 90 [deg]F. One 
comment stated that allowing birds to go outdoors at 40 [deg]F would 
cool down the barn quickly and create moisture issues. Other comments 
noted that additional fuel would be required to maintain indoor 
temperatures if doors were opened during cool weather and that birds 
would require more feed to compensate for the energy required to 
maintain their body temperature. Comments on the upper limit proposed 
by AMS noted that cooling systems in poultry houses would not work as 
designed with doors open, and that birds would be subjected to 
additional stress that could result in higher incidence of illness or 
death. Some alternate recommendations for the temperature range were 
55-90, 50-90, 60-90, and 50-85 [deg]F. Meanwhile, some comments 
supported removing any lower or upper limits and instead defining 
inclement weather. Additionally, several comments requested AMS clarify 
if producers are required to provide birds with access to

[[Page 7072]]

the outdoors if the temperature is only within the range of 40 [deg]F 
and 90 [deg]F for a short period of time in the day. Comments stated 
that such a requirement could be impractical for producers that may not 
be available to open doors at any time on a given day.
    (Response) Organic regulations already include a definition of the 
term ``inclement weather'' at Sec.  205.2 In the proposed rule, AMS did 
not suggest changes to this definition, but we did propose to include a 
specific temperature range, outside of which producers could 
temporarily confine birds. The temperature range was proposed to ensure 
consistent practices between producers for temporarily confining birds 
due to weather. However, as noted by comments, temperature alone is not 
necessarily an indicator of inclement weather. For example, humidity 
can amplify the effect of high temperatures. Information from one 
poultry breeding company indicates birds experience extreme heat stress 
at a temperature of 82 [deg]F when the relative humidity exceeds 75 
percent. However, at 20% relative humidity, birds experience a similar 
degree of heat stress once the temperature reaches 100 [deg]F.\16\
---------------------------------------------------------------------------

    \16\ http://www.hyline.com/userdocs/pages/TB_HEAT_ENG.pdf.
---------------------------------------------------------------------------

    The final rule allows for temporary confinement of birds for, 
``inclement weather, including when air temperatures are under 40 
[deg]F or above 90 [deg]F.'' AMS notes that weather may still qualify 
as inclement weather (Sec.  205.2) even within this temperature range. 
For example, excessive precipitation and very violent weather can occur 
when temperatures are within 40 [deg]F and 90 [deg]F. Likewise, weather 
may meet the definition of inclement weather within the range of 40 
[deg]F and 90 [deg]F if the relative humidity is very high and the air 
temperature is nearing 90 [deg]F, or under extremely windy conditions. 
As inclement weather is defined as weather than can cause physical harm 
to a species, a producer would still be in compliance with Sec.  
205.241(d)(1) if birds were confined at temperatures that did not 
exceed 90 [deg]F but when the weather could cause physical harm.
17. Temporary Confinement--Stage of Life
    (Comment) AMS received comments that layers should be required to 
go outdoors before 16 weeks of age. Other comments noted that pullets 
can be moved from dedicated pullet rearing facilities to dedicated 
layer houses when pullets are older than 16 weeks; these comments also 
requested additional time to allow for confinement until pullets are 
moved to layer houses. One comment cited that the allowance for 16 
weeks of temporary confinement conflicts with AMS's proposed 
requirement at Sec.  205.241(c) that producers, ``provide access to the 
outdoors at an early age to encourage (i.e., train) birds to go 
outdoors.'' Comments noted at least one study that found birds used 
outdoor areas more when allowed outdoor access earlier in life. Some 
comments noted that layers are fully feathered around 8 weeks of age 
and should therefore be provided with access to the outdoors at 8 weeks 
of age.
    (Response) The final rule allows producers to temporarily confine 
layers for up to 16 weeks of age. AMS agrees that 16 weeks of 
confinement from the outdoors is not always required. In fact, many 
organic producers already provide outdoor access for layers prior to 16 
weeks of age. AMS also recognizes, however, that many layer operations 
use vaccination programs to protect bird health and prevent disease, 
and in many cases, birds receive vaccines during the first 16 weeks of 
life. Requiring outdoor access before this age could compromise bird 
health. Birds that are over 16 weeks of age may not be confined under 
the provision at Sec.  205.241(d)(2(ii). Any confinement of birds 
beyond 16 weeks of age must be done only in accordance with other 
provisions at Sec.  205.241(d). In any case, producers must describe 
their practices for confining birds in their Organic System Plan, and 
certifiers must approve these plans.
    (Comment) AMS received several comments that turkeys are not ready 
to go outdoors by four weeks of age, as proposed by AMS, because full 
feather plumage is not complete until approximately seven weeks of age. 
The comments requested turkeys be addressed specifically in the 
regulations, as turkeys have different requirements than chickens or 
other bird species.
    (Response) AMS recognizes that turkeys may require a longer period 
of time than chickens for feather development. In response to comments, 
AMS has revised the final rule at Sec.  205.241(d)(2)(iii) to allow 
temporary confinement of turkeys and other species until fully 
feathered. The requirement for chickens (Gallus gallus) remains 
unchanged from the proposed rule and allows temporary confinement for 
the first 4 weeks of life for broilers and the first 16 weeks of life 
for pullets.
18. Temporary Confinement--Disease
    (Comment) AMS received many comments about temporary confinement 
for bird health, safety, or well-being at Sec.  205.241(d)(3). 
Specifically, comments showed concern that the requirement for a 
documented disease in the region or relevant migratory pathway would 
compromise a producer's ability to proactively confine animals to 
prevent exposure of a flock to disease. One comment suggested that AMS 
allow birds to be kept inside when there is a reasonable expectation of 
disease that can rapidly spread through poultry. Another comment 
suggested that detection of a disease, rather than occurrence of a 
disease, should be sufficient grounds to confine birds. Other comments 
urged AMS to allow confinement when recommended by a State or Federal 
animal health official. Additionally, comments stated that the terms 
``region,'' ``migratory pathway,'' and ``documented occurrence'' were 
not clear and could lead to varying interpretations, including extended 
periods of confinement for birds in the absence of real risk. One 
comment suggested that AMS remove references to ``region'' and 
``migratory pathway'' and allow confinement only in the case of a 
current local occurrence of a disease.
    (Response) The organic livestock and poultry standards allow 
temporary confinement of poultry for ``conditions under which the 
health, safety, or well-being of the animal could be jeopardized.'' In 
the case of risks posed by highly contagious and rapidly spreading 
disease, AMS recognizes that it is complicated to precisely assess 
disease threats, and AMS recognizes that various animal health experts, 
including State and Federal officials, serve important roles in 
monitoring disease threats and communicating those threats to 
producers. In response to comments, AMS has revised the final rule to 
provide additional flexibility for confining animals to prevent the 
spread of disease and protect bird health. To temporarily confine birds 
under this provision, producers must be able to demonstrate that the 
birds' health, safety, or well-being are jeopardized by access to the 
outdoors. Plans to temporarily confine birds must be part of the 
producer's organic system plan approved by the certifying agent. 
Producers must keep records of confinement and records to justify 
confinement (see Sec. Sec.  205.103 and 205.241(d)).

[[Page 7073]]

19. Temporary Confinement--Nest Box Training
    (Comment) AMS received several comments that the allowed period (2 
weeks) for confining birds for nest box training (i.e., to train birds 
to lay eggs in designated nest areas) was inadequately short. Comments 
stated that additional time was required to ensure birds would lay eggs 
in nest boxes. Comments stated that more time than proposed would 
reduce the number of eggs laid outside of nest boxes and the time 
required to collect these eggs. Comments also noted that eggs laid 
outside of nest boxes could be more at risk of Salmonella contamination 
through direct contact with manure and dirt. Some comments suggested 
that AMS modify the requirement to allow as much time as required for 
birds to reach a certain percentage of the total expected egg 
production. For example, a comment suggested we allow birds to be 
confined for nest box training until at least 80 percent of the 
expected daily egg production could be documented. Other comments 
recommended increasing the allowed time period to three or four weeks, 
while others recommended a period of six to eight weeks for nest box 
training.
    (Response) AMS recognizes that nest box training is important, as 
it reduces eggs laid outside of nests; simplifies management; and 
reduces contact between eggs and manure, dirt, and other substances. 
AMS understands that different species and breeds may require different 
amounts of time for nest box training. In response to comments, AMS has 
revised the final rule to align with the NOSB's recommendation. Birds 
may be confined to train birds to use nests, but the period must not 
exceed five weeks.
20. Temporary Confinement--Other
    (Comment) One comment recommended AMS add the word ``temporarily'' 
to the last sentence of Sec.  205.241(d) to be clear that confinement 
cannot be permanent or lasting (see definition of ``temporary and 
temporarily'' in Sec.  205.2).
    (Response) AMS agrees with the comment, and we have revised Sec.  
205.241(d) to clarify, ``Operations may temporarily confine birds'' for 
reasons at Sec.  205.241(d).
    (Comment) AMS received several comments that the proposed 
requirement ``each instance of confinement must be recorded'' was 
unnecessary. Comments cited the existing requirement for recordkeeping 
and did not think it was practical or reasonable to require producers 
to record every single instance of confinement, such as every time 
birds were put inside at night. Some comments noted that producers have 
written standard operating procedures that describe when birds are 
confined and this would serve as a sufficient record of confinement.
    (Response) AMS agrees that the value of requiring producers to 
record each instance of confinement may be limited, especially when the 
confinement is routine, such as confinement of birds inside a poultry 
house at night for the birds' safety. However, AMS thinks it is also 
important that certifiers be able to readily assess a producer's 
compliance with the regulations. By requiring producers to record each 
instance of confinement, certifiers can easily identify instances of 
confinement, including the reason for confinement. These records can 
then be reviewed with third-party information to verify the reason for 
confinement. For example, a certifier can check weather information for 
the area to confirm there was inclement weather on the dates when 
animals were confined or confirm the occurrence of a disease in the 
region for that time. Meanwhile, AMS has been promoting recordkeeping 
requirements for organic producers (i.e. Sound and Sensible \17\ 
initiative), aimed at making organic certification more accessible, 
attainable, and affordable while maintaining high standards, ensuring 
compliance, and protecting organic integrity. AMS agrees that the 
proposed requirement at Sec.  205.241(d) to record each instance of 
confinement may not result in records that would help certifiers ensure 
compliance. In the final rule, AMS has revised Sec.  205.241(d) to 
clarify that confinement must be recorded. Producers do not need to 
record each instance of confinement if the producer has described the 
reasons for routine temporary confinement (i.e., a standard operating 
procedure) in their Organic System Plan. For example, a producer may 
describe that birds are confined nightly, or that pullets are confined 
until 8 weeks of age, in their OSP instead of recording these instances 
of confinement on a daily basis. AMS notes that producers must also 
comply with Sec.  205.103, including Sec.  205.103(b)(4) which requires 
records be sufficient to demonstrate compliance with the regulations. 
If a certifier determines that the description of practices in the 
producer's standard operation procedure, for example, are not 
sufficient to demonstrate when birds are actually confined, the 
certifier may require as a corrective measure that the producer modify 
their standard operation procedure or keep records that will be 
sufficient to demonstrate animals are provided with outdoor access in 
compliance with the regulations.
---------------------------------------------------------------------------

    \17\ https://www.ams.usda.gov/report-presentation/sound-sensible.
---------------------------------------------------------------------------

    (Comment) AMS received a comment that producers should be required 
to provide additional indoor space if poultry are confined for more 
than one week. The comment suggested that AMS require indoor space 
equivalent to the total combined indoor and outdoor space that is 
otherwise required when birds are not temporarily confined.
    (Response) AMS recognizes that the total space per bird is reduced 
when birds are temporarily confined. However, producers are not able to 
predict events that require temporary confinement, such as disease 
outbreaks. If it were necessary to confine animals for more than one 
week, a producer may need to cull perhaps half of the entire flock in 
order to meet the requirement proposed by the commenter. In cases where 
birds could not be sold as organic, the financial loss to producers 
would be great, or a producer could be forced to destroy a large 
portion of the flock. AMS does not think this is warranted for 
circumstances that are beyond a producer's control.
    (Comment) AMS received a comment that the period for temporary 
confinement for youth projects following the conclusion of a fair or 
demonstration should be extended from 24 hours to one week, to ensure 
that birds are healthy and will not pass any sickness or disease 
acquired at these events to other birds.
    (Response) The final rule maintains an allowance to confine birds 
up to 24 hours after the birds have arrived home at the conclusion of a 
youth event. However, AMS notes that birds may be temporarily confined 
for a longer period of time in accordance with Sec.  205.241(d)(3), 
which allows for temporary confinement because of conditions under 
which the health, safety, or well-being of animals could be 
jeopardized. Producers must describe their practices in their organic 
system plan and work with their certifier to ensure that temporary 
confinement practices meet the requirements.
21. Soil and Water Quality
    (Comment) AMS received comments that increased outdoor access could 
contaminate water systems, as a result of birds being outside on soil. 
Comments stated that water runoff from outdoor areas containing manure 
would need to be managed to comply with U.S. Environmental Protection 
Agency

[[Page 7074]]

(EPA), state, or local requirements. Comments stated that compliance 
could require landscape modifications, such as installation of berms or 
drainage systems around poultry barns. These modifications could be 
expensive and burdensome, as they can require federal and state 
permits.
    (Response) An overarching requirement of organic production is that 
soil and water quality be maintained or improved (7 CFR 205.200). To 
minimize potential impacts to soil or water quality from livestock with 
outdoor access, AMS has included a requirement in the final rule for 
vegetation in outdoor areas (Sec.  205.241(c)(2)). Vegetation acts to 
hold soil, reduce water runoff, and take up nutrients deposited in 
animal feces. Clean Water Act National Pollutant Discharge Elimination 
System (NPDES) permit requirements for concentrated animal feeding 
operations do not encompass outdoor areas that have vegetation in the 
normal growing season. (See 40 CFR 122.23(1)(ii)). Therefore, AMS does 
not expect this rule would adversely alter an organic operation's 
status or costs of compliance with respect to EPA regulations for 
concentrated animal feeding operations, nor does it expect the rule to 
subject operations to additional requirements. This rule does not 
affect NPDES compliance requirements for other aspects of the poultry 
growing areas. Other federal, state, or local regulatory requirements 
may apply to the facilities as well.
    (Comment) AMS received comments that requiring birds to be outside 
on soil would lead to contamination of soil due to excess nutrients 
from manure. Comments requested that AMS not require outdoor access.
    (Response) AMS recognizes concerns about impacts to soil quality, 
and the final rule includes provisions to protect soil quality. 
However, AMS disagrees with comments that soil quality should be 
addressed by removing the requirement for outside access altogether. In 
the final rule, Sec.  205.241(e) requires producers to manage manure in 
a manner that does not contribute to contamination of crops, soil, or 
water. Section 205.241(d)(4) allows for temporary confinement of birds 
because of risk to soil quality. Each producer will need to manage soil 
quality as appropriate to their climate, soil type, and size of outdoor 
area. AMS notes that managing soil in outdoor areas may also include 
feed management, as excess nutrients provided in feed are excreted by 
birds. Producers may attain resources and assistance with feed 
management and manure management by contacting the USDA's Natural 
Resources Conservation Service (NRCS).\18\
---------------------------------------------------------------------------

    \18\ http://offices.sc.egov.usda.gov/locator/app.
---------------------------------------------------------------------------

22. Other Comments--Avian Living Conditions
    (Comment) AMS received several recommendations to include 
requirements for slow-growing poultry breeds or for breeds that are 
suited to free-range conditions. Some comments recommended that AMS set 
a minimum age at slaughter or a maximum daily growth rate requirement 
to ensure sustainable weight gain and animal health.
    (Response) AMS has not included a requirement for slow-growing 
breeds or minimum age requirements for slaughter in the final rule. AMS 
agrees that this topic may deserve further attention and input from 
stakeholders, and we may ask the NOSB to explore this topic.
    (Comment) AMS received comments that current organic regulations 
require access to the outdoors and that these new rules are not 
necessary for AMS to require outside access or for AMS to prohibit 
porches as outside access. The comments cited existing regulations at 
Sec.  205.239(a)(1), which include a requirement that producers 
establish and maintain ``year-round access for all animals to the 
outdoors . . . Continuous total confinement of any animal indoors is 
prohibited.''
    (Response) AMS acknowledges that current organic regulations 
require outdoor access for poultry, but we disagree with the argument 
that current regulations could achieve the same results as the 
regulations revised by this final rule. As recommended by the NOSB, AMS 
is implementing this final rule to establish specific regulations for 
the care of livestock, as authorized under OFPA (7 U.S.C. 6509(d)(2)).
    (Comment) Some comments stated that the requirements in Sec.  
205.241(b)(1) and Sec.  205.241(b)(11) were duplicative and that the 
sections should be combined in a single requirement to streamline the 
requirements.
    (Response) AMS agrees with these comments and has moved the text 
from Sec.  205.241(b)(11) as proposed to Sec.  205.241(b)(1). We have 
removed the originally proposed text at Sec.  205.241(b)(1) in the 
final rule.
    (Comment) A comment suggested moving the requirement on litter at 
Sec.  205.241(b)(4)(iii) to clarify that the requirement applies to all 
types of poultry houses and not just houses with slatted or mesh 
floors.
    (Response) AMS agrees with the comment that the requirement, 
``litter must be provided and maintained in a dry condition,'' proposed 
at Sec.  205.241(b)(4)(iii) is more appropriately placed as a 
standalone requirement. In the final rule, this requirement has been 
moved to Sec.  205.241(b)(6).
    (Comment) A comment noted that proposed Sec.  205.241(b)(4)(i), 
which allows, ``mesh or slatted flooring under drinking areas to 
provide drainage,'' was unnecessary and did not actually impose a 
requirement since the section only states this type of flooring ``may'' 
be used.
    (Response) AMS agrees that the allowance for mesh or slatted 
flooring under drinking areas is not necessary, as nothing else in the 
requirements prohibits use of mesh or slatted flooring under drinking 
areas. We have included a separate requirement to maintain litter in a 
dry condition. In the final rule, AMS has removed Sec.  
205.241(b)(4)(i) as proposed. Additionally, AMS has removed Sec.  
205.241(b)(4) of the proposed rule, and moved the requirement proposed 
at Sec.  205.241(b)(4)(ii) to Sec.  205.241(b)(7). The requirements on 
scratch areas, dust baths, and litter now appear at Sec. Sec.  
205.241(b)(6) and (7).
    (Comment) Some comments asked for clarification on the meaning of 
the term ``litter'' as used in the avian living section. Comments 
stated that it was not clear if producers are required to add litter 
material for birds or if dehydrated manure would suffice without any 
additional litter. Another comment recommended AMS use the term 
``bedding'' in place of litter, as this term is used elsewhere in the 
regulations.
    (Response) AMS has used the term ``litter'' in Sec.  205.241, as 
this term is commonly used by avian producers. The term has not been 
further defined in Sec.  205.2. Litter includes substrates used to 
absorb moisture and dilute manure. Litter also provides birds with the 
opportunity to dust bathe and to express foraging and scratching 
behaviors. Common types of litter include wood shavings or chips, 
straw, rice hulls, and sand. The final rule at Sec.  205.241(b)(6) 
requires that litter be provided and maintained in a dry condition. AMS 
has not specified the amount of litter that must be provided. However, 
the rule does require that litter be provided. An absence of litter 
would not be in compliance with this requirement. Litter should be 
provided in amounts required to absorb moisture, dilute manure, and to 
allow birds to express natural behaviors such as dust bathing, 
foraging, and scratching.
    (Comment) Some comments stated AMS's requirements were not based on 
scientific evidence and appeared to be made by AMS arbitrarily, 
including the

[[Page 7075]]

specific indoor and outdoor space requirements for birds.
    (Response) The provision on indoor and outdoor space requirements 
in this rule are based on nine separate NOSB recommendations submitted 
to the Secretary. In developing these recommendations at their public 
meetings, the NOSB considered technical information and public 
comments, including comments from organic livestock producers, animal 
welfare experts and the scientific community. AMS is establishing these 
requirements, in consideration of the NOSB's recommendations, to assure 
consumers that organically produced products meet a consistent 
standard.

X. Transport (Sec.  205.242(a))

A. Description of the Final Rule

1. Summary of the Final Rule
    New Sec.  205.242(a)(1) requires that animals are clearly 
identified during transport. AMS's approach requires that animals are 
clearly identified but provides flexibility on how the identity is 
maintained during transport.
    New Sec.  205.242(a)(2) sets minimum fitness requirements for 
livestock to be transported. Section 205.242(a)(2)(i) requires that 
calves have a dry navel cord and the ability to stand and walk without 
assistance, if they are to be transported. This provision would apply 
to transport to buyers, auction facilities, or slaughter facilities. 
Beef cattle and dairy cattle producers may transport calves on the farm 
before the navel is dried and the calves can walk. Section 
205.242(a)(2)(ii) prohibits transport of non-ambulatory animals to 
buyers, auction facilities, or slaughter facilities. These animals may 
either be given medical treatments and cared for until their health 
conditions improve, so that they are able to walk, or they may be 
euthanized.
    New Sec. Sec.  205.242(a)(3) and (4) set minimum standards for the 
trailer, truck, or shipping container used for transporting organic 
livestock. The mode of transportation is required to provide seasonal-
appropriate ventilation to protect animals against cold or heat stress. 
This provision requires that air flow be adjusted depending on the 
season and temperature. In addition, bedding is required to be provided 
on trailer floors as needed to keep livestock clean, dry, and 
comfortable. If roughage is used as bedding, the bedding needs to be 
organically produced and handled. Bedding is not required for poultry 
crates.
    Section 205.242(a)(5) requires that all livestock be provided with 
organic feed and clean water if transport time exceeds 12 hours. The 
12-hour time period includes all times during which the animals are on 
the trailer, truck, or shipping container, even if these modes of 
transportation are not moving. In cases such as poultry slaughter in 
which requirements do not allow feed 24 hours before slaughter, 
producers and slaughter facilities need to ensure that transport time 
does not exceed 12 hours. After 12 hours of transport, the birds would 
need to be fed, which may prolong the time to slaughter. The certified 
operation must present records--which verify that transport times meet 
the 12 hour requirement--to the certifying agent during inspections or 
upon request.
    New Sec.  205.242(a)(6) requires that operations that transport 
livestock to sales or slaughter have emergency plans in place that 
adequately address problems reasonably possible during transport. Such 
emergency plans could include how to provide feed and water if 
transport time exceeds 12 hours, what to do if livestock escape during 
transport, or how to euthanize an animal injured during transport. 
Shipping and/or receiving operations need to include these plans in 
their OSPs.

B. Discussion of Comments Received

1. General Transport, Transport to Slaughter, and Identification of 
Organic Livestock
    (Comment) One comment asked AMS to clarify whether Sec.  
205.242(a)(1), which regulates transportation of organic livestock, 
applies to transport in general or only transportation to slaughter. 
Other comments expressed concern over the requirement that organic 
livestock must be transported in designated pens. The comments noted 
that while identification of organic livestock during transport is 
essential, requiring designated pens would be burdensome. In practice, 
identification is generally done through ear tags or other methods, and 
that requiring designated pens is burdensome.
    (Response) Section 205.242(a)(1) applies to transport of organic 
livestock to buyers, auction, and slaughter facilities. AMS agrees that 
requiring identification of pens during transport for organic livestock 
may not be necessary to maintain an audit trail and organic integrity. 
AMS has amended the language in Sec.  205.242(a)(1) to remove the 
requirement for designating and identifying organic pens during 
transport, changing the text to read: Certified organic livestock must 
be clearly identified as organic, and the identity must be traceable 
during transport to buyers, auction, and slaughter facilities.
2. Fit for Transport
    (Comment) Several comments pointed out that the term `sick' in 
Sec.  205.242(a)(2)(ii) should be defined to reduce the possibility 
that animals are withheld from slaughter due to a minor ailment that 
does not impact the quality of slaughter products. The comments 
suggested that the language, ``sick, injured, weak, disabled, blind, 
and lame'' in this section be replaced with ``non[hyphen]ambulatory,'' 
which is consistent with humane slaughter practices and readily 
verified. Several comments also requested that Sec.  205.242(a)(2) be 
changed to specify that livestock must be ambulatory to be fit for 
transport to buyers, auctions, or slaughter facilities.
    (Response) AMS agrees that animals should not be withheld from 
slaughter due to a minor ailment that does not impact the quality of 
slaughter products and has made the suggested change in Sec.  
205.242(a)(2)(ii). In the final rule, the terms ``Sick, injured, weak, 
disabled, blind, and lame,'' have been replaced with 
``non[hyphen]ambulatory.'' As defined in defined at 9 CFR 309.2(b), 
non-ambulatory is a condition recognized within the industry and 
provides a more standardized criterion to evaluate.\19\ AMS points out 
that the definition at 9 CFR 309.2(b) lists examples of conditions that 
may make livestock non-ambulatory. However, some of these animals may 
still be able to ambulate. Every situation is case-specific and needs 
to be evaluated by the certified operator.
---------------------------------------------------------------------------

    \19\ 9 CFR 309.2(b): All seriously crippled animals and non-
ambulatory disabled livestock shall be identified as U.S. Suspects 
and disposed of as provided in Sec.  311.1 of this subchapter unless 
they are required to be classed as condemned under Sec.  309.3. Non-
ambulatory disabled livestock are livestock that cannot rise from a 
recumbent position or that cannot walk, including, but not limited 
to, those with broken appendages, severed tendons or ligaments, 
nerve paralysis, fractured vertebral column, or metabolic 
conditions.
---------------------------------------------------------------------------

3. Transport of Calves
    (Comment) Two comments were concerned with the requirement in the 
proposed rule that calves must not be transported to auction or 
slaughter facilities until their navel cords are dried and they have 
the ability to stand and walk on their own. Both comments suggested 
changes to the rule to allow for more flexibility around when calves 
could be transported. One comment requested changes to the rule to 
allow calves with a dry, clean, and disinfected navel cord to be 
transported, and the other suggested that the rule be revised to set a 
minimum age for calf transport

[[Page 7076]]

instead of specific navel characteristics. AMS also received comments 
from organizations that represent hundreds of organic dairy operations. 
These organizations supported the proposed requirement in Sec.  
205.242(a)(2)(i).
    (Response) AMS reviewed and considered comments from all 
organizations that reviewed and analyzed the proposed rule. Based on 
the widespread support of this subsection, AMS did not feel that a 
change to the regulation was warranted.
4. Bedding
    (Comment) Several comments expressed opposition to the use of 
bedding for transport of livestock over long distances because of the 
risk of animal injury due to certain types of bedding or the need to 
discourage laying down in trailers where crowding may be an issue. One 
comment asked for clarification on whether rubber mats would be an 
acceptable form of bedding during transport. Several comments from 
stakeholders recommended that bedding also be a requirement for poultry 
crates, stating that poultry should also be kept clean, dry, and 
comfortable during transport.
    (Response) Section 205.242(a)(4) includes the phrase ``as needed,'' 
which allows for the discretion of the certified operation and their 
certifier when determining if the use of bedding is appropriate based 
on risk of injury to the livestock and other welfare concerns. AMS 
believes that this language describes the requirements with sufficient 
clarity, while not being overly prescriptive. Certified operations 
should describe in their organic system plan how they will determine 
whether or not bedding is necessary during transport. Certifying agents 
should assess this information when reviewing the certified operators' 
organic system plan for compliance. In some cases, bedding may not be 
required because of other animal welfare considerations. Regarding the 
acceptability of rubber mats during transport, there is nothing in the 
proposed rule that prohibits the use of rubber mats. The bedding 
exemption for poultry crates is consistent with the 2011 NOSB 
recommendation, and AMS is not making changes to require bedding for 
these livestock. However, a minor change has been made to Sec.  
205.242(a)(4) to clarify that bedding is not required for poultry 
crates.
    (Comment) One certifying agent addressed a position AMS made in the 
preamble to the proposed rule regarding the use of nonorganic bedding 
in transport, which would render animals nonorganic. While the 
commenter does not feel that the use of nonorganic bedding should be 
allowed, they suggested that if it were used unintentionally, the 
stated sanction is impractical and harsh since bedding in trailers and 
temporary pens would be in contact with animals for only a short period 
of time.
    (Response) Certifiers are responsible for taking appropriate 
enforcement actions depending on the nature of the violation. AMS 
agrees that stating specific sanctions for non-compliant practices is 
not appropriate. Compliance procedures under the USDA organic 
regulations are specified under 7 CFR 205.660-668.
5. Transport Exceeding 12 Hours
    (Comment) Opposing comments were received on the topic of transport 
exceeding 12 hours. Several comments indicated that 12 hours was too 
long for livestock to go without feed and water because animals may 
have been without feed and water prior to loading for transport. These 
comments stated that it is cruel not to provide feed and water either 
continuously or at least every 6 to 8 hours. Conversely, several 
comments stated that livestock are rarely trucked for longer than 12 
hours but that, if they are, they can go without feed and water for 
longer than 12 hours. One comment stated that if livestock are to be 
trucked for longer than 12 hours to slaughter or auction, it is likely 
that the transportation load will be larger and may not be exclusively 
organic. This comment stated that if the 12-hour rule is to be 
implemented, it will decrease the availability of transport for organic 
livestock and increase transport cost, especially for small- to mid-
size operations. It was recommended that AMS rely on the federally 
mandated Twenty Eight Hour Law and remove the requirement for access to 
feed and water after 12 hours of transport. Another comment stated that 
the 12-hour requirement may be a hardship to the industry and is not 
important to birds in transit or waiting for slaughter. The comment 
stated that birds in strange cages or transport racks are not concerned 
about food. Several comments requested clarification on whether the 12-
hour time period included lairage at the slaughter facility.
    (Response) The 12-hour time period was recommended by the NOSB in 
their 2011 NOSB recommendation on Animal Handling and Transport to 
Slaughter. AMS has determined that the NOSB recommendation, which 
states that water and organic feed must be available if transport time 
exceeds 12 hours, is practical and humane. AMS's decision on transport 
time also aligns with several animal welfare organization positions. 
With regard to transporting poultry, one animal welfare organization 
has a 10-hour limit for broilers, and another has no specific time 
limit for broilers but recommends that animals are taken without delay 
to their destination. With regard to whether this time frame includes 
lairage at the slaughter facility, once livestock arrive at the 
slaughter facility, they must be handled in compliance with Sec.  
205.242(b)(1) for mammalian species or Sec.  205.242(c)(1) for avian 
species.
6. Twenty-Eight Hour Law
    (Comment) Several comments received stated that the Twenty-Eight 
Hour Law provides minimal protection for animals, excludes poultry, and 
is under-enforced by APHIS. Some comments stated that the law is out of 
date and inhumane, and they recommended that the proposed rule be 
amended to limit transport of organically raised animals (including 
poultry) without food, water, and rest to no more than eight hours. 
These comments further recommended that the USDA develop a specific 
inspection program to adequately ensure compliance with these 
transportation standards. One comment recommended that the Twenty-Eight 
Hour Law and the requirement regarding noncompliance records also apply 
to poultry. Even though this regulation currently excludes poultry, 
this comment noted that the NOP definition of livestock includes 
poultry and that the consumer expectation of meat carrying the organic 
label is that all livestock is subject to the same requirements. 
Another comment requested that the final rule provide a transport limit 
for poultry since it is not covered under any federal regulation.
    Certifying agents and other industry groups commented that Sec.  
205.242(a)(5)(i) does not clearly specify the regulation for which the 
noncompliance records and subsequent corrective actions must be 
provided. They suggested that this section, specifically Sec.  
205.242(a)(5)(ii), directly reference the Federal Twenty-Eight Hour Law 
(4 U.S.C. 80502) and the regulations at 9 CFR 89.1-89.5. In addition, 
one comment suggested that a ``Memorandum of Interview (MOI)'' be added 
for incidents related to the transport of poultry; noncompliance 
records are currently not issued for incidents involving poultry since 
the transport and slaughter of birds are not covered by any federal 
regulation.
    (Response) The intention of Sec. Sec.  205.242(a)(5)(i) and 
205.242(a)(5)(ii) in the proposed rule was to clarify the authority of 
the NOP, certifying agents,

[[Page 7077]]

and State organic programs to initiate compliance action if certified 
operations, or the transport operation that has been contracted by the 
certified operation to transport organic livestock, are found to have 
violated the Twenty-Eight Hour Law (49 U.S.C. 80502) and its 
regulations at 9 CFR 89.1-89.5. However, after consultation with APHIS, 
AMS has decided to remove reference to the Twenty-Eight Hour Law in the 
final rule. This is based upon the fact that common carriers are 
already subject to this law under APHIS. In addition, Sec.  
205.242(a)(5) provides that animals may not be transported for more 
than 12 consecutive hours without feeding and watering. This 
requirement is more stringent than the Twenty-Eight Hour Law. The USDA 
Animal and Plant Health Inspection Service (APHIS) can already take 
enforcement action based on the Twenty-Eight Hour Law and has standards 
for in-transit feed, water, and rest stations. Animals should be 
transported to the final destination in a manner that is not 
detrimental to the welfare of the animals. The role of Accredited 
Certifying Agents is to review transport times to verify that certified 
operations are in compliance with the 12 hour requirement and that the 
transport is not detrimental to the animal's welfare.
    Accordingly, after consultation with APHIS, AMS has decided to 
remove reference to the Twenty-Eight Hour Law in the final rule. The 
final rule has been amended accordingly.
7. Responsibility and Organic Integrity During Transport and/or at 
Auction Facilities
    (Comment) Several comments expressed concern over whose 
responsibility it is to maintain organic integrity/compliance with 
standards during transport. Some comments asserted that non-certified 
truckers would be responsible for compliance with bedding and feed 
requirements. One comment suggested adding language to the final rule 
to clarify that if animals are off-loaded during transport, the 
location must be certified if the animal is to retain organic status. 
One comment asked whether it is possible for organic livestock to 
maintain their organic status when they are kept at non-certified 
auction facilities while they are marketed and sold. The same comment 
asked whether the length of time the animal is at the facility or away 
from the original operation of origin and out of oversight of organic 
certification inspections impacts the organic status of the animal. One 
comment indicated that the proposed rule implies that the 
responsibility for compliance of transportation would fall back solely 
on the producer and that often it is the purchaser of the livestock (a 
broker or slaughter company for example) that would be paying for the 
transportation. This comment states that the entity who pays is the one 
with the most leverage to set requirements for transportation and 
obtain records that will verify practices. There is concern that the 
new requirements cannot be verified adequately without direct 
observation. The commenter suggested that Sec.  205.242(a)(5)(ii) and 
205.242(a)(6) be changed to specify that the operation responsible for 
documenting that transportation adequately meets the requirements is 
the certified operation that arranged the transport.
    (Response) The criteria for who is responsible for maintaining 
organic integrity and who has to be certified are provided in NOP 5031: 
Certification Requirements for Handling Unpackaged Organic Products 
Guidance and the NOP Instruction 4009: Who Needs to be Certified? Both 
documents can be found on the AMS Web site: https://www.ams.usda.gov/. 
An operation that handles bulk, unpackaged organic products (such as 
cattle, milk, or grain) must be certified organic. If animals are off-
loaded, the site or facility must be certified organic. Operations that 
are only transporting livestock, and whose handling practices are 
supervised and approved by the certified operation and their certifying 
agent, are not required to be certified. In this case, organic 
compliance is the responsibility of the certified operator who is 
responsible for the transportation and is verified by their certifier. 
AMS has changed Sec. Sec.  205.242(a)(5)(i) and 205.242(a)(6) to 
specify that the certified operation responsible for overseeing the 
transport of organic livestock is responsible for keeping verification 
records that demonstrate organic compliance during transport.

XI. Slaughter (Sec.  205.242(b) and (c))

A. Description of Regulations

1. Summary of the Final Rule
Slaughter and the Handling of Livestock in Connection With Slaughter
    The requirements with regard to slaughter and handling of livestock 
in connection with slaughter are governed by separate authority 
applicable to both certified organic and non-organic livestock 
products. The final rule reiterates that compliance with these 
regulations, as determined by FSIS, is required for certified organic 
livestock operations.
    New Sec.  205.242(b) regarding mammalian slaughter clarifies the 
authority of the NOP, certifying agents, and State organic programs to 
review records related to humane handling and slaughter issued by the 
controlling national, federal, or state authority, and records of any 
required corrective actions if certified operations are found to have 
violated FSIS regulations governing the humane handling of mammalian 
livestock in connection with slaughter (note that AMS has separated 
mammalian from avian slaughter requirements due to the differences in 
how mammalian and avian livestock are handled and slaughtered). This 
new section, titled ``Mammalian Slaughter,'' governs 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'' include 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 apply to all 
operations that slaughter these animals.
    New Sec.  205.242(b)(1) requires certified organic slaughter 
facilities to be in full compliance with the Humane Methods of 
Slaughter Act (HMSA) of 1978 (7 U.S.C. 1901 et seq.) and its 
implementing FSIS regulations, as determined by FSIS. The HMSA requires 
that humane methods be used for handling and slaughtering livestock and 
defines humane methods of slaughter. In the HMSA, Congress found ``that 
the use of humane methods in the slaughter of livestock prevents 
needless suffering; results in safer and better working conditions for 
persons engaged in the slaughtering industry; brings about improvement 
of products and economies in slaughtering operations; and produces 
other benefits for producers, processors, and consumers which tend to 
expedite an orderly flow of livestock and livestock products in 
interstate and foreign commerce.'' The HMSA is referenced in the FMIA 
at 21 U.S.C. 603 and is implemented by FSIS humane handling and 
slaughter regulations found at 9 CFR part 309 and 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

[[Page 7078]]

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, 
including prod use, slips and falls, stunning effectiveness, and 
incidents of egregious inhumane handling.\20\ The regulations at 9 CFR 
part 309 govern ante-mortem inspection and ensure that only healthy 
ambulatory animals are slaughtered and that non-ambulatory are 
euthanized and disposed of promptly. FSIS has a range of enforcement 
actions available regarding violations of the humane slaughter 
requirements for livestock, including noncompliance records, regulatory 
control actions, and suspensions of inspection.
---------------------------------------------------------------------------

    \20\ 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.\21\ 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.
---------------------------------------------------------------------------

    \21\ Humane Handling and Slaughter Requirements and the Merits 
of a Systematic Approach to Meet Such Requirements, FSIS, 69 FR 
54625, September 9, 2004.
---------------------------------------------------------------------------

    AMS added a new Sec.  205.242(b)(2) for those certified organic 
facilities that slaughter exotic animals and voluntarily request FSIS 
inspection. FSIS also provides, upon request, voluntary inspection of 
certain exotic animal species on a fee-for-service basis under the 
authority of the Agricultural Marketing Act of 1946. FSIS regulates the 
humane handling of the slaughter of exotic animals under the 
regulations at 9 CFR part 352.10, which require that exotic animals be 
slaughtered and handled in connection with slaughter in accordance with 
the requirements for livestock at 9 CFR part 309 and 9 CFR part 313. 
Violation of these regulations can result in a denial of service by 
FSIS.
    New Sec.  205.242(b)(3) requires that all certified organic 
slaughter facilities provide any FSIS noncompliance records or 
corrective action records relating to humane handling and slaughter to 
certifying agents during inspections or upon request. Not all 
violations of FSIS regulations result in a suspension of FSIS 
inspection services. In some cases, FSIS will issue a noncompliance 
record and the slaughter facility must perform corrective actions to 
bring the slaughter facility back into compliance. These records must 
be provided to certifying agents during inspection or upon request to 
verify that the slaughter facility is in full compliance and has taken 
all corrective actions. In addition, AMS recognizes that in the U.S. 
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 to certifying agents during 
the inspections or upon request.
Slaughter and the Handling of Poultry in Connection With Slaughter
    AMS added a new Sec.  205.242(c) regarding avian slaughter 
facilities. Section 202.242(c)(1) clarifies the authority of the NOP, 
certifying agents, and State organic programs to review noncompliance 
records related to the use of good manufacturing practices in 
connection with slaughter issued by the controlling national, federal, 
or state authority and records of subsequent corrective action if 
certified operations are found to have violated the Poultry Products 
Inspection Act (PPIA) requirements regarding poultry slaughter, 
violated the FSIS regulations regarding the slaughter of poultry, or 
failed to use good commercial practices in the slaughter of poultry, as 
determined by FSIS. Under the PPIA and the FSIS regulations, poultry 
are defined as chickens, turkeys, ducks, geese, guineas, ratites, and 
squabs. These species constitute the majority of avian species 
slaughtered for human food in the U.S. However, the organic standards 
for avian slaughter apply to all species biologically considered avian 
or birds. The NOSB did not directly address avian slaughter 
requirements. However, AMS added avian slaughter requirements for 
consistency with the new mammalian slaughter requirements and to 
provide consistent slaughter requirements for certified organic 
operations.
    While the HMSA does not apply to poultry, under the PPIA at 21 
U.S.C. 453(g)(5) a poultry product is considered adulterated if it is 
in whole, or in part, the product of any poultry which has died by 
other means than slaughter. FSIS regulations, in turn, require that 
poultry be slaughtered in accordance with good commercial practices in 
a manner that will result in thorough bleeding of the poultry carcass 
and will ensure that breathing has stopped before scalding (9 CFR 
381.65 (b)). Compliance with FSIS Directives 6100.3 and 6910.1, as 
determined by FSIS is required under the final rule.
    In a 2005 Federal Register Notice, FSIS reminded all poultry 
slaughter establishments that live poultry:

. . . must be handled in a manner that is consistent with good 
commercial practices, which means they should be treated humanely. 
Although there is no specific federal humane handling and slaughter 
statute for poultry, under the PPIA, poultry products are more 
likely to be adulterated if, among other circumstances, they are 
produced from birds that have not been treated humanely, because 
such birds are more likely to be bruised or to die other than by 
slaughter.\22\
---------------------------------------------------------------------------

    \22\ 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

[[Page 7079]]

handling them in a way that will cause death or injury, prevent 
thorough bleeding, or result in excessive bruising. Examples of 
noncompliant mistreatment could include breaking the legs of birds to 
hold the birds in the shackle, birds suffering or dying from heat 
exhaustion, and breathing birds entering the scalder.\23\ 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.\24\
---------------------------------------------------------------------------

    \23\ FSIS Directive 6100.3, Revision 1, Ante-Mortem and Post-
Mortem Poultry Inspection, April 30, 2009.
    \24\ FSIS Notice 07-15, Instructions for Writing Poultry Good 
Commercial Practices Noncompliance Records and Memorandum of 
Interview Letters for Poultry Mistreatment, January 21, 2015.
---------------------------------------------------------------------------

    New Sec.  205.242(c)(2) requires that all certified organic 
slaughter facilities provide, during the annual organic inspection, any 
FSIS noncompliance records and corrective action records related to the 
use of good manufacturing practices in the handling and slaughter of 
poultry in order to determine that slaughter facilities have addressed 
any outstanding FSIS noncompliances and are in good standing with FSIS. 
Not all violations of FSIS regulations result in a suspension of 
inspection services. In some cases, FSIS will issue a noncompliance 
record and the slaughter facility must perform corrective actions to 
bring the slaughter facility back into compliance. These records must 
be provided to the certifying agent at inspection or upon request to 
verify that the slaughter facility is operating in compliance with FSIS 
regulations and is addressing/has addressed all corrective actions. In 
addition, AMS recognizes that some poultry slaughter facilities in the 
U.S. 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 provided to the certifying agent during inspections or upon request.
    Unlike the requirements for livestock slaughter inspection, 
exemptions from poultry slaughter inspection exist for some poultry 
that is going to be sold to the public. AMS added 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.
    New Sec.  205.242(c)(3)(i) through (iii) require poultry slaughter 
operations that are either exempt or not covered by the requirements of 
the PPIA to meet the standards that non-exempt slaughter operations 
must meet. AMS included a requirement that no lame birds be hung on 
shackles by their feet. AMS also included a requirement that all birds 
that were hung or shackled on a chain or automated slaughter system be 
stunned prior to exsanguination. This requirement does not apply to 
small-scale producers who do not shackle the birds or use an automated 
system but who instead place the birds in killing cones before 
exsanguinating them without stunning. This requirement would not apply 
to ritual slaughter establishments (e.g., Kosher or Halal slaughter 
facilities), who are required to meet all the humane handling 
regulatory requirements except stunning prior to shackling, hoisting, 
throwing, cutting, or casting. New Sec.  205.242(c)(3)(iii) requires 
that all birds be irreversibly insensible prior to being placed in the 
scalding tank.
B. Discussion of Comments Received
1. Special Animal Welfare Requirements for Certified Organic Slaughter 
Facilities
    (Comment) Several comments stated that the organic standards should 
require that only organic animals are handled at a certified organic 
slaughter facility and that the organic standards should go above and 
beyond the FSIS requirements for humane slaughter. For example, 
comments recommended that there should be more severe sanctions if 
noncompliances related to animal welfare are repeated, that the NOP 
should train slaughter facility staff on the USDA organic regulations, 
that the organic standards should be as explicit as NOSB 
recommendations on slaughter, and that the standards include a 
recommended hierarchy identifying the most humane methods of slaughter 
for each species. Comments also requested that the organic requirements 
include more detailed language regarding humane and prohibited forms of 
euthanasia of non-ambulatory animals upon arrival at the slaughter 
facility. Several comments recommended adding to 205.242(b)(1): 9 CFR 
part 309 regarding ante-mortem inspection to ensure that only healthy 
ambulatory animals are slaughtered and that non-ambulatory animals are 
euthanized and disposed of promptly. This regulation has recently been 
updated to include veal calves.
    (Response) The USDA organic regulations provide for enforcement 
options that are implemented by the certifying agent when there are 
repeated violations of humane handling and slaughter regulations. AMS 
is not ranking allowed methods of slaughter for preference based on 
humane considerations as that would be challenging to enforce. AMS 
agrees with the suggestion to add reference to 9 CFR part 309 in the 
final rule in Sec. Sec.  205.242(b)(1) and 205.242(b)(2), which cover 
the requirements for the humane and prompt euthanizing and disposing of 
non-ambulatory animals at the slaughter facility. Additionally, AMS has 
determined that the FSIS regulations are sufficient for protecting 
animal welfare because they include many of the provisions recommended 
by the NOSB for livestock slaughter. Adding requirements beyond the 
FSIS regulations may be overly prescriptive for organic production. AMS 
will provide trainings on this regulation, which will be available to 
all interested parties, including certifying agents, organic producers, 
and handlers who would like further clarification on these 
requirements.
2. Inspectors Not Trained in FSIS Requirements
    (Comment) Several comments expressed concern over the requirement 
for organic inspectors to verify the mitigation of noncompliances found 
during FSIS inspections. The comments stated that inspectors do not 
have the expertise to determine if corrective actions to FSIS 
noncompliances are sufficient. Comments stated that verifying FSIS 
regulatory requirements is beyond the scope of organic certification 
and that this would place an unnecessary burden on inspectors and 
certifying agents. Other comments stated that FSIS personnel are 
specifically trained in identifying and responding to the PPIA and good 
commercial practice regulations, whereas certifying agents are not. 
They expressed concern that the new requirements for transporting 
livestock and poultry to sale or slaughter are redundant and 
unnecessary since FSIS already has regulations in place for slaughter. 
They assert that the duty of identifying and responding to 
noncompliance events remains exclusively under the oversight of trained 
FSIS personnel in order to protect the welfare of poultry during 
slaughter. In addition, several certifying agents were concerned that 
cross[hyphen]references to external statutes may render the organic 
standards obsolete and in need of future revision should

[[Page 7080]]

the external statutes significantly change. Comments cited the USDA 
organic standards cross-referencing of the EPA's List 4 of Inerts as an 
example. Comments recommended that AMS determine the specific elements 
of the cited laws they wish to incorporate into the standards and 
include generic language that reflect those requirements. Several 
comments recommended that there be trained inspectors dedicated 
exclusively to observing compliance (ideally daily or at least on a 
weekly rotating basis) with animal welfare conditions on site at all 
organic slaughter facilities, with particular attention at the point of 
slaughter.
    (Response) Through this final rule, AMS has established 
requirements that govern mammalian and avian species that are 
slaughtered by organic operations. Because these requirements are 
consistent with existing federal regulations for livestock slaughter, 
AMS expects that the organic producers and handlers will comply with 
these requirements. FSIS standards apply to organic and non-organic 
livestock, and FSIS is already carrying out inspections to this 
regulation. The role of the organic certifier/inspector is to verify 
whether FSIS has issued noncompliance records and if so, to verify that 
the certified operation has resolved or is working to revolve any FSIS 
noncompliances and is in good standing with FSIS. If not, the organic 
certifier is required to take appropriate enforcement action of organic 
rules under the USDA organic regulations. For example, if FSIS 
noncompliances have not been resolved, the certifying agent may issue a 
noncompliance to the certified facility to request verification that 
FSIS noncompliances have been resolved with FSIS as a condition for 
ongoing organic certification. Otherwise, this regulation would not 
change the current scope of the organic inspection of certified 
slaughter facilities. Organic inspectors are not required to know how 
to inspect slaughter facilities according to FSIS regulatory 
requirements and are not required to determine if corrective actions 
mitigate FSIS noncompliances.
    However, as with any inspection, inspectors need to be highly 
qualified in the type of operation they are inspecting. AMS conducts 
annual trainings for certifying agents and will ensure that FSIS issues 
are also covered during those trainings. AMS will provide guidance to 
certifiers (agents) and inspectors on issues that may need further 
clarification once this rule is in effect. Regarding cross-referencing 
other federal regulations, AMS has determined that this does not pose a 
significant risk as stated in the comments. The FSIS regulation may be 
amended over time, but it is less likely to become obsolete. 
Furthermore, AMS will ensure updates and trainings are provided when 
FSIS regulations or procedures change.
3. Vocalization Thresholds
    (Comment) One comment suggested that specific vocalization 
thresholds be included in the regulation, as provided in the 2011 NOSB 
recommendation and the Certified Humane Slaughter Standards. 
Vocalizations of livestock in slaughter facilities can be associated 
with animal distress and welfare problems in the plant. The NOSB 
recommended that: (1) No more than 3% of cattle vocalize as they move 
through the restrainer, stunning box, and stunning area; (2) no more 
than 5% of hogs squeal in the restrainer due to human provocation; (3) 
no more than 5% of livestock vocalize when a head holder is used during 
stunning or slaughter; and (4) no more than 1% of hogs vocalize due to 
hot wanding. Vocalization scoring, as suggested by the NOSB 
recommendation, could be used as an objective method for detecting 
welfare problems during slaughter since cattle and hogs will vocalize 
during handling if stressed, injured, or scared but they will not 
vocalize if calm. The percentages provided in the NOSB recommendation 
would indicate well-managed slaughter plants; skilled, careful 
handlers; adequate equipment design and condition, and calm animals.
    (Response) Facilities that meet the FSIS humane handling and 
slaughter requirements will ensure that animal distress during 
handling/slaughter is minimized, achieving the same impact as using 
vocalization threshold scoring. FSIS inspection program personnel 
verify compliance with the regulations at 9 CFR part 313 through the 
monitoring of many of the parameters recommended by the NOSB in 2011, 
including prod use, slips and falls, stunning effectiveness, and 
incidents of egregious inhumane handling. AMS did not feel that a 
change to the rule to include vocalization thresholds was warranted.
4. International Animal Welfare Requirements
    (Comment) Several comments asked how an established final rule 
would impact existing organic trade agreements, such as equivalency 
agreements and recognition agreements. For example, some comments 
highlighted specific provisions in the proposed rule that differ from 
established regulations in some foreign countries. Some of the comments 
questioned whether existing equivalency agreements would require 
renegotiation when the final rule becomes effective.
    (Response) When the USDA organic regulations are amended, the USDA 
follows a set of steps with respect to international trade agreements. 
Under equivalency arrangements, the USDA notifies the foreign country 
of any amended USDA organic regulation that may affect the terms of the 
existing equivalency determination. The foreign country reviews the 
information and may initiate discussion to determine whether 
renegotiation is needed. With recognition agreements, the certification 
bodies in the foreign country are accredited by the recognized foreign 
government authority to certify operations under the USDA organic 
regulations. As a result, the USDA notifies the foreign government of 
the amended USDA organic regulation, and the foreign government 
authority informs its accredited certification bodies of the amended 
regulation.
    (Comment) Comments were received regarding meat and poultry imports 
and how AMS will regulate livestock slaughter by certified organic 
operations in foreign countries. One comment provided country-specific 
recommendations regarding cattle transport and slaughter requirements. 
This comment recommended a modification of the new rules to stipulate 
that while cattle are in other countries that must adhere to state and/
or federal animal welfare standards, these countries must abide by the 
standards and guidelines prescribed in their domestic animal welfare 
standards for the transport and slaughter of livestock. Additionally, 
one comment indicated that U.S. certifiers are currently unequipped to 
verify compliance with these other rules/laws for producers outside of 
the U.S.
    (Response) Many facilities in other countries are already producing 
meat and poultry for the U.S. market that complies with FSIS export 
program requirements, regardless of whether the facility is certified 
organic. Certifying agents operating in countries outside of the U.S. 
are accredited by the USDA and will need to incorporate this final rule 
into their NOP certification programs. Foreign certifying agents will 
need to verify that livestock are being transported and handled 
according to the requirements of the final rule as well as FSIS 
equivalent programs. Noncompliance records related to these equivalent 
programs will be reviewed during annual organic certification

[[Page 7081]]

assessments and verified through annual organic inspections or upon 
request by the certifier. When noncompliances are observed by the 
appropriate authority under the FSIS equivalency program, the 
certifying agent will implement the necessary enforcement actions under 
the organic program, as applicable.
5. Humane Methods of Slaughter Act
    (Comments) Some comments received expressed concern that the 
proposed rule Sec.  205.242(b)(1) contains no reference to the Humane 
Methods of Slaughter Act (HMSA). Instead, it refers to the Federal Meat 
Inspection Act (which itself references the HMSA) and parenthetically 
to the FSIS regulations at 9 CFR part 313. Comments recommended that 
this omission be corrected to include a direct reference to the HMSA by 
name and citation and to clarify that the HMSA provides minimum 
standards. The same comments recommended that provisions from the 
National Organic Standards Board (NOSB) recommendations on transport 
and slaughter be added.
    (Response) The final rule requires certified organic slaughter 
facilities to be in full compliance with the Humane Methods of 
Slaughter Act (HMSA) of 1978 (7 U.S.C. 1901 et seq.) and its 
implementing FSIS regulations, as determined by FSIS. The HMSA requires 
that humane methods be used for handling and slaughtering livestock and 
defines humane methods of slaughter. 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, FSIS 
assigns 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)). 
The final rule references the FSIS regulation 9 CFR part 313 because 
the regulation clearly conveys how operators must comply with the HMSA 
Act.
6. Avian Slaughter
    (Comment) Several comments expressed concern that the proposed rule 
addresses avian slaughter, which is not covered by the Humane Methods 
of Slaughter Act (HMSA) and therefore is not currently governed by 
clearly defined humane standards. Other comments received state that 
the requirements of Sec.  205.242(c)(3) for organic poultry slaughter 
operations exempt from or not covered by the requirements of the PPIA--
which provide that no lame birds may be shackled, hung, or carried by 
their legs; that birds must be stunned prior to exsanguination; and 
that all birds must be irreversibly insensible prior to scalding--
should apply to all organic poultry slaughter, and that it is not clear 
from the language of the proposed rule that these same requirements 
apply to slaughter plants exempt from or not covered by the PPIA. 
Comments also stated that FSIS has not codified the contents of the 
``good manufacturing practices'' Directives 6100.3 and 6910.1. These 
comments argued that the avian slaughter section, as proposed, creates 
a discrepancy in which slaughter plants covered by the PPIA would 
implement less stringent requirements than those proposed for exempt/
non-covered plants under Sec.  205.242(c)(3). Several comments provided 
additional conditions for humane avian slaughter that should be 
incorporated into the final rule.
    (Response) Section 202.242(c)(1) clarifies 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. The NOSB did not directly address avian slaughter 
requirements. However, AMS is implementing avian slaughter requirements 
for consistency with the 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 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 that 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.'' 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. 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 employees are mistreating birds or handling them in a 
way that will cause death or injury, prevent thorough bleeding, or 
result in excessive bruising. AMS agrees with the suggestion to include 
reference to the FSIS Directives 6100.3 and 6910.1 in 205.242(c)(1) and 
has made this change in the final rule.
    (Comment) Some comments expressed concern that learning and 
enforcing FSIS rules could present an undue/unreasonable burden for 
certifiers and producers, especially for on-farm poultry processing. 
They request information on how a processor can prove they are in 
compliance with FSIS requirements and on how an operation slaughtering 
poultry on-farm under exemption can prove compliance with FSIS 
requirements.
    (Response) A certified organic operation must meet the requirements 
of the USDA organic regulation. Operations must be compliant with all 
regulations that impact products they produce. Certifying agents are 
not assessing compliance with other regulations but only verifying 
compliance through review and inspection of a certified operation's 
noncompliance records issued by the regulatory authority. This final 
rule recognizes that some operations are exempt from poultry slaughter 
inspection and proposed 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) prohibits 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.
    In addition, the final rule includes Sec. Sec.  205.242(c)(3)(i) 
through (iii) to require poultry slaughter operations that are either 
exempt or not covered by the requirements of the PPIA to meet animal 
welfare standards that non-exempt slaughter operations must meet. This 
final rule requires that no lame birds be hung on shackles by their 
feet and that all birds that were hung or shackled on a chain or 
automated slaughter system

[[Page 7082]]

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 but who instead place the birds in killing cones before 
exsanguinating them without stunning. This requirement would also not 
apply to ritual slaughter establishments (e.g., Kosher or Halal 
slaughter facilities), who are required to meet all the humane handling 
regulatory requirements except stunning prior to shackling, hoisting, 
throwing, cutting, or casting. Additionally, Sec.  205.242(c)(3)(iii) 
requires that all birds be irreversibly insensible prior to being 
placed in the scalding tank.
7. Religious Slaughter and Avian Slaughter by Exempt Operations
    (Comment) Several comments expressed concern that the rule may 
require that Kosher or Halal slaughter facilities use a stunning step 
prior to exsanguination. These comments indicated that the rule is not 
clear on whether the stunning requirement is mandatory for operations 
that are exempt from or not covered by the requirements of the Poultry 
Products Inspection Act. While this requirement is directed at 
processors operating under state inspection who do not fall under the 
USDA FSIS inspection requirements, designated religious slaughter 
facilities are exempt from certain aspects of the Poultry Products 
Inspection Act, necessitating additional clarity. One comment 
recommended that slaughter not be limited to stunning prior to 
exsanguination and include other methods, such as the hand slaughter of 
birds in killing cones by way of exsanguination. The comment suggested 
that this should apply to both small/exempt and large/non-exempt 
producers.
    (Response) Sections 205.242(c)(3)(i) through (iii) of the final 
rule requires that poultry slaughter operations that are either exempt 
or not covered by the requirements of the PPIA meet animal welfare 
standards that non-exempt slaughter operations must meet. Except as 
described below, the final rule requires that all birds that are hung 
or shackled on a chain or automated slaughter system be stunned prior 
to exsanguination. This requirement would not apply to handling 
operations, including small-scale exempt producers, that do not shackle 
the birds or use an automated system but that instead place the birds 
in killing cones, or use other methods, before exsanguinating the birds 
without stunning. This requirement would also not apply to ritual 
slaughter establishments (e.g., Kosher or Halal slaughter facilities), 
who are required to meet all the humane handling regulatory 
requirements except stunning prior to shackling, hoisting, throwing, 
cutting, or casting. Non-exempt operations must meet the requirements 
of PPIA.
8. Records
    (Comment) Several comments were received that suggested amending 
the term ``noncompliant records'' to ``noncompliance records'' in all 
relevant sections of 202.242 as this is the typical title of 
enforcement documents issued by the USDA Food Safety and Inspection 
Service (FSIS), as well as state departments of agriculture.
    (Response) AMS agrees that reference to ``noncompliant records'' 
should be ``noncompliance records'' and has made the necessary changes 
to all relevant sections of the final rule.
9. Scope of Inspection
    (Comment) One comment stated that, while the proposed rule proposes 
that sick, injured, weak, disabled, blind, and lame animals must not be 
transported for sale or slaughter, an organic producer can withdraw 
livestock from certification. Once this certification is withdrawn, 
certification agencies have limited authority to document a 
noncompliance. The comment requested clarification regarding the 
enforcement of this scenario.
    (Response) Only animals certified organic and identified/traceable 
as such during transport are subject to the requirements of this rule.
10. OIE Terrestrial Animal Health Code
    (Comment) One comment proposed that the organic animal welfare rule 
should be more consistent with the OIE Terrestrial Animal Health Code 
as it applies to transport and slaughter of organic livestock.
    (Response) The NOSB reviewed many regulatory references when 
developing its organic transport and slaughter recommendations. AMS 
considered OIE Terrestrial Animal Health Code but is not making changes 
based on the OIE Terrestrial Animal Health Code at this time. However, 
AMS may provide these standards to the NOSB for their consideration in 
the future.

XII. Executive Orders 12866 and 13563--Executive Summary

    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, reducing costs, harmonizing rules, and promoting flexibility. 
This rulemaking has been designated as an ``economically significant 
regulatory action'' under section 3(f) of Executive Order 12866, and, 
therefore, has been reviewed by the Office of Management and Budget 
(OMB).
    AMS is conducting this rulemaking to maintain consumer confidence 
in the USDA organic seal. This action is necessary to augment the USDA 
organic livestock production regulations with clear provisions to 
fulfill one purpose of the Organic Foods Production Act (OFPA) (7 
U.S.C. 6501-6522): To assure consumers that organically-produced 
products meet a consistent and uniform standard. OFPA mandates that 
detailed livestock regulations be developed through notice and comment 
rulemaking and intends for the involvement of the National Organic 
Standards Board (NOSB) 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 ruminant livestock, which 
partially addressed OFPA's objective for more detailed livestock 
standards. This rule extends that level of detail and clarity to all 
organic livestock and poultry, and would ensure that organic standards 
cover their entire lifecycle, consistent with recommendations provided 
by USDA's Office of Inspector General and nine separate recommendations 
from the NOSB.
    This rule adds requirements for the production, transport, and 
slaughter of organic livestock and poultry. The provisions for outdoor 
access and space for organic poultry production are the focal areas of 
this rule. Currently, organic poultry are required to have outdoor 
access, but this varies widely in practice. Some organic poultry 
operations provide large, open-air outdoor areas, while other 
operations provide minimal outdoor space or use screened and covered 
enclosures commonly called ``porches'' to meet outdoor access 
requirements. This variability perpetuates an uneven playing field 
among producers and sows consumer confusion about the meaning of the 
USDA organic label. This final rule will resolve the current ambiguity 
about outdoor access for poultry and address the wide disparities in 
production practices among the organic poultry sector. Greater clarity 
about the significance of the USDA organic seal in the marketplace will 
help to maintain

[[Page 7083]]

consumer confidence in the organic label, which drives the $43 billion 
in sales of organic products, and support a fair, viable market for 
producers who chose to pursue organic certification.
    The economic impact analysis describes the potential impacts for 
organic egg and broiler producers, because these types of operations 
will face additional production costs as a result of this rule, and the 
potential benefits of greater clarity in the requirements for organic 
poultry. The following provisions will require producers to incur costs 
to provide:
     Additional indoor space for broilers;
     Additional outdoor space for layers;
    To project costs, AMS assessed current, or baseline, conditions and 
considered how producers might respond to the above requirements. Based 
on public comment, NOSB deliberations and surveys of organic poultry 
producers, we determined that the indoor stocking density requirements 
for broilers and the outdoor access/stocking density requirements for 
layers drive the costs of this rule. For organic layers, the key factor 
affecting compliance is the availability of land to accommodate all 
birds at the required stocking density. We considered two potential 
scenarios of how producers would respond: (1) All affected organic egg 
producers make operational changes to comply with the rule and maintain 
current levels of production; or, (2), 50 percent of organic egg 
operations move to the cage-free market because they choose to leave 
the organic market. Based on public comment, AMS assumed that organic 
broiler producers would build new facilities to maintain their current 
production level and remain in the organic market. In this analysis, 
AMS accounts for costs that accrue to legacy producers and new 
entrants; the full compliance costs recur annually and are included in 
the total. Legacy producers are producers who decided to go into the 
organic business with no knowledge of the costs that would be imposed 
by this rulemaking. Costs do not accrue until this rule is fully 
implemented, i.e., three years after publication for broiler producers 
and five years after publication for layer producers.
    In summary, AMS estimates that production costs will range between 
$8.2 million to $31 million annually. This range spans three producer 
response scenarios, which are summarized in the table below.
     We estimate that the annualized costs for organic broiler 
and egg producers are $28.7 to $31 million (over 15 years), if all 
certified organic egg production in 2022 complies with this rule and 
all certified organic broiler production in 2020 complies with this 
rule. The timeframe corresponds to the end of the implementation period 
for the outdoor access requirements for layers and indoor space 
requirements for broilers. In this scenario, the potential reduced feed 
efficiency and increased mortality from greater outdoor access are the 
key variables that impact costs for layers.
     We estimate the annualized costs for organic broiler and 
organic egg production is $11.7 to $12.0 million if 50 percent of 
organic egg production in 2022 transitions to the cage-free egg market. 
Under the latter scenario, the shift would also result in foregone 
profits of nearly $80 to $86 million (annualized) for production that 
moves from organic to cage-free egg production. (Because foregone 
revenues are not a direct cost of compliance with the rule, they are 
totaled separately from estimated compliance costs). In this scenario, 
the difference in price between organic and cage-free eggs accounts for 
the transfer impact.
     We estimate the annualized costs for organic broiler and 
organic egg production is $8.2 million if 50 percent of organic egg 
production in 2022 transitions to the cage-free egg market and 
producers who cannot comply with the rule do not enter organic 
production during the implementation timeframe.
     In the above scenarios, we estimate the annualized costs 
for organic broiler production account for $3.5 million to $4.0 million 
of the above totals. This reflects costs to build additional housing 
for more space per bird to meet the indoor stocking density 
requirement.
    This rule will have broad, important benefits for the organic 
sector as a whole which are difficult to quantify. Clear and consistent 
standards, which more closely align to consumer expectations, are 
essential to sustaining demand and supporting the growth of the $43 
billion U.S. organic market. Clear parameters for production practices 
will ensure fair competition among producers by facilitating equitable 
certification and enforcement decisions.
    To monetize the benefits of this rule, AMS used research that has 
measured consumers' willingness to pay for outdoor access between $0.21 
and $0.49 per dozen eggs. Based on this, AMS estimates that the 
annualized benefits would range between $4.1 million to $49.5 million 
annually. The range in benefits accounts for several producer response 
scenarios, which correspond to those described above for the cost 
estimates.
    In the Regulatory Flexibility Analysis, we report that large 
poultry operations would have significantly higher compliance costs 
than small operations on average. Larger organic layer operations, in 
particular, will have demand greater land areas for outdoor access.
    AMS estimates that business revenues for small organic layer 
operations are $736 million, or about $1.03 million per firm. For small 
egg producers, business revenues would need to be less than $867,000 to 
$967,000 per firm for the rule to cost more than 3% of revenue. The 
estimated business revenue is calculated from the projected organic egg 
production from small producers using AMS Market News data on the U.S. 
organic layer population, estimated lay rate of 308 eggs/hen/year and 
the wholesale price for organic eggs $2.83/dozen (AMS Market News).
    A summary of the estimated costs and benefits associated with this 
rule is provided in Table A.

                  Table A--Summary of Benefits, Costs, and Distributional Effects of Final Rule
----------------------------------------------------------------------------------------------------------------
                                                                      Costs,         Benefits,      Transfers,
         Assumed conditions              Affected population       millions \a\      millions        millions
----------------------------------------------------------------------------------------------------------------
All producers remain in organic      Organic layer and organic       $28.7-$31.0     $16.3-$49.5             N/A
 market; Organic layer and broiler    broiler production at full
 populations continue historical      implementation of rule,
 growth rates after rule.             i.e., 2022 for layers;
                                      2020 for broilers.
50% of organic layer production in   Organic layer and organic       $11.7-$12.0      $4.5-$13.8     $79.5-$86.3
 year 6 (2022), moves to the cage-    broiler production at full
 free market. Organic layer and       implementation of rule,
 broiler populations continue         i.e.,  2022 for layers;
 historical growth rates after rule.  2020 for broilers.

[[Page 7084]]

 
50% of current organic layer         Current organic layer                  $8.2      $4.1-$12.4     $45.6-$49.5
 production moves to the cage-free    production; organic
 market in year 6 (2022). There are   broiler production at full
 no new entrants after publication    implementation of rule in
 of this rule that cannot comply.     2020.
----------------------------------------------------------------------------------------------------------------
    Other impacts: Estimated paperwork burden: $3.9 million.....................................................
----------------------------------------------------------------------------------------------------------------
\a\ All values in the costs, benefits and transfers columns of this table are annualized and discounted at 3%
  and 7% rates.

XIII. Retrospective Analysis

    Within 3-5 years of full implementation, the Administrator shall 
conduct and make publicly available a retrospective analysis of the 
impacts of this rulemaking. This analysis will include a retrospective 
evaluation of the benefits, costs and transfers of the rule, along with 
a comparison of these impacts to the prospective estimates contained in 
this final regulatory impact analysis. The retrospective analysis 
should include consideration of factors such as: The impacts on exit 
and entry of affected entities; market shares of affected entities, as 
well as market competition and concentration; the impacts on the number 
of producers participating in the organic program; impacts on organic 
egg production volume, impacts on secondary (e.g., feed/grain) markets; 
impacts on supply and price of eggs; and impacts on consumer 
understanding. An opportunity for public comment on this analysis will 
be provided.

XIV. 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 final rule 
cannot be applied retroactively.
    States and local jurisdictions are preempted under the OFPA from 
creating programs of accreditation for private persons or State 
officials who want to become certifying agents of organic farms or 
handling operations. A governing State official would have to apply to 
USDA to be accredited as a certifying agent, as described in 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 final rule would not 
alter the authority of the Secretary under the Federal Meat Inspection 
Act (21 U.S.C. 601-624), the Poultry Products Inspection Act (21 U.S.C. 
451-471), or the Egg Products Inspection Act (21 U.S.C. 1031-1056), 
concerning meat, poultry, and egg products, nor any of the authorities 
of the Secretary of Health and Human Services under the Federal Food, 
Drug and Cosmetic Act (21 U.S.C. 301-399), 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.

XV. Executive Order 13175

    This final 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 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.

XVI. Paperwork Reduction Act

A. Summary

    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 131,683 hours for the reporting and recordkeeping 
requirements contained in this final 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 in this voluntary labeling program. 
The OFPA, as amended, provides authority for this action.
    Title: National Organic Program: Organic Livestock and Poultry 
Practices.
    OMB Control Number: 0581-0293.
    Expiration Date of Approval: 3 years from OMB date of approval.
    Type of Request: New collection.
    Abstract: Information collection and recordkeeping is necessary to 
implement reporting and recordkeeping necessitated by amendments to

[[Page 7085]]

Sec. Sec.  205.238, 205.239, 205.241, 205.242 and 205.290 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 this final rule, organic livestock operations are subject to 
additional reporting requirements. The amendments to Sec. Sec.  
205.238, 205.239, 205.241, 205.242, and 205.290 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 requirements, outdoor 
access, and utilization of 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 final rule does not significantly 
increase the recordkeeping burden on certifying agents.
    Reporting and recordkeeping are essential to the integrity of the 
organic certification system. A clear paper trail is a critical tool 
for verifying that practices meet the mandate of OFPA and the USDA 
organic regulations. The information collected supports the AMS 
mission, program objectives, and management needs by enabling us to 
assess the efficiency and effectiveness of the NOP. The information 
also affects decisions because it is the basis for evaluating 
compliance with OFPA and USDA organic regulations, administering the 
NOP, establishing the cost of the program, and facilitating management 
decisions and planning. It also supports administrative and regulatory 
actions to address noncompliance with OFPA and USDA organic 
regulations.
    This information collection is only used by the certifying agent 
and authorized representatives of USDA, including AMS and NOP staff. 
Certifying agents, including any affiliated organic inspectors, and 
USDA are the primary users of the information.
Respondents
    AMS identified three types of entities (respondents) that will 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: 
(i) the number of respondents; (ii) the hours they spend, annually, 
completing the paperwork requirements of this labeling program; and, 
(iii) the costs of those activities.
    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 79 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, 205.242, and 205.290.
    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 production systems. AMS estimates the annual collection cost per 
certifying agent will be $3,053.27. This estimate is based on an 
estimated 91.8 labor hours per year at $33.26 per hour for a total 
salary component of $3,053.27 per year. This value is assumed to be an 
underestimate as the certifying agent bears a portion of the burden of 
the inspector and certifying agents employ varying numbers of 
inspectors. The source of the hourly rate is the May 2015 National 
Occupational Employment and Wage Estimates, United States, published 
annually by the Bureau of Labor Statistics. The rate is the mean hourly 
wage for compliance officers (occupation code 13-1041). This 
classification was selected as an occupation with similar duties and 
responsibilities to that of a certifying agent.\25\
---------------------------------------------------------------------------

    \25\ 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 2015, 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. 
The USDA organic regulations call for certified operations to 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 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 their current timeframe (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

[[Page 7086]]

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 
$6,760. This estimate is based on an estimated 321 additional labor 
hours per year at $21.06 per hour for a total salary component of 
$6,760 per year. The source of the hourly rate is the May 2015 National 
Occupational Employment and Wage Estimates, United States, published 
annually by the Bureau of Labor Statistics. The rate is the mean hourly 
wage for agricultural inspectors (occupation code 45-2011).\26\
---------------------------------------------------------------------------

    \26\ Agricultural Inspectors inspect agricultural commodities, 
processing equipment, and facilities, and fish and logging 
operations, to ensure compliance with regulations and laws governing 
health, quality, and safety. Bureau of Labor Statistics, 
Occupational Employment and Wages, May 2015, 45-2011 Agricultural 
Inspectors.
---------------------------------------------------------------------------

    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 produce or 
transport livestock 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 final rule describes the additional 
information (Sec. Sec.  205.238, 205.239, 205.241, 205.242, and 
295.290) 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 five years (Sec.  205.103(b)(3)).
    AMS used the Organic Integrity Database to estimate the number of 
livestock operations that would be affected by this action.\27\ 
According to that source, AMS estimates that 4,844 currently certified 
foreign and domestic livestock operations will be subject to the 
amendments at Sec. Sec.  205.238, 205.239, 205.240, 205.241, 205.242, 
and 205.290. To estimate the number of livestock operations that will 
apply for and become certified on an annual basis, AMS assumed that 
this would be proportional to the estimated annual increase in 
certified operations (350). Therefore, AMS estimates that there will be 
69 new certified organic livestock operations annually.
---------------------------------------------------------------------------

    \27\ NOP 2016 List of certified USDA organic operations. 
Available at the USDA National Organic Program Organic Integrity 
Database, http://apps.ams.usda.gov/nop/.
---------------------------------------------------------------------------

    AMS estimates the annual collection and recordkeeping costs per 
organic livestock producer to be $559.45. This estimate is based on an 
estimated 16.65 labor hours per year at $33.60 per hour for a total 
salary component of $559.45 per year. AMS estimates that as producers 
adapt to the requirements introduced by the amendments at Sec. Sec.  
205.238, 205.239, 205.241, 205.242, and 205.290, the number of labor 
hours per year for currently certified operators will decrease. The 
source of the hourly rate is the May 2015 National Occupational 
Employment and Wage Estimates, United States, published annually by the 
Bureau of Labor Statistics. The rate is the mean hourly wage for 
farmers, ranchers and other agricultural managers (occupation code 11-
9013).\28\ 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.
---------------------------------------------------------------------------

    \28\ Farmers, Ranchers, and Other Agricultural Managers plan, 
direct, or coordinate the management or operation of farms, ranches, 
greenhouses, aquacultural operations, nurseries, timber tracts, or 
other agricultural establishments. Excludes ``First-Line Supervisors 
of Farming, Fishing, and Forestry Workers'' (45-1011).
---------------------------------------------------------------------------

Reporting Burden
    Estimate of Burden: Public reporting burden for the collection of 
information is estimated to be 20.3 hours per year.
    Respondents: Certifying agents, inspectors, and certified livestock 
operations.
    Estimated Number of Respondents: 5,117.
    Estimated Number of Responses: 42,522.
    Estimated Total Annual Burden on Respondents: 104,124 hours.
    Total Cost: $2,992,895.
    Recordkeeping Burden
    Estimate of Burden: Public recordkeeping burden is estimated to be 
an annual total of 5.18 hours per respondent.
    Respondents: Livestock operations (including exempt operations).
    Estimated Number of Respondents: 5,396.
    Estimated Total Annual Burden on Respondents: 27,954 hours.
    Total Cost: $939,240.
    Grand Total of Reporting, Training & Recordkeeping Costs: 
$3,932,134
    Comments: For the proposed rule, AMS invited 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 were 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.

B. Discussion of Comments Received

    AMS received a total of 6,675 written comments on the proposed 
rule, which addressed the proposed requirements for organic livestock 
production practices. AMS received 12 comments that addressed the 
information collection and recordkeeping burden estimates; two of these 
comments were duplicative. AMS did not make changes based on comments 
for several reasons. AMS received eight comments specifically objecting 
to the recordkeeping requirements, relative to the population of 
respondents. AMS expects that this is because this rule refers to 
specific, narrow documentation requirements that are already within the 
scope of the general recordkeeping requirements for organic producers 
and the components of an organic system plan. Specifically, such 
records fully disclose all activities in sufficient detail to be 
readily understood and audited and be sufficient to demonstrate 
compliance with the USDA organic regulations (7 CFR 205.103); and that 
an organic system plan must contain a description of practices and 
procedures to be performed, and monitoring

[[Page 7087]]

practices to ensure the plan implemented (7 CFR 205.201). AMS believes, 
and some comments support this conclusion, that many organic producers 
already maintain the records that are specified in this rule as part of 
their organic system plans. In addition, AMS understands that numerous 
organic livestock producers also participate in third-party animal 
welfare certification programs and would likely maintain records 
concerning animal health/condition to participate in those programs. 
The comments to the questions posed in the proposed rule concerning 
reporting and recordkeeping requirements and AMS's responses are 
described below.
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
    (Comment) While stating their support for more specific standards 
regarding the care of poultry and livestock in organic operations, four 
out of the ten comments expressed concerns about the specific records 
that would be required to document how animal illness and injury would 
be prevented and treated. In particular, these comments stated that 
body condition scoring and monitoring the causes and treatments of 
lameness as well as having a parasite management strategy and a written 
plan for the use of euthanasia was too prescriptive. One comment 
indicated that providing written justification for the use of teeth 
trimming and tail docking in pigs on a per litter basis would be 
burdensome while another comment was concerned about needing to 
document every instance of indoor confinement of poultry.
    One comment indicated that quantifiable measures in the 2012 
pasture rule had not necessarily increased consistency in 
interpretation or implementation by certifying agents or producers. 
This comment also noted that the prescriptive requirements and 
quantifiable measures in this new regulation would burden producers and 
certifying agents. The comment contends that this recordkeeping burden 
would lessen time for producers to perfect solutions on their operation 
and increase certifying agent and inspector focus on paper trail rather 
than assessing the livestock system as a whole.
    (Response) Recordkeeping is a core principle of the organic program 
and an important tool for producers to demonstrate, and certifying 
agents to verify, compliance with the regulations. We believe that the 
requirements which specify specific documentation are minimal and are 
essential for verifying the rule is being implemented successfully.
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
    (Comment) Two of the ten comments questioned the validity of the 
$3000.94 estimate of their annual costs, stating that it underestimated 
the direct labor hours that will be necessary to implement the new 
requirements. These comments spoke to the need for new forms, extensive 
training for personnel and certified operations, and processing 
additional compliance-related correspondence after the rule takes 
effect.
    One comment estimated that each livestock file would require an 
additional 1-hour review which would amount to about 900 direct labor 
hours annually for this entity; this estimate is higher than the 
proposed rule estimate of 91.8 hours as an average for all certifying 
agents. Consequently, the comment stated that the additional annual 
labor costs would be $27,000 at $30 per hour. Alternatively, this 
comment expects most of their livestock operation inspections to 
require only one additional hour to inspect rather than the AMS 
estimate of three hours of additional inspection time per operation in 
the proposed rule. Whether the inspection takes one or three hours to 
verify these new requirements, the comments acknowledged that it is the 
client operations that will ultimately absorb the increased costs of 
inspections, and they will need time to prepare.
    One comment from a certifying agent included a survey of its 
certified operations to determine if the records described in the 
proposed rule are necessary to enforce compliance with the standards. 
Overall, their clients (74.5 percent) reported that additional records 
are not needed with the largest group (40.1 percent) responding that 
they already keep more records than would be needed to enforce 
compliance. While a smaller proportion (25 percent) of their clients 
said that the records are needed to enforce compliance, the largest 
portion of that group of responders (21.8 percent) feel more records 
will be needed. The certifying agent also asked their clients to 
estimate how much additional time would be spent maintaining records 
with 89.3 percent stating somewhere between 1-40 hours annually. A much 
smaller portion expected to spend more than 40 hours per year 
maintaining records. In conclusion, the certifying agent acknowledged 
the difficulties with accurately estimating the labor hours that will 
be needed to establish and maintain the records, and affirmed that some 
requirements will be met through the current records already kept.
    (Response) The estimates of total recordkeeping and reporting 
burden are average per-operation estimates based on the number of 
operations and animals across the whole industry. A certifying agent 
with a large number of livestock and poultry operation clients will 
have larger annual respective costs.
    Describing the illness and injury prevention and treatment 
strategies in writing with useful monitoring and recordkeeping systems 
unique to the needs, species, and breeds of each operation in an 
organic system plan will require an initial investment of labor that 
may need to be absorbed. In actuality, these prevention strategies and 
monitoring systems should already be in place at least informally.
    Based on one certifying agent's query, 75 percent of their client 
operations are already keeping the necessary records. The majority of 
the operations that reported the need for more recordkeeping reported 
that they see them as necessary, and one hour per week (greater than 40 
hours annually) was the most direct labor hours reported by a small 
percentage of the certified operations queried. The query did not ask 
certified operations whether or not they perceived the necessary 
records as a burden. These recordkeeping systems should become routine 
over time and help operations become more efficient, thus reducing 
their management burden. The regulation provides marketplace assurance 
through verification.
3. Ways To Enhance the Quality, Utility, and Clarity of the Information 
To Be Collected
    (Comment) One certifying agent affirmed that assessing the 
condition of the animals as well as the dietary rations provided is 
needed. This comment noted that a broad, integrated approach that 
observed the overall wellness of the animals was more appropriate. 
Indicators of poor health could be flagged without requiring the 
systemized use of body condition scoring.
    A Land Grant College that works with smaller scale farmers through 
their extension services expressed general concern that some small 
farmers may no longer choose to be certified organic due to the costs 
and burdens of

[[Page 7088]]

recordkeeping. The organization perceived a duplication in reporting 
requirements being imposed on organic livestock operations. The comment 
also noted that the recordkeeping required to document food safety, 
labor, and environmental compliance has been increasing exponentially 
in recent decades as well, and is exacerbating the recordkeeping burden 
of farmers of all scales.
    (Response) We agree that a broad integrated approach which observes 
the overall wellness of the animals, flags indicators of poor health, 
and scores body condition is important. Using a consistent 
recordkeeping system within an operation is more important than all 
operations using the same system, although it may be more efficient for 
inspectors if all certifying agents voluntarily select the same system.
    AMS is not seeking to collect and compare data from one operation 
to another, or from one certifying agent to another. Body condition 
scoring is considered a low-cost, hands-on, internally consistent 
method to assess and monitor the condition of individual animals, 
herds, or flocks. Using a body scoring system is more accurate and 
efficient than relying on memory about animals' respective conditions, 
and helps producers identify the need for treatment or intervention. In 
addition, certifying agents should make every effort to be sure their 
recordkeeping requirements are not duplicative and coordinate with the 
requirements of other standards, where possible, that are outside of 
the direct scope of AMS.
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
    (Comment) Three commenters requested that AMS provide monitoring 
form templates, training, and other resources in producer-friendly 
language and format, especially for body condition scoring. One 
certifying agent requested that we provide the tables that show the 
original rule language side-by-side with the final rule changes as a 
separate document for use in outreach materials and training.
    A Land Grant College offered that they were likely to prepare new 
tools and templates to assist organic farmers with monitoring and 
recording lameness in individual animals. This comment also noted that 
new records would be needed to document when animals are restricted 
from outdoor access due to temperature fluctuations within the ranges 
specified in the rule.
    (Response) AMS is considering developing tools to assist producers 
and certifying agents, especially for body condition scoring. These 
optional resources will be available on the NOP Web-site. AMS also 
plans to offer four regional trainings for producers and certifying 
agents--most likely in Pennsylvania, Iowa, California, and Texas. Other 
agricultural extension services and agents, the Natural Resources 
Conservation Service, and other Federal, state, and nonprofit 
organizations have tools and resources for monitoring animal health and 
living conditions that can be adapted.

XVII. Civil Rights Impact Analysis

    AMS has reviewed this final 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 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 action 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 
amended as follows:

PART 205--NATIONAL ORGANIC PROGRAM

0
1. The authority citation for part 205 continues to read as follows:

    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 or indoor space'', 
``Mulesing'', ``Non-ambulatory'', ``Outdoors or outdoor space'', 
``Perch'', ``Pullets'', ``Religious slaughter'', ``Soil'', ``Stocking 
density'', ``Toe clipping'', and ``Vegetation'' in alphabetical order 
to read as follows:


Sec.  205.2   Terms defined.

* * * * *
    Beak trimming. The removal of not more than one-quarter to one-
third of the upper beak or the removal of one-quarter to one-third of 
both the upper and lower beaks of a bird in order to control injurious 
pecking and cannibalism.
* * * * *
    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 one-third of the upper beak or 
removal

[[Page 7089]]

of more than one-third of both the upper and lower beaks of a bird.
    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 or indoor space. The space inside of an enclosed building 
or housing structure available to livestock. Indoor space for avian 
species includes, but is not limited to:
    (1) Mobile housing. A mobile structure for avian species with solid 
or perforated flooring that is moved regularly during the grazing 
season.
    (2) Aviary housing. A fixed structure for avian species that has 
multiple tiers or levels.
    (3) Slatted/mesh floor housing. A fixed structure for avian species 
that has both: (1) A slatted floor where perches, feed, and water are 
provided over a pit or belt for manure collection; and
    (ii) Litter covering the remaining solid floor.
    (4) Floor litter housing. A fixed structure for avian species that 
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 away from the anus to the 
hock to prevent fly strike.
* * * * *
    Non-ambulatory. As defined in 9 CFR 309.2(b).
* * * * *
    Outdoors or outdoor space. Any area outside an enclosed building or 
enclosed housing structure, including roofed areas that are not 
enclosed. Outdoor space for avian species includes, but is not limited 
to:
    (1) Pasture pens. Floorless pens, with full or partial roofing, 
that are moved regularly and provide direct access to soil and 
vegetation.
    (2) [Reserved]
* * * * *
    Perch. A rod or branch type structure above the floor of the house 
that accommodates roosting, allowing birds to utilize vertical space in 
the house
* * * * *
    Pullets. Female chickens being raised for egg production that have 
not yet started to lay eggs.
* * * * *
    Ritual slaughter. Slaughtering in accordance with the ritual 
requirements of the Jewish faith or any other religious faith that 
prescribes a method of slaughter whereby the animal suffers loss of 
consciousness by anemia of the brain caused by the simultaneous and 
instantaneous severance of the carotid arteries with a sharp instrument 
and handling in connection with such slaughtering.
* * * * *
    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 area or unit of 
land.
* * * * *
    Toe clipping. The removal of the nail and distal joint of the back 
two toes of a bird.
* * * * *
    Vegetation. Living plant matter that is anchored in the soil by 
roots and provides ground cover.
* * * * *

0
3. Section 205.238 is revised to read as follows:


Sec.  205.238   Livestock care and production practices 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, proteins 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 of 
the animals, for identification purposes, or for safety purposes. 
Physical alterations must be performed on livestock at a reasonably 
young age, with minimal stress and pain and by a competent person.
    (i) The following practice may not be routinely used and must be 
used only with documentation that alternative methods to prevent harm 
failed: Needle teeth clipping (no more than top one-third of the tooth) 
in pigs and tail docking in pigs.
    (ii) The following practices are prohibited: De-beaking, de-
snooding, caponization, dubbing, toe clipping of chickens, toe clipping 
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 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.
    (8) Monitoring of lameness and keeping records of the percent of 
the herd or flock suffering from lameness and the causes. Certified 
operations may monitor lameness in a manner prescribed by the NOP.
    (b) Producers may administer medications that are allowed under 
205.603 to alleviate pain or suffering, and when preventive practices 
and veterinary biologics are inadequate to prevent sickness. 
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; and
    (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.
    (c) An organic livestock operation must not:
    (1) Sell, label, or represent as organic any animal or 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 cannot be sold as organic but 
may be fed to calves on the same operation. Milk from animals 
undergoing treatment with prohibited substances cannot be sold as 
organic or fed to organic livestock.
    (2) Administer synthetic medications unless:
    (i) In the presence of illness or to alleviate pain and suffering, 
and
    (ii) That such medications are allowed under Sec.  205.603.
    (3) Administer hormones for growth promotion, production, or 
reproduction, except as provided in Sec.  205.603.
    (4) Administer synthetic parasiticides on a routine basis.
    (5) Administer synthetic parasiticides to slaughter stock.

[[Page 7090]]

    (6) Administer animal drugs in violation of the Federal Food, Drug, 
and Cosmetic Act; or
    (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; manual blow to the head by blunt instrument or manual 
blunt force trauma; 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 wellbeing and natural behavior of animals, including:
    (1) Year-round access for all animals to the outdoors, 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. 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) Appropriate clean, dry bedding. When roughages are used as 
bedding, they shall have been organically produced in accordance with 
this part by an operation certified under this part, except as provided 
in Sec.  205.236(a)(2)(i), and, if applicable, organically handled by 
operations certified to the NOP.
    (4) Shelter designed to allow for:
    (i) Over a 24-hour period, sufficient space and freedom to lie 
down, turn around, stand up, fully stretch their limbs, 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) If indoor housing is provided, 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-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 until 
completion of the weaning process but no later than 6 months of age, 
provided 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.
    (8) Swine must be housed in a group, except:
    (i) Sows may be housed individually at farrowing and during the 
suckling period;
    (ii) Boars; and
    (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) For swine, rooting materials must be provided, except during 
the farrowing and suckling period.
    (11) In confined housing with stalls for mammalian livestock, 
enough stalls must be present to provide for the natural behaviors of 
the animals. 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. For group-housed cattle, bedded packs, compost packs, tie-
stalls, free-stalls, and stanchion barns are all acceptable housing as 
part of an overall organic system plan.
    (12) Outdoor space must be provided year-round. When the outdoor 
space includes soil, maximal vegetative cover must be maintained as 
appropriate for the season, climate, geography, species of livestock, 
and stage of production.
    (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, however, 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: Except, that, 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 at 
the conclusion of the event. These animals must have been maintained 
under continuous organic management, including organic feed,

[[Page 7091]]

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) The producer of an organic poultry operation must establish and 
maintain year-round poultry living conditions that 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 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) Poultry housing must be sufficiently spacious to allow all 
birds to move freely, stretch their wings, stand normally, and engage 
in natural behaviors.
    (2) Producers must monitor ammonia levels at least monthly and 
implement practices to maintain ammonia levels below 10 ppm. When 
ammonia levels exceed 10 ppm, producers must implement additional 
practices and additional monitoring to reduce ammonia levels below 10 
ppm. Ammonia levels must not exceed 25 ppm.
    (3) For layers and fully feathered birds, artificial light may be 
used to prolong the day length, to provide up to 16 hours of continuous 
light. 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.
    (4) Exit areas--poultry houses must have sufficient exit areas that 
are appropriately distributed to ensure that all birds have ready 
access to the outdoors.
    (5) Perches--for layers (Gallus gallus), six inches of perch space 
must be provided per bird. Perch space may include the alighting rail 
in front of the nest boxes. All layers must be able to perch at the 
same time except for aviary housing, in which 55 percent of layers must 
be able to perch at the same time.
    (6) All birds must have access to areas in the house that allow for 
scratching and dust bathing. Litter must be provided and maintained in 
a dry condition.
    (7) Houses 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.
    (8) For layers (Gallus gallus), indoor stocking density must not 
exceed (live bird weight):
    (i) Mobile housing: 4.5 pounds per square foot.
    (ii) Aviary housing: 4.5 pounds per square foot.
    (iii) Slatted/mesh floor housing: 3.75 pounds per square foot.
    (iv) Floor litter housing: 3.0 pounds per square foot.
    (v) Other housing: 2.25 pounds per square foot.
    (9) For pullets (Gallus gallus), indoor stocking density must not 
exceed 3.0 pounds of bird per square foot.
    (10) For broilers (Gallus gallus), indoor stocking density must not 
exceed 5.0 pounds of bird per square foot.
    (11) Indoor space includes flat areas available to birds, excluding 
nest boxes.
    (12) Indoor space may include enclosed porches and lean-to type 
structures (e.g. screened in, roofed) as long as the birds always have 
access to the space, including during temporary confinement events. If 
birds do not have continuous access to the porch during temporary 
confinement events, this space must not be considered indoors.
    (c) Outdoor space requirements--
    (1) Access to outdoor space 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 (i.e., train) birds to go outdoors. Birds may be temporarily 
denied access to the outdoors in accordance with Sec.  205.241(d).
    (2) At least 50 percent of outdoor space must be soil. Outdoor 
space with soil must include maximal vegetative cover appropriate for 
the season, climate, geography, species of livestock, and stage of 
production. Vegetative cover must be maintained in a manner that does 
not provide harborage for rodents and other pests.
    (3) Shade may be provided by structures, trees, or other objects in 
the outdoor area.
    (4) For layers (Gallus gallus), outdoor space must be provided at a 
rate of no less than one square foot for every 2.25 pounds of bird in 
the flock.
    (5) For pullets (Gallus gallus), outdoor space must be provided at 
a rate of no less than one square foot for every 3.0 pounds of bird in 
the flock.
    (6) For broilers (Gallus gallus), outdoor space must be provided at 
a rate of no less than one square foot for every 5.0 pounds of bird in 
the flock.

[[Page 7092]]

    (7) Outdoor space may include porches and lean-to type structures 
that are not enclosed (e.g. with roof, but with screens removed) and 
allow birds to freely access other outdoor space.
    (d) The producer of an organic poultry operation may temporarily 
confine birds. Confinement must be recorded. Operations may temporarily 
confine birds when one of the following circumstances exists:
    (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:
    (i) The first 4 weeks of life for broilers (Gallus gallus);
    (ii) The first 16 weeks of life for pullets (Gallus gallus); and
    (iii) Until fully feathered for bird species other than Gallus 
gallus.
    (3) Conditions under which the health, safety, or well-being of the 
animal could be jeopardized.
    (4) Risk to soil or water quality, including to establish 
vegetation by reseeding the outdoor space.
    (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 that the 
birds are maintained under continuous organic management, throughout 
the extent of their allowed confinement.
    (7) For nest box training, provided that birds shall not be 
confined any longer than required to establish the proper behavior. 
Confinement must not exceed five weeks.
    (8) For 4-H, National FFA Organization, and other youth projects, 
provided that temporary confinement 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. 
During temporary confinement, birds must be under continuous organic 
management, including organic feed, for the duration of confinement. 
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. The 
producer must also optimize 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) Transportation. (1) Certified organic livestock must be clearly 
identified as organic, and this identity must be traceable for the 
duration of transport.
    (2) All livestock must be fit for transport to buyers, auction or 
slaughter facilities.
    (i) Calves must have a dry navel cord and be able to stand and walk 
without human assistance.
    (ii) Non-ambulatory 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 
transport and prior to slaughter. Bedding is not required in poultry 
crates. When roughages are used for bedding, they must be certified 
organic.
    (5) Arrangements for water and organic feed must be made if 
transport time, including all time on the mode of transportation, 
exceeds 12 hours.
    (i) The producer or handler of an organic livestock operation, who 
is responsible for overseeing the transport of organic livestock, must 
provide records to certifying agents during inspections or upon request 
that demonstrate that transport times for organic livestock are not 
detrimental to the welfare of the animals and meet the requirements of 
paragraph (a)(5) of this section.
    (6) Organic producers and handlers, who are responsible for 
overseeing the transport of organic livestock, must have emergency 
plans in place that adequately address possible animal welfare problems 
that might occur during transport.
    (b) Mammalian slaughter. (1) Producers and handlers who slaughter 
organic livestock must be in compliance, as determined by FSIS, with 
the Federal Meat Inspection Act (21 U.S.C. 603(b) and 21 U.S.C. 
610(b)), the regulations at 9 CFR part 313 regarding humane handling 
and slaughter of livestock, and the regulations of 9 CFR part 309 
regarding ante-mortem inspection.
    (2) 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.), the regulations at 9 CFR parts 313 and 352 
regarding the humane handling and slaughter of exotic animals, and the 
regulations of 9 CFR part 309 regarding ante-mortem inspection.
    (3) Producers and handlers who slaughter organic livestock or 
exotic animals must provide all noncompliance records related to humane 
handling and slaughter issued by the controlling national, federal, or 
state authority and all records of subsequent corrective actions to 
certifying agents during inspections or upon request.
    (c) Avian slaughter. (1) Producers and handlers who slaughter 
organic poultry must be in compliance, as determined by FSIS, with the 
Poultry Products Inspection Act requirements (21 U.S.C. 453(g)(5)); the 
regulations at paragraph (v) of the definition of ``Adulterated'' in 9 
CFR 381.1(b), and 9 CFR 381.90, and 381.65(b)); and FSIS Directives 
6100.3 and 6910.1.
    (2) Producers and handlers who slaughter organic poultry must 
provide all noncompliance 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 to the certifying agent at inspection or 
upon request.
    (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:
    (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, with the exception of ritual 
slaughter; and
    (iii) All birds must be irreversibly insensible prior to being 
placed in the scalding tank.

    Dated: January 11, 2017.
Elanor Starmer,
Administrator, Agricultural Marketing Service.
[FR Doc. 2017-00888 Filed 1-18-17; 8:45 am]
 BILLING CODE 3410-02-P