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



[[Page 48561]]

Vol. 87

Tuesday,

No. 152

August 9, 2022

Part II





Department of Agriculture





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Agricultural Marketing Service





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7 CFR Part 205





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

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

[[Page 48562]]


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DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 205

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


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

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Proposed rule.

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

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

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

FOR FURTHER INFORMATION CONTACT: Erin Healy, MPH, Director of Standards 
Division, Telephone: (202) 720-3252; Email: [email protected].

Executive Summary

A. Purpose of the Proposed Rule

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

B. Summary of Provisions

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

[[Page 48563]]

(FSIS) regulations work together to support animal welfare.

C. Costs and Benefits

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

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

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

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


SUPPLEMENTARY INFORMATION:

Table of Contents

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

I. General Information

A. Does this proposed action apply to me?

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

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

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

II. Background

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

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

[[Page 48565]]

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

B. Prior NOSB Recommendations

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

[[Page 48566]]

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

    (11) In October 2010, the NOSB passed a recommendation on the use 
of drugs for pain relief.\11\ The NOSB recommended changing the health 
care practice standards to allow the administration of drugs in the 
absence of illness to prevent disease or alleviate pain. The NOSB 
stated that such a change would improve the welfare of organic 
livestock.
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    \11\ NOSB, 2010. Formal Recommendation by the NOSB to the NOP, 
Clarification of 205.238(c)(2). Available at: http://www.ams.usda.gov/rules-regulations/organic/nosb/recommendations.
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    (12) In December 2011, the NOSB passed an additional livestock 
welfare recommendation.\12\ The 2011 recommendation added definitions 
for terms related to livestock production and provisions for health 
care standard and living conditions. The NOSB also revised its prior 
recommendation on physical alterations to provide a more inclusive list 
of prohibited procedures. In the mammalian living conditions section, 
the NOSB recommended that outdoor access for swine include a minimum of 
25 percent vegetative cover at all times. For avian species, the NOSB 
recommended specific indoor and outdoor space requirements, e.g., 
stocking densities, among other provisions for living conditions 
specific to poultry. For layers, the NOSB

[[Page 48567]]

recommended a minimum of 2.0 ft\2\ per bird indoors and outdoors.
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    \12\ NOSB, 2011. Formal Recommendation by the NOSB to the NOP, 
Animal Welfare and Stocking Rates. Available at: http://www.ams.usda.gov/rules-regulations/organic/nosb/recommendations.
---------------------------------------------------------------------------

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

(1) AMS Policy Regarding Animal Welfare
    On October 29, 2002, AMS issued a memorandum to clarify outdoor 
access and temporary confinement requirements for livestock under the 
USDA organic regulations.\14\ The memorandum stated that producers are 
required to balance accommodations for an animal's health and natural 
behavior with measures to ensure an animal's safety and well-being. The 
memorandum further explained that the USDA organic regulations do not 
specify an outdoor space allowance or stocking rate, nor do they 
require that all animals in the herd or flock have access to the 
outdoors at the same time. This memorandum explained how producers 
could provide evidence of compliance to support temporary confinement. 
This memorandum was incorporated into the NOP Handbook (as ``PM 11-5'') 
on January 31, 2011, and is retained as current policy.
---------------------------------------------------------------------------

    \14\ National Organic Program, 2002. Access to the Outdoors for 
Livestock. Retained as Policy Memo 11-5. Available in the NOP 
Handbook: https://www.ams.usda.gov/sites/default/files/media/Program%20Handbk_TOC.pdf.
---------------------------------------------------------------------------

    On February 17, 2010, AMS published a final rule on Access to 
Pasture (Livestock). The final rule was in response to the 2005 NOSB 
recommendation and extensive public input requesting clear outdoor 
access requirements for ruminant livestock. The Access to Pasture Rule 
adopted new provisions relating to organic livestock production, 
addressing such matters as animal feed; dry matter intake; access to 
and management of pasture as an organic crop; organic bedding; and use 
and management of feeding yards, feeding pads, and feedlots. The Access 
to Pasture Rule also clarified that the requirements for outdoor access 
and species-appropriate access to shade, shelter, exercise, fresh air, 
and direct sunlight required by the NOP Rule must be provided for all 
organic livestock, including poultry, on a year-round basis. The final 
rule established that ruminant livestock obtain at least 30 percent dry 
matter intake from grazing during the grazing season (7 CFR 
205.237(c)). The rule provided clarity to correct inconsistent 
application and enforcement of the outdoor access provisions for 
ruminant livestock. While AMS was able to rely on stakeholder feedback 
about consistent application of regulations to inform this proposed 
rule, AMS was unable to look at regulatory impacts from the rule like 
production levels because USDA's Economic Research Service stopped 
releasing that data in 2011, and available data sources would not be 
sufficient to estimate any causality or impact.
    In March 2010, the USDA Office of the Inspector General (OIG) 
issued a report concerning, in part, AMS guidance on outdoor access for 
organic livestock.\15\ The OIG found inconsistent certification 
practices regarding outdoor access for poultry. The OIG recommended 
that AMS issue guidance on outdoor access for livestock.
---------------------------------------------------------------------------

    \15\ USDA, Office of the Inspector General. March 2010. Audit 
Report 01601-03-Hy, Oversight of the National Organic Program. 
Available at: http://www.usda.gov/oig/rptsauditsams.htm.
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    On October 13, 2010, AMS published draft guidance, Outdoor Access 
for Organic Poultry, for public comment.\16\ The draft guidance advised 
certifying agents to use the 2002 and 2009 NOSB recommendations as the 
basis for certification decisions regarding outdoor access for 
poultry.\17\ The draft guidance informed certifying agents and 
producers that maintaining poultry on soil or outdoor runs would 
demonstrate compliance with the outdoor access requirement in 7 CFR 
205.239. Comments received by AMS on the draft guidance are summarized 
below. Given the comments and the request that USDA address this issue 
through the rulemaking process, AMS determined to pursue rulemaking to 
clarify outdoor access for poultry and did not finalize the draft 
guidance.
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    \16\ On October 13, 2010, AMS also published a Notice of 
Availability of Draft Guidance and Request for Comments in the 
Federal Register (75 FR 62693).
    \17\ The 2002 and 2009 NOSB recommendations included daily 
outdoor access from an early age and access to direct sunlight, open 
air and soil.
---------------------------------------------------------------------------

    AMS received 69 comments on the draft guidance. Comments varied 
widely. Some supported more specific and stringent stocking densities 
and soil-based outdoor access, citing animal health and environmental 
benefits. Other comments favored maintaining an allowance for porches 
as acceptable outdoor access, citing biosecurity and animal health 
concerns.
    Furthermore, commenters stated that the draft guidance was 
unenforceable and would not ensure year-round outside access for 
poultry. These commenters suggested a minimum stocking rate of 1.75 
square feet per bird in henhouses that also provide access to perches, 
with an additional 5 square feet per bird available in vegetated 
outdoor runs, which should be accessible to all birds at the same time. 
Some comments from poultry producers supported outdoor access on 
pasture or other vegetation and described health benefits and 
protection of the environment that a pasture or other vegetated outdoor 
access area would afford. A number of commenters, including organic 
poultry producers, requested a change to the draft guidance language to 
say that poultry, when outdoors, should be maintained on soil.
    One trade association, some organic egg producers, and consultants 
described the use of production systems that limit outdoor access via 
the use of enclosed porches, so that poultry are not in contact with 
soil or pasture. These commenters described the benefits of these 
systems: protection from predation, pathogens that cause food safety 
problems, exposure to parasites, and contact with wild birds that could 
carry diseases. The commenters asserted that these systems are 
consistent with the 2002 NOSB recommendation. They noted that organic 
egg producers have made substantial investments in facilities with 
porches. Some also expressed concerns that placing birds on soil would 
affect their ability to comply with the Food and Drug Administration's 
Salmonella prevention food safety regulations (21 CFR part 118). 
Several producers expressed concern with the 2009 NOSB recommendation 
that pullets be given outdoor access at 6 weeks of age, because layers 
are not fully immunized (including for protection against Salmonella) 
until 16 weeks of age and should not be exposed to uncontrolled 
environments until that time.
(2) Regulatory History of the OLPP Rule
    A proposed rule that incorporated NOSB recommendations was then 
published in April 2016. The proposed rule included provisions related 
to health care practices, such as physical alteration procedures, 
euthanasia, and

[[Page 48568]]

treatment of sick animals. It also addressed living conditions for 
mammalian and avian livestock, including minimum indoor and outdoor 
space requirements for avian livestock. Finally, the rule addressed 
requirements for transport and for slaughter practices. It received 
6,675 written comments during the 90-day comment period. There were 
nearly 1,500 individual comments on the proposed rule, excluding form 
letters and signatures on petitions (numbering in the tens of 
thousands). Comments were received from producers, producer 
associations, handlers, certifying agents, consumers and consumer 
groups, animal welfare organizations, veterinarians, state government 
agencies, foreign government agencies, and trade associations or 
organizations. Comments provided insight on the public's questions 
about regulatory authority, import impact, trade agreements, and 
educational avenues. Additionally, comments about the clarity of the 
rule generally found it beneficial for the industry and its impact on 
the label but acknowledged some challenges with universal standards.
    AMS made a number of changes to this proposed rule based on 
comments in order to mitigate impacts and improve the clarity of the 
requirements. AMS published the Organic Livestock and Poultry Practices 
final rule (OLPP Rule) on January 19, 2017 (82 FR 7042). Prior to the 
OLPP Rule becoming effective, USDA decided to delay that date to allow 
the new Administration to review the Rule.
(3) Withdrawal of OLPP Final Rule
    After delaying the effective date of the final rule,\18\ AMS 
proposed withdrawing the OLPP rule because of its emergent view that 
the agency lacked the legal authority for the rulemaking, substantive 
errors in the economic analysis for the rule, and a lack of market 
failure (82 FR 59988, December 18, 2017). On March 13, 2018, AMS 
published a final rule (Withdraw Rule) withdrawing the OLPP Rule for 
those reasons (83 FR 10775). After discovering additional errors in the 
economic analysis for the OLPP Rule and the Withdraw Rule, AMS 
published the Organic Livestock and Poultry Practice Economic Analysis 
Report on April 23, 2020, to describe all the errors and sought comment 
on the Report (85 FR 22664). After considering the comments, AMS 
published the Final Decision on Organic Livestock and Poultry Practices 
Rule and Summary of Comments on the Economic Analysis Report on 
September 17, 2020 (85 FR 57937). In the Final Decision, AMS concluded 
that ``[t]o the extent the Withdrawal Rule formed an assessment of the 
likely costs and benefits of the OLPP Rule based on that flawed 
analysis, AMS hereby modifies that assessment and concludes simply that 
the Final RIA does not support promulgation of the OLPP Rule in light 
of its significant flaws.'' AMS further concluded that ``[i]mplementing 
the OLPP Rule based on such a flawed economic analysis is not in the 
public interest[]'' and decided not to take any further regulatory 
action with respect to the OLPP Rule (85 FR 57944).
---------------------------------------------------------------------------

    \18\ See 82 FR 9967 (February 9, 2017); 82 FR 21677 (May 19, 
2017); and 82 FR 52643 (November 14, 2017).
---------------------------------------------------------------------------

    In June 2021, Secretary Vilsack announced that USDA would 
``reconsider the prior Administration's interpretation that [OFPA] does 
not authorize USDA to regulate the practices that were the subject of 
the [OLPP Rule].'' He further directed NOP ``to begin a rulemaking to 
address this statutory interpretation and to include a proposal to 
disallow the use of porches as outdoor space in organic production over 
time and on other topics that were the subject of the OLPP final 
rule.''
(a) Economic Analysis
    In the Economic Analysis Report, AMS described the three errors 
that had been identified in the economic analysis of the Withdraw Rule: 
(1) the incorrect application of the discounting formula; (2) the use 
of an incorrect willingness to pay value for eggs produced under the 
new open access requirements; and (3) the incorrect application of a 
depreciation treatment to the benefit calculations. The Report 
explained that although the economic analysis of the Withdraw Rule 
correctly identified these errors and properly addressed the first two 
errors (incorrect discounting methodology and willingness-to-pay 
values), it had not fully removed the incorrect depreciation treatment 
from the cost and benefit calculations, which erroneously reduced the 
calculation of both costs and benefits.
    The Report went on to identify and discuss four categories of 
additional errors in the economic analysis of the OLPP Rule that were 
previously undetected and therefore inadvertently carried forward to 
the economic analysis of the Withdraw Rule. These were: (1) 
inconsistent or incorrect documentation of key calculation variables; 
(2) an error in the volume specification affecting benefits 
calculations in two of three scenarios considered; (3) the incorrect 
use of production values in the benefits calculations that do not 
account for projected increased mortality loss; and (4) aspects of the 
cost calculations that resulted in certain costs being ignored, 
underreported, or inconsistently applied. In addition, the Report 
described certain minor errors that did not have a material impact on 
the cost and benefit calculations (85 FR 57938).
    In this proposed rule, AMS worked to ensure that the RIA for the 
proposed rule addressed these concerns. Some of the mathematical or 
descriptive concerns were addressed with rewriting the proposed rule. 
AMS specifically addressed issues with discounting and depreciation in 
the analysis and fixed various errors found by the report. 
Additionally, AMS adjusted the willingness to pay for outdoor access in 
eggs to the more precise measure suggested by the economic analysis 
report. While AMS maintains the use of enterprise budgets in the 
original rule to model costs, we updated costs to the extent possible 
based on data availability and believe these models are appropriate, as 
they provide the most detailed estimates for the organic industry and 
USDA ERS has shown that both feed and land costs have remained 
approximately steady since their development.19 20
---------------------------------------------------------------------------

    \19\ USDA ERS. Farmland Value. https://www.ers.usda.gov/topics/farm-economy/land-use-land-value-tenure/farmland-value/.
    \20\ USDA NASS. Paid Indexes by Farm Origin and Month, Feed and 
Livestock & Poultry. https://www.nass.usda.gov/Charts_and_Maps/Agricultural_Prices/prod3.php.
---------------------------------------------------------------------------

(b) Market Failure
    The Withdraw Rule said that the OLPP Rule failed to meet the 
requirements of Executive Order 12866, that the agency ``propose or 
adopt a regulation only upon a reasoned determination that the benefits 
of the intended regulation justify its costs'' and that there was no 
clear market failure for the need for the rule as referenced in 
Executive Order 13563. Although it is not necessary for rulemaking, AMS 
is reconsidering this rationale in the Withdraw Rule.
    In reviewing the available information, AMS does believe a market 
failure exists in the organic label. Specifically, consumers have 
varying understanding of the degree to which the organic label requires 
indoor/outdoor space, health, and welfare provisions for animals used 
in organic production. Specifically, space and outdoor access are 
required in 7 CFR 205.239(a)(1), but this requirement has been 
interpreted by producers and certifying agents in different ways, 
allowing producers to provide indoor space and outdoor access through

[[Page 48569]]

several different metrics and methods. While different practices are 
not inherently a market failure--and in many markets a sign of healthy 
market innovation--in a marketing label, varying practices can create 
inefficient outcomes if they allow for producers to benefit from 
information failures.
    Consumers are increasingly interested in the treatment of animals 
raised for food, as evidenced by the proliferation of animal welfare 
certification labeling claims. These animal welfare certification 
programs have varying requirements, even within individual programs, 
creating a range of standards in the marketplace.\21\ For example, 
these programs may include standards for pastured, cage-free and free-
range production. High participation rates among organic livestock and 
poultry producers in these third-party animal welfare certification 
programs indicates that the organic label does not provide the level of 
information consumers need to assess whether a specific brand meets 
their expectations for animal welfare practices. Consumers who purchase 
these doubly certified products would likely not be satisfied with 
private animal welfare certification alone because organic 
certification addresses other unique attributes they seek, e.g., 
animals receive only organic feed. While the proliferation of ecolabels 
may not dilute the value of the organic label, literature shows 
consumer confusion may be associated with ecolabel proliferation.\22\
---------------------------------------------------------------------------

    \21\ The Humane Farm Animal Care program has compiled a table 
comparing the requirements of selected third-party animal welfare 
certification programs for laying hens. This includes stocking 
density and outdoor standards. The comparison table is available at: 
http://certifiedhumane.org/how-we-work/fact-sheet/.
    \22\ Magali A. Delmas, Olivier Gergaud, Sustainable practices 
and product quality: Is there value in eco-label certification? The 
case of wine, Ecological Economics, Volume 183, 2021, https://doi.org/10.1016/j.ecolecon.2021.106953.
---------------------------------------------------------------------------

    The various production practices used to meet requirements like 
outdoor access have allowed producers that use lower-cost and less-
stringent practices to benefit from the same organic labeling and 
premium as producers than use more costly or robust practices. Through 
public comment and literature reviews outlined in the RIA, AMS has 
observed that consumers need to expend additional effort and seek out 
additional label information if they wish to purchase animal products 
with outdoor access to soil and flora. AMS seeks comment on this 
analysis that market failure exists.
(c) Statutory Authority
    In 2018, AMS withdrew the OLPP Rule, in part, based on its view 
that the OFPA did not provide authority for the OLPP Rule. AMS stated 
that the statutory authority for the OLPP Rule was insufficient because 
the ``reference in 7 U.S.C. 6509(d)(2) to additional regulatory 
standards `for the care' of organically produced livestock does not 
encompass stand-alone concerns about animal welfare, but rather is 
limited to practices that are similar to those specified by Congress in 
the statute''--e.g., restrictions on the use of antibiotics, synthetic 
internal parasiticides, administration of medication, and certain feed 
substances and practices--``and necessary to meet congressional 
objectives outlined in'' section 6501. Id. at 10,776. AMS further 
stated that ``standards promulgated pursuant to section 6509(d)(2) and 
section 6509(g) must be relevant to ensuring that livestock is 
`organically produced.' '' Id. USDA reasoned that dictionary 
definitions of the word ``organic'' generally relate to the use of 
``artificial chemicals in the growing of plan[t]s and animals for food 
and other products,'' and that ``[t]he surrounding provisions in 
section 6509 demonstrate that Congress had a similar understanding of 
the term `organic.' '' Id. Based on this analysis, AMS concluded that 
``the authority granted in section 6509(d)(2) and section 6509(g) for 
the Secretary to issue additional [livestock care] regulations fairly 
extends only to those [regulations] that . . . relate to the ingestion 
or administration of non-organic substances, thus tracking the purposes 
of the OFPA[.]'' Id. at 10776-77. AMS determined that ``stand-alone 
concerns about animal welfare'' did not meet this standard. Id. at 
10,776. In so concluding, USDA explained that it would not ``regulate 
outside the boundaries of legislative text,'' id. at 10,776, such that 
even if the OFPA were ``silent or ambiguous with respect to the 
authority issue,'' it believed that its interpretation was a 
``permissible'' one. Id. at 10,777; see also id. at 10,778 (referring 
to agency's ``interpretation of the scope of its statutory authority'' 
as ``permissible'').
    This aspect of the Withdraw Rule was in tension with the USDA's 
view of its authority in issuing the OLPP Rule, as well as the 
regulatory authority USDA has traditionally exercised in this area. 
With this rulemaking action, AMS is reconsidering the determination in 
the Withdraw Rule. Based on the analysis below, the agency is proposing 
to adopt the position that OFPA does provide the requisite authority 
for regulations regarding livestock and poultry health care practices 
and living conditions, including regulations regarding animal welfare.
    OFPA at 7 U.S.C. 6509 addresses practices and materials that may be 
used in organic livestock production. Subsection (c) of that provision, 
entitled ``Practices,'' requires producers to use organic feed, 
prohibits certain types of feed, such as plastic pellets and manure 
refeeding, and prohibits the use of growth promoters and hormones. 
Subsection (d), entitled ``Health care,'' restricts the use of 
subtherapeutic doses of antibiotics, the routine use of synthetic 
internal parasiticides, and the administration of medication absent 
illness. Id. Sec.  6509(d)(1). In addition, subsection (d)(2) requires 
the NOSB to ``recommend to the Secretary standards in addition to those 
[specified in subsection (d)(1)] for the care of livestock to ensure 
that such livestock is organically produced.'' 7 U.S.C. 6509(d)(2).
    While 7 U.S.C. 6509 addresses specific animal production practices 
for the organic program, OFPA does not prohibit the Secretary from 
adopting additional requirements about practices used in raising 
organic livestock. For example, much of Section 6509 dictates what 
organic producers ``shall not'' do and contains prohibitions of 
specific livestock production practices while not limiting the 
Secretary's authority to promulgate regulations about how organic 
livestock shall be ``raised.'' See, e.g., 7 U.S.C. 6509(a) (``Any 
livestock that is to be slaughtered and sold or labeled as organically 
produced shall be raised in accordance with this chapter.''). Indeed, 
Section 6509(d)(2) recognizes that the NOSB will recommend standards 
``in addition'' to the practices specified in subsection (d) ``for the 
care of livestock.''
    In addition to the specific authority regarding livestock in 
section 6509, Congress also provided the Secretary with broad 
rulemaking authority to ``require such other terms and conditions'' for 
the organic program that he may deem necessary. 7 U.S.C. 6506(a)(11). 
This section, along with section 6509(g)'s charge to the Secretary to 
``develop detailed regulations . . . to guide the implementation of the 
standards for livestock products provided under this section,'' would 
provide ample authority for the detailed requirements in this proposed 
rule.
    In any event, even if the statutory text were ambiguous, USDA's 
interpretation is reasonable because the proposed rule would be 
consistent with the purposes of the OFPA. Commenters noted in the OLPP 
Rule that it would be reasonable

[[Page 48570]]

for AMS to adopt regulations that address animal welfare as part of 
OFPA's overall design.\23\ Consistent with this design, AMS has 
promulgated regulations addressing livestock production and living 
conditions that affect the health and welfare of livestock, including 
measures to avoid disease and illness; provisions about feed; 
principles governing housing, pasture conditions, and sanitations 
practices; and requirements for access to the outdoors and an the 
natural environment.
---------------------------------------------------------------------------

    \23\ Comments for all OLPP rulemaking can be found at https://www.regulations.gov/docket/AMS-NOP-15-0012/document.
---------------------------------------------------------------------------

    Over the years since OFPA was enacted, animal welfare has become an 
integral part of organic production as evidenced by the hundreds of 
thousands of public comments that USDA has received on this topic over 
the years as well as an emerging body of research on the motivations 
that drive consumers to buy organic livestock products. Several studies 
point to animal welfare concerns as significant or even primary drivers 
for organic consumers,\24\ and likewise that non-organic consumers 
perceive organic livestock to be raised according to higher animal 
welfare standards than non-organic livestock.\25\ Literature also 
suggest state sponsored ecolabels provide the highest levels of 
consumer confidence.\26\
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    \24\ Alonso, Marta E.; Gonz[aacute]lez-Monta[ntilde]a, 
Jos[eacute] R.; and Lomillos, Juan M. (2020) ``Consumers' Concerns 
and Perceptions of Farm Animal Welfare,'' Animals, Vol. 10, pp. 385-
397. McEachern, M.G.; Willock, J. (2004) ``Producers and consumers 
of organic meat: A focus on attitudes and motivations.'' British 
Food Journal, Vol. 106, pp.534-552.
    \25\ Harper, Gemma C; Makatouni, Aikaterini (2002) ``Consumer 
perception of organic food production and farm animal welfare.'' 
British Food Journal; Vol. 104, Iss. 3-5, pp. 287-299.
    \26\ Kim Mannemar S[Atilde]nderskov, and Carsten Daugbjerg. 
``The State and Consumer Confidence In Eco-labeling: Organic 
Labeling In Denmark, Sweden, The United Kingdom and The United 
States.'' Agriculture and human values, v. 28, .4 pp. 507-517. doi: 
10.1007/s10460-010-9295-5
---------------------------------------------------------------------------

    Notably, many in the contemporary organic industry do not view 
animal welfare as distinct from the concerns expressly reflected in the 
statutory text of OFPA. For example, by promoting animal natural 
behaviors and practices that maximize the health and welfare of organic 
livestock, producers reduce the need for antibiotics and other 
medications that section 6509(d) expressly limits.\27\ The Senate 
report that accompanied the OFPA legislation set the expectation for 
greater specificity in the future for organic livestock standards as 
the industry matured: ``More detailed standards are enumerated for crop 
production than for livestock production. This reflects the extent of 
knowledge and consensus on appropriate organic crop production methods 
and materials. With additional research and as more producers enter 
into organic livestock production, the Committee expects that USDA, 
with the assistance of the National Organic Standards Board will 
elaborate on livestock criteria.'' \28\
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    \27\ Wemette, M., Safi, A. G., Wolverton, A. K., Beauvais, W., 
Shapiro, M., Moroni, P., . . . & Ivanek, R. (2021). Public 
perceptions of antibiotic use on dairy farms in the United States. 
Journal of Dairy Science, 104(3), 2807-2821 https://pubmed.ncbi.nlm.nih.gov/33455793/
    \28\ Senate Committee on Agriculture, Forestry and Nutrition, 
Report of the Committee on Agriculture, Forestry and Nutrition to 
Accompany S. 2830 Together with Additional and Minority Views, 101st 
Congress, S. REP. NO. 101-357, at 289 (1990).
---------------------------------------------------------------------------

    In addition, a growing body of research is showing that livestock 
and poultry with access to pasture and the outdoors forage and engage 
in natural behaviors, which may be positively associated with their 
improved health and well-being, be better for the environment, and 
result in healthier livestock and poultry \29\ products for human 
consumption.\30\ AMS believes that promoting animal welfare through the 
practices addressed in the OLPS Rule, and particularly with respect to 
outdoor access, would contribute to cycling of resources and ecological 
balance values reflected in the regulation.
---------------------------------------------------------------------------

    \29\ Is Grassfed Meat and Dairy Better for Human and 
Environmental Health? Frederick D. Provenza, Scott L. Kronberg, and 
Pablo Gregorini, Front Nutr. 2019; 6: 26. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6434678/
    \30\ Palupi, Eny; Jayanegara, Anuraga; Ploegera, Angelika and 
Kahla, Johannes (2012) ``Comparison of nutritional quality between 
conventional and organic dairy products: a meta-analysis,'' Journal 
of the Science of Food and Agriculture, Vol. 92, pp. 2774-2781. 
https://pubmed.ncbi.nlm.nih.gov/22430502/
---------------------------------------------------------------------------

    Additionally, as the USDA Office of the Inspector General noted, 
certifiers have been inconsistent in their application of livestock 
access to outdoor space, a requirement stemming from the 2010 Access to 
Pasture Rule. This proposed rule would address the inconsistent 
application of the requirement by specifying a minimum size for outdoor 
access areas, clarifying circumstances when animals do not require 
outdoor access, and specifying records that operations must keep to 
disclose their activities, including records of temporary confinement 
from the outdoors.
    In sum, USDA believes that, as a policy matter, regulation is 
warranted. USDA is also proposing to determine, for the reasons 
identified above, that it may exercise this authority under the OFPA. 
USDA is requesting comment on the identified disagreement over whether 
OFPA authorizes regulations on animal welfare and livestock production 
practices that are part of this proposed rule.

D. Related Issues

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

III. Overview of Proposed Amendments

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

[[Page 48571]]

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

A. Definitions (Sec.  205.2)

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

[[Page 48572]]

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

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

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

[[Page 48573]]

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

[[Page 48574]]

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

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

[[Page 48575]]

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

D. Avian Living Conditions (Sec.  205.241)

    AMS is proposing to add a new section to the organic regulations, 
Sec.  205.241, entitled ``Avian living conditions,'' which includes 
requirements for all organic avian (``bird'' or ``poultry'') species, 
including but not limited to, chickens, turkeys, geese, quail, 
pheasant, and any other species that are raised for organic eggs, 
organic meat, or other organic agricultural products.
    Section 205.241(a) proposes to establish general requirements for 
organic poultry production. These general principles are further 
clarified in Sec.  205.241(b), (c), and (d). Section 205.241(a) would 
require organic poultry operations to establish and maintain living 
conditions that accommodate the wellbeing and natural behaviors of the 
birds. These living conditions include: year-round access to the 
outdoors, soil, shade, shelter, exercise areas, fresh air, direct 
sunlight, clean water for drinking, materials for dust bathing, and 
adequate space to escape aggressive behaviors. The living conditions 
provided should be appropriate to the species, its stage of life, the 
climate, and the environment. These proposed requirements are based 
upon a 2009 NOSB recommendation \34\ and are largely identical to 
previously established livestock requirements at Sec.  205.239(a)(1), 
although AMS proposes to add additional requirements, including 
materials for dust bathing and adequate outdoor space to escape 
aggressive behaviors. These additional requirements are necessary to 
provide for the basic needs of poultry.
---------------------------------------------------------------------------

    \34\ 2009 NOSB Sunset Recommendation: https://www.ams.usda.gov/sites/default/files/media/NOP%20Final%20Sunset%20Rec%20Animal%20Welfare.pdf.
---------------------------------------------------------------------------

    Section 205.241(b) proposes to specify the indoor space 
requirements for avian species. This proposed provision would require 
operations to provide shelter to birds, and if an operation provides 
indoor space to birds, this space would need to meet the proposed 
indoor space requirements. Proposed Sec.  205.241(b)(1) would require 
that indoor space be sufficiently spacious to allow all birds to move 
freely, stretch their wings, stand normally, and engage in natural 
behaviors. Cages or environments that limit free movement within the 
indoor space would be prohibited. In addition, the indoor space must 
allow birds to engage in natural behaviors such as dust bathing, 
scratching, and perching. These proposed requirements are adopted from 
a 2009 NOSB recommendation and modify previously established 
requirements for organic livestock at Sec.  205.239(a)(4)(i) that 
required, ``shelter designed to allow for. . .natural maintenance, 
comfort behaviors, and opportunity to exercise.''
    AMS proposes to add a new Sec.  205.241(b)(2) to require producers 
to monitor ammonia levels at least monthly and implement practices to 
maintain ammonia levels below 10 ppm. Should ammonia levels exceed 10 
ppm, producers would be required to implement additional practices and 
additional monitoring to reduce ammonia levels below 10 ppm. Ammonia 
levels above 25 ppm would not comply with the requirements. Ammonia is 
a natural breakdown product of manure from livestock and is harmful to 
birds when inhaled, especially at concentrations above 25 ppm.\35\ 
Inhalation of high levels of ammonia has a negative impact on welfare 
in poultry, causing irritation and inflammation, as well as 
contributing to negative production outcomes like reduced growth. In 
most

[[Page 48576]]

cases, high levels of ammonia indicate that litter is damp, or litter 
management practices require modification.
---------------------------------------------------------------------------

    \35\ ``Ammonia production in the poultry houses and its harmful 
effects'' IU Sheikh, SS Nissa, Bushra Zaffer, KH Bulbul, AH Akand, 
HA Ahmed, Dilruba Hasin, Isfaqul Hussain and SA Hussain, 
International Journal of Veterinary Sciences and Animal Husbandry, 
3(4): 30-33, 2018.
---------------------------------------------------------------------------

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

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

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

[[Page 48577]]

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

[[Page 48578]]

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

E. Transport and Slaughter

    AMS is proposing to add a new section to the organic regulations at 
Sec.  205.242 titled ``Transport and Slaughter,'' to address the care 
of organic animals during transport and up to the time of slaughter. 
Proposed Sec.  205.242 is divided into three subsections on 
transportation, mammalian slaughter, and avian slaughter.
    The proposed changes are made in response to a December 2011 NOSB 
recommendation \40\ and under AMS's authority to promulgate standards 
``for the care of livestock'' (7 U.S.C. 6509(d)(2)). AMS understands 
that ``care of livestock'' is relevant up to the time of slaughter and 
that some practices during transport and/or slaughter should affect an 
animal's organic certification. Once killed, existing organic 
regulations for handling operations become relevant for the processing, 
packaging, and sale of organic animal products. The proposed 
requirements would apply to the care of live animals.
---------------------------------------------------------------------------

    \40\ https://www.ams.usda.gov/sites/default/files/media/NOP%20Livestock%20Final%20Rec%20Animal%20Handling%20and%20Transport%20to%20Slaughter.pdf
---------------------------------------------------------------------------

    The December 2011 NOSB recommendation noted that additional 
regulations for the transport and slaughter of organic animals were 
appropriate to assure consumers that animal products sold as organic 
are produced with a high level of animal welfare and, ``to avoid animal 
mistreatment on the farm, during transport to, or at the slaughter 
plant.'' The NOSB noted that their recommended regulatory language 
reflect third-party animal welfare

[[Page 48579]]

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

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

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

[[Page 48580]]

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

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

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

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

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

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

    \43\ Treatment of Live Poultry before Slaughter, FSIS, 70 FR 
56624, September 28, 2005.

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

[[Page 48581]]

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

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

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

IV. Related Documents

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

V. Executive Orders 12866 and 13563--Executive Summary

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

[[Page 48582]]

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

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

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

 Additional indoor space for broilers
 Additional outdoor space for layers

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

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

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

[[Page 48583]]

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

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

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

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


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


[[Page 48584]]

VI. Executive Order 12988

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

VII. Executive Order 13175

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

VIII. Paperwork Reduction Act

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

[[Page 48585]]

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

Respondents

    AMS identified four types of entities (respondents)--organic 
livestock and poultry operations, accredited certifying agents, 
inspectors, and state organic programs--that will need to submit and 
maintain information in order to participate in organic livestock and 
poultry certification. To more precisely understand the paperwork costs 
of this proposed rule, AMS calculates the potential impacts utilizing 
domestic and foreign labor rates per hour plus benefits.
    For each type of respondent, we describe the general paperwork 
submission and recordkeeping activities and estimate: (i) the number of 
respondents; (ii) the hours they spend, annually, completing the 
paperwork requirements of this labeling program; and (iii) the costs of 
those activities based on prevailing domestic \49\ and foreign \50\ 
wages and benefits.51 52
---------------------------------------------------------------------------

    \49\ The source of the specific hourly wage rates identified 
below is the National Compensation Survey: Occupational Employment 
and Wages, May 2021, published by the Bureau of Labor Statistics. 
Bureau of Labor Statistics, Occupational Employment and Wages, 
https://www.bls.gov/oes/current/oes_nat.htm.
    \50\ The source of the data is based on average World Bank wage 
rates for countries with USDA-accredited certifying agents which are 
70.3% of U.S. labor rates. https://data.worldbank.org/indicator/NY.GDP.PCAP.PP.CD.
    \51\ Bureau of Labor Statistics News Release on Employer Costs 
for Employee Compensation, Wages account for 68.7% and Benefits 
account for 31.3% of total average employer compensation costs, June 
18, 2020: https://www.bls.gov/news.release/ecec.nr0.htm.
    \52\ The source of compensation rates is based on an average of 
Organization for Economic Co-Operation and Development (OECD) 
benefits compensation rates at 34.63% of wage rates for countries 
with USDA-accredited certifying agents. https://stats.oecd.org/Index.aspx?DataSetCode=AWCOMP.
---------------------------------------------------------------------------

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

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

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

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

[[Page 48586]]

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

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

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

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

    3. Inspectors. Inspectors conduct on-site inspections of organic 
operations and operations applying for certification and report their 
findings to the certifying agent. Inspectors may be the certifying 
agents themselves, employees of the certifying agents, or individual 
contractors. The USDA organic regulations call for certified operations 
to be inspected annually; however, a certifying agent may call for 
additional inspections on an as-needed basis (Sec.  205.403(a)).
    Any individual who applies to conduct inspections of organic 
livestock and poultry operations will need to submit information 
documenting their qualifications to the certifying agent (Sec.  
205.504(a)(3)). Inspectors will need to provide an inspection report to 
the certifying agent for each operation inspected (Sec.  205.403(e)). 
AMS projects that inspectors will attend at least one 5-hour training 
to learn about inspecting operations under the new requirements.
    AMS estimates that inspectors will spend two hours longer on 
average to inspect an organic livestock or poultry operation and 
prepare an inspection report for the first time under these proposed 
new requirements. Inspectors do not have recordkeeping obligations; 
certifying agents maintain the records of inspection reports. AMS 
estimates the average collection cost per inspector to be $1,558. This 
estimate is based on an average of 57 additional labor hours at $30.70 
per labor hour,\63\ including 31.7% benefits,\64\ and at $22.13 per 
labor hour,\65\ including 34.63% benefits,\66\ for domestic and foreign 
inspectors, respectively, to receive training, and to inspect and 
prepare inspection reports under the new requirements. These are one-
time costs that will become routine to maintain.
---------------------------------------------------------------------------

    \63\ National Compensation Survey: Occupational Employment and 
Wages, May 2020, published by the Bureau of Labor Statistics. Bureau 
of Labor Statistics, Occupational Employment and Wages, May 2021. 
The labor rate for inspectors is based on Occupational Employment 
Statistics group 45-2011, Agricultural Inspectors. Agricultural 
inspectors inspect agricultural commodities, processing equipment, 
facilities, and fish and logging operations to ensure compliance 
with regulations and laws governing health, quality, and safety. 
https://www.bls.gov/oes/current/oes_nat.htm.
    \64\ Bureau of Labor Statistics News Release on Employer Costs 
for Employee Compensation, Wages account for 68.7% and Benefits 
account for 31.3% of total average employer compensation costs, 
December 2020: https://www.bls.gov/news.release/ecec.nr0.htm.
    \65\ The source of the data is based on average World Bank wage 
rates for countries with USDA-accredited certifying agents, which 
are 70.3% of U.S. labor rates. https://data.worldbank.org/indicator/NY.GDP.PCAP.PP.CD.
    \66\ The source of compensation rates is based on an average of 
Organization for Economic Co-Operation and Development (OECD) 
benefits compensation rates at 34.63% of wage rates for countries 
with USDA-accredited certifying agents. https://stats.oecd.org/Index.aspx?DataSetCode=AWCOMP.
---------------------------------------------------------------------------

    4. State organic programs. The state organic program enforces the 
OFPA in its state under the authority of USDA. The California state 
organic program is the only state organic program at this

[[Page 48587]]

time. AMS estimates the collection cost $148 at $47.73 per labor 
hour,\67\ including 31.7% benefits.\68\ This estimate includes two 
hours to prepare the relevant procedures and one hour to store the 
records related to this procedure. These are one-time costs that will 
become routine to maintain.
---------------------------------------------------------------------------

    \67\ National Compensation Survey: Occupational Employment and 
Wages, May 2020, published by the Bureau of Labor Statistics. Bureau 
of Labor Statistics, Occupational Employment and Wages, May 2021. 
\67\ The labor rate for certification review staff is based on 
Occupational Employment Statistics group 13-1041, Compliance 
Officers. Compliance officers examine, evaluate, and investigate 
eligibility for or conformity with laws and regulations governing 
contract compliance of licenses and permits, and perform other 
compliance and enforcement inspection and analysis activities not 
classified elsewhere. https://www.bls.gov/oes/current/oes_nat.htm.
    \68\ Bureau of Labor Statistics News Release on Employer Costs 
for Employee Compensation. Wages account for 68.7% and Benefits 
account for 31.3% of total average employer compensation costs, 
December 2020: https://www.bls.gov/news.release/ecec.nr0.htm.
---------------------------------------------------------------------------

    Please find the total information collection burden broken out as 
reporting and recordkeeping costs that are discussed in narrative and 
presented in Tables 1 and 2 below.
    Total All Reporting Burden Cost: $3,537,460.
    Estimate of Burden: Public reporting burden for this collection of 
information is estimated to average 2.64 hours per response.
    Respondents: Certified organic and applicant livestock and poultry 
operations, certifying agents, inspectors, and state organic programs.
    Estimated Number of Reporting Respondents: 6,846.
    Estimated Number of Reporting Responses: 33,363.
    Estimated Total Reporting Burden on Respondents: 88,183 hours.
    Estimated Total Reporting Responses per Reporting Respondents: 5 
reporting responses per reporting respondents.
    AMS estimates that the public reporting burden for this information 
collection is estimated to be 88,183 hours at a total cost of 
$3,537,460 with a total number of 6,846 respondents. Respondents are 
comprised of currently certified operations, operations that will seek 
certification over the next 12 months, USDA accredited certifying 
agents, inspectors, and state organic programs. The reporting burden of 
each of the respondent categories are explained below and can be viewed 
in Table 1: Summary of Reporting Burden.
    1. Organic Operations. There are 6,539 operations worldwide that 
are either currently certified to the USDA organic standards for 
livestock or poultry production or will be seeking certification for 
livestock or poultry production over the next 12 months. Based on 
average growth of 5.9% in livestock and poultry operations under 
current rules,\69\ AMS expects to add 364 operations to the 6,174 
operations currently certified for livestock or poultry production. AMS 
estimates that the average reporting burden for all domestic and 
foreign organic livestock and poultry producers, including new 
applicants is 39,229 hours at a total estimated cost of $1,684,480.
---------------------------------------------------------------------------

    \69\ Organic Integrity Database: https://organic.ams.usda.gov/integrity/.
---------------------------------------------------------------------------

    AMS estimates that 3,858 operations based in the United States, and 
2,681 operations based in foreign countries, including applicants for 
certification under the current rules, will be impacted. Average 
initial reporting burden hours for both a domestic and a foreign 
organic operation or applicant for organic certification is 6 hours 
with costs averaging $291 for a domestic operation at $48.49 per labor 
hour,\70\ including 31.7% benefits,\71\ and $210 for a foreign 
operation at $34.95 per labor hour,\72\ including 34.63% benefits.\73\ 
Total reporting hours for 3,858 domestic operations is 23,145 hours at 
$48.49 per labor hour,\74\ including 31.7% benefits,\75\ and 16,084 
hours for 2,681 foreign operations at $34.95 per labor hour,\76\ 
including 34.63% benefits.\77\
---------------------------------------------------------------------------

    \70\ National Compensation Survey: Occupational Employment and 
Wage Estimates, May 2020, published by the Bureau of Labor 
Statistics. 11-9013 Farmers, Ranchers, and Other Agricultural 
Managers. https://www.bls.gov/oes/current/oes_nat.htm.
    \71\ Bureau of Labor Statistics News Release on Employer Costs 
for Employee Compensation, Wages account for 68.7% and Benefits 
account for 31.3% of total average employer compensation costs, June 
18, 2020: https://www.bls.gov/news.release/ecec.nr0.htm.
    \72\ The source of the data is based on average World Bank wage 
rates for countries with USDA-accredited certifying agents which 
were 70.3% of U.S. labor rates in 2020. https://data.worldbank.org/indicator/NY.GDP.PCAP.PP.CD.
    \73\ The source of compensation rates is based on an average of 
Organization for Economic Co-Operation and Development (OECD) 
benefits compensation rates at 34.63% of wage rates for countries 
with USDA-accredited certifying agents. https://stats.oecd.org/Index.aspx?DataSetCode=AWCOMP.
    \74\ National Compensation Survey: Occupational Employment and 
Wage Estimates, May 2020, published by the Bureau of Labor 
Statistics. 11-9013 Farmers, Ranchers, and Other Agricultural 
Managers. https://www.bls.gov/oes/current/oes_nat.htm.
    \75\ Bureau of Labor Statistics News Release on Employer Costs 
for Employee Compensation, Wages account for 68.7% and Benefits 
account for 31.3% of total average employer compensation costs, June 
18, 2020: https://www.bls.gov/news.release/ecec.nr0.htm.
    \76\ The source of the data is based on average World Bank wage 
rates for countries with USDA-accredited certifying agents which 
were 70.3% of U.S. labor rates in 2020. https://data.worldbank.org/indicator/NY.GDP.PCAP.PP.CD.
    \77\ The source of compensation rates is based on an average of 
Organization for Economic Co-Operation and Development (OECD) 
benefits compensation rates at 34.63% of wage rates for countries 
with USDA-accredited certifying agents. https://stats.oecd.org/Index.aspx?DataSetCode=AWCOMP.
---------------------------------------------------------------------------

    2. Accredited Certifying Agents. There are 57 certifying agents 
worldwide that are USDA accredited under the livestock scope to certify 
livestock or poultry producers as organic. AMS estimates that the 
average reporting burden for all domestic and foreign certifying agents 
accredited for the scope of livestock is 34,625 hours at a total 
estimated cost of $1,463,427. Average initial reporting burden hours 
for a domestic certifying agent is 601 hours with costs averaging 
$28,679 at $47.73 per labor hour,\78\ including 31.7% benefits.\79\ 
Average initial reporting burden hours for a foreign certifying agent 
is 617 hours with costs averaging $21, 232 at $34.40 per labor 
hour,\80\ including 34.63% benefits.\81\
---------------------------------------------------------------------------

    \78\ National Compensation Survey: Occupational Employment and 
Wages, May 2020, published by the Bureau of Labor Statistics. Bureau 
of Labor Statistics, Occupational Employment and Wages, May 2021, 
\78\ The labor rate for certification review staff is based on 
Occupational Employment Statistics group 13-1041, Compliance 
Officers. Compliance officers examine, evaluate, and investigate 
eligibility for or conformity with laws and regulations governing 
contract compliance of licenses and permits, and perform other 
compliance and enforcement inspection and analysis activities not 
classified elsewhere. https://www.bls.gov/oes/current/oes_nat.htm.
    \79\ Bureau of Labor Statistics News Release on Employer Costs 
for Employee Compensation, Wages account for 68.7% and Benefits 
account for 31.3% of total average employer compensation costs, 
December 2020: https://www.bls.gov/news.release/ecec.nr0.htm.
    \80\ The source of the data is based on average World Bank wage 
rates for countries with USDA-accredited certifying agents which are 
70.3% of U.S. labor rates. https://data.worldbank.org/indicator/NY.GDP.PCAP.PP.CD.
    \81\ The source of compensation rates is based on an average of 
Organization for Economic Co-Operation and Development (OECD) 
benefits compensation rates at 34.63% of wage rates for countries 
with USDA-accredited certifying agents. https://stats.oecd.org/Index.aspx?DataSetCode=AWCOMP.
---------------------------------------------------------------------------

    AMS estimates that the total reporting burden of the 34 certifying 
agents based in the United States is $1,122,302 which is based on 
20,429 hours at $47.73 per labor hour,\82\ including 31.7%

[[Page 48588]]

benefits.\83\ The reporting burden of the 23 certifying agents based in 
foreign countries is $488,404 based on 14,196 at $34.40 per labor 
hour,\84\ including 34.63% benefits.\85\
---------------------------------------------------------------------------

    \82\ National Compensation Survey: Occupational Employment and 
Wages, May 2020, published by the Bureau of Labor Statistics. Bureau 
of Labor Statistics, Occupational Employment and Wages, May 2021, 
\82\ The labor rate for certification review staff is based on 
Occupational Employment Statistics group 13-1041, Compliance 
Officers. Compliance officers examine, evaluate, and investigate 
eligibility for or conformity with laws and regulations governing 
contract compliance of licenses and permits, and perform other 
compliance and enforcement inspection and analysis activities not 
classified elsewhere. https://www.bls.gov/oes/current/oes_nat.htm.
    \83\ Bureau of Labor Statistics News Release on Employer Costs 
for Employee Compensation, Wages account for 68.7% and Benefits 
account for 31.3% of total average employer compensation costs, 
December 2020: https://www.bls.gov/news.release/ecec.nr0.htm.
    \84\ The source of the data is based on average World Bank wage 
rates for countries with USDA-accredited certifying agents which are 
70.3% of U.S. labor rates. https://data.worldbank.org/indicator/NY.GDP.PCAP.PP.CD.
    \85\ The source of compensation rates is based on an average of 
Organization for Economic Co-Operation and Development (OECD) 
benefits compensation rates at 34.63% of wage rates for countries 
with USDA-accredited certifying agents. https://stats.oecd.org/Index.aspx?DataSetCode=AWCOMP.
---------------------------------------------------------------------------

    3. Inspectors. AMS estimates that the reporting burden for the 250 
domestic and foreign inspectors inspecting livestock and poultry 
operations worldwide is 14,327 hours at a total estimated cost of 
$389,456. Average initial reporting burden hours for a domestic 
inspectors is 57 hours at $30.70 per labor hour,\86\ including 31.7% 
benefits \87\ and average reporting burden for foreign inspectors 
calculates at 58 hours at $22.13 per labor hour,\88\ including 34.63% 
benefits.\89\ AMS estimates the reporting burden of the 148 US based 
inspectors is $259,479 which is based on 8,453 hours at $30.70 per 
labor hour,\90\ including 31.7% benefits.\91\ The reporting burden of 
the 103 inspectors based in foreign countries is estimated at $129,977 
based on 5,874 at $22.13 per labor hour,\92\ including 34.63% 
benefits.\93\
---------------------------------------------------------------------------

    \86\ National Compensation Survey: Occupational Employment and 
Wages, May 2020, published by the Bureau of Labor Statistics. Bureau 
of Labor Statistics, Occupational Employment and Wages, May 2021, 
The labor rate for inspectors is based on Occupational Employment 
Statistics group 45-2011, Agricultural Inspectors. Agricultural 
inspectors inspect agricultural commodities, processing equipment, 
facilities, and fish and logging operations to ensure compliance 
with regulations and laws governing health, quality, and safety. 
https://www.bls.gov/oes/current/oes_nat.htm.
    \87\ Bureau of Labor Statistics News Release on Employer Costs 
for Employee Compensation, Wages account for 68.7% and Benefits 
account for 31.3% of total average employer compensation costs, 
December 2020: https://www.bls.gov/news.release/ecec.nr0.htm.
    \88\ The source of the data is based on average World Bank wage 
rates for countries with USDA-accredited certifying agents which are 
70.3% of U.S. labor rates. https://data.worldbank.org/indicator/NY.GDP.PCAP.PP.CD.
    \89\ The source of compensation rates is based on an average of 
Organization for Economic Co-Operation and Development (OECD) 
benefits compensation rates at 34.63% of wage rates for countries 
with USDA-accredited certifying agents. https://stats.oecd.org/Index.aspx?DataSetCode=AWCOMP.
    \90\ National Compensation Survey: Occupational Employment and 
Wages, May 2020, published by the Bureau of Labor Statistics. Bureau 
of Labor Statistics, Occupational Employment and Wages, May 2021, 
The labor rate for inspectors is based on Occupational Employment 
Statistics group 45-2011, Agricultural Inspectors. Agricultural 
inspectors inspect agricultural commodities, processing equipment, 
facilities, and fish and logging operations to ensure compliance 
with regulations and laws governing health, quality, and safety. 
https://www.bls.gov/oes/current/oes_nat.htm.
    \91\ Bureau of Labor Statistics News Release on Employer Costs 
for Employee Compensation, Wages account for 68.7% and Benefits 
account for 31.3% of total average employer compensation costs, 
December 2020: https://www.bls.gov/news.release/ecec.nr0.htm.
    \92\ The source of the data is based on average World Bank wage 
rates for countries with USDA-accredited certifying agents which are 
70.3% of U.S. labor rates. https://data.worldbank.org/indicator/NY.GDP.PCAP.PP.CD.
    \93\ The source of compensation rates is based on an average of 
Organization for Economic Co-Operation and Development (OECD) 
benefits compensation rates at 34.63% of wage rates for countries 
with USDA-accredited certifying agents. https://stats.oecd.org/Index.aspx?DataSetCode=AWCOMP.

                                                          Table 1--Summary of Reporting Burden
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                               Total                                          Average          Total
       USDA certified operations reporting burden            Number of       reporting    Average hours/      Wage +        respondent       reporting
                                                            respondents        hours        respondent       benefits          costs           costs
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                       USDA Certified Operations Reporting Burden
--------------------------------------------------------------------------------------------------------------------------------------------------------
USDA Certified Producers & Handlers--New & Existing                3,858          23,145               6          $48.49            $291       $1,122,30
 Domestic...............................................
USDA Certified Producers & Handlers--New & Existing                2,681          16,084               6           34.95             210          562,18
 Foreign................................................
                                                         -----------------------------------------------------------------------------------------------
    USDA Certified Operations--All......................           6,539          39,229  ..............  ..............  ..............        1,684,48
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                       USDA Accredited Certifiers Reporting Burden
--------------------------------------------------------------------------------------------------------------------------------------------------------
US Accredited US-Based Certifiers.......................              34          20,429             601           47.73          28,679          975,02
US Accredited Foreign-Based Certifiers..................              23          14,196             617           34.40          21,232          488,40
                                                         -----------------------------------------------------------------------------------------------
    US Certifiers--All..................................              57          34,625  ..............  ..............  ..............       1,463,427
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                               Inspectors Reporting Burden
--------------------------------------------------------------------------------------------------------------------------------------------------------
US Based Inspectors.....................................             148           8,453              57           30.70           1,753          259,48
Foreign Based Inspectors................................             102           5,874              58           22.13           1,274          129,98
                                                         -----------------------------------------------------------------------------------------------
    Inspectors--All.....................................             250          14,327  ..............  ..............  ..............         389,456
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                         State Organic Programs Reporting Burden
--------------------------------------------------------------------------------------------------------------------------------------------------------
State Organic Programs..................................               1               2               2           47.73           95.46              95
                                                         -----------------------------------------------------------------------------------------------
    SOP--All............................................               1               2  ..............  ..............  ..............              95
--------------------------------------------------------------------------------------------------------------------------------------------------------
        Total Reporting Burden--All Respondents.........           6,846          88,183  ..............  ..............  ..............       3,537,460
--------------------------------------------------------------------------------------------------------------------------------------------------------


[[Page 48589]]

    4. State Organic Programs. AMS estimates 2 reporting hours for the 
California State Organic Program at $43.73 per labor hour,\94\ 
including 31.7% benefits \95\ costing $95 annually.
---------------------------------------------------------------------------

    \94\ National Compensation Survey: Occupational Employment and 
Wages, May 2020, published by the Bureau of Labor Statistics. Bureau 
of Labor Statistics, Occupational Employment and Wages, May 2021. 
\94\ The labor rate for certification review staff is based on 
Occupational Employment Statistics group 13-1041, Compliance 
Officers. Compliance officers examine, evaluate, and investigate 
eligibility for or conformity with laws and regulations governing 
contract compliance of licenses and permits, and perform other 
compliance and enforcement inspection and analysis activities not 
classified elsewhere. https://www.bls.gov/oes/current/oes_nat.htm.
    \95\ Bureau of Labor Statistics News Release on Employer Costs 
for Employee Compensation, Wages account for 68.7% and Benefits 
account for 31.3% of total average employer compensation costs, 
December 2020: https://www.bls.gov/news.release/ecec.nr0.htm.
---------------------------------------------------------------------------

    Total All Recordkeeping Burden Cost: $600,937.
    Estimate of Burden: Public recordkeeping burden for this collection 
of information is estimated to average 1.9 hours per response.
    Respondents: Certified operations, exempt operations, certifying 
agents, and state organic programs.
    Estimated Number of Recordkeeping Respondents: 7,309.
    Estimated Total Recordkeeping Burden on Respondents: 13,905 hours.
    Estimated Total Recordkeeping Responses per Recordkeeping 
Respondents: 1.
    AMS estimates that the public recordkeeping burden for this 
information collection is estimated to be 13,905 hours per year at a 
cost of $600,937 with a total number of 7,309 respondents. Respondents 
are comprised of currently certified livestock and poultry operations, 
operations that will seek certification over the next 12 months, exempt 
livestock and poultry operations, USDA accredited certifying agents, 
and state organic programs. The recordkeeping burden of each of the 
respondent categories are explained below and can be viewed in Table 2: 
Summary of Recordkeeping Burden.
    1. Organic Operations. AMS estimates there are 7,252 operations 
worldwide that are impacted by the new requirements for recordkeeping 
for organic livestock and poultry. There are 6,539 domestic and foreign 
operations that are either currently certified to the USDA organic 
standards for livestock or poultry production or will be seeking 
certification for livestock or poultry production over the next 12 
months that are subject to these requirements. In addition, 713 
livestock and poultry operations that claim organic status in direct to 
consumer sales but are exempt from organic certification because they 
sell $5,000 or less of organically managed animal products must 
maintain records to support their claim in the event of a 
complaint.\96\
---------------------------------------------------------------------------

    \96\ USDA National Ag Statistics Service, Census of Agriculture, 
2019 Organic Survey: https://www.nass.usda.gov/Publications/AgCensus/2017/Online_Resources/Organics/.
---------------------------------------------------------------------------

    AMS estimates that the total recordkeeping burden for all 7,252 
domestic and foreign organic livestock and poultry producers, including 
new applicants and exempt operations is 13,076 hours at a total 
estimated cost of $596,071. Average recordkeeping burden hours for 
either a domestic or a foreign certified organic operation, or an 
applicant for organic certification is 2 hours with costs averaging $97 
for a domestic operation at $48.49 per labor hour,\97\ including 31.7% 
benefits,\98\ and $70 for a foreign operation at $34.95 per labor 
hour,\99\ including 34.63% benefits.\100\ The cost of the average 
recordkeeping burden of the 713 domestic livestock and poultry 
operations that are exempt from certification \101\ is $48 for one hour 
at $48.49 per labor hour,\102\ including 31.7% benefits.\103\ Total 
recordkeeping burden for all 4,571 domestic livestock and poultry 
operations is 8,428 hours at a total estimated cost of $408,678 at 
$48.49 per labor hour,\104\ including 31.7% benefits,\105\ and 5,361 
hours at a total estimated costs of $187,393 for 2,681 foreign 
operations at $34.95 per labor hour,\106\ including 34.63% 
benefits.\107\
---------------------------------------------------------------------------

    \97\ National Compensation Survey: Occupational Employment and 
Wage Estimates, May 2020, published by the Bureau of Labor 
Statistics. 11-9013 Farmers, Ranchers, and Other Agricultural 
Managers. https://www.bls.gov/oes/current/oes_nat.htm.
    \98\ Bureau of Labor Statistics News Release on Employer Costs 
for Employee Compensation, Wages account for 68.7% and Benefits 
account for 31.3% of total average employer compensation costs, June 
18, 2020: https://www.bls.gov/news.release/ecec.nr0.htm.
    \99\ The source of the data is based on average World Bank wage 
rates for countries with USDA-accredited certifying agents which 
were 70.3% of U.S. labor rates in 2020. https://data.worldbank.org/indicator/NY.GDP.PCAP.PP.CD.
    \100\ The source of compensation rates is based on an average of 
Organization for Economic Co-Operation and Development (OECD) 
benefits compensation rates at 34.63% of wage rates for countries 
with USDA-accredited certifying agents. https://stats.oecd.org/Index.aspx?DataSetCode=AWCOMP.
    \101\ USDA National Ag Statistics Service, Census of 
Agriculture, 2019 Organic Survey: https://www.nass.usda.gov/Publications/AgCensus/2017/Online_Resources/Organics/.
    \102\ National Compensation Survey: Occupational Employment and 
Wage Estimates, May 2020, published by the Bureau of Labor 
Statistics. 11-9013 Farmers, Ranchers, and Other Agricultural 
Managers. https://www.bls.gov/oes/current/oes_nat.htm.
    \103\ Bureau of Labor Statistics News Release on Employer Costs 
for Employee Compensation, Wages account for 68.7% and Benefits 
account for 31.3% of total average employer compensation costs, June 
18, 2020: https://www.bls.gov/news.release/ecec.nr0.htm.
    \104\ National Compensation Survey: Occupational Employment and 
Wage Estimates, May 2020, published by the Bureau of Labor 
Statistics. 11-9013 Farmers, Ranchers, and Other Agricultural 
Managers. https://www.bls.gov/oes/current/oes_nat.htm.
    \105\ Bureau of Labor Statistics News Release on Employer Costs 
for Employee Compensation, Wages account for 68.7% and Benefits 
account for 31.3% of total average employer compensation costs, June 
18, 2020: https://www.bls.gov/news.release/ecec.nr0.htm.
    \106\ The source of the data is based on average World Bank wage 
rates for countries with USDA-accredited certifying agents which 
were 70.3% of U.S. labor rates in 2020. https://data.worldbank.org/indicator/NY.GDP.PCAP.PP.CD.
    \107\ The source of compensation rates is based on an average of 
Organization for Economic Co-Operation and Development (OECD) 
benefits compensation rates at 34.63% of wage rates for countries 
with USDA-accredited certifying agents. https://stats.oecd.org/Index.aspx?DataSetCode=AWCOMP.
---------------------------------------------------------------------------

    2. Accredited Certifying Agents. There are 57 certifying agents 
worldwide that are USDA accredited under the livestock scope to certify 
livestock or poultry producers as organic. AMS estimates that the 
average annual recordkeeping burden for all domestic and foreign 
certifying agents accredited for the scope of livestock is 115 hours at 
a total estimated cost of $4,818. AMS estimates the recordkeeping 
burden of the 34 certifying agents based in the United States as $3,210 
which is based on 68 hours at $47.73 per labor hour,\108\ including 
31.7% benefits.\109\ The recordkeeping burden of the 23 certifying 
agents based in foreign countries is $1,680 based on 47 hours at $34.40 
per labor hour,\110\ including 34.63% benefits.\111\ Average initial

[[Page 48590]]

recordkeeping burden hours is 2 hours for both domestic and foreign 
based certifying agents calculated at $95 for domestic certifying 
agents at $47.73 per labor hour,\112\ including 31.7% benefits,\113\ 
and $70 for foreign certifying agents at $34.40 per labor hour,\114\ 
including 34.63% benefits.\115\
---------------------------------------------------------------------------

    \108\ National Compensation Survey: Occupational Employment and 
Wages, May 2020, published by the Bureau of Labor Statistics. Bureau 
of Labor Statistics, Occupational Employment and Wages, May 2021, 1 
The labor rate for certification review staff is based on 
Occupational Employment Statistics group 13-1041, Compliance 
Officers. Compliance officers examine, evaluate, and investigate 
eligibility for or conformity with laws and regulations governing 
contract compliance of licenses and permits, and perform other 
compliance and enforcement inspection and analysis activities not 
classified elsewhere. https://www.bls.gov/oes/current/oes_nat.htm.
    \109\ Bureau of Labor Statistics News Release on Employer Costs 
for Employee Compensation, Wages account for 68.7% and Benefits 
account for 31.3% of total average employer compensation costs, 
December 2020: https://www.bls.gov/news.release/ecec.nr0.htm.
    \110\ The source of the data is based on average World Bank wage 
rates for countries with USDA-accredited certifying agents which are 
70.3% of U.S. labor rates. https://data.worldbank.org/indicator/NY.GDP.PCAP.PP.CD.
    \111\ The source of compensation rates is based on an average of 
Organization for Economic Co-Operation and Development (OECD) 
benefits compensation rates at 34.63% of wage rates for countries 
with USDA-accredited certifying agents. https://stats.oecd.org/Index.aspx?DataSetCode=AWCOMP.
    \112\ National Compensation Survey: Occupational Employment and 
Wages, May 2020, published by the Bureau of Labor Statistics. Bureau 
of Labor Statistics, Occupational Employment and Wages, May 2021, 
\112\ The labor rate for certification review staff is based on 
Occupational Employment Statistics group 13-1041, Compliance 
Officers. Compliance officers examine, evaluate, and investigate 
eligibility for or conformity with laws and regulations governing 
contract compliance of licenses and permits, and perform other 
compliance and enforcement inspection and analysis activities not 
classified elsewhere. https://www.bls.gov/oes/current/oes_nat.htm.
    \113\ Bureau of Labor Statistics News Release on Employer Costs 
for Employee Compensation, Wages account for 68.7% and Benefits 
account for 31.3% of total average employer compensation costs, 
December 2020: https://www.bls.gov/news.release/ecec.nr0.htm.
    \114\ The source of the data is based on average World Bank wage 
rates for countries with USDA-accredited certifying agents which are 
70.3% of U.S. labor rates. https://data.worldbank.org/indicator/NY.GDP.PCAP.PP.CD.
    \115\ The source of compensation rates is based on an average of 
Organization for Economic Co-Operation and Development (OECD) 
benefits compensation rates at 34.63% of wage rates for countries 
with USDA-accredited certifying agents. https://stats.oecd.org/Index.aspx?DataSetCode=AWCOMP.
---------------------------------------------------------------------------

    3. State Organic Programs. AMS estimates 1 hour of recordkeeping 
for the California State Organic Program at $47.73 per labor hour,\116\ 
including 31.7% benefits \117\ costing $48.
---------------------------------------------------------------------------

    \116\ National Compensation Survey: Occupational Employment and 
Wages, May 2020, published by the Bureau of Labor Statistics. Bureau 
of Labor Statistics, Occupational Employment and Wages, May 2021, 
\116\ The labor rate for certification review staff is based on 
Occupational Employment Statistics group 13-1041, Compliance 
Officers. Compliance officers examine, evaluate, and investigate 
eligibility for or conformity with laws and regulations governing 
contract compliance of licenses and permits, and perform other 
compliance and enforcement inspection and analysis activities not 
classified elsewhere. https://www.bls.gov/oes/current/oes_nat.htm.
    \117\ Bureau of Labor Statistics News Release on Employer Costs 
for Employee Compensation, Wages account for 68.7% and Benefits 
account for 31.3% of total average employer compensation costs, 
December 2020: https://www.bls.gov/news.release/ecec.nr0.htm.

                                                        Table 2--Summary of Recordkeeping Burden
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                               Total                                          Average          Total
                                                             Number of     recordkeeping  Average hours/      Wage +        respondent     recordkeeping
                                                            respondents        hours        respondent       benefits          costs           costs
--------------------------------------------------------------------------------------------------------------------------------------------------------
USDA Certified Producers & Handlers--New & Existing                3,858           7,715               2          $48.49             $97        $374,101
 Domestic...............................................
USDA Certified Producers & Handlers--New & Existing                2,681           5,361               2           34.95              70         187,393
 Foreign................................................
Exempt Producers ((11.5% of current total certified that             713             713               1           48.49              48          34,577
 are exempt from organic certification))................
                                                         -----------------------------------------------------------------------------------------------
    USDA Certified Producers & Handlers--New & Existing--          7,252          13,789  ..............  ..............  ..............         596,071
     All................................................
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                     USDA Accredited Certifiers Recordkeeping Burden
--------------------------------------------------------------------------------------------------------------------------------------------------------
US Accredited US-Based Certifiers.......................              34              68               2           47.73              95           3,210
US Accredited Foreign-Based Certifiers..................              23              47               2           34.40              70           1,608
                                                         -----------------------------------------------------------------------------------------------
    US Certifiers--All..................................              57             115  ..............  ..............  ..............           4,818
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                       State Organic Programs Recordkeeping Burden
--------------------------------------------------------------------------------------------------------------------------------------------------------
State Organic Programs..................................               1               1               1           47.73              48              48
    SOP--All............................................               1            1.00  ..............  ..............  ..............              48
--------------------------------------------------------------------------------------------------------------------------------------------------------
    Total Recordkeeping Burden--All Respondents.........           7,309          13,905  ..............  ..............  ..............         600,937
--------------------------------------------------------------------------------------------------------------------------------------------------------

    AMS is inviting comments from all interested parties concerning the 
information collection and recordkeeping required as a result of the 
proposed amendments to 7 CFR part 205. AMS seeks comment on the 
following subjects:
    (1) Whether the proposed collection of information is necessary for 
the proper performance of the functions of the agency, including 
whether the information would 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.
    (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.
    (5) AMS estimates that the total number of certified organic 
operations will grow by 5.6% annually, based on the increase in 
operations recorded in INTEGRITY during the last 12 months. Is this a 
reasonable and accurate projection of future growth, given the 
additional burdens imposed by this proposed rulemaking? \118\
---------------------------------------------------------------------------

    \118\ Organic Integrity Database: https://organic.ams.usda.gov/integrity/.
---------------------------------------------------------------------------

IX. Civil Rights Impact Analysis

    AMS has reviewed this proposed rule in accordance with the 
Department Regulation 4300-4, Civil Rights Impact Analysis (CRIA), to 
address any major civil rights impacts the rule might have on 
minorities, women, and persons with

[[Page 48591]]

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 National Organic Program 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, Agricultural commodities, 
Agriculture, Animals, Archives and records, Fees, Imports, Labeling, 
Livestock, Organically produced products, Plants, Reporting and 
recordkeeping requirements, Seals and insignia, Soil conservation.

    For the reasons stated in the preamble, AMS proposes to amend 7 CFR 
part 205 as set forth below:

PART 205--NATIONAL ORGANIC PROGRAM

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

    Authority: 7 U.S.C. 6501-6524.

0
2. Amend Sec.  205.2 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 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:
    (i) 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 or other avian species being raised for 
egg production that have not yet started to lay eggs.
* * * * *
    Ritual slaughter. Slaughtering in accordance with the ritual 
requirements of 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.
* * * * *

[[Page 48592]]

    Vegetation. Living plant matter that is anchored in the soil by 
roots and provides ground cover.
* * * * *
0
3. Revise Sec.  205.238 to read as follows:


Sec.  205.238  Livestock care and production practices standard.

    (a) Preventive health care practices. 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.
    (b) Preventive medicines and parasiticides. 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. 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) Prohibited practices. 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 non-synthetic 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.
    (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) Parasite control plans.
    (1) 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.
    (2) [Reserved]
    (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. Revise Sec.  205.239 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.

[[Page 48593]]

    (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, 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. Add Sec.  205.241 to read as follows:


Sec.  205.241   Avian living conditions.

    (a) Avian year-round living conditions. 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

[[Page 48594]]

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.
    (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; producers subject to requirements in 21 CFR 
part 118 Production, Storage, and Transportation of Shell Eggs must 
take steps to prevent stray poultry, wild birds, cats, and other 
animals from entering poultry houses.
    (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.
    (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) Temporary confinement. 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.
    (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 over the life of the bird.
    (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) Manure management. 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. Add Sec.  205.242 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.

[[Page 48595]]

    (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.
    (ii) [Reserved]
    (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.

Erin Morris,
Associate Administrator, Agricultural Marketing Service.
[FR Doc. 2022-16980 Filed 8-5-22; 8:45 am]
BILLING CODE 3410-02-P