75394 Federal Register / Vol. 88, No. 211 / Thursday, November 2, 2023 / Rules and Regulations 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Part 205 

[Doc. No. AMS–NOP–21–0073] 

RIN 0581–AE06 

National Organic Program (NOP); 

Organic Livestock and Poultry 

Standards 

AGENCY: Agricultural Marketing Service, 

USDA. 

ACTION: Final rule. 

SUMMARY: The United States Department 

of Agriculture’s (USDA) Agricultural 

Marketing Service (AMS) amends the 

organic livestock and poultry 

production requirements by adding new 

provisions for livestock handling and 

transport, slaughter, and avian (poultry) 

living conditions; and expanding and 

clarifying existing requirements 

covering livestock care and production 

practices and non-avian living 

conditions. These changes will ensure 

organically produced foods meet a 

transparent and consistent standard to 

allow the industry to maintain 

consumer confidence in USDA organic 

products, to align with consumer 

expectations regarding outdoor access, 

and to further facilitate interstate 

commerce in organic products. 

DATES: 

Effective Date: This rule is effective 

January 2, 2024. 

Compliance Dates: All organic 

operations must comply with the 

requirements of this rule by January 2, 

2025, except: 

(1) Currently certified organic layer 

operations and layer operations that are 

certified before January 2, 2025, must 

comply with the §§ 205.241(c)(2), (c)(4), 

and (c)(5), concerning outdoor stocking 

density requirements and soil and 

vegetation requirements, by January 2, 

2029. 

(2) Currently certified organic broiler 

operations and broiler operations that 

are certified before January 2, 2025, 

must comply with §§ 205.241(b)(10), 

(c)(2), and (c)(6), concerning indoor and 

outdoor stocking density requirements 

and soil and vegetation requirements, by 

January 5, 2029. 

(3) Currently certified organic poultry 

operations and poultry operations that 

are certified before January 2, 2025 must 

comply with § 205.241(b)(4), 

concerning poultry house exit area 

requirements, by January 2, 2029. 

For more information, see the 

IMPLEMENTATION AND 

COMPLIANCE DATES FOR THE FINAL 

RULE section of this document. 

FOR FURTHER INFORMATION CONTACT: Erin 

Healy, Director, Standards Division, 

Telephone: (202) 720–3252; Email: 

erin.healy@usda.gov. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

Executive Summary 

A. Introduction 

B. Summary of Provisions 

C. Costs and Benefits 

I. General Information 

Does this action apply to me? 

II. Background 

A. Purpose and Need for the Rule 

B. Statutory Authority To Issue Final Rule 

C. NOSB Recommendations on Livestock 

Production 

D. Organic Livestock Regulatory History 

III. Overview of Public Comments 

A. Responses to Comment on Statutory 

Authority 

B. Responses to Comment on Market 

Failure 

IV. Overview of Final Rule and Responses to 

Comments 

A. Terms Defined (§ 205.2) 

B. Livestock Care and Production Practices 

Standard (§ 205.238) 

C. Mammalian and Non-Avian Livestock 

Living Conditions (§ 205.239) 

D. Avian Living Conditions (§ 205.241) 

E. Transport and Slaughter (§ 205.242) 

F. Implementation and Compliance Dates 

for the Final Rule 

G. Severability 

V. Regulatory Analyses 

A. Summary of Economic Analyses 

B. Executive Order 12988 

C. Executive Order 13132 

D. Executive Order 13175 

E. Civil Rights Impact Analysis 

F. Paperwork Reduction Act 

G. Related Documents 

List of Subjects in 7 CFR Part 205 

Part 205—National Organic Program 

Executive Summary 

A. Introduction 

The Organic Livestock and Poultry 

Standards (OLPS) final rule amends the 

USDA organic regulations (7 CFR part 

205) related to the production of 

livestock, including poultry, marketed 

as organic. The rule adds detailed 

regulations related to animal health 

care, indoor and outdoor space 

standards, manure management, 

temporary confinement of livestock, 

access to the outdoors, transportation 

conditions, and humane euthanasia and 

slaughter. USDA expects that the 

detailed regulations established by this 

final rule will clarify aspects of the 

existing USDA organic regulations that 

are not interpreted or enforced in a 

consistent manner. In turn, the detailed 

regulations in this final rule will better 

assure consumers that organic livestock 

products meet a consistent standard, as 

intended by the Organic Foods 

Production Act (OFPA or ‘‘the Act’’). 

The OLPS proposed rule received 

extensive public comment that 

indicated broad support for its policy 

changes. Ninety-four percent of the 

public comments and petition 

signatures that AMS received support 

the rule and its goals. Many comments 

also suggested policy revisions and 

provided helpful economic data, which 

AMS took into account when writing 

this final rule. 

B. Summary of Provisions 

Livestock that are certified organic 

under the USDA organic regulations 

include mammalian species (e.g., cattle, 

swine, sheep, goats), avian or poultry 

species (e.g., chickens, turkeys, ducks), 

and other animal species used for food 

or in the production of food, fiber, feed, 

or other agricultural-based consumer 

products. The changes in this rule 

address a range of topics related to the 

care of organic livestock, including: 

Livestock health care practices—the 

rule specifies which physical alteration 

procedures are prohibited or restricted 

for use on organic livestock. The 

livestock health care practice standards 

include requirements for euthanasia to 

reduce suffering of irreversibly sick or 

disabled livestock; 

Living conditions—the rule sets 

livestock living condition standards that 

reflect the needs and behaviors of 

different types of animals and 

consumers’ expectations about the 

living conditions of animals in organic 

production. The avian (or poultry) 

livestock living standards include 

indoor and outdoor space requirements 

and require that housing provides 

sufficient exit areas for birds to access 

the outdoors; 

Transport of animals—the rule adds 

new requirements for the transport of 

organic livestock to sale or slaughter; 

Slaughter—the rule adds a new 

section to clarify how organic facility 

slaughter practices and USDA Food 

Safety and Inspection Service (FSIS) 

regulations work together to support 

animal welfare. 

C. Costs and Benefits 

AMS analyzed the rule’s impact on 

the organic broiler market and the 

organic egg market. Table 1 summarizes 

the full range of benefits and costs 

related to the implementation of this 

rule. AMS has sought to quantify these 

benefits and costs to the greatest extent 

possible in Section F of the RIA. 


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1AMS finds it likely that controversy or 

confusion about one product under the organic 

scheme will cause secondary effects to the overall 

label and other products, including, but not limited 

to, risk to consumer confidence, trust, and demand. 

Because of the unique nature of the organic label, 

quantifying or monetizing this risk based on 

existing literature is not possible. See further 

discussion in Section F. For general information on 

the relationship between trust reputations and 

labels see: Jahn, G., Schramm, M., & Spiller, A. 

(2005). The reliability of certification: Quality labels 

as a consumer policy tool. Journal of Consumer 

Policy, 28, 53–73. For more on the relation between 

trust and organic label sales see: Janssen, M., & 

Hamm, U. (2014). Governmental and private 

certification labels for organic food: Consumer 

attitudes and preferences in Germany. Food Policy, 

49, 437–448. For more information on the erosion 

of trust see: Golan, E., Kuchler, F., Mitchell, L., 

Greene, C., & Jessup, A. (2001). Economics of food 

labeling. Journal of Consumer Policy, 24(2), 117– 

184. 

TABLE 1—QUALITATIVE SUMMARY OF RULE’S BENEFITS AND COSTS

Benefits Costs 

Reduces information asymmetries between producers and consumers, 

resulting in a more optimal distribution of organic and other valueadded products. Reduces consumer search costs for consumers 

aware of these inconsistencies.

On-going compliance costs: more indoor space for organic broilers and 

more outdoor space for organic layers.* 

Adds value to organic products: consistent minimum animal welfare 

standards, increased space for organic broilers*, and increased outdoor access for organic layers.* 

Temporary losses of economic welfare: total surplus in organic egg 

market decreases more than total surplus increases in the cage-free 

egg market as organic egg production unable to comply with the rule 

shifts to cage-free markets.* 

Reduces risk to the integrity of the organic label, increasing the likelihood of sustained demand and continued growth of organic sales.1

* These benefits/costs are quantified in the analysis. 

Table 2 below captures the monetized 

costs, benefits, and net benefit in these 

markets. AMS estimates annual costs for 

organic layer operations of $28.1–$32.9 

million and costs for organic broiler 

operations of $4.8–$5.5 million. 

Additionally, AMS estimates that 

organic egg production exiting for the 

cage-free egg market will lead to a 

temporary economic welfare loss of 

approximately $8.7–$16.0 million over 

the first 20 years of the rule. AMS 

estimates annual benefits for layer 

operations of $76.6–$89.6 million and 

benefits for organic broiler operations of 

$31.5–$35.6 million. In total, AMS 

anticipates this rule will produce an 

annualized net benefit ranging from 

$59.1 million (assuming a 7% discount 

rate overall) to $78.1 million (assuming 

a 3% discount rate overall). For more 

detailed discussion of the economic 

analysis, including its assumptions and 

methods, see the Regulatory Impact 

Analysis for this rule. 

TABLE 2—EXECUTIVE SUMMARY: UNIT COSTS AND BENEFITS FOR EGGS AND BROILERS

Eggs Broilers 

Unit Benefits and Costs 

Avg. Benefit Per Unit (Consumer Willingness to Pay) * .......................................................................................... 0.205/dozen 0.14/lb. 

Cost Change in Average Total Cost of Production Per Unit .................................................................................. 0.06/dozen 0.02/lb. 

Net Benefit per Unit Gaining Outdoor Access ........................................................................................................ 0.145/dozen 0.16/lb. 

Total Annualized Benefits and Costs 

20-Year Annualized Discounted Benefits (3%) ($1,000) * ...................................................................................... $89,564 $35,641 

20-Year Annualized Discounted Benefits (7%) (1,000) * ........................................................................................ 76,641 31,467 

20-Year Annualized Discounted Costs (3%) (1,000) .............................................................................................. 32,893 5,491 

20-Year Annualized Discounted Costs (7%) (1,000) .............................................................................................. 28,147 4,848 

20-Year Annualized Discounted Economic Welfare Loss (3%) (1,000) ................................................................. 8,709 0 

20-Year Annualized Discounted Economic Welfare Loss (7%) (1,000) ................................................................. 16,046 0 

Total Annualized Net Benefits 

20-Year Annualized Discounted Net Benefits (3%) (1,000) .................................................................................... 47,962 30,149 

20-Year Annualized Discounted Net Benefits (7%) (1,000) .................................................................................... 32,448 26,619 

One-time Domestic Information Collection Cost (1,000) ..................................................................................................................... 4,930 

* Layer benefit reports the mid-point benefits of the two estimates ($0.16/dz. and $0.25/dz.). 

I. General Information 

Does this action apply to me? 

You may be affected by this action if 

you are engaged in the meat, egg, 

poultry, dairy, or animal fiber 

industries. Potentially affected entities 

may include, but are not limited to: 

—Individuals or business entities that 

are considering organic certification 

for a new or existing livestock farm or 

slaughter facility; 

—Existing livestock farms and slaughter 

facilities that are currently certified 

organic under the USDA organic 

regulations; and 

—Certifying agents accredited by USDA 

to certify organic livestock operations 

and organic livestock handling 

operations. 

This listing is not intended to be 

exhaustive but identifies key entities 

likely to be affected by this action. Other 

types of entities could also be affected. 

To determine whether you or your 


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2USDA, National Agricultural Statistics Service, 

2021 Certified Organic Survey (released December 

15, 2022), https://www.nass.usda.gov/Surveys/ 

Guide_to_NASS_Surveys/Organic_Production/. 

3USDA, National Agricultural Statistics Service, 

2011 Certified Organic Survey (released October 

2012), https://www.nass.usda.gov/Surveys/Guide_

to_NASS_Surveys/Organic_Production/. 

4Recent survey data shows that 65% of frequent 

organic purchasers and 54% of all organic 

purchasers think that all organic animals have 

outdoor access throughout the day. See ASPCA and 

the Animal Welfare Institute survey, September 

2022. https://www.aspca.org/sites/default/files/awi_

aspca_organic_consumer_survey_summary_2022_

final.pdf. 

5For example, based on data from the ASPCA/ 

AWI Organic Consumer Survey, AMS estimates that 

at least 31.5% of organic eggs are purchased by 

consumers who mistakenly think the chickens 

producing their eggs have outdoor access that 

includes soil or pasture. See Section II Subsection 

D for more detail. 

6See https://www.regulations.gov/comment/ 

AMS-NOP-21-0073-39096 and https://

www.regulations.gov/comment/AMS-NOP-21-0073- 

39082. 

business may be affected by this action, 

you should carefully examine the 

regulatory text. If you have questions 

regarding the applicability of this action 

to a particular entity, consult the person 

listed above under FOR FURTHER

INFORMATION CONTACT. 

II. Background

A. Purpose and Need for the Rule

The purpose of this rule is to address

several inconsistencies in organic 

livestock production that have arisen 

due to varying interpretations of the 

current livestock standards. This rule 

will add detail to the organic livestock 

health care and living conditions 

standards and add new standards 

specific to avian species. This 

additional detail will help producers 

and certifiers interpret and apply the 

organic livestock regulations more 

consistently, ensuring fair competition 

between producers and bolstering 

consumer confidence in the organic 

label. 

In 2021, U.S. sales of organic livestock 

and poultry were $2.2 billion, and sales 

of organic livestock and poultry 

products were $2.9 billion.2 Compared 

to 2011, this represents a 715 percent 

increase in sales of organic livestock 

and poultry and a 175 percent increase 

in sales of organic livestock and poultry 

products.3 The organic regulations have 

included general standards for livestock 

production since they were first 

published in 2000, however, the 

regulations lack specific standards for 

certain topics such as physical 

alterations, euthanasia, transport, 

slaughter, and avian-specific living 

conditions. This means producers and 

certifying agents must interpret and 

apply these general standards to 

different livestock production systems, 

each of which has its own unique needs 

and practices. This has led to different 

interpretations of the organic 

regulations—both differences in how 

some operations produce organic 

livestock and differences in how some 

certifying agents enforce the organic 

livestock standards. 

Production practices may differ 

substantially among different producers 

and certifiers, and a key purpose of this 

rule is to resolve widely divergent 

interpretations of existing organic 

production standards. For example, the 

existing regulation at § 205.239(a)(1) 

requires ‘‘[y]ear-round access for all 

animals to the outdoors.’’ Some 

operations and certifying agents have 

interpreted this general requirement for 

outdoor access to mean that organically 

managed poultry need only to have 

access to fresh air and sunlight, and this 

can be satisfied by screened, elevated 

patio structures known as ‘‘porches.’’ 

Other certifying agents require 

operations to provide outdoor spaces 

with soil and vegetation, but even then, 

may differ in their interpretations of 

how much space must be provided 

outdoors. The final rule also details 

requirements for other aspects of 

organic livestock production for the 

purpose of reducing divergent 

interpretations of the regulations and 

divergent practices among organic 

livestock producers. These aspects 

include living conditions (both indoors 

and outdoors), health care practices, 

transport, and slaughter conditions. 

Inconsistencies in livestock practices 

and enforcement such as these have 

several detrimental effects on the 

organic market: producers can have 

significantly different production costs 

for the same organic product, and in 

some cases, consumers are unaware that 

not all organic products are produced 

with attributes they desire (e.g., outdoor 

access), resulting in consumers paying 

for an attribute they are not receiving.4

If consumers become aware that they are 

paying for an attribute that does not 

exist, like access to soil and vegetation, 

they are likely to lose confidence in the 

organic label. 

AMS has found that inconsistent 

application of the organic livestock 

standards has likely produced a market 

failure, that has been in some part 

allowed to exist through government 

failure (action or inaction). ‘‘Market 

failure’’ occurs when the free market 

does not allocate resources efficiently— 

in other words, there is some market 

distortion such as information 

asymmetry—despite consumers making 

rational economic choices; analogously, 

‘‘government failure,’’ for the purposes 

of this document, is the government’s 

failure to refine its approach to 

addressing information asymmetry 

through regulation or through other 

government action. For example, if 

consumers are paying for an attribute 

that they believe they are receiving, 

such as an animal’s full access to the 

outdoors, the money they spend on an 

attribute they do not receive is likely 

associated with the combination of 

information asymmetry from market and 

government failure. After reviewing the 

economic data, AMS believes that 

inconsistent application of the organic 

program standards has led to 

information asymmetry within the 

organic egg market and could be present 

in other organic livestock markets.5 For 

more discussion of market failure, see 

Section II.D, ORGANIC LIVESTOCK 

REGULATORY HISTORY, and this 

rule’s Regulatory Impact Analysis (RIA). 

As a result of these failures, some 

consumers are losing trust in the organic 

label. In public comments, consumers 

conveyed they lost trust when they 

became aware that the organic label has 

not necessarily meant animals are raised 

under the conditions they expected. 

During the public comment period for 

the proposed OLPS rule, over 26,000 

members of the public submitted letters 

that specifically referenced their 

diminished trust in the organic label. 

For example, AMS received more than 

6,000 thousand copies of one letter 

saying, ‘‘the lack of clear standards 

undermines consumer confidence in the 

organic label,’’ and more than 700 

copies of another saying, ‘‘I expect the 

USDA Organic seal to include robust 

standards for animal welfare and 

outdoor access . . . without [that], I’m 

left wondering what I’m really getting 

when I purchase products with the 

USDA Organic seal.’’ Similarly, the 

extensive and detailed comments 

submitted by several organic producers 

and trade groups identified loss of 

consumer confidence in the organic 

label as a primary concern. For more 

information on the relationship between 

trust and demand for labels, see Section 

F of the RIA. 

Additionally, public comments 

highlighted the uneven production costs 

due to the inconsistencies in outdoor 

access.6 One comment specifically 

stated that ‘‘The allowance by some 

ACAs of ‘‘porches’’ to satisfy the 

outdoor access requirements, created an 

uneven competitive landscape as well 

as ‘‘certifier shopping’’ which is 

unrebutted evidence of inconsistency in 

the federal standards as well as 


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evidence of inconsistent products in the 

stream of commerce.’’ 7

Market failure, uneven production 

costs, and loss of trust in the organic 

label are three consequences that AMS 

seeks to address with this rule. The rule 

will establish avian-specific living 

conditions for poultry and provide more 

detail on living conditions and health 

care standards for all organic livestock. 

As a result of this rulemaking, AMS 

predicts that producers and certifying 

agents will be able to interpret and 

apply the organic regulations more 

consistently, assuring consumers that 

organically produced products meet a 

consistent and uniform standard, and 

safeguarding confidence in the organic 

label. 

B. Statutory Authority To Issue Final 

Rule 

Introduction 

USDA is issuing these regulations 

under its authority as delegated by 

OFPA and described below. In 

particular, USDA has statutory authority 

to promulgate the regulations in the 

final rule pursuant to USDA’s authority: 

(1) to better assure consumers that 

organic livestock products meet a 

consistent standard (7 U.S.C. 6501); (2) 

to establish a national organic 

certification program (7 U.S.C. 6503(a)); 

(3) to promulgate ‘‘other terms and 

conditions as may be determined by the 

Secretary to be necessary’’ to the organic 

program (7 U.S.C. 6506(a)(11)); and (4) 

to develop and implement standards for 

livestock production under the organic 

program (7 U.S.C. 6509). A discussion of 

public comments received on the topic 

of USDA’s authority, and AMS’s 

responses, can be found below in 

Section III., OVERVIEW OF PUBLIC 

COMMENTS. 

Reasons for Changing Interpretation 

From the OLPP Withdrawal Rule 

USDA acknowledges that its position 

on USDA’s statutory authority to issue 

this rule differs from the rationale that 

USDA relied on for the withdrawal of 

the Organic Livestock and Poultry 

Practices (OLPP) final rule (Withdrawal 

Rule) in March 2018 (83 FR 10775). The 

sequence of events related to this rule is 

outlined below in the section titled 

‘‘OLPP Rule and Legal Challenges.’’ 

USDA discusses the reasons for its 

change in position following a brief 

discussion of USDA’s previous rationale 

for the withdrawal of the OLPP final 

rule. 

In the Withdrawal Rule, USDA stated 

it withdrew the OLPP rule based on its 

then-interpretation of 7 U.S.C. 6509, 

which it believed did not ‘‘authorize the 

animal welfare provisions of the OLPP 

final rule’’ (83 FR 10776). At the time, 

USDA held that its authority under sec. 

6509 to issue regulations for the ‘‘care’’ 

of livestock was limited to physical 

health care issues for livestock like 

those described in sec. 6509(d)(1), i.e., 

relating to the ‘‘ingestion of chemical, 

artificial, or non-organic substances’’ (83 

FR 10776). Based on this interpretation, 

USDA stated that the OLPP final rule 

had included ‘‘stand-alone animal 

welfare regulations’’ that Congress had 

not specifically authorized under sec. 

6509. Additionally, the Withdrawal 

Rule reasoned that if the statutory text 

could be construed as ‘‘silent or 

ambiguous,’’ its interpretation was 

entitled to deference and based on a 

permissible statutory construction’’ (83 

FR 10776). 

USDA now disagrees with the 

rationale and narrow textual reading in 

the Withdrawal Rule, and USDA finds 

it has ample authority to issue this final 

rule based on the text and structure of 

sec, 6509 and the statute’s plain 

meaning (at sec. 6509 and elsewhere, 

including 7 U.S.C. 6501, 7 U.S.C. 

6503(a), 7 U.S.C. 6506(a)(11)). 

Additionally, USDA’s longstanding 

interpretation of OFPA both prior to and 

since the Withdrawal Rule, as reflected 

in numerous regulations promulgated 

by AMS, confirms USDA’s statutory 

authority to issue this rule (see ‘‘D. 

Organic Livestock Regulatory History’’). 

With this rule, USDA is using its 

authority to address regulatory issues 

that (1) prevent fair competition among 

producers (as the regulations are not 

interpreted consistently or applied 

equally to producers), and (2) lead to 

such widely varying practices among 

some producers that consumers cannot 

be assured an organic product meets a 

consistent standard—a key purpose of 

OFPA. The promulgation of this final 

rule is preferred to the alternative of 

relying on current regulations that are 

inconsistently interpreted and enforced 

(see Purpose and Need for the Rule). 

Data indicates that nothing since the 

withdrawal of the OLPP final rule has 

changed to reduce the inconsistency in 

practices, which continues to cause 

harm to consumers (see additional 

discussion of Market/Government 

Failure in the RIA for this final rule). 

Taking no action when known 

inconsistencies exist would run counter 

to a fundamental purpose of OFPA to 

assure consumers that organically 

produced products meet a consistent 

standard (7 U.S.C. 6501). This final rule 

addresses these inconsistencies and, in 

turn, satisfies OFPA’s purposes. For 

these reasons above and others 

discussed throughout this final rule, 

USDA finds that it has good reasons to 

revise its previous position from the 

Withdrawal Rule and issue this final 

rule. 

Long-Standing Interpretation of OFPA 

and Promulgation of Livestock 

Regulations 

Since the implementation of the 

December 2000 final rule (65 FR 80548) 

that established the AMS National 

Organic Program (NOP) and the USDA 

organic requirements, organic livestock 

producers have been required to meet 

requirements related to origin of 

livestock (§ 205.236), livestock feed 

(§ 205.237), livestock health care 

practice standards (§ 205.238), and 

livestock living conditions (§ 205.239). 

These regulations address measures to 

avoid disease and illness; provisions 

about feed and pasture; principles 

governing housing, pasture conditions, 

sanitation practices; and requirements 

for access to the outdoors and a natural 

environment. As described in the 

December 2000 final rule, a producer 

must, ‘‘establish and maintain livestock 

living conditions for the animals under 

his or her care which accommodate the 

health and natural behavior of the 

livestock. The producer must provide 

access to the outdoors, shade, shelter, 

exercise areas, fresh air, and direct 

sunlight suitable to the species, its stage 

of production, the climate, and the 

environment.’’ These regulations that 

have been effective since April 2001 (66 

FR 15619) reflect our longstanding 

interpretation of care of livestock, and 

necessarily implicate animal welfare 

considerations. 

USDA, through its National Organic 

Program (NOP), oversees the entirety of 

the national organic certification 

program, from production standards to 

accreditation of USDA-accredited 

certifying agents, to noncompliance and 

appeal procedures, to international 

organic agreements, and more. The NOP 

does this through its comprehensive 

regulations at 7 CFR part 205. While the 

bulk of these specific regulations were 

published by USDA in December 2000, 

the NOP has elaborated on the 

regulations regularly since December 

2000 under its authority delegated by 

OFPA. 

AMS has updated the organic 

livestock regulations, specifically, 

multiple times since 2000. Notably, the 

2010 Access to Pasture final rule (75 FR 

7153) expanded the organic regulations 

to, ‘‘satisfy consumer expectations that 

ruminant livestock animals are grazing 

pastures and that pastures are managed 

to support grazing throughout the 


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grazing season.’’ 8 The rule specifically 

addressed areas related to production of 

organic ruminants (e.g., cattle, sheep, 

goats), including pasture management, 

recordkeeping, access to the outdoors, 

temporary confinement from the 

outdoors and pasture, and the amount of 

pasture required in proportion to the 

total diet or ration. More recently, a 

2022 Origin of Livestock final rule (87 

FR 19740) clarified the manner in which 

organic dairy operations can transition 

livestock to organic production to 

increase uniformity in production 

practices for organic dairy animals and 

reduce variance between certifying 

agents. The regulatory history 

demonstrates a long precedent of AMS 

promulgating detailed regulations on 

organic livestock production. Similarly, 

this rule clarifies requirements for 

livestock production and supports the 

purposes of OFPA (7 U.S.C. 6501). 

Congress has also amended OFPA 

multiple times, but amendments to 

OFPA have never sought to restrict the 

types of organic livestock production 

practices that USDA may regulate under 

its delegated authority. In fact, Congress 

has occasionally urged USDA to finalize 

certain livestock regulations rather than 

clarify requirements through 

amendments to OFPA. For example, in 

the Further Consolidated 

Appropriations Act, 2020 (Pub. L. 116– 

94, div. B, title VII, sec. 756, Dec. 20, 

2019, 133 Stat. 2654)), Congress directed 

USDA to issue a final rule based on the 

‘‘Origin of Livestock’’ proposed rule that 

AMS published in April 2015. 

OFPA Provisions and OFPA History 

The plain language and the legislative 

history of OFPA and USDA’s 

longstanding interpretation of the 

statute support USDA’s authority to 

issue these regulations. OFPA includes 

few details about organic livestock 

production, organic crop production, 

and handling of organic products. In all 

cases, the USDA organic regulations (7 

CFR part 205) have, since their 

inception, include more detailed 

requirements than included in OFPA, as 

Congress authorized and intended. For 

livestock, Congress was particularly 

clear in stating that the livestock 

requirements in OFPA were not fully 

developed, and delegated rulemaking 

authority to USDA to develop more 

detailed livestock production 

requirements and standards (7 U.S.C. 

6509(g)). 

As stated in the Conference Report of 

October 22, 1990 (p. 1177): 

The Conference substitute adopts the 

House provision with an amendment which 

requires the Secretary to hold hearings and 

develop regulations regarding livestock 

standards in addition to those specified in 

this title . . . the Managers recognize the 

need to further elaborate on the standards set 

forth in the title and expect that by holding 

public discussions with interested parties 

and with the National Organic Standards 

Board, the Secretary will determine the 

necessary standards . . . 

Moreover, as stated in the Senate 

Report, Congress made clear that USDA 

would develop ‘‘more detailed’’ 

livestock production standards, as well 

as implement them: 

More detailed standards are enumerated 

for crop production than for livestock 

production. This reflects the extent of 

knowledge and consensus on appropriate 

organic crop production methods and 

materials. With additional research and as 

more producers enter into organic livestock 

production, the Committee expects that 

USDA, with the assistance of the National 

Organic Standards Board will elaborate on 

livestock criteria. The Committee 

recommends as well that, over time, USDA 

and the Organic Standards Board develop 

standards for aquaculture products. 

S. Rep. No. 101–357, at 292 (1990). 

In addition, OFPA grants USDA 

authority to establish standards for the 

national organic program. Sec. 6503(a) 

states: ‘‘The Secretary shall establish an 

organic certification program for 

producers and handlers of agricultural 

products that have been produced using 

organic methods as provided for in this 

chapter,’’ and 7 U.S.C. 6506(a)(11) 

which provides: ‘‘A program established 

under this chapter shall require such 

other terms and conditions as may be 

determined by the Secretary to be 

necessary.’’ 

OFPA also specifically authorizes 

USDA to develop detailed requirements 

for animal production practices (7 

U.S.C. 6509). 7 U.S.C. 6509(a) specifies 

that ‘‘Any livestock that is to be 

slaughtered and sold or labeled as 

organically produced shall be raised in 

accordance with this chapter.’’ 

‘‘Organically produced,’’ as defined by 

OFPA, is broad. It is defined as ‘‘an 

agricultural product that is produced 

and handled in accordance with this 

chapter.’’ 9 Sec. 6509(d)(1) addresses a 

handful of specific prohibited health 

care practices related to use of 

medications and feed on organic farms. 

Notably, OFPA specifies at subsection 

6509(d)(2): ‘‘The National Organic 

Standards Board shall recommend to 

the Secretary standards in addition to 

those in paragraph (1) [titled 

‘‘Prohibited practices’’] for the care of 

livestock to ensure that such livestock is 

organically produced.’’ Finally, 7 U.S.C. 

6509(g) also provides that ‘‘the Secretary 

shall hold public hearings and shall 

develop detailed regulations, with 

notice and public comment, to guide the 

implementation of the standards for 

livestock products provided under this 

section’’ (italics added). USDA has long 

interpreted these provisions to grant the 

authority to address animal welfare as 

part of the organic standards, regularly 

developing and promulgating detailed 

regulations that implicate animal 

welfare through the statutorily outlined 

process of consulting NOSB and offering 

notice and public comment on 

additional standards developed. 

In withdrawing the OLPP Rule, USDA 

at that time asserted that standards for 

animal care practices are limited to 

physical health care practices similar to 

those specified in 7 U.S.C. 6509(d)(1) 

and could not encompass concerns 

about animal welfare. However, sec. 

6509(d)(2) provides that the NOSB shall 

consider and propose additional 

standards, and the language of that 

section broadly allows the NOSB to 

recommend standards for the ‘‘care of 

livestock’’, and nowhere explicitly 

limited to provisions that prohibit the 

ingestion or administration of chemical, 

synthetic, or non-naturally occurring 

substances for livestock. Indeed, the two 

subsections of sec. 6509(d) address 

certain prohibited health care practices 

and other types of care separately, 

suggesting Congress’s intent that the 

NOSB consider and propose standards 

for each type of care. Sec. 6509(d)(1) 

lists ‘‘prohibited practices’’ in health 

care of livestock, including prohibiting 

administering routine antibiotics, 

synthetic internal parasiticides, or any 

medication beyond vaccines, in the 

absence of illness. Sec. 6509(d)(2) 

instead provides that NOSB shall 

recommend ‘‘standards in addition to’’ 

those prohibited practices ‘‘for the care 

of livestock to ensure that such livestock 

is organically produced.’’ (7 U.S.C. 

6509(d)(2)). That Congress went to the 

effort of distinguishing certain 

prohibited medical practices from the 

general ‘‘care’’ for which NOSB can 

recommend standards reflects an intent 

that USDA’s authority to regulate 

livestock production practices extends 

beyond the medication and feed 

examples in sect. 6509(d)(1). 

In addition, OFPA did not define 

‘‘raised,’’ ‘‘health care,’’ or ‘‘care,’’ and 

instead authorized USDA to promulgate 

regulations and implement standards for 

the organic program, generally, and for 

organic livestock products more 

specifically. Moreover, the plain 

meaning of the terms ‘‘care,’’ (7 U.S.C. 


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10Merriam-Webster Dictionary, available at 

https://www.merriam-webster.com/dictionary/care. 

11American Heritage Dictionary, available at 

https://www.ahdictionary.com/word/ 

search.html?q=care. 

12Cambridge Dictionary, available at https://

dictionary.cambridge.org/dictionary/essentialamerican-english/care. 

13Merriam Webster, available at https://

www.merriam-webster.com/dictionary/raise. 

14American Heritage Dictionary, available at 

https://www.ahdictionary.com/word/ 

search.html?q=raise. 

15Merriam Webster, available at https://

www.merriam-webster.com/dictionary/ 

health%20care. 

16 Is Grassfed Meat and Dairy Better for Human 

and Environmental Health? Frederick D. Provenza, 

Scott L. Kronberg, and Pablo Gregorini, Front Nutr. 

2019; 6: 26. https://www.ncbi.nlm.nih.gov/pmc/ 

articles/PMC6434678/. 

17Palupi, 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/. 18Wemette, 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/. 19Alonso, Marta E.; Gonza ́lez-Montan ̃ a, Jose ́ 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. 20Harper, Gemma C; Makatouni, Aikaterini 

(2002) ‘‘Consumer perception of organic food 

production and farm animal welfare.’’ British Food 

Journal; Vol. 104, Iss. 3–5, pp. 287–299. 

21 Kim Mannemar S. A ̃ 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. 

6509(d)(2)) ‘‘raised,’’ (7 U.S.C. 6509(a) 

and (e)) and ‘‘health care,’’ (7 U.S.C. 

6509(d)) includes considerations of 

animal welfare. Merriam-Webster 

defines ‘‘care’’ as ‘‘charge, supervision 

. . . especially: responsibility for or 

attention to health, well-being, and 

safety.’’ 10 Similarly, the American 

Heritage Dictionary defines ‘‘care’’ as 

‘‘watchful oversight; charge or 

supervision,’’ 11 and the Cambridge 

Dictionary defines ‘‘care’’ as ‘‘the 

process of protecting or providing for 

the needs of someone or something.’’ 12

Merriam-Webster defines ‘‘raise’’ as ‘‘to 

breed and bring (an animal) to 

maturity,’’ 13 and the American Heritage 

Dictionary defines ‘‘raise’’ as ‘‘to breed 

and care for to maturity: raise cattle.’’ 14

In addition, ‘‘health care’’ is defined as 

‘‘efforts made to maintain or restore 

physical, mental, or emotional wellbeing especially by trained and licensed 

professionals.’’ 15

In contrast to the narrow 

interpretation of the OFPA term ‘‘health 

care’’ used in the Withdrawal Rule, the 

OLPS final rule returns to USDA’s 

longstanding interpretation of ‘‘health 

care’’ which goes beyond specific 

healthcare practices for organic 

livestock and can reasonably encompass 

production practices related to the 

welfare and well-being of livestock. This 

interpretation aligns with longstanding 

organic regulations related to health 

care at 7 CFR 205.238 titled ‘‘Livestock 

health care practice standard’’ and 

included in the 2000 final rule. Section 

205.238(a) includes provisions that 

support livestock health, including 

provisions related to housing, feed, 

sanitation, species selection, exercise 

and movement, and conditions which 

allow for reduction of stress. 

The aforementioned terms (‘‘care,’’ 

‘‘raised,’’ and ‘‘health care’’) connote a 

broader conception of livestock health 

care and livestock care that includes 

livestock living conditions and 

considerations of welfare, and these 

terms allow USDA to prescribe modes of 

caring for livestock that extend beyond 

prohibiting specific health care 

practices such as the ‘‘ingestion of 

chemical, artificial, or non-organic 

substances.’’ (83 FR 10776). The 

language in sec. 6509, including 

allowing the NOSB to recommend 

regulations ‘‘in addition to’’ those in 

subsection 6509(d)(1) ‘‘for the care of 

livestock’’ indicates that the scope of 

USDA’s authority extends beyond 

regulations prohibiting the ingestion of 

chemical, artificial, or non-organic 

substances. Sec. 6509(e)(1) and (2) 

describe ‘‘additional guidelines’’ for 

‘‘rais[ing] and handl[ing]’’ poultry and 

dairy livestock, respectively. The use of 

the phrase ‘‘[r]aised and handled in 

accordance with this chapter’’ 

(6509(e)(1), (2)(A)) suggests a more 

comprehensive understanding of care 

that goes beyond narrow conceptions of 

medical care of organic livestock and 

can reasonably encompass production 

practices related to livestock living 

conditions and welfare. Thus, USDA 

believes that sec. 6509 supports the 

promulgation of these regulations 

concerning the humane raising of 

livestock. However, even if the text of 

sec. 6509 were silent or ambiguous 

about this issue, USDA believes that its 

interpretation is a permissible reading, 

an interpretation that is entitled to 

deference. 

Animal Welfare 

This rule’s focus on animal welfare, 

especially outdoor access requirements, 

supports the organic regulations’ 

existing principles of resource cycling 

and ecological balance (see ‘‘organic 

production’’ defined at 7 CFR 205.2 and 

§ 205.239(e)). Nevertheless, USDA 

recognizes that NOSB recommendations 

and public comments that have shaped 

this final rule may have intended to 

enhance the welfare or well-being of 

animals marketed as organic. Many in 

the contemporary organic industry do 

not view animal welfare as distinct from 

the concerns expressly reflected in the 

statutory text of OFPA. A growing body 

of research is showing that livestock and 

poultry with access to pasture and the 

outdoors to forage and engage in natural 

behaviors may be positively associated 

with the following outcomes: improved 

well-being of the animals, 

environmental benefits, and healthier 

livestock and poultry products 16 for 

human consumption.17

Public perception and the 

expectations of organic consumers 

parallel this research. For example, a 

2021 study found that consumers expect 

less need for antibiotics and other 

medications that sec. 6509(d) expressly 

limits when animals are raised with 

practices that improve the health and 

welfare of livestock.18 Since OFPA was 

enacted, expectations for the conditions 

under which animals are raised (i.e., 

animal welfare) have become an integral 

part of organic production, as evidenced 

by the hundreds of thousands of public 

comments that USDA has received on 

this topic over three decades, as well as 

an emerging body of research on the 

motivations that drive consumers to buy 

organic livestock products. Several 

studies point to animal welfare concerns 

as significant or even primary drivers 

for organic consumers.19 Likewise, 

consumers perceive organic livestock to 

be raised according to higher animal 

welfare standards than non-organic 

livestock.20 Literature also suggests 

government-sponsored ecolabels 

provide the highest levels of consumer 

confidence.21

The March 2018 Withdrawal Rule 

reasoned that OFPA did not authorize 

‘‘stand-alone animal welfare 

regulations.’’ USDA’s current position is 

that the OLPS final rule is not a standalone animal welfare regulation. Some 

provisions of the rule may improve 

animal welfare, but USDA’s primary 

objective is to clarify requirements for 

products sold as ‘‘organic.’’ This role 

and its corresponding authority are 

clearly intended by OFPA, where 

Congress delegated authority to USDA 

‘‘to establish an organic certification 

program for producers and handlers of 

agricultural products’’ (7 U.S.C. 6503(a)) 

and develop standards for the care of 


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livestock (7 U.S.C. 6509) to meet the 

purposes of the OFPA, including ‘‘to 

assure consumers that organically 

produced products meet a consistent 

standard’’ (7 U.S.C. 6501(2)). Since the 

enactment of OFPA, the USDA has 

worked to establish, develop, and 

administer standards on numerous 

aspects of organic production, including 

standards for the care of livestock that 

extend beyond the Withdrawal Rule’s 

narrow interpretation of ‘‘health care.’’ 

USDA maintains that, notwithstanding 

the novel interpretation of the 

Withdrawal Rule, the authority of its 

national organic certification program to 

establish, develop, and administer 

livestock standards—including those 

that implicate the welfare of animals 

used in organic production—is 

confirmed by USDA’s present and 

longstanding interpretation of OFPA. 

NOSB Consultation (OFPA) and 

Development of OLPS 

Congress directed USDA to consult 

with the NOSB to establish a national 

organic certification program (7 U.S.C. 

6503(c), 6509(d)) and develop detailed 

livestock regulations with notice and 

public comment (7 U.S.C. 6509(g)). 

USDA has done just that in developing 

this and previous livestock regulations 

(see, for example, ‘‘History of AMS 

Livestock Policy’’ in Section D; to see 

recommendations related to the OLPS 

rule, see ‘‘C. NOSB Recommendations 

on Livestock Production’’). The vast 

majority of NOSB recommendations and 

public comments agree with and 

support the USDA’s decision to 

establish the regulations included in the 

OLPS final rule. 

Conclusion 

AMS is issuing this rule after 

determining, in consultation with the 

National Organic Standards Board 

(NOSB) and following notice and public 

comment, that regulations are necessary 

to clarify the existing livestock 

production standards. This follows the 

process intended for livestock standards 

development authorized by OFPA at 7 

U.S.C. 6503 and 6509. USDA 

determined that existing organic 

livestock production regulations have 

not been interpreted or enforced in a 

consistent manner among certifiers to 

assure consumers that organic livestock 

and products from livestock (e.g., eggs) 

meet a consistent standard. Under the 

authority granted by OFPA, AMS is 

issuing this rule with clearer standards 

to address inconsistencies in livestock 

production regulations. 

Comment summaries and AMS 

responses on the topic of USDA’s 

statutory authority to promulgate these 

regulations can be found below in 

Section III, OVERVIEW OF PUBLIC 

COMMENTS. 

C. NOSB Recommendations on 

Livestock Production 

The NOSB is a federal advisory 

committee established by OFPA (7 

U.S.C. 6518) to provide 

recommendations to USDA on the 

development of organic standards and 

regulations. NOSB recommendations are 

developed through a rigorous process 

involving technical information, 

stakeholder input through public 

comment, open meetings, and a decisive 

two-thirds majority vote of the Board. 

Although the Board cannot direct or 

bind USDA through its 

recommendations, USDA utilizes the 

NOSB recommendations to inform 

rulemaking, including this rulemaking. 

Between 1994 and 2011, the NOSB 

made nine recommendations regarding 

livestock health care, living conditions, 

and welfare in organic production. 

Between 1997 and 2000, AMS issued 

two proposed rules and a final rule 

regarding national standards for the 

production and handling of organic 

products, including livestock and their 

products. Members of the public 

commented on these rules regarding the 

health care and welfare of livestock. 

Summarized below are the key actions 

from that period that led to the 

development of the existing standards 

for organic livestock and that have 

informed this OLPS final rule. 

(1) In June 1994, the NOSB 

recommended a series of provisions to 

address the care and handling of 

livestock on organic farms. Within this 

recommendation, the NOSB developed 

much of the framework for organic 

health care and welfare of livestock, 

including health care standards, living 

conditions, and transportation of 

livestock practices. 

(2) In April and October 1995, the 

NOSB made a series of 

recommendations as addenda to the 

June 1994 recommendations. These 

recommendations further addressed 

various health care practices, a 

requirement for outdoor access, and the 

use of vaccines. 

(3) On December 16, 1997, AMS 

incorporated the 1994 and 1995 NOSB 

recommendations in a proposed rule to 

establish the NOP (62 FR 65850). 

Consistent with the NOSB’s 

recommendation, the proposed language 

would have required that organic 

livestock producers develop a 

preventive health care plan and use 

synthetic drugs only if preventive 

measures failed. The 1997 proposed rule 

also included standards for livestock 

living conditions, including when 

livestock could be confined. That 

proposed rule was not finalized. 

(4) In March 1998, the NOSB 

reaffirmed its earlier recommendations 

on livestock health care and living 

conditions. The 1998 NOSB 

recommendation also stressed the 

importance of treating sick livestock by 

recommending that any organic 

producer who did not take specified 

actions to provide care for a diseased 

animal would lose certification. This 

recommendation also included 

provisions to clarify when livestock 

could be confined indoors and defined 

‘‘outdoors’’ as having direct access to 

sunshine. 

(5) On March 13, 2000, AMS 

published a second proposed rule to 

establish the National Organic Program 

(65 FR 13512) that incorporated public 

feedback on the December 1997 

proposed rule. AMS also incorporated 

the NOSB’s March 1998 

recommendations related to livestock 

health care and living conditions. AMS 

proposed that organic producers must 

use disease prevention practices first, 

then approved synthetic medications 

only if preventive measures failed. 

However, a producer would need to use 

all appropriate measures to save the 

animal even if the animal lost organic 

status. In addition, AMS proposed that 

the living conditions for organic 

livestock must maintain the health of 

the animals and allow for natural 

behaviors, including access to the 

outdoors. 

(6) On December 21, 2000, AMS 

published a final rule establishing the 

USDA organic regulations (65 FR 80548) 

(‘‘NOP Rule’’). Through this action, 

AMS finalized the standards for health 

care practices and livestock living 

conditions. This rule addressed a range 

of matters related to organic livestock 

production, including organic feed; use 

of hormones and supplements; 

measures to avoid disease and illness; 

veterinary biologics, medications, 

synthetic parasiticides, and other drugs; 

and general principles governing 

housing, pasture conditions, sanitation 

practices, and physical alterations. The 

NOP Rule also generally required 

producers to provide organic livestock 

with ‘‘access to the outdoors, shade, 

shelter, exercise areas, fresh air, and 

direct sunlight suitable to the species, 

its stage of production, the climate, and 

the environment,’’ but allowed 

producers to satisfy those criteria in 

different ways. That rule became 

effective on April 21, 2001 (correction of 

effective date; 66 FR 15619) and was 

fully implemented on October 21, 2002. 


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22NOSB, 2002. Recommendation Access to 

Outdoors for Poultry. Available at: http://

www.ams.usda.gov/rules-regulations/organic/nosb/ 

recommendations. 

23NOSB, 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/rulesregulations/organic/nosb/recommendations. 

24NOSB, 2009. Formal Recommendation by the 

NOSB to the NOP, Animal Welfare. Available at: 

http://www.ams.usda.gov/rules-regulations/ 

organic/nosb/recommendations. 

25NOSB, 2010. Formal Recommendation by the 

NOSB to the NOP, Clarification of 205.238(c)(2). 

Available at: http://www.ams.usda.gov/rulesregulations/organic/nosb/recommendations. 

26NOSB, 2010. Formal Recommendation by the 

NOSB to the NOP, Clarification of 205.238(c)(1). 

Available at: http://www.ams.usda.gov/rulesregulations/organic/nosb/recommendations. 

27NOSB, 2011. Formal Recommendation by the 

NOSB to the NOP, Animal Welfare and Stocking 

Rates. Available at: http://www.ams.usda.gov/rulesregulations/organic/nosb/recommendations. 

28NOSB, 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. 

29National 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. 

30This memorandum was incorporated into the 

NOP Handbook (as ‘‘PM 11–5’’) on January 31, 

2011. 

(7) In May 2002, the NOSB again 

addressed outdoor access, stating this 

should include open air and direct 

access to sunshine.22 In addition, the 

May 2002 recommendation stated that 

bare surfaces other than soil do not meet 

the NOP Rule’s intent for outdoor access 

for poultry. This recommendation also 

included clarifications as to when 

livestock could be temporarily confined. 

(8) In March 2005, the NOSB 

recommended that the temporary 

confinement provision for ‘‘stage of 

production’’ be changed to ‘‘stage of 

life.’’ 23 The NOSB reasoned that 

confinement for a ‘‘stage of life’’ would 

limit producers from confining animals 

for long periods, such as confinement 

during the entire period that a dairy 

animal is lactating. ‘‘Stage of life’’ was 

reasoned to be more specific than ‘‘stage 

of production.’’ 

(9) On October 24, 2008, AMS 

published a proposed rule on access to 

pasture for ruminant livestock (73 FR 

63584), based on several NOSB 

recommendations regarding ruminant 

livestock feed and living conditions and 

public comments. AMS published the 

final rule, Access to Pasture (Livestock), 

on February 17, 2010 (75 FR 7154). This 

rule amended numerous areas of the 

organic livestock regulations, including 

7 CFR 205.237, 205.239, 205.240, as 

described below in Section D, ‘‘Organic 

Livestock Regulatory History.’’ 

(10) Between 2009 and 2011, the 

NOSB issued a series of 

recommendations on livestock welfare. 

These were intended to incorporate 

prior NOSB recommendations that AMS 

had not addressed. The November 2009 

recommendation suggested revisions 

and additions to the livestock health 

care practice standards and living 

conditions standards.24 The NOSB 

recommended banning or restricting 

certain physical alterations and 

requiring organic producers to keep 

records on livestock that were lame and/ 

or sick and how they were treated. This 

recommendation proposed to separate 

mammalian living conditions from 

avian living conditions sections of the 

USDA organic regulations so that the 

provisions could be more directly 

tailored to various livestock species. In 

the mammalian section, the NOSB 

proposed mandatory group housing of 

swine and a requirement for rooting 

materials for swine. In the avian section, 

the NOSB proposed a variety of 

provisions, including maximum 

ammonia levels, perch space 

requirements, and outdoor access 

clarifications. 

(11) In October 2010, the NOSB 

passed a recommendation on the use of 

drugs for pain relief.25 The NOSB 

recommended changing the health care 

practice standards to allow the 

administration of drugs in the absence 

of illness to prevent disease or alleviate 

pain. In April 2010, the NOSB passed a 

recommendation to clarify that milk 

from animals treated with allowed 

synthetic medical treatments and 

annotated with a milk withholding time 

may be fed to young organic livestock 

still receiving milk in their diet.26 The 

NOSB stated that such changes would 

improve the welfare of organic 

livestock. 

(12) In December 2011, the NOSB 

passed an additional livestock welfare 

recommendation.27 The 2011 

recommendation added definitions for 

terms related to livestock production 

and provisions for health care standards 

and living conditions. The NOSB also 

revised its prior recommendation on 

physical alterations to provide a broader 

list of prohibited procedures. In the 

mammalian living conditions section, 

the NOSB recommended that outdoor 

access for swine include a minimum of 

25 percent vegetative cover at all times. 

For avian species, the NOSB 

recommended specific indoor and 

outdoor space requirements, e.g., 

stocking densities, among other 

provisions for living conditions specific 

to poultry. For layers, the NOSB 

recommended a minimum of 2.0 ft2 per 

bird indoors and outdoors. 

(13) In December 2011, the NOSB 

passed a separate recommendation to 

add standards for the slaughter process, 

including transportation of livestock to 

slaughter facilities.28 The NOSB’s 

recommendation for transport included 

provisions for veal calves and the 

trailers/trucks used to transport animals 

to ensure continuous organic 

management. The NOSB recommended 

that slaughter facilities meet certain 

performance-based standards assessed 

via observations of animal handling and 

any slips, falls or vocalizations before 

and during slaughter. 

The series of recommendations 

described above demonstrate the 

collective effort of NOSB to develop 

specific standards for certain livestock 

production topics such as physical 

alterations, euthanasia, transport, 

slaughter, and avian-specific living 

conditions. AMS has utilized these 

recommendations to inform standards 

set forth in the OLPS rule. In doing so, 

NOSB and AMS have followed the 

process required by OFPA to consult 

with the NOSB (7 U.S.C. 6503(c)) to 

develop detailed regulations for 

livestock production (7 U.S.C. 6509(d) 

and (g)). 

D. Organic Livestock Regulatory History 

History of AMS Livestock Policy 

This final rule clarifies and expands 

on the original December 2000 organic 

requirements (the ‘‘NOP Rule’’) to 

support consistent interpretation and 

enforcement of organic livestock 

standards. USDA has revised the 

regulations related to organic livestock 

production since December 2000. On 

October 29, 2002, AMS issued a 

memorandum to clarify outdoor access 

and temporary confinement 

requirements for livestock under the 

USDA organic regulations.29 The 

memorandum stated that producers are 

required to balance accommodations for 

an animal’s health and natural behavior 

with measures to ensure an animal’s 

safety and well-being. It further 

explained that the USDA organic 

regulations do not specify an outdoor 

space allowance or stocking rate, nor do 

they require that all animals in the herd 

or flock have access to the outdoors at 

the same time. This memorandum 

explained how producers could provide 

evidence of compliance to support 

temporary confinement.30 However, 

NOP determined that additional 

specificity was required to improve 

compliance and enforcement and satisfy 

consumer expectations. 

On July 15, 2002, an operation 

applied for organic certification of its 


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32On October 13, 2010, AMS also published a 

Notice of Availability of Draft Guidance and 

Request for Comments in the Federal Register (75 

FR 62693). 

33The 2002 and 2009 NOSB recommendations 

included daily outdoor access from an early age and 

access to direct sunlight, open air and soil. 

egg laying operation with a USDAaccredited certifying agent. As part of 

the application, the operation’s organic 

system plan (OSP) stated that outdoor 

access would be provided through 

covered and screened ‘‘porches’’ 

(enclosed, covered, and screened areas 

attached to a poultry house, either 

elevated or at ground level). The 

certifying agent denied certification for 

failing to provide hens with access to 

the outdoors. The certifying agent stated 

that a porch did not provide outdoor 

access as required by the USDA organic 

regulations. The operation appealed the 

Denial of Certification to the AMS 

Administrator on October 22, 2002. The 

Administrator sustained the appeal on 

October 25, 2002, and directed the 

certifying agent to grant organic 

certification to the operation 

retroactively to October 21, 2002. 

The certifying agent objected to the 

Administrator’s decision and appealed 

to the USDA Office of the 

Administrative Law Judge (ALJ). On 

November 4, 2003, the USDA ALJ 

dismissed the appeal. On December 11, 

2003, the certifying agent appealed to 

the USDA Judicial Officer. On April 21, 

2004, the USDA Judicial Officer 

dismissed the appeal. On September 27, 

2005, the certifying agent filed an 

appeal with the U.S. District Court, 

District of Massachusetts. On March 30, 

2007, the U.S. District Court granted 

USDA’s motion to dismiss the case 

(Massachusetts Independent 

Certification, Inc. v. Johanns, 486 F. 

Supp. 2d 105). As a result of these 

adjudications, use of porches to meet 

the requirement in the USDA organic 

regulations for outdoor access 

expanded, and certain producers have 

settled on production practices that rely 

on porches, leading to inconsistencies 

with producers that offer animals access 

to outdoor spaces with soil, vegetation, 

direct sunlight, and considerable space 

per animal. 

While the use of porches was 

expanding in the organic poultry 

industry, AMS was more precisely 

defining outdoor access for other 

species. On February 17, 2010, AMS 

published a final rule adopting new 

provisions relating to organic livestock 

production. The Access to Pasture Rule 

was informed by NOSB’s 2005 

recommendation and extensive public 

input requesting clear outdoor access 

requirements for ruminant livestock. It 

required that ruminants graze at least 

120 days per year, described situations 

that warrant denying ruminants access 

to the outdoors (e.g., birthing cows or 

newborn calves), required that 

ruminants receive not less than 30 

percent of dry matter intake from 

grazing, and addressed several other 

matters related to the management of 

pasture and feeding yards, pads, and 

lots. The Access to Pasture Rule also 

clarified that the requirements for 

outdoor access and species-appropriate 

access to shade, shelter, exercise, fresh 

air, and direct sunlight required by the 

NOP Rule must be provided for all 

organic livestock, including poultry, on 

a year-round basis. 

In March 2010, the USDA Office of 

the Inspector General (OIG) issued a 

report concerning, in part, AMS 

guidance on outdoor access for organic 

livestock.31 The OIG found inconsistent 

certification practices regarding outdoor 

access for poultry. For example, one 

operation they visited provided a total 

of 300 square feet of outdoor access for 

approximately 15,000 chickens, while 

two other operations provided large 

pasture areas. Of the four certifying 

agents OIG visited, only one had 

developed stocking density 

requirements for livestock. The OIG 

recommended that AMS issue further 

guidance on outdoor access for 

livestock, especially poultry. 

In response, AMS published draft 

guidance, Outdoor Access for Organic 

Poultry, on October 13, 2010 and sought 

public comment.32 The draft guidance 

advised certifying agents to use the 2002 

and 2009 NOSB recommendations as 

the basis for certification decisions 

regarding outdoor access for poultry.33 It 

informed certifying agents and 

producers that maintaining poultry on 

soil or outdoor runs would demonstrate 

compliance with the outdoor access 

requirement in 7 CFR 205.239. 

AMS received 69 comments on the 

draft guidance. Comments varied 

widely. Several commenters, including 

organic poultry producers, requested a 

change to the draft guidance language to 

say that poultry, when outdoors, should 

be maintained on soil, pasture, or 

vegetation. They described health 

benefits and protection of the 

environment that a pasture or other 

vegetated outdoor access area would 

afford. Additionally, some supported 

more specific and stringent stocking 

densities. Commenters suggested a 

maximum stocking rate of 1.75 square 

feet per bird in henhouses that provide 

access to perches, with an additional 5 

square feet per bird available in 

vegetated outdoor runs accessible to all 

birds at the same time. 

On the other hand, some commenters 

favored allowing porches as acceptable 

outdoor access, citing biosecurity and 

animal health concerns. One trade 

association, some organic egg producers, 

and consultants described several 

benefits in the use of production 

systems that limit outdoor access via the 

use of enclosed porches that keep 

poultry from contact with soil or 

pasture. These benefits included 

protection from predation and parasites, 

and seclusion from contact with 

pathogens that cause food safety 

problems and wild birds that could 

carry diseases. The commenters asserted 

that these systems are consistent with 

the 2002 NOSB recommendation and 

noted that organic egg producers had 

made substantial investments in 

facilities with porches. Some also 

expressed concerns that placing birds 

on soil would affect their ability to 

comply with the Food and Drug 

Administration’s Salmonella prevention 

food safety regulations (21 CFR part 

118). Several producers expressed 

concern with the 2009 NOSB 

recommendation that pullets be given 

outdoor access at 6 weeks of age, 

because layers are not fully immunized 

(including for protection against 

Salmonella) until 16 weeks of age. 

These producers said that pullets 

should not be exposed to uncontrolled 

environments until that time. 

However, many comments suggested 

that AMS’s draft guidance was 

unenforceable, and rulemaking would 

be a better action. These stated that 

certifying agents would be able to 

enforce a rule more clearly and 

decisively than guidance. Given this 

request that USDA address the issue of 

outdoor access for poultry through the 

rulemaking process, AMS determined to 

pursue rulemaking and did not finalize 

the draft guidance. 

OLPP Rule and Legal Challenges 

In April 2016, AMS published a 

proposed rule, Organic Livestock and 

Poultry Practices (OLPP), which 

incorporated NOSB recommendations. 

The proposed rule included provisions 

related to livestock health care practices 

(such as physical alteration procedures, 

euthanasia, and treatment of sick 

animals), living conditions for 

mammalian and avian livestock 

(including minimum indoor and 

outdoor space requirements for avian 

livestock), and requirements for care 

during transport and for slaughter 

practices. It received 6,675 written 

comments during the 90-day comment 

period, and petition signatures 

numbering in the tens of thousands. 

Comments were received from 


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34See 82 FR 9967 (February 9, 2017); 82 FR 21677 

(May 19, 2017); and 82 FR 52643 (November 14, 

2017). 

35USDA ERS. Farmland Value. https://

www.ers.usda.gov/topics/farm-economy/landuseland-value-tenure/farmland-value. 

36USDA NASS. Paid Indexes by Farm Origin and 

Month, Feed and Livestock & Poultry. https://

www.nass.usda.gov/Charts_and_Maps/ 

Agricultural_Prices/prod3.php. 

37For example, based on data from the ASPCA/ 

AWI Organic Consumer Survey, AMS estimates that 

at least 31.5% of organic eggs are purchased by 

consumers who mistakenly think the chickens 

producing their eggs have outdoor access that 

includes soil or pasture. See below for more detail. 

producers, producer associations, 

handlers, certifying agents, consumers 

and consumer groups, animal welfare 

organizations, veterinarians, state 

government agencies, foreign 

government agencies, and trade 

associations or organizations. They 

provided insight on topics such as 

regulatory authority, import impact, 

trade agreements, and alternatives to 

regulation. Comments generally found 

the rule beneficial for the industry and 

the organic label, but several raised 

challenges with the proposed standards. 

In response to public comment, AMS 

made a number of changes to the 

proposed rule to further clarify the 

requirements and mitigate economic 

impact on the industry. AMS published 

the Organic Livestock and Poultry 

Practices final rule (OLPP Rule) on 

January 19, 2017 (82 FR 7042). Prior to 

the OLPP Rule becoming effective, 

USDA (under a new Administration) 

delayed the effective date of the rule to 

allow the Administration to review it.34

After delaying the OLPP Rule’s 

effective date and conducting its review, 

AMS proposed withdrawing the OLPP 

Rule. It determined that the agency 

lacked the legal authority to issue the 

rulemaking, cited substantive errors in 

OLPP’s economic analysis, and 

maintained that there was no market 

failure (82 FR 59988, December 18, 

2017). On March 13, 2018, AMS 

published a final rule withdrawing the 

OLPP Rule for those reasons 

(Withdrawal Rule; 83 FR 10775). 

Plaintiffs challenged USDA’s delay and 

subsequent withdrawal the OLPP Rule. 

The Center for Food Safety (CFS) and 

Center for Environmental Health (CEH) 

sued USDA, and the Organic Trade 

Association (OTA) separately filed a 

suit, see Organic Trade Association v. 

USDA, No. 17–cv–1875–RMC (D.D.C.); 

CEH v. USDA, No. 3:18–cv–1763 (N.D. 

Cal.)). 

In March 2020, the U.S. District Court 

for the District of Columbia granted 

USDA’s motion to remand to USDA for 

purposes of clarifying and 

supplementing the records regarding the 

economic analyses underlying the OLPP 

Rule and the Withdrawal Rule. The 

District Court set a deadline of 180 days 

for USDA to complete these economic 

analysis actions. 

AMS reviewed the economic analyses 

for both the OLPP Rule and the 

Withdrawal Rule. It discovered 

additional errors in the OLPP Rule, 

beyond those already cited by the 

Withdrawal Rule, and substantive errors 

in the economic analysis of the 

Withdrawal Rule itself. AMS published 

the Organic Livestock and Poultry 

Practice Economic Analysis Report on 

April 23, 2020, describing all the errors 

and seeking public comment on the 

Report (85 FR 22664). After considering 

the comments, AMS published the Final 

Decision on Organic Livestock and 

Poultry Practices Rule and Summary of 

Comments on the Economic Analysis 

Report on September 17, 2020 (85 FR 

57937). In the Final Decision, AMS 

concluded that ‘‘[t]o the extent the 

Withdrawal Rule formed an assessment 

of the likely costs and benefits of the 

OLPP Rule based on that flawed 

analysis, AMS hereby modifies that 

assessment and concludes simply that 

the Final RIA does not support 

promulgation of the OLPP Rule in light 

of its significant flaws.’’ AMS further 

concluded that ‘‘[i]mplementing the 

OLPP Rule based on such a flawed 

economic analysis is not in the public 

interest’’ and decided not to take any 

further regulatory action with respect to 

the OLPP Rule (85 FR 57944). 

In June 2021, Secretary Vilsack 

announced that USDA would 

‘‘reconsider the prior Administration’s 

interpretation that [OFPA] does not 

authorize USDA to regulate the 

practices that were the subject of the 

[OLPP Rule].’’ He further directed NOP 

‘‘to begin a rulemaking to address this 

statutory interpretation and to include a 

proposal to disallow the use of porches 

as outdoor space in organic production 

over time and on other topics that were 

the subject of the OLPP Final Rule.’’ 

Economic Analysis and Market Failure 

In the Economic Analysis Report, 

AMS described the three errors that had 

been identified in the economic analysis 

of the Withdrawal Rule: (1) the incorrect 

application of the discounting formula; 

(2) the use of an incorrect willingness to 

pay value for eggs produced under the 

new outdoor access requirements; and 

(3) the incorrect application of a 

depreciation treatment to the benefit 

calculations. The Report explained that 

although the economic analysis of the 

Withdrawal Rule correctly identified 

these errors and properly addressed the 

first two errors (incorrect discounting 

methodology and willingness-to-pay 

values), it had not fully removed the 

incorrect depreciation treatment from 

the cost and benefit calculations, which 

erroneously reduced the calculation of 

both costs and benefits. 

The Report went on to identify and 

discuss four categories of additional 

errors in the economic analysis of the 

OLPP Rule that were previously 

undetected and therefore inadvertently 

carried forward to the economic 

analysis of the Withdrawal Rule. These 

were: (1) inconsistent or incorrect 

documentation of key calculation 

variables; (2) an error in the volume 

specification affecting benefits 

calculations in two of three scenarios 

considered; (3) the incorrect use of 

production values in the benefits 

calculations that do not account for 

projected increased mortality loss; and 

(4) aspects of the cost calculations that 

resulted in certain costs being ignored, 

underreported, or inconsistently 

applied. In addition, the Report 

described certain minor errors that did 

not have a material impact on the cost 

and benefit calculations (85 FR 57938). 

In this OLPS final rule, AMS has 

worked to ensure that the RIA addresses 

these concerns. Some of the 

mathematical or descriptive concerns 

were addressed with rewriting the rule. 

AMS specifically addressed issues with 

discounting and depreciation in the 

analysis and fixed various errors found 

by the report. Additionally, AMS 

adjusted the willingness to pay for 

outdoor access in eggs to the more 

precise measure suggested by the 

economic analysis report. While AMS 

maintains the use of enterprise budgets 

in the original rule to model costs, AMS 

updated costs in the rule to the extent 

possible based on data availability, as 

they provide the most detailed estimates 

for the organic industry and USDA ERS 

has shown that both feed and land costs 

have remained approximately steady 

since their development.35 36

Based on data provided through 

public comment, AMS determined that 

there is inconsistent application of 

outdoor access requirements for organic 

livestock, leading to information 

asymmetry.37 This inconsistency and 

information asymmetry threatens both 

consumer confidence in the organic 

label and future industry growth. One of 

the primary purposes of OFPA is ‘‘to 

assure consumers that organically 

produced products meet a consistent 

standard (7 U.S.C. 6501).’’ Therefore, 

USDA must issue additional regulations 

to ensure that organic livestock products 

meet a consistent, nationwide standard 

across the industry. This rule will 


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38ASPCA and the Animal Welfare Institute. 

Survey. September 2022. https://www.aspca.org/ 

sites/default/files/awi_aspca_organic_consumer_

survey_summary_2022_final.pdf. 

39Producer costs under the various requirements 

are estimated in Section F of the RIA. 40Theoretical discussion about the relations 

between consumer confusion and label trust can be 

found in Section F of the RIA. 

minimize the inconsistency and 

information asymmetry in the organic 

livestock industry and meet one of 

OFPA’s main purposes. 

Third-party certification can result in 

different certifiers interpreting the 

standards differently. In the case of 

organic animals, including organic 

poultry, there has been significant 

divergence among certifiers in how the 

‘‘access to the outdoors’’ requirement in 

7 CFR 205.239(a)(1) is interpreted and 

enforced. As a matter of practice, 

certifiers determine how much outdoor 

access is needed to meet the rule’s 

requirements, and this has led to 

divergent certification and production 

practices. 

While differing practices within a 

given industry do not necessarily 

constitute a market failure, highly 

varied practices under a single 

marketing label can create a market 

failure through information asymmetry. 

Information asymmetry occurs because 

consumers may not know how their 

organic livestock products are being 

produced but producers do, resulting in 

some organic consumers paying a 

premium for organic products that they 

incorrectly believe contain specific 

attributes (e.g., outdoor access). When 

consumers pay for a product that does 

not include certain attributes they 

expect, this may represent a market 

failure caused by an information 

asymmetry between consumers and 

organic operations. The existence of this 

information asymmetry has been a 

driver of the creation and operation of 

USDA’s organic certification program, 

and organic labeling thus communicates 

product attributes in accordance with 

the program’s ‘‘organic’’ definition, 

standards, and enforcement; as a result, 

suboptimal past program choices may 

have contributed to the baseline market 

distortions. 

In the organic egg industry, AMS 

estimates that approximately 30% of 

organic egg production comes from hens 

with access to outdoor areas that 

include soil or pasture, while 

approximately 70% of organic egg 

production only has access to the 

outdoors through enclosed porches with 

no soil or pasture. Recent survey data 

shows that 65% of frequent organic 

purchasers and 54% of all organic 

purchasers think that all organic 

animals have access to ‘‘outdoor 

pastures and fresh air throughout the 

day.’’ 38 Using this data, AMS estimates 

that 31.5% of organic eggs are 

purchased by consumers who 

mistakenly think the chickens 

producing their eggs have outdoor 

access that includes soil or pasture. This 

survey also demonstrates consumers 

may face similar information 

asymmetries about space and welfare 

requirements in organic agriculture, 

with 59% of consumers believing 

organic animals have more space and 

45% of consumers believing organic 

animals are prohibited from having their 

beaks and tails removed. 

In summary, rulemaking is the best 

solution to resolve the market/ 

government failure and meet the OFPA 

purpose of ‘‘assur[ing] consumers that 

organically produced products meet a 

consistent standard’’—in this case 

assuring consumers that organic 

livestock products are produced using 

consistent animal welfare and outdoor 

access standards. Given that third-party 

labels are not regulated by USDA, it 

would be difficult to attain 

informational consistency needed to 

address the information asymmetry. 

Additionally, stakeholders have 

expressed concerns about the additional 

producer costs and consumer confusion 

these labels may create.39 40 This 

rulemaking aligns with existing thirdparty labels regarding outdoor access, 

easing the burden on producers (relative 

to a hypothetical rulemaking with 

similar goals but no such alignment). 

AMS also believes that rulemaking is a 

better option than increased consumer 

education about the livestock attributes 

of the organic label. Consumer 

education may help consumers know 

what to expect from the organic label, 

but it would not address inconsistent 

production practices among organic 

livestock producers, which undermines 

AMS’s statutory mission to ensure that 

products produced and sold under the 

organic label are meeting a consistent 

national standard. AMS believes 

rulemaking is the best option. 

Summaries of comments received on 

the topic of market failure and AMS’s 

responses to comments on the topic are 

below. Many of the comments received 

supported AMS’s conclusion that there 

is a market failure caused by a lack of 

clear standards. 

III. Overview of Public Comments 

AMS published the OLPS proposed 

rule on August 9, 2022, opening a 60- 

day public comment period. On August 

19, AMS held an online public listening 

session on the proposed rule to gather 

additional feedback; 132 listeners 

attended the listening session, and 19 

gave oral comments. At the request of 

several organic stakeholders, AMS 

extended the public comment period 

another 30 days to allow more time for 

the public to develop detailed 

comments on the rule’s requirements. 

By the close of the 90-day public 

comment period on November 10, 2022, 

AMS had received 40,336 written 

comments from a variety of 

stakeholders, including consumers, 

operations, certifying agents, retailers, 

trade associations, and advocacy groups. 

Some of these comments (which can be 

found at Regulations.gov) included 

signed petitions, which totaled 57,000 

signatures to petitions (in addition to 

the written comments). The subjects of 

the comments (including petitions) are 

discussed below. The organic industry 

demonstrated considerable interest in 

this rule and provided AMS detailed 

feedback on this rule. 

By a large majority (94%), public 

comments and petitions supported the 

rule, with many saying that consumers 

already expect outdoor access to be part 

of the organic label in keeping with 

animals’ natural behaviors. Several 

organic operations, certifying agents, 

and organic trade groups asserted the 

rule is necessary to ensure all producers 

have a consistent interpretation of what 

qualifies as outdoor access under the 

organic regulations. Most of the 

comments opposing the rule did not 

think it went far enough in protecting 

animal welfare and asked AMS to 

include additional animal welfare 

protections in the rule. Other comments 

disputed the need for the rule, AMS’s 

authority to promulgate the rule, and 

the effect of the rule on animal safety 

and organic markets. AMS responds to 

these comments below. 

In addition to soliciting general 

comments, AMS sought specific 

feedback on USDA’s statutory authority 

to issue this rule, the rule’s clarity, the 

accuracy of its Regulatory Impact 

Analysis (RIA) and Regulatory 

Flexibility Analysis (RFA), its 

consistency with current organic 

livestock production practices, and on 

specific implementation timeline 

options. The implementation timeline 

received by far the most public 

comment, with the nearly all 

commenters on that topic requesting 

implementation timelines shorter than 

the 15-year option. Poultry space 

requirements received the second most 

attention, and commenters responded in 

detail to several other livestock 

production practices and to issues 

regarding food and animal safety. AMS 

took public comments into 


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41 7 U.S.C. 6503(a), (c). 

42 7 U.S.C. 6509(d)(2). 

43 F.D.I.C. v. Meyer, 510 U.S. 471, 476 (1994). 

44 7 U.S.C. 6501. 

45 87 FR at 48567. 46National Organic Program (NOP)—Access to 

Pasture (Livestock) Proposed Rule: https://

www.regulations.gov/document/AMS-TM-06-0198- 

0001. 47 75 FR 7154, 7154–56 (Feb. 17, 2010). 48https://www.regulations.gov/document/AMSNOP-21-0073-39096. 49Perrin v. United States, 444 U.S. 37, 42 (1979); 

see generally A. Scalia & B. Garner, Reading Law 

69–77 (1st ed. 2012). 

50 Mont v. United States, 139 S. Ct. 1826, 1833– 

34 (2019). 

51Scalia & Garner, supra at 174. 52Scalia & Garner, supra at 176. 53 7 U.S.C. 6509(d)(2). 54 2009 NOSB Sunset Recommendation: https://

www.ams.usda.gov/sites/default/files/media/ 

NOP%20Final%20Sunset%20Rec%20Animal

%20Welfare.pdf. 

consideration when revising the policy 

and setting the implementation 

timeline. 

AMS also received many public 

comments on the specific policies and 

livestock production practices we 

proposed. The revisions to this final 

rule took those public comments into 

account. Discussion of comments 

specific to the rule’s policy follow in 

Section IV, OVERVIEW OF FINAL 

RULE. 

A. Responses to Comment on Statutory 

Authority 

(Comment) Many comments posited 

that AMS is appropriately exercising its 

authority under OFPA to establish 

regulations regarding livestock and 

poultry health care practices, living 

conditions, and welfare. Comments 

asserted that OFPA directs AMS to 

regulate the care of farmed animals, 

which broadly encompasses animal 

welfare. Specifically, comments stated 

that OFPA commands AMS to 

‘‘establish an organic certification 

program for producers and handlers of 

agricultural products that have been 

produced using organic methods’’ and 

to consult with the NOSB in 

development of that program.41

Comments stated that OFPA provides 

that the NOSB may recommend 

standards specifically for the ‘‘care of 

livestock to ensure that such livestock is 

organically produced’’ in addition to 

provisions related to animal health 

care.42 As OFPA does not define ‘‘care,’’ 

comments argued that it should be 

interpreted by its ordinary use 

definition 43 to include animal welfare. 

Comments asserted that the legislative 

purpose and history demonstrate that 

Congress unambiguously intended for 

animal welfare practices to be required 

at certified organic operations. These 

comments argued that to meet OFPA’s 

broad purposes of establishing ‘‘national 

standards governing the marketing of 

[organically produced] agricultural 

products,’’ assuring consumers that 

‘‘organically produced products meet a 

consistent standard,’’ and facilitating 

interstate commerce with fresh and 

processed [organically produced] 

food,’’ 44 AMS must regulate animal 

welfare to align with consumer 

expectations. 

Comments also cited AMS’s historical 

interpretation that OFPA grants the 

authority to regulate animal welfare 

through NOSB recommendations, as 

AMS did in the 2010 Access to Pasture 

rule. The Pasture rule was promulgated 

‘‘in response to the 2005 NOSB 

recommendation and extensive public 

input requesting clear outdoor access 

requirements for ruminant livestock,’’ 45

and received over 4,000 public 

comments.46 Comments noted the 

Pasture rule, which regulates animal 

welfare, was promulgated through the 

same process as this rule, based on 

recommendations, public hearings, and 

public comments.47 Similarly, 

commenters said the OLPS proposed 

rule is based on NOSB 

recommendations, so both rulemaking 

precedent and NOSB recommendations 

reinforce AMS’s authority to regulate 

animal welfare in the OLPS final rule. 

Finally, comments cited concepts of 

statutory construction to support the 

notion that both OFPA and current 

livestock regulations authorize OLPS. 

One comment argued that ‘‘the accepted 

canons of statutory construction’’ 

support the interpretation that OFPA 

‘‘expressly give[s] USDA authority to set 

the Organic Livestock Rule 

standards.’’ 48 This comment details 

how these ‘‘three core canons of 

statutory construction’’—ordinary 

meaning, whole text, and surplusage— 

each support AMS’s legal authority to 

regulate animal welfare under OFPA. 

The ordinary meaning canon holds that 

absent specific definitions, words in a 

statute must be interpreted using ‘‘their 

ordinary, contemporary, common 

meaning.’’ 49 Comments stated that the 

terms ‘‘care,’’ ‘‘health,’’ and ‘‘health 

care,’’ which are referenced but not 

defined in OFPA, are broad in their 

ordinary meanings to include animal 

welfare. The whole text canon calls for 

interpretation of statutory language to be 

based on consideration of the entire text 

and its logical relations.50 Comments 

stated that this canon supports USDA’s 

authority to issue this final rule, as 

OFPA provisions work together to 

require USDA to expand livestock care 

standards beyond prohibitions of certain 

substances: USDA cited §§ 6509(d)(2) 

and (g) when it promulgated the rule, 

explaining that § 6509(d)(2) authorizes 

the NOSB to recommend standards in 

addition to the OFPA provisions for 

livestock health care to ensure that 

livestock is organically produced. Sec. 

6509(g) directs the Secretary to develop 

detailed regulations through notice and 

comment rulemaking to implement 

livestock production standards. 

Comments found that when read as a 

whole, OFPA’s structure supports the 

USDA’s authority to issue this final rule. 

The surplusage canon, which 

commands that ‘‘every word and every 

provision is to be given effect,’’ 51

prevents interpretations that would 

render a provision pointless; instead, 

courts should interpret a provision in a 

way that ‘‘leaves both provisions with 

some independent operation.’’ 52

Comments found that this provision 

allows for the agency to adopt 

additional standards ‘‘for the care of 

livestock,’’ including standards that 

promote animal welfare. 

(Response) ‘‘Care of livestock’’ 

necessarily includes livestock wellbeing 

and welfare. AMS agrees that ordinary 

definitions of ‘‘care’’ and ‘‘health 

care’’—which are not explicitly defined 

in OFPA nor its regulations—encompass 

living conditions included in the rule, 

and that ‘‘care of livestock’’ includes 

animal welfare.53 Additionally, as 

OFPA provides, NOSB has previously 

issued recommendations regarding 

organic livestock production, and AMS 

has revised the organic regulations in 

response to the recommendations (e.g., 

‘‘Access to Pasture’’ and ‘‘Origin of 

Livestock’’). Several NOSB 

recommendations are relevant to this 

final rule. At its Fall 2009 meeting, 

NOSB issued a final recommendation 

on animal welfare,54 which was updated 

by subsequent recommendations. These 

recommendations set the framework for 

this final rule. 

(Comment) Several comments 

disagreed with AMS’s statutory 

authority to regulate organic livestock 

welfare. These comments posited that 

AMS lacks the legal authority to 

promulgate the rule, arguing that OFPA 

authority is limited to livestock and 

poultry feeding and medication 

practices. In this view, animal handling 

practices are not a defining 

characteristic of organic agriculture and 

are not germane to the NOP as 

authorized by Congress. Comments also 

referenced a previous rulemaking that 

was withdrawn in March 2018, 

specifically AMS’s rationale for 

withdrawing the OLPP Final Rule. 

Reasons cited include AMS’s own stated 


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75406 Federal Register / Vol. 88, No. 211 / Thursday, November 2, 2023 / Rules and Regulations 

55 82 FR 59990, Dec. 18, 2017. 

56 ‘‘Organic agriculture is an ecological 

production management system that promotes and 

enhances biodiversity, biological cycles and soil 

biological activity. It is based on minimal use of offfarm inputs and on management practices that 

restore, maintain and enhance ecological harmony.’’ 

& ‘‘ ‘Organic’ is a labeling term that denotes 

products produced under the authority of the 

Organic Foods Production Act. The principal 

guidelines for organic production are to use 

materials and practices that enhance the ecological 

balance of natural systems and that integrate the 

parts of the farming system into an ecological 

whole.’’ (April 1995 NOSB meeting). 

57 ‘‘A production system that is managed in 

accordance with the Act and regulations in this part 

to respond to site-specific conditions by integrating 

cultural, biological, and mechanical practices that 

foster cycling of resources, promote ecological 

balance, and conserve biodiversity.’’ (7 CFR 205.2 

‘‘Organic production’’). 

58https://www.avma.org/resources/animalhealth-welfare/animal-welfare-what-it#:∼:text=

Good%20animal%20welfare%20

requires%20disease,humane%20

handling%2C%20and%20humane%20slaughter. 

59Sen. Rep. No. 101–357 (July 1990)). 

60Sen. Rep. No. 101–357, at 292 (July 1990). 

61Sen. Rep. No. 101–357, at 303 (July 1990). 

62 ‘‘Consumer Reports Survey Finds Consumers 

think it’s Important to Have High Animal Welfare 

Standards for Food Labeled Organic,’’ Consumer 

Reports, April 20, 2017, https://

www.consumerreports.org/media-room/pressreleases/2017/04/consumer_reports_survey_finds_

consumers_thin_its_important_to_have_high_

animal_welfare_standards_for_food_labeled_

organic/. 

63Organic Consumer Survey, Animal Welfare 

Institute, 2022, https://www.aspca.org/sites/default/ 

files/awi_aspca_organic_consumer_survey_

summary_2022_final.pdf. 

64Based on data from ASPCA and the Animal 

Welfare Institute survey, September 2022. https://

www.aspca.org/sites/default/files/awi_aspca_

organic_consumer_survey_summary_2022_

final.pdf. 

See Section II Subsection D for more detail. 

lack of statutory authority to promulgate 

the OLPP Final Rule, errors in 

calculating estimated benefits, and a 

lack of evidence of market failure to 

justify prescriptive regulatory action.55

Many of these comments stated that 

because OFPA is limited in scope to 

organic production, regulations enacted 

pursuant to its authority must be 

narrowly tailored to specific practices 

that differentiate organic from any other 

method of agricultural production—and 

that animal welfare is not unique to 

organic production. One comment 

referenced the NOSB definitions of 

organic agriculture that omit mention of 

animal welfare.56 Additionally, the 

definition of organic production at 7 

CFR 205.2 does not explicitly mention 

animal welfare.57 Another comment 

referenced a 2006 USDA Sustainable 

Agriculture Research and Education 

bulletin Transitioning to Organic 

Production that describes organic 

farming as an ecologically focused, 

input-based system as well as a 2007 

USDA Cooperative State Research, 

Education, and Extension Service 

publication Organic Agriculture 

Overview that emphasizes biological 

diversity and economic sustainability. 

This comment questioned the 

justification of the proposed rule under 

OFPA given the cited publications do 

not mention nor consider animal 

welfare as a defining characteristic of 

organic agriculture. 

(Response) AMS finds that as animal 

health and welfare are intertwined, 

OLPS provisions for both fall under the 

statutory authority of OFPA. Given 

OFPA’s plain language, legislative 

purpose and history, and historical 

regulatory interpretations, OLPS is 

consistent with the purposes of OFPA, 

and it establishes standards similar to 

existing organic standards. As animal 

welfare is intrinsically part of animal 

management,58 AMS is clearly within 

its statutory bounds to mandate specific 

animal welfare requirements as part of 

organic animal management. 

Further, the 1990 Senate Report that 

accompanied OFPA demonstrates 

Congressional expectation that USDA 

would update organic standards as 

organic production systems evolve.59

The report states that ‘‘with additional 

research and as more producers enter 

into organic livestock production, the 

[Senate Committee on Agriculture, 

Nutrition, and Forestry] expects that 

USDA, with the assistance of the 

[NOSB] will elaborate on livestock 

criteria.’’ 60 The report further states that 

‘‘[t]he Board shall recommend livestock 

standards, in addition to those specified 

in this bill, to the Secretary.’’ 61

Furthermore, in its October 1990 

Conference Report, conference members 

noted, ‘‘[t]he Conference substitute 

adopts the House provision with an 

amendment which requires the 

Secretary to hold hearings and develop 

regulations regarding livestock 

standards in addition to those specified 

in this title.’’ (p. 1177). This amendment 

is reflected in OFPA at sec. 6509(g). For 

further discussion of the statutory 

authority to issue this rule, see Section 

II.B, STATUTORY AUTHORITY TO 

ISSUE FINAL RULE. 

B. Responses to Comment on Market 

Failure 

AMS received approximately 300 

comments discussing the market failure 

addressed by the rule. Discussion of 

specific themes and AMS’s responses 

are below. Additional discussion of 

market failure can be found in the rule’s 

Regulatory Impact Analysis. 

(Comment) Many comments agreed 

there is market failure, citing confusion 

over multiple certifications, cost of 

maintaining certifications, and 

consumer expectation that the organic 

label requires meaningful outdoor 

access for poultry. Some comments 

argued that market failure has not 

occurred in the organic poultry 

industry, pointing to the industry’s 

rapid growth in the last five years. Most 

of these comments asked for additional 

justification of the claim of market 

failure in the organic label. However, 

most comments agreed that uneven 

compliance with and enforcement of the 

outdoor access requirement in organic 

livestock regulations creates a market 

failure. Some comments highlighted the 

possible negative impacts of this market 

failure, including loss of consumer 

confidence in the organic label and 

economic harm to producers. 

Some comments provided context on 

consumer confusion about organic 

animal welfare requirements by sharing 

recent survey results. Several comments 

cited a 2017 Consumer Reports survey 

that found 83 percent of organic 

consumers ‘‘think it’s highly important 

that organic eggs come from hens that 

were able to go outdoors, and have 

enough space to move around freely.’’ 62

Others cited a 2022 ASPCA survey 

finding that 65% of ‘‘frequent 

purchasers’’ (respondents who 

purchased organic animal products once 

a week or more) believed that ‘‘all 

animals raised on organic farms have 

access to outdoor pastures and fresh air 

throughout the day,’’ with another 23% 

indicating they were not sure.63

(Response) AMS agrees with 

comments that some combination of 

market failure and government failure 

(action or inaction) exists in poultry 

products under the organic label. 

Market failure can occur even when a 

market experiences rapid growth 

because consumers could be paying for 

attributes they are not receiving. As 

some organic broilers and layers are not 

currently raised with ‘‘access to outdoor 

pastures and fresh air throughout the 

day,’’ AMS concludes, based on the 

survey data submitted in public 

comments, that some organic consumers 

are not receiving attributes they believe 

they are paying for (for example AMS 

estimates that at least 31.5% of organic 

eggs are purchased by consumers who 

mistakenly think the chickens 

producing their eggs have outdoor 

access that includes soil or pasture).64

This gap in the organic poultry market 

could impact the entire organic label, as 

lowered consumer confidence in one 

product can impact consumer 

confidence across the label and 


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65AMS finds it likely that controversy or 

confusion about one product under the organic 

scheme will cause secondary effects to the overall 

label and other products, including, but not limited 

to, risk to consumer confidence, trust, and demand. 

Because of the unique nature of the organic label, 

quantifying or monetizing this risk was not 

possible. 

See Section F of the RIA for more detail. 

threatening organic integrity.65 AMS 

revised the discussion on market failure 

for this final rule in response to 

comments arguing that a market failure 

likely exists under the current organic 

regulations. AMS included references to 

surveys provided in comments where 

appropriate and discussed concerns 

from commenters about how to address 

market distortions in the organic 

context. Additional information 

regarding market failure can be found in 

the RIA. 

(Comment) Some comments 

expressed the view that third-party 

labels allowed for flexibility in the 

market, however, most who commented 

on this topic felt that third-party labels 

do not address the problem and cause 

additional consumer confusion. Several 

comments pointed out that it costs 

producers to maintain additional thirdparty animal welfare certifications and 

asserted that consumers were confused 

by the various competing labels. A few 

comments stated that third-party 

labeling may be sufficient to address the 

market failure. Comments pointed to the 

many animal welfare certifying and 

labeling programs available for both 

organic and conventional producers, 

offering flexibility to producers and a 

range of options for consumers; these 

represent the diversity of livestock and 

poultry production, differing priorities 

of certifying organizations, and evolving 

scientific understanding of animal 

welfare. 

(Response) AMS believes the existing 

combination of market failure and 

government failure cannot be solved 

solely through third-party labeling. 

Many organic poultry producers 

currently incur additional costs by using 

third-party labels to solve the issue of 

different production practices between 

operations. This rule’s additional 

specificity would improve the 

consistency of production practices and 

could reduce the need for and cost of 

additional third-party labels. Further, 

AMS agrees with other commenters who 

claim that third-party labels cannot 

address the problem because they create 

more consumer confusion. AMS revised 

the discussion on market failure in this 

final rule to include discussion of the 

inability of third-party labels to 

efficiently solve the observed 

information asymmetry. (See Section A, 

‘‘Need for the Rule,’’ in the Regulatory 

Impact Analysis.) 

IV. Overview of Final Rule and 

Responses to Comments 

AMS provides a detailed description 

of the final rule below, section by 

section, and responds to comments 

received on each section. The 

descriptions of the requirements are 

meant to explain AMS’s intent and 

provide examples of how to comply 

with the requirements. 

A. Terms Defined (§ 205.2) 

This rule adds seventeen new terms to 

7 CFR 205.2: beak trimming, 

caponization, cattle wattling, debeaking, de-snooding, dubbing, indoors 

or indoor space, induced molting, 

mulesing, non-ambulatory, outdoors or 

outdoor space, perch, pullet, religious 

(or ritual) slaughter, stocking density, 

toe clipping, and vegetation. The 

definitions are discussed below. 

Eight New Terms To Define Prohibited 

Physical Alterations 

Current organic regulations permit 

‘‘physical alterations’’ of animals ‘‘as 

needed to promote the animal’s welfare 

and in a manner that minimizes pain 

and stress’’ (7 CFR 205.238(a)). This rule 

elaborates on this requirement and 

prohibits some specific types of 

physical alterations. Defining these 

physical alterations supports common 

understanding of the meaning of the 

terms, as some terms could otherwise be 

interpreted in various ways (e.g., 

‘‘caponization’’ may be referred to as 

‘‘castrating’’ in some regions). AMS 

prohibits some alterations because they 

do not promote animal welfare or may 

be overly painful or stressful without a 

corresponding benefit to animal welfare. 

NOSB recommended prohibiting these 

specific physical alterations in 2009. 

The following terms are defined in 

this rule: beak trimming, caponization, 

cattle wattling, de-beaking, de-snooding, 

dubbing, mulesing, and toe clipping. 

Indoors or Indoor Space 

The rule defines ‘‘indoors or indoor 

space’’ as the space inside of an 

enclosed building or housing structure 

that is available to livestock. The 

definition includes four examples of 

structures that are commonly used in 

poultry production. These indoor 

housing types are defined, in part, 

because space requirements are based 

on the housing type. AMS also includes 

an indoor space requirement at 

§ 205.241(b)(8)(v) for housing that does 

not fit within one of the specific types 

defined in § 205.2. While all organic 

livestock must be provided with 

species-appropriate shelter, structures 

providing indoor space are not 

necessarily required. For example, beef 

cattle raised on pasture or range in mild 

climates may not need to be provided 

with indoor space. 

The final rule uses the term 

‘‘enclosed’’ to establish if a space should 

be considered indoors or outdoors. 

Under the definition, the space within 

the building or structure that can be 

enclosed is considered the indoor space. 

The rule defines ‘‘outdoors or outdoor 

space’’ separately (see discussion 

below). 

Induced Molting 

The rule defines ‘‘induced molting’’ 

as molting that is artificially initiated. 

The term is broadly defined to include 

the various methods a producer may use 

to induce, or force, molting in a flock, 

such as withdrawal of feed or 

manipulation of light. The term aligns 

with the definition that currently 

appears in FDA requirements related to 

the production, storage, and 

transportation of shell eggs at 21 CFR 

118.3. 

Non-Ambulatory 

The rule adds the term ‘‘nonambulatory’’ and references FSIS 

regulations at 9 CFR 309.2(b). FSIS 

describes non-ambulatory as ‘‘livestock 

that cannot rise from a recumbent 

position or that cannot walk, including, 

but not limited to, those with broken 

appendages, severed tendons or 

ligaments, nerve paralysis, fractured 

vertebral column, or metabolic 

conditions.’’ The rule now requires that 

any non-ambulatory livestock on 

organic farms must be medically 

treated—even if the treatment causes the 

livestock to lose organic status—or be 

humanely euthanized. 

Outdoors or Outdoor Space 

The rule defines ‘‘outdoors or outdoor 

space’’ to clarify the meaning of outdoor 

areas for mammalian and avian species. 

‘‘Outdoors or outdoor space’’ is defined 

as any area outside of an enclosed 

building or enclosed housing structure. 

In this definition, ‘‘outdoors or outdoor 

space’’ includes all the non-enclosed 

space encompassing soil-based areas 

such as pastures, pens, or sacrifice lots; 

hardened surface areas such as feedlots, 

walkways, or loafing sheds; and areas 

providing outdoor shelter such as 

windbreaks and shade structures. For 

avian species, the definition specifies 

that pasture pens are considered 

outdoor space. These are floorless pens 

that are moved regularly and provide 

direct access to vegetation, soil, and 

direct sunlight. These pens (often 


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referred to as ‘‘chicken tractors’’) may 

include roofing to provide shelter for 

the birds, so long as birds are still able 

to express natural behaviors (e.g., 

scratching) and meet all applicable 

requirements at § 205.241. To assist 

with the mitigation of biosecurity and 

predation risks, fencing, netting, or 

other materials are permitted over all or 

part of the outdoor areas to prevent 

predators and other wild birds from 

entering. For example, bird netting 

above a chicken pasture, where the 

chickens still have access to soil 

underneath, would be permitted. This 

area would qualify as outdoor space 

because it is not enclosed and allows 

access to soil. In contrast, a structure 

that is enclosed and has a hard floor 

(i.e., no soil) would not qualify as 

outdoor space. 

The definition also clarifies that 

enclosed open sided structures do not 

qualify as outdoors or outdoor space. 

This includes freestall barns and ‘‘open’’ 

sided poultry housing (enclosed by 

gates and/or wire, respectively). While 

housed in these structures, animals 

cannot be ‘‘outdoors.’’ Similarly, 

screened poultry ‘‘porches’’ or 

‘‘verandas’’ attached to poultry houses 

and enclosed by wire on the sides, are 

not considered outdoors. 

In this definition, ‘‘outdoors or 

outdoor space’’ includes all the nonenclosed space encompassing soil-based 

areas such as pastures, pens, or sacrifice 

lots; hardened surface areas such as 

feedlots, walkways, or loafing sheds; 

and areas providing outdoor shelter 

such as windbreaks and shade 

structures. For avian species, the 

definition specifies that pasture pens are 

considered outdoor space. These are 

floorless pens that are moved regularly 

and provide direct access to vegetation, 

soil, and direct sunlight. These pens 

(often referred to as ‘‘chicken tractors’’) 

may include roofing to provide shelter 

for the birds, so long as birds are still 

able to express natural behaviors (e.g., 

scratching) and meet all applicable 

requirements at § 205.241. To assist 

with the mitigation of biosecurity and 

predation risks, fencing, netting, or 

other materials are permitted over all or 

part of the outdoor areas to prevent 

predators and other wild birds from 

entering. 

Many producers also use portable or 

permanent shade structures throughout 

their pastures, and the definition 

clarifies that unenclosed structures used 

for shade are considered outdoor space. 

For example, the area within a standalone, roofed shade structure in a 

pasture could be included as outdoor 

space area. Non-enclosed areas under 

the eaves or the awning of a building 

can also be considered outdoors. While 

these areas may have solid roofs 

overhead, they offer the same quality of 

outdoor space as uncovered outdoor 

areas, including natural ventilation/ 

open air and open access to uncovered 

areas with direct sunlight, soil, and 

vegetation. 

Perch 

The rule defines the term ‘‘perch’’ as 

a rod- or branch-type structure above 

the floor or ground that accommodates 

roosting and allows birds to utilize 

vertical space. Perches may be indoors 

or outdoors. The final rule includes 

specific requirements for perch space 

for layers (Gallus gallus) indoors. 

Pullets 

AMS modified the definition of 

pullets, which is used by the AMS 

Livestock, Poultry, and Seed Program, to 

include species other than chickens. 

This rule defines ‘‘pullets’’ as female 

chickens or other avian species being 

raised for egg production that have not 

yet started to lay eggs. Once avian 

females begin laying eggs, AMS refers to 

them as layers. The term ‘‘pullets’’ is not 

used to describe young broilers used for 

meat production; broilers of any age are 

referred to as broilers in this rule. 

Religious (or Ritual) Slaughter 

The rule adds the term ‘‘religious (or 

ritual) slaughter.’’ This definition is very 

similar to a description in the Humane 

Methods of Slaughter Act (7 U.S.C. 

1902(b)), which allows for ritual 

slaughter in accordance with religious 

faith. This method of slaughter relies on 

the simultaneous and instantaneous 

severance of the carotid arteries with a 

sharp instrument. Organic livestock and 

handling operations may use religious 

(or ritual) slaughter to convert their 

mammalian or avian livestock to meat 

or poultry without loss of organic status. 

Stocking Density 

The rule defines ‘‘stocking density’’ as 

the liveweight or number of animals on 

a given area or unit of land. This term 

is used to describe the indoor and 

outdoor space requirements for organic 

livestock. For example, this rule 

establishes maximum stocking densities 

for chickens, and the producer must 

ensure that the area provided is large 

enough to not exceed the maximum 

stocking density when all birds in the 

flock are in the area (i.e., assume all 

birds are either indoors or all birds are 

outdoors when calculating space 

available to each bird). 

Vegetation 

The rule adds the term ‘‘vegetation’’ 

and defines it as living plant matter that 

is anchored in the soil by roots and 

provides ground cover. This term 

applies to the requirement for vegetation 

in outdoor areas, which is central to 

protecting soil and water quality as well 

as providing for livestock to exhibit 

their natural behaviors. The roots of 

vegetation provide stability and 

structure to soil. Vegetation helps water 

soak into the soil rather than running 

off, which can cause erosion. Livestock 

also have natural behaviors such as 

grazing, rooting, nesting, etc., which 

require vegetation. 

Changes From Proposed to Final Rule 

AMS has made several changes to the 

regulatory text of the OLPS proposed 

rule when writing this final rule. 

Changes to the final rule are discussed 

below and are followed by specific 

topics and themes from public 

comment. 

• AMS added the defined term 

‘‘induced molting.’’ This term was 

added to clarify the rule’s prohibition 

on induced molting, as described at 

§ 205.238, Livestock care and practice 

standards. This term aligns with FDA 

regulations and includes all methods 

used to artificially initiate molting. 

• AMS revised the definition of 

‘‘mobile housing’’ to more clearly state 

that this type of housing must allow 

birds continuous access to outdoors 

during the daytime. 

• AMS revised the definition of 

‘‘outdoors or outdoor space’’ to clarify 

that open-sided but enclosed structures, 

such as freestall barns, are not 

considered outdoor space. The revised 

definition also clarifies that unenclosed 

shade structures are considered outdoor 

space. 

• AMS revised the definition of avian 

‘‘pasture pens’’ to clarify that they must 

allow birds to express natural behaviors. 

• AMS revised the definition of 

‘‘perch’’, so it more broadly applies to 

perches in indoor and outdoor spaces. 

• AMS changed the term ‘‘ritual 

slaughter’’ to ‘‘religious (or ritual) 

slaughter.’’ AMS amended this term for 

clarification and to better align with 

current and preferred language. 

• AMS restructured the definition of 

‘‘slatted/mesh flooring’’ into a single 

paragraph to improve clarity. 

• AMS removed the definition of 

‘‘soil.’’ Soil is a commonly understood 

term and a definition is not necessary to 

understand or implement this rule. 

Responses to Public Comment 

AMS received many public comments 

from stakeholders across the organic 


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industry discussing this section of the 

proposed rule. The majority of 

comments generally supported AMS’s 

proposed revisions. Many commenters 

requested further clarification of the 

proposed changes, particularly 

regarding the definitions of soil and 

vegetation, and what qualifies as indoor 

or outdoor space. 

Soil 

(Comment) Many of the comments 

that discussed soil requested either 

modifying or removing the definition of 

‘‘soil’’ included in the proposed rule. 

Some commenters stated that because it 

did not originate from an NOSB 

recommendation, it should not be 

included in the rule. Others argued that 

defining ‘‘soil’’ for the purposes of 

livestock production standards could 

lead to unintended effects on other 

organic production areas, such as crop 

production. 

(Response) AMS agrees that a 

regulatory definition of ‘‘soil’’ should 

take the entire organic standard into 

consideration and that defining the term 

only for use in the livestock area of 

operation may affect other areas of 

organic production. Because soil is 

generally a well-understood term, a 

regulatory definition is not necessary for 

the successful implementation of this 

rule. AMS has removed the definition of 

‘‘soil’’ from the final rule. 

Vegetative Cover 

(Comment) Some commenters 

requested a new definition for the term 

‘‘maximal vegetative cover.’’ This term 

was used in the proposed rule to 

describe a requirement for outdoor 

areas, but the term was not defined. 

Comments requested a more exact 

description of the term to support 

consistent enforcement of the proposed 

requirement. 

(Response) AMS has elected to 

maintain the proposed language in the 

definition of ‘‘vegetation’’ and does not 

define ‘‘maximal vegetative cover’’ in 

this rule. The word ‘‘maximal’’ is 

removed in the final rule from 

§ 205.239(a)(12) and § 205.241(c)(2). 

Removing ‘‘maximal’’ gives operations 

the necessary flexibility to maintain 

vegetation in outdoor areas that is 

appropriate to their region, climate, and 

other site-specific conditions. See the 

‘‘Mammalian and non-avian livestock 

living conditions’’ and ‘‘Avian living 

conditions’’ sections of this preamble 

for further information about vegetation 

in outdoor spaces. 

Mobile Housing 

(Comment) Several commenters stated 

that the definition of ‘‘mobile housing’’ 

should be revised to better align with 

the industry’s current use of this type of 

avian indoor living space, and to ensure 

that these types of structures allow 

appropriate outdoor access to outdoor 

areas. 

(Response) AMS revised the 

definition of ‘‘mobile housing’’ to 

specify that mobile housing structures 

must allow birds to continuously access 

areas outside the structure during the 

daytime. AMS also removed the 

previous term ‘‘during the grazing 

season’’ to clarify that mobile housing is 

commonly used year-round. These 

changes better align with how the 

organic industry uses mobile housing 

and will allow operations to meet this 

rule’s avian indoor living requirements 

with this type of structure. 

Pasture Pens (Avian) 

(Comment) Commenters expressed 

concern with the definition of ‘‘pasture 

pen,’’ stating that some types of pasture 

pens (e.g., those with wire or partial 

floor covering) should not be counted as 

outdoor space because these pens may 

prevent the natural behaviors of birds or 

limit movement of birds. 

(Response) AMS recognizes the 

concerns and has revised the definition 

of ‘‘pasture pens’’ to include the phrase 

‘‘allow birds to express their natural 

behaviors.’’ To be considered outdoor 

space, pasture pens must provide direct 

access to soil and allow birds to express 

natural behaviors, such as scratching 

and dust bathing. Producers with 

pasture pens must also meet 

requirements at § 205.241(a). 

Stocking Density 

(Comment) Some commenters 

requested changing the word ‘‘animal’’ 

in the proposed definition to ‘‘bird’’ 

because the rule only defines stocking 

density for poultry, not other types of 

livestock. 

(Response) AMS has chosen to 

continue using ‘‘animal’’ in the 

definition of ‘‘stocking density.’’ The 

word ‘‘animal’’ includes birds and is 

therefore suitable for discussing and 

describing stocking densities of birds. 

Euthanasia and Death 

(Comment) Several comments 

requested clarification on what the term 

‘‘euthanasia’’ means, and asked AMS to 

develop a definition for ‘‘euthanasia,’’ 

‘‘death’’ or ‘‘dead’’ to clarify what 

methods can be used to verify death 

following a euthanasia procedure. 

(Response) AMS has elected not to 

define ‘‘euthanasia,’’ ‘‘death,’’ or ‘‘dead’’ 

in the rule. Section 205.238, Livestock 

care and production practices standard, 

addresses euthanasia, including how 

operations must ensure animals are 

dead following euthanasia. The final 

rule does not require operations to use 

a specific method to verify death. 

However, AMS does recommend that 

operations use methods of euthanasia 

and confirmation of death consistent 

with the American Veterinary Medical 

Association (AVMA) Guidelines for the 

Euthanasia of Animals. See § 205.238(e) 

of this rule for more information on 

euthanasia and livestock care practices. 

Outdoor Space 

(Comment) One comment expressed 

concern that the proposed rule’s 

definition of outdoor space may allow 

operations to consider freestall or hoop 

barns with the sides up as outdoor 

space. The commenter requested such 

structures be counted as indoor space 

only. 

(Response) AMS amended the 

definition of outdoor space to 

specifically clarify that ‘‘enclosed 

housing structures with open sides (e.g., 

open-sided freestall barns) are not to be 

considered outdoors or outdoor space.’’ 

The definition was amended to remove 

language about roofed areas that are not 

enclosed being permitted as outdoor 

space. The language was replaced with 

a specification that open-sided enclosed 

structures are not considered outdoor 

space. Because such structures may not 

always allow animals free access to 

outdoor areas, the space is enclosed and 

therefore considered indoor space, not 

outdoor space. 

B. Livestock Care and Production 

Practices Standard (§ 205.238) 

Description of Final Policy 

This final rule updates § 205.238 of 

the USDA organic regulations. This 

section discusses requirements for the 

care and management of organic 

livestock that apply to all species of 

livestock. The two following sections of 

this rule (§§ 205.239 and 205.241) cover 

living condition requirements specific 

to mammalian/non-avian and avian 

species, respectively. The following 

discussion describes the changes that 

this final rule makes to § 205.238. 

Updates to § 205.238(a) require that 

producers select a species suitable for 

the conditions of their site, establish 

appropriate housing, and provide a feed 

ration sufficient to the nutritional 

requirements of the animal. During onsite inspections, certifying agents must 

verify the suitability of the breed to its 

housing and living conditions and the 

adequacy of the animals’ diet. 

AMS revises § 205.238(a)(5) to clarify 

the conditions under which operations 

may perform physical alterations on 


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66Available at https://www.ams.usda.gov/rulesregulations/organic/nosb/recommendations. 

livestock. Physical alterations may be 

performed for identification purposes or 

the safety of the animal. Alterations 

must be done at a young age for the 

species, and in a manner that minimizes 

the animals’ pain and stress during and 

after the procedure. Alterations may 

only be performed by an individual who 

is capable of doing so in a manner than 

minimizes stress and pain. Operations 

may use an individual’s training or 

experience to demonstrate that 

individual’s capability to perform 

physical alterations. 

A 2009 NOSB recommendation 

allowed teeth clipping and tail docking 

in piglets, but this proposal was 

retracted in the 2011 NOSB 

recommendation.66 Section 

205.238(a)(5)(i) of this final rule restricts 

needle teeth clipping and tail docking. 

These two types of physical alterations 

may not be performed on a routine 

basis, but they are not prohibited in all 

cases. As § 205.238(a)(5)(i) specifies, 

needle teeth clipping and tail docking 

may only be performed in response to 

documented instances of harm, and 

only with documentation that 

alternative steps to prevent such harm 

failed. For example, an organic swine 

producer who clipped needle teeth or 

performed tail docking would need to 

document excessive needle teeth 

scarring on the underline of a sow or 

piglets, or document tail biting on 

piglets in the litter. In this case, the 

producer also must document that 

alternative methods to prevent scarring 

had failed. Such alternative methods 

may include, but are not limited to, 

cross-fostering prior to teat fidelity 

across litters to minimize weight 

variation, providing sufficient 

enrichment materials, and providing 

vegetation for rooting. Teeth clipping, if 

performed, is limited to the top third of 

each needle tooth. 

AMS adds new paragraph (a)(5)(ii) to 

list the physical alterations that an 

organic operation must not perform. 

Based on 2011 NOSB recommendations, 

the following physical alterations to 

avian species are prohibited: debeaking, de-snooding, caponization, 

dubbing, toe clipping of chickens, toe 

clipping of turkeys unless with infra-red 

at hatchery, and beak clipping after 10 

days of age. In addition, the following 

physical alterations to mammalian 

species are prohibited: tail docking of 

cattle, wattling of cattle, face branding 

of cattle, tail docking of sheep shorter 

than the distal end of the caudal fold, 

and mulesing of sheep. 

AMS adds new requirements at 

§ 205.238(a)(7) to specify that surgical 

procedures on livestock to treat illness 

or injury must be done in a manner that 

minimizes pain, stress, and suffering. 

The NOSB recommended that all 

surgical procedures for livestock be 

done with the use of anesthetics, 

analgesics, and sedatives. USDA organic 

regulations require that all surgical 

procedures for treatment of disease be 

undertaken in a manner that employs 

best management practices in order to 

minimize pain, stress, and suffering. 

Operations may only use synthetic 

anesthetics, analgesics, and sedatives if 

listed on the National List of Allowed 

and Prohibited Substances (‘‘National 

List’’) at § 205.603(a) and (b), which lists 

the synthetic substances that are 

allowed in organic livestock production. 

The final rule adds new 

§ 205.238(a)(8) that requires organic 

producers to actively monitor lameness 

within the herd or flock and to 

undertake timely and appropriate 

treatment and mitigation strategies. 

Lameness can be an issue in various 

livestock species, including broilers, 

sheep, and dairy cattle. This 

requirement for producers to create a 

plan for monitoring and treating 

lameness in the OSP will enable them 

to identify and address potential 

problems among animals before they 

become widespread. 

The final rule amends § 205.238(b) to 

state that synthetic medications allowed 

under § 205.603 of the National List may 

be administered to alleviate pain or 

suffering, as well as when preventive 

practices and veterinary biologics are 

inadequate to prevent sickness. 

Similarly, parasiticides allowed by the 

National List may be used on breeder 

stock, dairy animals, and fiber bearing 

animals, as allowed under § 205.603. 

When using these substances, 

operations must follow all applicable 

limitations of use as listed in § 205.603, 

including any withholding or 

withdrawal periods. 

AMS amends § 205.238(c)(1) to clarify 

that milk from an animal treated with a 

substance that is allowed on the 

National List and has a withdrawal 

period may not be sold, labeled, or 

represented as organic during that 

withdrawal period. However, that milk 

may be fed to organic calves on the 

same operation during the withdrawal 

period. This is consistent with the 2010 

NOSB recommendation that a calf 

nursing a cow treated topically with 

lidocaine or other approved synthetic 

with a withdrawal period should not 

lose organic status. For example, if an 

organic cow became injured and was 

treated with lidocaine to minimize pain, 

she could continue to nurse her organic 

calf during lidocaine’s seven-day 

withholding period, and the calf would 

not lose its organic status. 

The final rule revises § 205.238(c)(2) 

to clarify that producers may administer 

allowed synthetic medication (i.e., those 

on the National List at § 205.603) to 

alleviate pain and suffering, in addition 

to use for the treatment of illness. 

AMS revises § 205.238(c)(3) to clarify 

that organic livestock producers are 

prohibited from administering synthetic 

or non-synthetic hormones to promote 

growth, or for production or 

reproductive purposes. Hormones listed 

in § 205.603 could be used as medical 

treatments (e.g., oxytocin). Stakeholders 

have noted that the USDA organic 

regulations fail to address use of 

hormones to stimulate production or for 

reproductive purposes. AMS is not 

aware of any hormones used by organic 

producers for these purposes, and no 

hormones are included on the National 

List for these uses. Therefore, the final 

rule’s change maintains the status quo; 

that is, it affirms and supports the 

current prohibition on using hormones 

to promote growth, production, or 

reproduction. All hormones—unless 

used as medical treatments and 

included on the National List—are 

prohibited in organic production. 

The final rule adds new 

§ 205.238(c)(8) to prohibit organic 

livestock producers from withholding 

treatment designed to minimize pain 

and suffering for injured, diseased, or 

sick animals. Injured, diseased, or sick 

animals may be treated with any 

allowed natural substance or synthetic 

medication that appears on the National 

List without losing their organic status. 

However, if no medication allowed for 

organic production suffices to ease the 

animal’s suffering, organic livestock 

producers are required to administer 

treatment even if the animals 

subsequently lose their organic status. 

Euthanasia is an acceptable practice for 

minimizing pain and suffering only 

when the animal is suffering from 

disease or injury that cannot be healed 

by other treatments, including 

treatments that would cause an animal 

to lose its organic status. 

AMS adds new § 205.238(c)(9), which 

requires livestock producers to identify 

and record treatment of sick and injured 

animals in animal health records. Early 

identification can lead to more effective 

prevention or treatment, which can 

enhance the overall health of the 

livestock on that operation. Certifiers 

should review treatment during on-site 

inspections to verify that operations are 

individually identifying treated animals 


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67Available at https://www.ams.usda.gov/rulesregulations/organic/nosb/recommendations. 68https://www.avma.org/resources-tools/avmapolicies/avma-guidelines-euthanasia-animals. 

and that treatments comply with the 

organic regulations. 

AMS adds new § 205.238(c)(10) 

prohibiting induced molting in poultry 

production. This rule also defines 

induced molting at § 205.2 as any type 

of molting that is artificially induced. 

Section 205.238(a)(2) of this rule 

requires a nutritionally sufficient feed 

ration for livestock. Induced molting, a 

practice by which feed restriction, 

severe light manipulation, or other 

management practices are used to 

rejuvenate egg production, runs counter 

to the welfare intent of this final rule. 

An explicit prohibition on induced 

molting is consistent with the organic 

regulation’s general animal welfare 

requirements, and the fall 2009 NOSB 

recommendation.67

AMS adds new § 205.238(d) requiring 

organic livestock operations to have a 

plan to minimize internal parasite 

problems in livestock. The plan must 

include preventive measures such as 

pasture management, fecal monitoring, 

and emergency measures in the event of 

a parasite outbreak. Certifying agents 

must approve a livestock operation’s 

parasite control plan as part of the 

operation’s OSP. 

In certain cases, livestock may suffer 

from an illness or injury where recovery 

is unlikely. AMS adds new § 205.238(e) 

to address euthanasia based on the 2011 

NOSB recommendations. Section 

205.238(e)(1) requires livestock 

producers to maintain written plans for 

euthanizing sick or injured livestock 

suffering from irreversible disease or 

injury. Section 205.238(e)(2) prohibits 

the following methods of euthanasia: 

suffocation, manual blows to the head 

by blunt instrument or manual blunt 

force trauma, and use of equipment that 

crushes the neck (e.g., killing pliers or 

Burdizzo clamps). In the event of an 

emergency situation where a local, 

State, or Federal government agency 

requires the use of a non-organic 

method of euthanasia, organic livestock 

operations would not lose organic 

certification or face other penalties for 

that instance of euthanasia. The NOSB 

recommended listing the allowable 

methods of euthanasia; however, given 

that new humane euthanasia methods 

may emerge, AMS does not intend to 

discourage producers from using these 

techniques. AMS therefore directs 

organic livestock producers to use 

methods of euthanasia consistent with 

the most recent editions of the 

American Veterinary Medical 

Association (AVMA) Guidelines for the 

Euthanasia of Animals.68 The list of 

specifically prohibited methods could 

be amended to include other 

techniques, if needed, through future 

rulemaking. AMS also requires in 

§ 205.238(e)(3) that organic producers 

carefully examine livestock to ensure 

they are dead following a euthanasia 

procedure. 

Changes From Proposed to Final Rule 

AMS has made several changes to the 

regulatory text of the OLPS proposed 

rule when writing this final rule. 

Changes to the final rule are discussed 

below and are followed by specific 

topics and themes from public 

comment. 

• AMS removed the phrase ‘‘resulting 

in appropriate body condition’’ from the 

feed ration requirement in 

§ 205.238(a)(2) because some comments 

found this phrase to be unnecessarily 

prescriptive or confusing. Removing this 

phrase reinforces that this requirement 

is meant to ensure operations provide 

adequate and nutritional feed to organic 

livestock. 

• AMS amended the requirements in 

§ 205.238(a)(5) regarding physical 

alterations. AMS removed the phrase 

‘‘to benefit the welfare of the animal’’ as 

this is redundant with ‘‘for . . . the 

safety of the animal.’’ In response to 

public comment, the final rule clarifies 

who may perform alterations (‘‘a person 

. . . capable of performing the physical 

alteration in a manner that minimizes 

stress and pain’’) and when the 

alteration may be performed (‘‘at a 

young age for the species’’). 

• In response to public comment, 

AMS amended the surgical procedure 

requirements in § 205.238(a)(7). AMS 

clarified that surgical procedures may 

be required to treat ‘‘illness or injury.’’ 

AMS also clarified that the reason for 

using surgical best practices is to 

‘‘promote the animal’s wellbeing.’’ 

• AMS removed a requirement to 

record lameness and the percent of herd 

suffering from lameness at 

§ 205.238(a)(8) and revised the section 

to focus on a more general requirement 

to monitor, treat, and prevent lameness 

as appropriate to the species. This 

provides additional flexibility because 

some species are more prone to 

lameness. 

• To align with changes made by 

AMS’s Origin of Livestock final rule 

(April 5, 2022; 87 FR 19740) to the 

preventive medicine and parasiticide 

livestock practice standards, AMS 

amended § 205.238(b). 

• In response to public comment, 

AMS clarified in § 205.238(c)(1) that 

milk from animals treated with 

synthetic substances that ‘‘have 

associated withdrawal periods’’ cannot 

be sold, labeled, or represented as 

organic during the withdrawal period. 

• AMS revised the language in 

§ 205.238(c)(10) that prohibits induced 

molting. The proposed rule used the 

term ‘‘forced molting or withdrawal of 

feed to induce molting.’’ AMS finds that 

‘‘induced molting’’ is a more common 

and comprehensive term that better 

captures AMS’s intent for a total ban on 

this practice, and it also aligns with the 

FDA definition of induced molting (21 

CFR 118.3). 

• AMS removed the sentence in 

§ 205.238(d)(1) stating that ‘‘Parasite 

control plans shall be approved by the 

certifying agent.’’ Because parasite 

control plans are part of an OSP, and 

certifying agents must approve organic 

systems plans, the sentence was 

unnecessary, and AMS removed the 

language to avoid confusion. 

• In response to public comment, 

AMS revised § 205.238(e)(1) to state that 

euthanasia is for ‘‘sick or injured 

livestock suffering from irreversible 

disease or injury.’’ This change clarifies 

that euthanasia should be used only if 

treatment is not an option. 

Responses to Public Comment 

AMS received many public comments 

from stakeholders across the organic 

industry discussing this section of the 

proposed rule. The topics that received 

the most public comment were physical 

alterations, body condition, induced 

molting, monitoring of lameness, 

medicines with withholding periods, 

and euthanasia. AMS summarizes and 

responds to those comments below. 

Physical Alterations 

(Comment) Several commenters 

requested that AMS clarify the 

requirements in § 205.238(a)(5) for when 

physical alteration is permitted and who 

may perform it. Commenters found 

‘‘reasonably young age’’ (the language in 

the proposed rule) vague and requested 

a definition or species-specific listing of 

ages. Similarly, commenters said the 

requirement that alterations be 

performed ‘‘by a competent person’’ was 

vague. Some proposed alternative 

definitions of ‘‘competent person’’ while 

others asked that the regulation specify 

the person must be a veterinarian or that 

that the phrase be replaced with 

language such as ‘‘a person skilled in 

the procedure. 

(Response) AMS agrees that 

‘‘reasonably young age’’ is too vague and 

has instead required that alterations 


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must be performed ‘‘at a young age for 

the species.’’ This clarifies that 

operations should choose an age that is 

appropriate to the species of livestock. 

Similarly, AMS has added a phrase to 

clarify who may perform physical 

alterations: ‘‘a person who is capable of 

performing the physical alteration in a 

manner that minimizes stress and pain.’’ 

This language avoids being overly 

prescriptive and leaves flexibility to 

operations and certifiers while 

emphasizing that an operator’s ability to 

minimize the animals’ stress and pain 

during the alteration is the key 

qualification. Operations should choose 

a person capable of performing physical 

alterations based on their training and 

experience. This means that the 

capability of the person performing the 

physical alteration should scale with the 

complexity of the alteration. For 

example, ear tagging of cattle is a simple 

procedure that requires minimal 

knowledge and training, while a 

physical alteration that necessitates a 

permitted sedative and pain reliever 

may require the expertise of a more 

experienced or specially trained 

individual such as a veterinarian. These 

revisions clarify the use of permitted 

physical alterations, but also provide 

appropriate flexibility for operations to 

choose safe and responsible methods 

that best match their species of 

livestock. 

(Comment) Several comments asked 

AMS to require that pain relief be 

administered—some said by a licensed 

veterinarian—both before and after 

physical alterations. 

(Response) While AMS agrees that 

pain relief is an important element of 

physical alteration procedures, we 

believe that the final rule adequately 

addresses this concern. The final rule at 

§ 205.238(a)(5) requires that ‘‘physical 

alterations must be performed . . . in a 

manner that minimizes stress and pain.’’ 

Operations should provide pain relief 

before and after physical alterations if 

this is necessary to minimize the stress 

and pain of the livestock. 

(Comment) Some commenters 

objected to the proposed requirement to 

use anesthetics, analgesics, and 

sedatives for surgical procedures in 

cattle and sheep. Commenters 

interpreted the proposed requirement as 

requiring these drugs for all surgical 

procedures and stated the requirement 

was, ‘‘inappropriate given that FDA has 

not approved any post-surgical 

analgesic products for pain 

management.’’ 

(Response) Section 205.238(a)(7) of 

the final rule requires that surgical 

procedures be conducted using best 

practices to promote animal well-being 

and to minimize pain, stress, and 

suffering. In response to comments 

about the requirement to use 

medications for surgical procedures, 

AMS revised the final rule to clarify that 

medications should be used, ‘‘as 

appropriate’’. This section does not 

require use of anesthetics, analgesics, 

and sedatives for all procedures, 

although some surgical procedures may 

require medication to minimize pain, 

stress, and suffering. As to the 

commenters’ point about lack of FDA 

approval for analgesics, AMS is aware 

that the National List (§ 205.603) 

includes animal drugs that are not 

necessarily labeled (i.e., FDA approved) 

for use on all species. AMS also 

understands that the Animal Medicinal 

Drug Use Clarification Act (AMDUCA) 

allows veterinarians to prescribe ‘‘extralabel’’ use of drugs under certain 

conditions (see https://www.fda.gov/ 

animal-veterinary/guidance-regulations/ 

animal-medicinal-drug-useclarification-act-1994-amduca), which 

may include use of a drug on a species 

that is not included on the approved 

drug label. AMS anticipates that 

operations will work with veterinarians 

to determine the appropriate, legal, and 

safe drugs for surgical procedures to 

minimize pain, stress, and suffering. 

The use of any individual substance in 

§ 205.603 in a formulated product that 

is intended or used as a medical 

treatment is under the authority of FDA 

and must comply with all FDA 

regulations. 

(Comment) Several comments 

requested that AMS add detusking to 

the list of prohibited pig management 

practices. Commenters cited that 

prohibiting tusk removal would align 

with third party boar welfare standards, 

namely the Certified Animal Welfare 

Approved by AGW (AWA), Global 

Animal Partnership (GAP), Regenerative 

Organic Certified (ROC), and Certified 

Humane Standards for pigs. They 

argued that physical alterations should 

be limited to those only necessary for an 

animal’s well-being. 

(Response) Consistent with NOSB 

recommendations, the final rule 

prohibits needle teeth clipping and tail 

docking as routine procedures and 

allows them only ‘‘with documentation 

that alternative methods to prevent 

harm failed.’’ AMS elected not to 

include detusking among the prohibited 

practices listed at § 205.238(a)(5)(ii). 

The NOSB recommendations did not 

address detusking or recommend that 

the practice be prohibited, and most 

pigs are slaughtered prior to an age 

when tusks would be present. Although 

not expressly prohibited by the final 

rule, an operation could only detusk if 

it could demonstrate it meets the 

requirements at § 205.238(a)(5). 

Body Condition 

(Comment) Several commenters 

pointed out that the proposed rule’s 

requirement in § 205.238(a)(2) that feed 

and nutrition result in ‘‘appropriate 

body condition’’ was unclear. Many 

found the term ‘‘appropriate’’ too 

subjective. Others warned that the 

phrase ‘‘body condition’’ could be 

confused with ‘‘body condition scoring’’ 

as used in the livestock industry and be 

interpreted to mean that an animal’s 

body condition score would establish 

whether a producer complied with the 

requirement. 

(Response) AMS appreciates and 

agrees with these comments and has 

removed the phrase ‘‘resulting in 

appropriate body condition’’ from the 

final rule. By removing the phrase, the 

requirement correctly focuses on an 

operation’s ability to meet nutritional 

needs by providing an appropriate food 

ration. Certifying agents and inspectors 

should verify that operations are 

meeting this requirement by reviewing 

an operation’s feeding and nutrition 

practices. In some cases, a body 

condition score may be an appropriate 

measure of compliance. 

Milk From Animals Treated With 

Substances That Have a Withdrawal 

Period 

(Comment) Many commenters noted 

that the proposed regulatory text at 

§ 205.238(c)(1) lacked helpful language 

from the preamble, which specified that 

milk from an animal treated with an 

allowed substance ‘‘which has a 

withholding time’’ could not be sold, 

labeled, or represented as organic 

‘‘during that withholding time.’’ 

Commenters suggested that the language 

from the preamble should be included 

in the regulatory text. 

(Response) AMS appreciates and 

agrees with this editorial suggestion. In 

the final rule, § 205.238(c)(1) specifies 

that milk from animals treated with 

substances ‘‘that are allowed under 

§ 205.603 but have associated 

withdrawal periods’’ may not be sold, 

labeled, or represented as organic 

‘‘during the withdrawal period.’’ 

Additionally, the regulatory text now 

says ‘‘withdrawal period’’ rather than 

‘‘withholding time’’ for consistency 

with the language in the National List. 

Preventive Medicines and Parasiticides 

(Comment) Several comments noted 

that the OLPS proposed language at 

§ 205.238(b) had not been updated to 

reflect changes to this section of the 

regulations by a recent AMS final rule 


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on the ‘‘Origin of Livestock’’ (April 5, 

2022; 87 FR 19740). 

(Response) AMS acknowledges the 

error and has revised the language at 

§§ 205.238(b)(2) and (b)(3) to reflect the 

regulatory text finalized by the Origin of 

Livestock final rule. The regulatory text 

now simplifies the reference to dairy 

and includes a reference to fiber bearing 

animals. 

Induced (Forced) Molting 

(Comment) Several comments 

requested a definition of the term 

‘‘forced or induced molting,’’ as the 

term is used but not defined in the rule. 

Many commenters found it unclear 

whether all induced molting was 

prohibited, or only certain practices to 

induce molting. Some comments noted 

that the phrase ‘‘or withdrawal of feed 

to induce molting’’ may suggest that 

some methods of induced molting may 

be allowed. Commenters 

overwhelmingly requested that AMS 

prohibit any form of induced molting. 

(Response) The final rule adopts the 

term ‘‘induced molting’’ as it better 

aligns with existing industry standards. 

AMS also added ‘‘induced molting’’ as 

a defined term in § 205.2 to mean 

‘‘molting that is artificially initiated.’’ 

This term aligns with the FDA’s 

definition of the term (21 CFR 118.3). 

The definition of induced molting and 

the language at § 205.238(c)(10) that 

‘‘An organic livestock operation must 

not . . . practice induced molting,’’ 

clarifies that no form of artificially 

initiated molting is permitted in organic 

production. 

Euthanasia 

(Comment) Several commenters 

requested definitions for the terms 

‘‘death’’ and ‘‘euthanasia,’’ which are 

used several times in the rule but not 

defined. Some wanted clarity on how 

death should be properly assessed 

following euthanasia. 

(Response) AMS has chosen not to 

define ‘‘death’’ or ‘‘euthanasia’’ in the 

rule. AMS appreciates the feedback on 

this topic; however, commenters asked 

AMS to require very specific methods of 

confirming death. AMS believes that 

requiring such specific ways to confirm 

death would limit the options available 

to operations and make the requirement 

difficult to meet. AMS has chosen to 

keep the proposed rule’s language, 

which requires that euthanized 

livestock ‘‘must be carefully examined 

to ensure that they are dead.’’ This will 

give operations the flexibility needed to 

confirm death in a way that best 

matches their livestock, production 

system and practices, and site-specific 

conditions. AMS recommends that 

operations use methods of euthanasia 

and confirmation of death consistent 

with the American Veterinary Medical 

Association (AVMA) Guidelines for the 

Euthanasia of Animals. 

(Comment) Several commenters 

requested that the language in 

§ 205.238(e) clearly state that euthanasia 

should only be used in cases where 

there is incurable illness or disease and 

cannot be used in lieu of treatment that 

would cause an animal to lose its 

organic status. Some commenters also 

believed that the proposed rule could be 

interpreted to suggest that euthanasia is 

the only or preferred option for sick or 

injured animals. 

(Response) The final rule adds a 

phrase to clarify that organic operations 

must have written plans for ‘‘prompt, 

humane euthanasia for sick or injured 

livestock suffering from irreversible 

disease or injury.’’ Sick or injured 

livestock must be treated if recovery is 

possible, even if treatment would cause 

the animal to lose its organic status. 

Section 205.238(c)(7) clearly states that 

operations must not withhold medical 

treatment to protect organic status. AMS 

intends for euthanasia to be used in the 

humane management of irreversibly 

diseased or injured animals, not as a 

way to conveniently dispose of sick or 

injured animals. 

Lameness 

(Comment) One commenter noted that 

the proposed rule only required 

producers to monitor for lameness but 

that the rule did not require producers 

to treat animals for lameness or to 

modify conditions on the operation that 

might contribute to lameness. The 

comment requested that AMS include 

these additional requirements in the 

final rule to better align OLPS with 

third-party welfare standards. 

(Response) AMS revised 

§ 205.238(a)(8) to require that, in 

addition to monitoring lameness, 

operations provide ‘‘timely and 

appropriate treatment of lameness’’ and 

‘‘mitigation of the causes of lameness.’’ 

Like all requirements in § 205.238 and 

subpart C of the organic regulations, an 

operation must describe in their OSP 

how they meet this requirement. 

However, AMS is not prescribing 

specific types of recordkeeping or 

documentation regarding lameness. The 

requirement in the final rule is 

sufficient to address monitoring, 

prevention, and treatment of lameness, 

while also being flexible enough that 

producers can choose options that best 

fit their operation, species of livestock, 

and site-specific conditions. 

(Comment) Several comments 

suggested revising or removing 

§ 205.238(a)(8). One commenter stated 

that interpretations of lameness can vary 

greatly, so additional clarification 

would be needed. Another commenter 

stated that this requirement is 

redundant, as recording sick livestock is 

already required in § 205.238(c)(9), and 

recordkeeping is required in § 205.103. 

(Response) AMS agrees that other 

recordkeeping requirements in the rule 

and the existing organic regulations are 

sufficient to address lameness. AMS has 

removed the proposed rule’s 

requirement to keep ‘‘records of the 

percent of the herd or flock suffering 

from lameness and the causes.’’ The 

final rule replaces the recordkeeping 

language with requirements for ‘‘timely 

and appropriate treatment of lameness 

for the species; and mitigation of the 

causes of lameness.’’ 

Vaccines 

(Comment) Two certified operations 

and a veterinarian suggested that 

poultry vaccines should be allowed 

regardless of how they are produced. 

(Response) Like the existing 

regulations and the proposed rule, the 

final rule in § 205.238(a)(6) continues to 

allow ‘‘vaccines and other veterinary 

biologics’’ as part of a producer’s 

preventive health care practices. The 

status of specific vaccine manufacturing 

processes under § 205.603(a) (National 

List) or § 205.105(e) (Excluded Methods) 

is outside the scope of practice 

standards addressed in this rule. 

C. Mammalian and Non-Avian 

Livestock Living Conditions (§ 205.239) 

Description of Final Policy 

The final rule separates the organic 

regulation’s livestock living condition 

requirements into two distinct sections: 

one for mammalian and non-avian 

livestock species and one for avian 

species. Using two distinct sections 

acknowledges that these types of 

animals have different physiologies and 

therefore require certain unique 

husbandry practices. Section 205.239 

includes requirements for mammalian 

and non-avian species. Avian living 

conditions are addressed in new 

§ 205.241. Applicable sections of 

§ 205.239 may be used for the 

certification of non-avian and nonmammalian livestock defined as 

‘‘livestock’’ at § 205.2. For example, this 

may include certification of honeybees 

for the production of organic honey and 

honey products. However, livestock as 

defined in § 205.2 does not include 

aquatic animals for the production of 

food, fiber, feed, or other agriculturalbased consumer products. 


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The final rule revises § 205.239(a)(1) 

to remove the requirement that all 

ruminant livestock must be able to feed 

simultaneously. One method of feeding 

livestock, including ruminants, is the 

use of a self-feeder or a creep-feeder. 

With creep-feeding and self-feeding, 

feed is accessible to all livestock at all 

times though they may not feed at the 

exact same time. Allowing self-feeding 

and creep-feeding systems provides 

organic ruminant producers with more 

flexibility and options to manage their 

farm and livestock in farm-specific 

methods. 

AMS is making no changes to the 

current § 205.239(a)(3), which requires 

the use of appropriate, clean, dry 

bedding. If roughages are used as 

bedding, they must be organically 

produced and handled by certified 

operations, with the exception of 

transitioning dairy producers, who may 

provide crops and forage from third-year 

transitioning land—that is, land 

included in the OSP of the dairy farm 

in its third year of organic management, 

during the 12-month period 

immediately prior to the sale of organic 

milk and milk products (7 CFR 

205.236(a)(2)(iii)). 

Section 205.239(a)(4) describes the 

requirements for livestock shelter. 

Shelter must have sufficient space for 

the animals to lie down, stand up, and 

fully stretch their limbs and allow 

livestock to express their normal 

patterns of behavior over a 24-hour 

period. Shelter for livestock must 

provide temperatures, ventilation, and 

air circulation that is appropriate to the 

species using the shelter. This means 

that shelter must be designed to protect 

animals from extreme weather 

conditions they may face, including 

extreme cold, heat, precipitation, wind, 

or other conditions that could endanger 

the physical safety or well-being of the 

animal. Shelter must also be designed 

and managed in a way that reduces the 

potential for livestock to be injured 

when using the shelter. 

AMS recognizes that there are times 

when an animal’s freedom of movement 

may need to be temporarily limited for 

handling or management purposes. For 

example, an operation may need to 

temporarily limit freedom of movement 

for short periods of time for milking, 

feeding, or to ensure the well-being of 

animals. Stalls for organic dairy cattle 

are often designed to limit the animals 

from turning to the sides. This stall 

design directs manure and urine into a 

collection system to prevent mastitis 

and maintain low somatic cell counts in 

the milk. Mammalian livestock may be 

housed for part of the day in stalls as 

described in the OSP as long as they 

have complete freedom of movement 

during significant parts of the day for 

grazing, loafing, and exhibiting natural 

social behavior. This allowance does not 

permit the use of gestation crates, 

farrowing crates, or other confinement 

systems in which swine are housed 

individually in stalls that do not allow 

for sufficient space and freedom to lie 

down, turn around, stand up, fully 

stretch their limbs, and express normal 

patterns of behavior. If livestock are 

temporarily confined indoors as 

permitted in § 205.239(b), livestock 

must be able to move around (stand up 

and lie down) and stretch their limbs. 

Operations must fully describe in their 

OSP the use of any stalls, including 

their methods of stall management and 

how livestock will be able to express 

their normal patterns of behavior. 

AMS adds § 205.239(a)(4)(iv) to set 

requirements for indoor bedding and 

resting areas. Bedding and resting areas 

must be sufficiently large and 

comfortable to keep livestock clean, dry, 

and free of lesions. This requirement 

does not apply to animals raised on 

pasture or range. AMS recognizes that 

while livestock must be provided with 

shelter (defined in § 205.2), sometimes 

livestock on pasture or range do not 

have access to traditional barns or 

bedded areas and therefore do not have 

access to indoor space. These types of 

operations may provide animals with 

natural forms of shelter (e.g., trees) to 

serve the same purpose as indoor 

shelter. Operations must describe in 

their OSP how they provide shelter to 

their livestock in a manner suitable for 

the species, stage of production, and 

environment. 

AMS adds new requirements in 

§ 205.239(a)(7) concerning the 

individual housing of dairy young stock. 

Section 205.239(a)(7) allows for the 

individual housing of animals until the 

weaning process is complete, as long as 

the animals have sufficient room to turn 

around, lie down, stretch out while 

lying down, get up, rest, and groom 

themselves. In addition, individual pens 

for young stock must be designed so that 

animals can see, smell, and hear other 

animals. 

Once weaning is complete, an 

operation may no longer confine dairy 

young stock for this reason. An 

operation may confine dairy young 

stock for other reasons permitted under 

§ 205.239(c), if applicable. For example, 

§ 205.239(c)(2) permits temporary 

confinement of young dairy cattle from 

pasture for up to six months (prior to 

development of the rumen). Certifying 

agents must review any confinement 

practices following completion of the 

weaning process to determine if the 

temporary confinement is justified and 

allowed, especially when animals 

continue to be housed individually. 

AMS adds three new provisions in 

§ 205.239(a)(8) to require the group 

housing of swine, with three listed 

exceptions: (1) § 205.239(a)(8)(i) allows 

for sows to be individually housed at 

farrowing and during the suckling 

period, except gestation and farrowing 

creates are prohibited; (2) 

§ 205.239(a)(8)(ii) allows for boars to be 

individually housed to reduce the 

likelihood of fights and injuries; and (3) 

§ 205.239(a)(8)(iii) allows for swine to 

be individually housed after multiple 

documented instances of aggression or 

to allow an individual pig to recover 

from a documented illness. Certified 

operations should not use individual 

housing as the only remedy to 

aggressive behavior. Operations should 

also attempt to mitigate aggressive 

behavior by modifying practices or 

living conditions that could reduce this 

behavior. If these fail to correct the 

behavior, animals may be individually 

housed. 

AMS adds two new provisions in 

§ 205.239(a)(9) and (10) concerning 

swine housing. Section 205.239(a)(9) 

prohibits the use of flat decks or piglet 

cages. This provision prohibits the 

stacking of piglets in flat decks in 

multiple layers. AMS is not aware of 

any organic producers currently using 

these methods for organic production 

but prohibits the practices to affirm that 

these systems do not and cannot meet 

the living conditions requirements of 

the organic regulations. In addition, 

§ 205.239(a)(10) requires that rooting 

materials be provided at all times, 

except during the farrowing and 

suckling period. Rooting is a natural 

behavior that organic swine producers 

must accommodate. Rooting can be 

done in soil, deep packed straw, or 

other materials. 

AMS adds a new provision in 

§ 205.239(a)(11) to further clarify the 

use of barns or other structures with 

stalls. If indoor shelter is provided by a 

structure with stalls, this structure must 

have enough stalls to allow for the 

natural behaviors of the animals. A cage 

does not qualify as a stall. AMS is aware 

that some operations use systems that 

robotically feed animals that take turns 

entering an individual feeding stall. 

AMS does not intend to prohibit such 

systems since they could enhance the 

well-being of organic livestock. 

Therefore, § 205.239(a)(11) provides an 

exception for this type of system: more 

animals than feeding stalls may be 

allowed for group-housed swine as long 

as all animals are fed routinely every 

day. 


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AMS also adds specific allowances for 

a variety of cattle barns, including tiestall barns and stanchion barns, as long 

as an operation uses them in a way that 

is compatible with organic production. 

That means that animals must be given 

space to lie down, turn around, stand 

up, fully stretch their limbs, and express 

normal patterns of behavior over a 24- 

hour period (see the requirement at 

§ 205.239(a)(4)(i)). Because tie-stall and 

stanchion barns do not allow an animal 

to turn around, an operation cannot 

leave an animal tied up in this type of 

indoor space for more than 24 hours. 

Operations must describe their practices 

in their OSP and demonstrate to an 

accredited certifying agent that their use 

of these structures complies with other 

applicable organic regulations. 

AMS adds a new requirement for 

outdoor access in § 205.239(a)(12). 

Organic livestock must have 

unencumbered access to the outdoors 

year-round, unless temporary 

confinement is justified under a specific 

reason described at § 205.239(b)–(d) 

(e.g., nighttime confinement for 

protection from predators). When the 

outdoor space includes soil, then 

vegetative cover must be maintained as 

appropriate for the season, climate, 

geography, species of livestock, and 

stage of production. Ruminants must 

have access to pasture during the 

grazing season. Swine are not required 

to have access to soil or vegetation; 

however, if a swine producer chooses to 

allow swine to have access to the soil as 

a rooting material, then the producer 

must maintain vegetative cover that is 

appropriate to the season, the local 

environmental conditions, and the 

natural rooting behavior of swine. 

AMS revises § 205.239(b)(7) to clarify 

the exemption for temporary 

confinement for the purpose of breeding 

livestock. Livestock may only be 

confined for the time required for 

natural breeding or to perform artificial 

insemination. A group of livestock may 

be confined before the procedures and 

while individual animals are bred; 

afterward, the group must be returned to 

living spaces that allow outdoor access. 

Livestock must not be confined to 

observe estrus, or after breeding to 

confirm pregnancy. 

AMS revises § 205.239(b)(8) to clarify 

the temporary confinement exception 

for youth livestock projects. Because 

many youth livestock projects include 

the sale of market animals, organic 

animals that were under continuous 

organic management may be sold as 

organic animals at youth fairs, even if 

the sales facility is not certified organic. 

Thus, the revision includes an 

exemption to the § 205.239(b)(6) 

requirement that a livestock sales 

facility be certified as an organic 

operation. As an example, if a youth 

exhibition and sale is held at a livestock 

sales facility that is not certified organic, 

the livestock may be temporarily 

confined indoors during the event. In 

this case, the youth may still sell the 

organic animal as an organic animal, 

provided all other requirements for the 

organic management of livestock are 

met. Otherwise, non-certified sales 

facilities, such as auction barns or 

fairgrounds, may not sell or represent 

livestock as organic. AMS includes this 

exception to encourage the next 

generation of organic farmers. 

AMS revises § 205.239(d) to mirror a 

revision at § 205.239(a)(1). Specifically, 

the revisions remove a requirement that 

ruminant slaughter stock be able to feed 

simultaneously during the finishing 

period. The update does not require 

space for simultaneous feeding but 

simply requires that all animals be able 

to feed without crowding and without 

competition for feed. 

Changes From Proposed to Final Rule 

AMS has made several changes to the 

regulatory text of the OLPS proposed 

rule when writing this final rule. 

Changes to the final rule are discussed 

below and are followed by specific 

topics and themes from public 

comment. For discussion of comments 

about the economic impacts of the rule, 

please see the Regulatory Impact 

Analysis (RIA) included in the docket. 

• AMS revised the title of § 205.239 

from ‘‘Mammalian livestock living 

conditions’’ to ‘‘Mammalian and nonavian livestock living conditions’’ to 

ensure that operations producing 

organic invertebrates (e.g., honeybees) 

can continue to do so under the 

applicable standards of this rule. 

• In § 205.239(a)(4)(iv), AMS added 

language to clarify that the indoor 

housing standards for ‘‘clean and dry’’ 

bedding and resting areas should be 

applied as appropriate to the species of 

livestock. This acknowledges that 

different species have different bedding 

and resting area requirements and gives 

operations greater flexibility when 

applying the requirement to different 

species. 

• In response to public comment, 

AMS removed from § 205.239(a)(7) the 

six-month time limit for temporary 

confinement of dairy young stock 

during the weaning process, authorizing 

temporary confinement only until the 

weaning process is complete. This 

change was made because the weaning 

process is typically much shorter than 

six months. 

• AMS added language in 

§ 205.239(a)(8)(i) to explicitly prohibit 

the use of gestation and farrowing crates 

for sows at farrowing and during the 

suckling period. This change was made 

in response to public comments 

requesting the explicit prohibition of 

these methods of individual 

confinement. 

• AMS revised language in 

§ 205.239(a)(8)(iii) to limit individual 

confinement of swine to only animals 

who have shown multiple instances of 

aggression or for recovery from an 

illness. 

• AMS removed the word ‘‘maximal’’ 

relating to vegetative cover in 

§ 205.239(a)(12). AMS removed this 

term because comments stated that the 

proposed rule’s use of ‘‘maximal 

vegetative cover’’ was unclear and 

would be difficult to implement 

consistently. AMS refers to ‘‘vegetation’’ 

because that is a defined term. 

• In response to requests in public 

comment, AMS added language to 

§ 205.239(b)(7) to clarify that animals 

cannot be confined after breeding to 

confirm pregnancy. 

Responses to Public Comment 

Naming of Section 

(Comment) Several comments 

requested changes to the title of this 

section to include non-mammalian 

species of livestock (e.g., invertebrates). 

Commenters indicated that many 

operations are currently certified to 

produce organic invertebrates, such as 

honeybees. Those operations have used 

the existing requirements at § 205.239, 

and comments noted that AMS’s 

proposed revision to split § 205.239 into 

only mammalian and avian sections 

would leave out standards for non-avian 

and non-mammalian operations. 

(Response) AMS revises the title of 

this section from ‘‘Mammalian livestock 

living conditions’’ to ‘‘Mammalian and 

non-avian livestock living conditions’’ 

to avoid unintentionally excluding nonmammalian and non-avian species of 

livestock (e.g., invertebrates) from this 

rule. Adding ‘‘non-avian’’ clarifies that 

operations may use the applicable 

livestock standards at § 205.239 to 

produce organic livestock that is not 

avian or mammalian (e.g., 

invertebrates). Adding this term ensures 

that operations producing organic 

invertebrates can continue to do so 

without interruption and allows future 

operations to enter the market and 

produce non-mammalian and non-avian 

livestock under the organic label. 

Ammonia Monitoring 

(Comment) Some comments requested 

that AMS set ammonia testing 


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requirements for mammals in addition 

to poultry. 

(Response) AMS acknowledges that 

ammonia is an air contaminant that can 

impact all livestock. This rule sets limits 

on ammonia in poultry houses and 

requires regular monitoring. Compared 

to other livestock, poultry are more 

susceptible to ammonia accumulation 

due to the physical layout of poultry 

housing and the decomposition of uric 

acid from poultry droppings. 

Additionally, the NOSB has not 

recommended monitoring or limiting 

ammonia levels in mammalian livestock 

production, and AMS did not propose 

to do so in the proposed rule. Therefore, 

AMS has elected not to set ammonia 

requirements for mammals in the final 

rule. 

Bedding 

(Comment) Some comments requested 

clarification on the use of ‘‘clean and 

dry’’ in relation to the requirement for 

bedding and resting areas in indoor 

housing. Commenters explained that the 

interpretation of ‘‘clean’’ is both 

subjective and species dependent. 

(Response) AMS acknowledges that 

what is considered ‘‘clean and dry’’ 

depends on the species of livestock. 

AMS revises the language in the final 

rule to clarify that operations must use 

clean and dry bedding ‘‘as appropriate 

for the species.’’ This change gives 

operations the flexibility to manage 

bedding in a way that fits the specific 

type of livestock they are raising. 

Swine Standards 

(Comment) Several commenters 

requested more specific standards for 

swine, including minimum stocking 

density requirements and a requirement 

for access to soil and vegetative cover. 

(Response) This final rule includes 

swine-specific standards at 

§ 205.239(a)(8)—(11). The rule requires 

that swine must be housed in a group, 

limits when swine can be housed 

individually, requires rooting materials, 

prohibits the use of flat decks and piglet 

cages, and describes allowable types of 

feeding techniques. This rule also 

includes many other requirements that 

apply to all livestock, including swine. 

At this time, AMS believes these 

requirements are adequate to ensure the 

welfare of organically raised swine, and 

AMS has not included the additional 

swine-specific criteria in the final rule. 

(Comment) Several commenters asked 

that the final rule’s regulatory text allow 

swine to be housed individually only 

after multiple instances of aggression, as 

stated in the preamble. 

(Response) AMS revises the final 

rule’s regulatory text to specify that 

swine may be individually housed only 

after multiple documented instances of 

aggression to clarify AMS’s intent. 

Certified operations should not use 

individual housing as the only remedy 

to aggressive behavior. Operations 

should also attempt to mitigate 

aggressive behavior by modifying 

practices or living conditions that could 

reduce this behavior. If these fail to 

correct the behavior, animals may be 

individually housed. 

(Comment) Several commenters 

requested that AMS specifically prohibit 

gestation and farrowing crates, citing 

that these crates can cause pain, reduce 

the weaning rate of piglets, and increase 

the rate of stillbirths. 

(Response) AMS revises the final rule 

to clarify that gestation and farrowing 

crates are prohibited in organic 

production. AMS did not use these 

terms in the proposed rule, but AMS 

recognizes that gestation and farrowing 

crates are commonly used terms so is 

including them in the final rule. Sows 

may be housed individually for 

farrowing and during the suckling 

period, as proposed, and the final rule 

clarifies that sows may not be confined 

to gestation or farrowing crates during 

these time periods. 

(Comment) Many commenters noted 

that rooting materials are not explained, 

nor specific materials defined in the 

proposed rule. The commenters 

requested additional clarification on the 

standard for rooting materials. 

Advocacy organizations and some 

certifiers also asked for clarification on 

whether rooting materials must be 

provided both indoors and outdoors, 

including during temporary 

confinement. 

(Response) AMS discusses the use of 

rooting materials and § 205.239(a)(10) in 

the ‘‘Description of final policy’’ section 

above. Operations must provide rooting 

materials to allow swine to express their 

natural behavior, which includes 

rooting (see § 205.239(a)(1) and (4)). The 

final rule does not specify the allowed 

types of rooting materials or where, 

exactly, rooting materials must be 

available. For a producer to comply 

with general requirements to 

accommodate natural behaviors at 

§ 205.239, AMS expects producers will 

provide rooting opportunities in all 

locations, as well as during periods of 

temporary confinement, when feasible. 

However, the rule provides operations 

flexibility to choose materials and 

management techniques that best 

accommodate natural swine rooting 

behavior and that best fit site-specific 

conditions. 

Temporary Confinement of Cattle 

(Comment) Several comments asked if 

tie-stall and stanchion barns are allowed 

in organic production. These comments 

noted that tie-stall and stanchion barns 

do not allow animals to turn around, 

and that this may conflict with the 

rule’s requirement that animals must be 

able to turn around within a 24-hour 

period. 

(Response) Tie-stall barns and 

stanchion barns are permitted in organic 

certification systems if an operation 

uses them in a way that is compatible 

with organic production. That means 

that animals must be given space to lie 

down, turn around, stand up, fully 

stretch their limbs, and express normal 

patterns of behavior over a 24-hour 

period (see the requirement in 

§ 205.239(a)(4)(i)). Because tie-stall and 

stanchion barns do not allow an animal 

to turn around, an operation cannot 

leave an animal tied up in this type of 

indoor space for more than 24 hours. 

However, during periods of temporary 

confinement, animals may remain in 

stalls. In this case, AMS recognizes that 

animals may not be able to turn around. 

(Comment) Commenters requested 

that some specific references to cattle in 

the proposed rule be broadened so the 

requirements would apply to any 

species. Specifically, comments 

requested that AMS revise requirements 

related to individual housing for young 

dairy animals at § 205.239(a)(7) and 

§ 205.239(c)(2). 

(Response) AMS agrees that animals 

of all species should have sufficient 

space and freedom of movement. 

However, § 205.239(a)(7) and 

§ 205.239(c)(2) address production 

practices specific to dairy animals and 

to dairy cattle, respectively. The more 

general requirement that all organically 

managed animals should have 

‘‘sufficient space and freedom to lie 

down, turn around, stand up, fully 

stretch their limbs, and express normal 

patterns of behavior’’ is set in 

§ 205.239(a)(4)(i). 

Temporary Confinement To Confirm 

Breeding 

(Comment) Several comments 

requested that AMS clarify animals may 

not be confined after breeding to 

confirm pregnancy, as this could allow 

producers to confine animals for long 

periods of time without any 

corresponding benefit to animal health 

or welfare. 

(Response) AMS agrees that this 

change would benefit the welfare of the 

livestock and has added language to 

§ 205.239(b)(7) to clarify that animals 

may not be confined after breeding to 

confirm pregnancy. 


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69https://www.ams.usda.gov/sites/default/files/ 

media/NOP%20Final%20Sunset

%20Rec%20Animal%20Welfare.pdf. 

70 ‘‘Ammonia production in the poultry houses 

and its harmful effects’’ IU Sheikh, SS Nissa, 

Bushra Zaffer, KH Bulbul, AH Akand, HA Ahmed, 

Dilruba Hasin, Isfaqul Hussain and SA Hussain, 

International Journal of Veterinary Sciences and 

Animal Husbandry, 3(4): 30–33, 2018. 

Individual Housing of Calves 

(Comment) Several commenters 

disliked that the proposed rule allowed 

an operation to individually house dairy 

young stock for up to six months, citing 

that this practice does not align with 

consumer expectations or third-party 

welfare standards. One commenter 

requested a shorter time limit for 

individual housing of calves, 

referencing an eight-week limit in both 

European Union organic standards and 

Certified Humane standards. Other 

comments requested that AMS clarify 

how long an operation can confine for 

weaning (§ 205.239(a)). 

(Response) AMS removed the phrase 

‘‘but no later than six months of age’’ in 

the requirements related to housing for 

weaning at § 205.239(a)(7). This section 

of the rule now specifies that dairy 

young stock (of any species) may be 

housed individually only until 

completion of the weaning process. 

Once weaning is complete, an operation 

may no longer confine dairy young 

stock for this reason. An operation may 

confine dairy young stock for other 

reasons permitted under § 205.239(c), if 

applicable. For example, § 205.239(c)(2) 

permits temporary confinement of 

young dairy cattle from pasture for up 

to six months (prior to development of 

the rumen). AMS is not revising the 

maximum time requirement for 

confinement from pasture at 

§ 205.239(c)(2) in the final rule. 

Certifying agents must review any 

confinement practices following 

completion of the weaning process to 

determine if the temporary confinement 

is justified and allowed, especially 

when animals continue to be housed 

individually. 

(Comment) One commenter requested 

the removal of the requirement for 

calves to see other calves, as this may 

not be feasible in some cases where an 

operation has very few calves. 

(Response) AMS has elected to revise 

this language. During temporary 

confinement in individual pens, it is 

important for young dairy animals to be 

able to see, smell, and hear other calves, 

or other animals in cases where this is 

not feasible, such as an operation with 

a single offspring. 

Outdoor Space 

(Comment) One commenter requested 

AMS set a minimum amount of outdoor 

space for mammalian livestock. The 

commenter also asked AMS to specify 

what this outdoor space should be 

composed of (i.e., specify what 

percentage of outdoor space be soil and 

vegetation). 

(Response) AMS had not proposed 

minimum outdoor space requirements 

for mammalian livestock, and the NOSB 

has never provided minimum space 

recommendations for mammals. 

Similarly, the final rule does not 

include minimum space requirements 

for mammals. However, the USDA 

organic regulations have included and 

will continue to include many 

provisions related to outdoor space 

requirements for mammalian livestock. 

Section § 205.239(a) specifies that 

operations must provide living 

conditions that accommodate the wellbeing and natural behavior of 

mammalian livestock. This includes 

year-round access for all animals to the 

outdoors, shade, shelter, exercise areas, 

fresh air, and direct sunlight, suitable to 

the species, stage of life, climate, and 

environment. Additionally, ruminant 

livestock must be provided with daily 

grazing throughout the grazing season to 

meet feed intake requirements 

(§§ 205.237 and 205.239), and yards, 

feeding pads, and feedlots must be large 

enough to allow all ruminant livestock 

to feed without competition for food 

(§ 205.239). Finally, this rule adds a 

requirement that operations maintain 

vegetation on outdoor space that 

includes soil, and that vegetation must 

be appropriate for the season, climate, 

geography, species of livestock, and 

stage of production (§ 205.239(a)(12)). 

Together these requirements for outdoor 

conditions support the welfare of 

organic mammalian species. 

D. Avian Living Conditions (§ 205.241) 

Description of Final Policy 

The final rule adds new § 205.241, 

‘‘Avian living conditions,’’ to the 

organic regulations. This section 

includes requirements for all organic 

avian species, including but not limited 

to chickens, turkeys, geese, quail, 

pheasants, and any other bird species 

that are raised for organic eggs, organic 

meat, or other organic agricultural 

products. 

Section 205.241(a) establishes general 

requirements for organic poultry 

production and more detailed 

requirements in paragraphs (b), (c), and 

(d). Section 205.241(a) requires organic 

poultry operations to establish and 

maintain living conditions that 

accommodate the well-being and 

natural behaviors of birds. These living 

conditions include year-round access to 

the outdoors, soil, shade, shelter, 

exercise areas, fresh air, direct sunlight, 

clean water for drinking, materials for 

dust bathing, and adequate space to 

escape aggressive behaviors. Continuous 

total confinement of animals is 

prohibited. The living conditions 

provided should be appropriate to the 

species, its stage of life, the climate, and 

the environment. These requirements, 

based upon a 2009 NOSB 

recommendation,69 are largely identical 

to previously established livestock 

requirements at § 205.239(a)(1), 

although they now require materials for 

dust bathing and adequate outdoor 

space to escape aggressive behaviors. 

Section 205.241(b) requires that 

indoor space be sufficiently spacious to 

allow all birds to move freely, stretch 

both wings simultaneously, stand 

normally, and engage in natural 

behaviors. Cages or environments that 

limit free movement within the indoor 

space are prohibited. In addition, the 

indoor space must allow birds to engage 

in natural behaviors such as dust 

bathing, scratching, and perching. The 

requirements are adopted from a 2009 

NOSB recommendation and modify 

previously established requirements for 

organic livestock at § 205.239(a)(4) that 

required ‘‘shelter designed to allow for 

. . . natural maintenance, comfort 

behaviors, and opportunity to exercise.’’ 

Section 205.241(b)(2) requires 

producers to monitor ammonia levels in 

poultry houses and implement practices 

to maintain ammonia levels below 20 

ppm. When ammonia levels exceed 20 

ppm, producers must implement 

additional practices and additional 

monitoring to reduce ammonia levels 

below 20 ppm. Ammonia levels must 

not exceed 25 ppm. Ammonia is a 

natural breakdown product of manure 

from livestock and is harmful to birds 

when inhaled, especially at 

concentrations above 25 ppm.70

Inhalation of high levels of ammonia 

has a negative impact on poultry 

welfare, causing irritation and 

inflammation, as well as contributing to 

negative production outcomes like 

reduced growth. In most cases, high 

levels of ammonia indicate that litter is 

damp, or litter management practices 

require modification. For producers 

with more than one poultry house, the 

producer should monitor ammonia 

levels in each house. 

Section 205.241(b)(3) clarifies the 

indoor lighting requirements for organic 

layers and fully feathered birds. Organic 

producers may provide artificial light 

for up to 16 continuous hours per day 

(24-hour period). Operations must 

provide at least eight hours of 


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71Available at: https://www.fda.gov/regulatoryinformation/search-fda-guidance-documents/ 

guidance-industry-questions-and-answersregarding-final-rule-prevention-salmonellaenteritidis-shell-0. 

72 ‘‘Broiler Litter: Odor and Moisture Concerns’’, 

Tom Tabler, Yi Liang, Jonathan Moon, and Jessica 

Wells. Mississippi State University Extension, 

Publication: P3515, 2020. 

73 ‘‘Wet litter not only induces footpad dermatitis 

but also reduces overall welfare, technical 

performance, and carcass yield in broiler chickens’’, 

Ingrid C. de Jong, H. Gunnink and J.van Harn, 

Journal of Applied Poultry Research, 23(1): 51–58, 

2014. 74 ‘‘Pests in Poultry, Poultry Product-Borne 

Infection and Future Precautions’’, Hongshun Yang, 

Shuvra K. Dey, Robert Buchanan, and Debabrata, 

Biswas Practical Food Safety: Contemporary Issues 

and Future Directions, 1, 2014. 

75 ‘‘Broiler Litter: Odor and Moisture Concerns’’, 

Tom Tabler, Yi Liang, Jonathan Moon, and Jessica 

Wells, Mississippi State University Extension, 

Publication: P352020. 

continuous darkness per day, unless an 

operation’s geographic location does not 

allow for eight hours of darkness (for 

example, an operation in Alaska during 

summer months). In that case, an 

operation should provide as many dark 

hours as feasible for the season. The 16- 

hour period must be calculated as a 

single continuous time period rather 

than as intermittent periods. Artificial 

light should be lowered gradually to 

encourage hens to move to perches or 

otherwise settle for the night. 

Operations must not manipulate the 

light spectrum to increase feed intake or 

growth rates. 

Section 205.241(b)(4) describes 

requirements for exit areas, or doors, on 

shelters so all birds can easily access 

both indoor and outdoor areas. Access 

and utilization of outdoor areas is a core 

principle of organic production systems. 

The organic regulations have required 

‘‘Year-round access for all animals to 

the outdoors’’ since the organic 

regulations were established in 2001 

(see 7 CFR 205.239(a)(1)). Organic avian 

systems must be designed so birds have 

ready access to outdoor areas and are 

able to return indoors to roost in the 

evening. Producers must provide exit 

doors of sufficient number and size to 

enable all birds to access outdoor and 

indoor areas. The standard for exit doors 

is set at one (1) linear foot of exit area 

space for every 360 birds. 

If an operation does not provide at 

least one linear foot of exit area per 360 

birds ratio, the operation may comply 

with the requirement if it: (1) describes 

(in their OSP) their exit areas and how 

they enable all birds to access outdoor 

areas; and (2) demonstrates how ready 

access to the outdoors is provided for all 

birds. In that case, the certifier must 

review the description in the OSP and 

verify that exit areas meet the standard 

for outdoor access to determine an 

operation complies with the exit area 

requirement. A certifier could, for 

example, review time lapse videos, 

pictures (with time stamp data), and/or 

conduct on-site inspections to verify 

that exit areas ensure all birds have 

ready access to the outdoors. 

In any case, a certifier will determine 

if doors are appropriately distributed 

and sized, as required, by assessing if all 

birds have ready access to the outdoors. 

This section also notes that shell egg 

producers may be subject to FDA 

requirements in 21 CFR part 118 

intended to prevent Salmonella 

Enteritidis (SE). Specifically, these FDA 

regulations require producers to 

maintain biosecurity measures that 

prevent stray poultry, wild birds, cats, 

rodents, and other animals from 

entering poultry houses. AMS directs 

producers to consult with the FDA’s 

August 2022 final guidance on this 

subject for more information on how to 

comply with the requirements while 

providing access to areas outside the 

poultry house.71

Section 205.241(b)(5) requires perches 

for chicken layers at a rate of six inches 

per bird for all housing. Perch space 

may include the alighting rail in front of 

nest boxes, but it may not include floors 

in houses with slatted floors. Perches 

are not required for broilers, meat birds, 

or layers of species other than Gallus 

gallus. All layers must be able to perch 

at the same time, except in aviary 

housing (see the definition of indoor 

space in § 205.2). Aviary housing is 

permitted to have less perch space 

because birds in aviary housing are also 

able to escape aggressive behavior by 

moving between tiers in the house. 

Aviary housing must provide six inches 

of perch space for 55 percent of the 

flock (i.e., 3.3 inches of perch for each 

bird in the flock). These requirements 

are adopted from 2009 and 2011 NOSB 

recommendations. 

Section 205.241(b)(6) specifies indoor 

requirements to allow for certain natural 

behaviors. Except for mobile housing 

(defined at § 205.2), indoor space must 

include areas that allow for scratching 

and dust bathing. For mobile housing, 

producers may meet this requirement by 

providing scratch areas and dust bathing 

areas outside of the mobile housing. In 

that case, a mobile house may include 

100% slatted or mesh flooring (which 

do not allow for scratching and dust 

bathing). For other types of indoor 

housing, litter or bedding such as wood 

shavings or straw must be provided 

indoors. If litter or bedding will be 

consumed by animals, it must be 

organic. Manure excreted by birds in a 

poultry house alone, without additional 

litter material, would not be sufficient to 

meet this requirement. This section also 

requires that litter be maintained in a 

dry condition, because wet litter can 

lead to a variety of problems for birds, 

including excess ammonia, lameness, 

and pest problems.72 High moisture 

content in poultry litter can cause 

negative health and welfare outcomes, 

including foot pad dermatitis73 and 

increased populations of house fly 

leading to disease in the birds.74 Wet 

litter also promotes bacterial growth, 

which can further lead to disease and 

negative health outcomes in birds.75

Litter may be topped off when needed 

to maintain sufficient dryness. These 

requirements are adopted from 2009 and 

2011 NOSB recommendations. 

Section 205.241(b)(7) includes 

specific flooring requirements for nonmobile indoor avian housing with 

slatted/mesh floors. These houses must 

provide at least 15 percent solid flooring 

to allow birds indoors to engage in 

natural behaviors, including scratching 

and dust bathing, without crowding. 

This requirement does not apply to 

mobile houses which, by definition (see 

§ 205.2), allow continuous access to 

areas outside the structure where birds 

may scratch and dust bathe. The 

requirement is adopted from a 2009 

NOSB recommendation. 

Sections 205.241(b)(8), (9), and (10) 

list the required minimum indoor space 

for chickens (Gallus gallus) in different 

types of housing. These are minimum 

standards, and organic producers may 

choose to provide more indoor space 

than required. Sections 205.241(b)(8), 

(9), and (10) list requirements for layers, 

pullets, and broilers, respectively. 

Indoor space requirements for layers 

vary by the type of housing provided. 

Section 205.2 further defines the types 

of housing, including mobile housing, 

aviary housing, slatted/mesh floor 

housing, and floor litter housing. For 

housing that does not fit into any of 

these defined types, producers must 

comply with standards for ‘‘other 

housing’’ at § 205.241(b)(8)(v). Pasture 

pens that are moved regularly and 

provide direct access to soil and 

vegetation are not considered indoors 

(see definition of ‘‘outdoors’’ in § 205.2). 

AMS has adapted these requirements 

from 2009 and 2011 NOSB 

recommendations and in consideration 

of third-party animal welfare standards. 

The rule requires less indoor space 

per bird in houses that provide more 

access to vertical space (e.g., aviary and 

slatted/mesh floor housing), as birds 

have more room to move around in 

those types of housing. Housing where 

birds have more limited access to 

vertical space (e.g., floor litter housing) 


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must include more indoor space per 

bird. AMS allows for higher stocking 

densities in mobile housing, as birds 

managed in these systems spend more 

time outdoors, and mobile housing must 

be relatively small and light, as it is 

moved frequently. 

The final rule expresses the space 

requirements for birds in two different 

ways, and producers may use either 

metric to demonstrate compliance with 

the requirements. In the first metric, 

producers may demonstrate compliance 

with the requirements by using the 

known weight of birds in a flock. This 

metric is expressed as the maximum 

pounds of bird allowed per square foot 

of indoor space. The minimum space 

required under this alternative metric 

depends on the average weight of birds 

at that time. All weight references in 

§§ 205.241(b) refer to the weight of live 

birds and not the weight of processed 

birds. This metric accommodates for 

differences between different breeds and 

also adapts for birds as they age and 

become heavier. Under this metric, 

larger breeds (i.e., heavier individual 

birds) must be provided with more 

indoor space than smaller breeds, on a 

per bird basis. For example, Rhode 

Island Red birds are heavier than White 

Leghorns or ISA Browns, and thus 

cannot be stocked as densely, in terms 

of number of birds per unit area. 

The second metric is an alternative 

that establishes the minimum space that 

must be provided per animal in square 

feet per bird. In some cases, AMS 

expects this will be a simpler method to 

calculate the required space, 

particularly when individual bird 

weights differ within a flock (e.g., 

because of a mixture of breeds or ages 

within a flock). For this method, 

producers simply multiply the number 

of birds in a flock by the space required 

per bird to obtain the minimum total 

space required for the flock. 

Equivalently, producers can divide the 

available area by the required space per 

bird to arrive at the maximum number 

of birds allowed in that area. 

To provide additional context, 

consider the following example of layers 

in a floor litter housing system. At 32 

weeks of age, these layers weigh 4.3 

pounds each and must be provided with 

1.4 square feet per bird (or 3.0 pounds 

of bird for each one square foot, as 

required at § 205.241(b)(8)(iv)). At 80 

weeks of age, each layer weighs 4.5 

pounds and the flock would require 1.5 

square feet per bird (or 3.0 pounds of 

bird per square foot). If a producer has 

10,000 square feet available to raise 

these birds, this 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). In comparison, a producer 

that uses the alternative metric of 2.2 

square feet per bird could stock no more 

than 4,545 birds in the same 10,000 

square foot floor litter house. A 

producer with a small number of birds 

may prefer to use the alternative metric 

(square feet per bird), especially when 

the space provided easily exceeds the 

requirements. This eliminates the need 

to weigh birds and estimate the average 

weight per square foot. 

When calculating the weight of birds 

to assess pounds per square foot, an 

average weight may be established for 

the flock by taking weights of a 

representative sample of the flock. The 

space 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 either 

need to establish the weight of birds or 

comply with the alternative metric 

(expressed as square feet per bird). 

The weight metric (pounds per square 

foot) requires the producer to know the 

total weight of birds. The simpler 

alternative method (square feet per bird) 

requires the producer to know only the 

number of birds in a flock. This simpler 

alternative method will, in almost all 

cases, require more space per bird than 

the weight metric of pounds per square 

foot. Producers may demonstrate 

compliance by using either metric. A 

certifying agent does not need to 

compare a producer’s compliance with 

both metrics if compliance with either 

one can be demonstrated. 

Section 205.241(b)(11) specifies how 

to calculate the area of the indoor space. 

Producers must calculate indoor space 

accurately to ensure that their housing 

systems meet the requirements in 

§§ 205.241(b)(8) through (10). The total 

area of the indoor space is calculated by 

including the square footage of all flat 

areas in a house, excluding nest boxes 

(areas provided to layers for laying 

eggs). Elevated round perches, for 

example, are not flat areas and could not 

be included as indoor space. Nesting 

areas are excluded from the calculation, 

as they are distinct from useable floor 

areas of the house where birds can move 

around freely. This method of 

calculation aligns with the 2009 and 

2011 NOSB recommendations. 

Section 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. If the birds do not 

have continuous access to a porch or 

enclosed structure, including during 

temporary confinement events, that 

space may not be considered indoor 

space and may not be included in an 

operation’s indoor space calculation. 

Section 205.241(c) establishes the 

outdoor space requirements for organic 

avian species, including the amount of 

outdoor space that operations must 

provide for the birds. The requirements 

of § 205.241(c) are adopted or adapted 

from 2009 and 2011 NOSB 

recommendations, third-party animal 

welfare standards, and existing organic 

regulations previously in § 205.239. 

Section 205.241(c)(1) requires that 

operations use outdoor space designed 

to promote and encourage daily outdoor 

access for all birds. Producers must 

provide access to the outdoors at an 

early age. Exit areas are described 

previously in § 205.241(b)(4), but this 

section requires that door spacing 

promote and encourage outdoor access 

and requires that operations provide 

outdoor access daily. Outdoor access 

may only be temporarily restricted in 

accordance with § 205.241(d). 

Section 205.241(c)(2) requires that 

outdoor areas for poultry have a 

minimum of 75 percent soil and that the 

soil portion of the outdoor area must 

include 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 25 

percent of the outdoor area may be 

gravel, concrete, or surfaces other than 

soil. Vegetation is 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 will depend on the 

season, climate, geography, species, and 

the stage of production. 

Section 205.241(c)(3) clarifies how 

producers may provide shade to meet 

the general requirements of § 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 

does not permit structures that do not 

meet the definition of ‘‘outdoors’’ 

(§ 205.2) to be included in calculations 

of outdoor space. 

Sections 205.241(c)(4) through (6) 

specify minimum outdoor space 

requirements for chickens (Gallus 

gallus). As described above for the 

indoor space requirements 

(§ 205.241(b)), the final rule includes 


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two methods for determining 

compliance with space requirements. 

One method relies on bird weights to 

establish the maximum stocking density 

(expressed as maximum pounds of bird 

per square foot). The other method 

requires only knowing the number of 

birds and the area of the space to 

establish the maximum stocking density 

(expressed as minimum square feet per 

bird). Either method is acceptable to 

demonstrate and evaluate compliance 

with the outdoor spacing requirements. 

Organic layer producers must provide 

at least one square foot of outdoor space 

for every 2.25 pounds of bird in the 

flock. For example, if birds average 4.5 

pounds, a producer must provide 2.0 

square feet of outdoor space for each 

bird in the flock. Alternatively, if bird 

weights are not known, a producer may 

provide at least 3.0 square feet of 

outdoor space per layer. Organic pullet 

producers must provide at least one 

square foot of outdoor space for every 

3.0 pounds of bird in the flock. 

Alternatively, a producer may provide 

at least 1.7 square feet of outdoor space 

per pullet. Organic broiler producers 

must provide at least one square foot of 

outdoor space for every 5.0 pounds of 

bird in the flock. Alternatively, a 

producer may provide at least 2.0 square 

feet of outdoor space per broiler. 

All weight references in §§ 205.241(c) 

refer to the weight of live birds and not 

the weight of processed birds. The total 

outdoor space that an operation must 

provide must be calculated based on the 

total number of birds in a flock, not the 

number of birds in outdoor space at a 

given moment. Related discussion on 

this topic can be found above in the 

discussion on the indoor space 

requirements at §§ 205.241(b)(8)–(10), 

such as the calculation of bird weight 

and the usefulness of this method to 

accommodate for differences over the 

flock lifespan as birds become heavier. 

Section 205.241(c)(7) clarifies that 

unenclosed roofed areas (i.e., having a 

roof but no walls to contain birds) can 

be counted as outdoor space when these 

areas allow birds to freely move 

between the roofed area(s) and other 

outdoor space. This ensures that 

enclosed porches are not counted as 

outdoor space. If a producer were to 

modify an enclosed porch to 

permanently remove the walls and 

provide birds with free access to other 

outdoor spaces, the area would be 

considered outdoor space. 

One of the key considerations for 

distinguishing indoor space from 

outdoor space is how the livestock are 

managed in that space, which may 

determine whether the space should 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. 

Section 205.241(d) describes the 

conditions under which organic avian 

livestock producers may temporarily 

confine birds indoors (‘‘temporary’’ and 

‘‘temporarily’’ are defined at § 205.2). 

Producers must document confinement 

in a manner that demonstrates 

compliance with the recordkeeping 

requirements in § 205.103. Records 

should 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 

§ 205.241(d) are adopted or adapted 

from previously established 

requirements for organic livestock at 

§ 205.239(b), and from 2009 and 2011 

NOSB recommendations and third-party 

animal welfare organization standards. 

Section 205.241(d)(1) provides an 

allowance for temporary confinement in 

response to inclement weather, which is 

defined at § 205.2 as weather that is 

violent or characterized by temperatures 

(high or low) or excessive precipitation 

that can cause physical harm to 

livestock. Inclement weather does not 

include weather that is sub-optimal for 

production, such as weather that may 

reduce growth rates or reduce 

production yields. In addition to 

specifying ‘‘inclement weather,’’ as 

defined at § 205.2, the final rule also 

establishes a lower (32 degrees 

Fahrenheit) and upper temperature 

threshold (90 degrees Fahrenheit) for 

temporary confinement. Producers may 

temporarily confine animals and 

maintain their organic certification 

when animals are temporarily confined 

for inclement weather. The term 

‘‘inclement weather’’ is defined at 

§ 205.2 as, ‘‘Weather that is violent, or 

characterized by temperatures (high or 

low), or characterized by excessive 

precipitation that can cause physical 

harm to a given species of livestock. 

Production yields or growth rates of 

livestock lower than the maximum 

achievable do not qualify as physical 

harm.’’ AMS recognizes that a narrower 

range of temperatures may define the 

optimal temperature conditions for 

birds (of different ages and species), but 

§ 205.241(d)(1) may not be used as 

justification for confinement of birds to 

the narrow range to maximize growth or 

production. 

AMS recognizes that some weather 

may qualify as inclement weather when 

temperatures are within the 32- to 90- 

degree range. For example, many types 

of violent weather that may cause 

physical harm to animals will occur 

within this range (e.g., extreme wind, 

violent precipitation, etc.). Temporary 

confinement of animals for these events 

is appropriate under this section of the 

rule. Finally, the rule does not require 

that birds be confined when 

temperatures are below 32 degrees or 

above 90 degrees Fahrenheit to be in 

compliance with the requirement. For 

example, a sunny 30-degree Fahrenheit 

day may allow birds to go outdoors 

without any harmful effects, and 

outdoor access would be acceptable and 

encouraged. Certifiers will need to 

evaluate an operation’s practices and 

temporary confinement records to 

determine if an operation complies with 

the allowance to temporarily confine 

animals for inclement weather. 

Section 205.241(d)(2) provides an 

allowance for temporary confinement 

indoors due to a bird’s stage of life. In 

this section, AMS has established 

specific requirements for confining 

chicken broilers and pullets due to their 

stage of life (‘‘stage of life’’ defined at 

§ 205.2). Additionally, the section 

includes a general provision for 

confining other avian species until fully 

feathered. Chicken broilers may be 

confined through 4 weeks of age and 

chicken pullets may be temporarily 

confined indoors through 16 weeks of 

age. The NOSB recommended 16 weeks 

of age as the age after which outdoor 

access is required to provide adequate 

time for pullets to complete their 

vaccination program before exposure to 

pathogens outdoors. Any confinement 

beyond the time when birds are fully 

feathered must be in accordance with 

§ 205.241(d). 

Section 205.241(d)(3) provides an 

allowance for temporary indoor 

confinement for conditions under which 

the health, safety, or well-being of the 

birds could be jeopardized. Temporary 

confinement under this provision must 

be recorded; records must clearly state 

the reason(s) for confinement (per 

§ 205.241(d)(3)), with a detailed and 

robust justification demonstrating how 

the birds’ health, safety, or well-being 

could be jeopardized. To confine birds 

under this provision, a producer must 

have sufficient justification to 

demonstrate that an animal’s health, 

safety, or well-being could be 

jeopardized by access to the outdoors. A 

producer’s practices and justification 

must be included in their OSP 


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(§ 205.201), and records must be 

sufficient to demonstrate compliance 

(§ 205.103). Certifiers will verify 

compliance with this requirement. 

Producers and certifiers should consult 

with animal health officials, as 

appropriate, to determine when 

confinement of birds is warranted to 

protect the health, safety, or well-being 

of the birds. Animal health officials are 

also encouraged to reach out to certifiers 

and to AMS to discuss specific health 

concerns. AMS will continue to engage 

animal health officials, including the 

USDA’s Animal and Plant Health 

Inspection Service (APHIS), State 

Departments of Agriculture and State 

Veterinarians, about risks to bird health 

and provide appropriate directions to 

certifiers or producers, as necessary. 

AMS recognizes that this section 

allows operations to temporarily confine 

animals for a variety of reasons, but 

operations may not justify ongoing or 

long-term confinement for reasons that 

do not pose significant and specific 

risks to animal health, safety, or wellbeing. This section provides an 

allowance for organic operations to 

temporarily confine animals. AMS 

directs producers and certifiers to 

reference § 205.2 (Terms defined) when 

evaluating confinement under 

§ 205.241(d)(3), which defines 

‘‘temporary and temporarily’’ as, 

‘‘Occurring for a limited time only (e.g., 

overnight, throughout a storm, during a 

period of illness, the period of time 

specified by the Administrator when 

granting a temporary variance), not 

permanent or lasting.’’ For example, an 

operation may not confine birds in an 

attempt to avoid any and all predation 

and bird mortality that may result from 

time outdoors. Additionally, an 

operation may not confine animals 

indoors to simply maximize growth 

and/or production. Access to the 

outdoors is a key principle of the 

organic livestock standards (see 

§ 205.241(a)). Therefore, AMS expects 

producers to maximize access to 

outdoors to the greatest degree possible 

to support the health and natural 

behavior of poultry and the requirement 

at § 205.241(a). 

Section 205.241(d)(4) provides an 

allowance for temporary indoor 

confinement in the case of risk to soil 

or water quality. This provision mirrors 

an existing allowance at § 205.239 and 

allows producers to avoid damage to 

soil or water quality. This means that an 

operation may temporarily confine 

poultry to prevent damage to soil or 

water quality. For example, an operation 

may choose to temporarily confine 

animals after a very heavy rainfall to 

help minimize soil erosion and runoff. 

However, confinement for this reason 

must be temporary (see the definition of 

temporary in § 205.2) and must be 

documented so that the certifying agent 

can assess if the operation’s use of 

confinement complies with the organic 

regulations. Frequent or prolonged 

confinement to prevent damage to soil 

or water quality is not permitted 

because it is not temporary. The need to 

frequently confine animals for long 

periods to avoid damage to soil and 

water quality may also indicate that an 

operation’s outdoor access practices fail 

to meet the general requirements to 

maintain or improve the natural 

resources of the operation, including 

soil and water quality (§ 205.200). This 

provision is not intended to allow 

producers to avoid those requirements 

and is only allowed to justify temporary 

(i.e., not permanent or lasting) 

confinement. 

Section 205.241(d)(5) provides an 

allowance for indoor confinement for 

preventive health care procedures and 

for the treatment of illness or injury. 

Neither life stages nor egg laying are 

considered an illness for confinement 

purposes. For example, this provision 

allows producers to briefly confine a 

flock to administer a vaccine or to 

confine an individual animal that 

requires medical treatment. 

Section 205.241(d)(6) provides an 

allowance for indoor confinement for 

sorting, shipping, and poultry sales. 

Birds must be managed organically 

during the entire time of confinement. 

For example, any feed provided during 

confinement must be organic. 

Confinement must be no longer than 

necessary to sort or catch the birds, 

place them in shipping containers, and 

conduct the sale. 

Section 205.241(d)(7) provides an 

allowance for indoor confinement to 

train pullets to lay eggs in nest boxes, 

with a maximum period of five weeks 

over the life of the bird allowed for such 

confinement. The training period must 

not be any longer than required to 

establish the proper behavior. As soon 

as the behavior is established, birds 

must be provided with access to the 

outdoors, except when confined in 

accordance with other provisions under 

§ 205.241(d). 

Section 205.241(d)(8) provides an 

allowance for indoor confinement with 

specified time frames for youth 

exhibitions, such as with 4–H or the 

National FFA Organization. This 

provision also includes an exemption to 

the requirement that a livestock sales 

facility be certified as an organic 

operation. As an example, if a youth 

exhibition and sale is held at a livestock 

sales facility that is not certified organic, 

a youth may sell birds there as organic, 

provided all other requirements for 

organic management are met. During the 

youth event, the livestock may be 

temporarily confined indoors. 

Otherwise, non-certified sales facilities, 

such as auction barns, may not sell or 

represent livestock as organic. AMS is 

adding these provisions at 

§ 205.241(d)(8) to encourage the next 

generation of organic producers. 

Section 205.241(e) requires organic 

poultry producers to manage manure in 

a manner that does not contribute to 

contamination of crops, soil, or water 

quality by plant nutrients, heavy metals, 

or pathogenic organisms. Organic 

poultry producers must manage the 

outdoor space in a manner that does not 

put soil or water quality at risk. In 

addition, organic poultry producers 

must comply with all other 

governmental agency requirements for 

environmental quality. The 

requirements of this section are adapted 

from previously established 

requirements for organic livestock at 

section 205.239(e). 

Changes From Proposed Rule to Final 

Rule 

AMS has made several revisions to 

the proposed requirements at § 205.241 

in response to comments and to clarify 

the requirements. A brief description of 

the changes follows; additional 

discussion can be found in AMS’s 

responses to comments. 

• AMS included a prohibition on 

continuous total confinement. This 

requirement has existed in the 

regulations at § 205.239 but was not 

included in the proposed rule. It is 

carried into the final rule at 

§ 205.241(a). 

• AMS added a clarification to the 

final rule that a bird should be able to 

stretch both wings simultaneously when 

indoors (§ 205.241(b)(1)). This change 

elaborates on the proposed requirement 

that birds be able to ‘‘stretch wings’’ 

indoors. 

• AMS revised requirements related 

to monitoring of ammonia to increase 

the frequency of monitoring and raise 

the action limit from 10 ppm to 20 ppm 

ammonia, with the maximum level 

remaining at 25 ppm, as proposed 

(§ 205.241(b)(2)). The final rule also 

specifies that monitoring is to be done 

at bird head height. 

• AMS revised the proposed lighting 

requirements to clarify that 

manipulation of artificial light to 

increase growth is not permitted and to 

clarify the length of time that artificial 

light may be provided over a 24-hour 

period (§ 205.241(b)(3)). 


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• In response to public comment, 

AMS offered greater specificity on the 

requirements related to exit doors. The 

final rule requires that producers 

provide one linear foot of exit door 

space per 360 birds with some 

flexibility for compliance if an 

alternative configuration provides ready 

access to the outdoors for all birds 

(§ 205.241(b)(4)). 

• AMS included additional detail on 

what may be counted as perch space. 

The final rule specifically prohibits 

counting floor space as perch space 

(§ 205.241(b)(5)). 

• AMS reduced the amount of solid 

flooring required in the final rule from 

30 percent to 15 percent and clarifies 

that mobile housing is exempt from this 

requirement (§ 205.241(b)(7)). 

• AMS added a second method for 

calculating space requirements that does 

not rely on the weight of birds 

(§§ 205.241(b)(7)—(10) and (c)(4)— 

(c)(6)). 

• AMS reduced the amount of nonsoil ground that may be in outdoor areas 

from 50 percent to 25 percent (i.e., 75 

percent must be soil in the final rule), 

at § 205.241(c)(2). 

• AMS revised the temperature range 

included in the proposed rule related to 

inclement weather (§ 205.241(d)(1)). 

AMS clarified that inclement weather 

for avian species may include 

temperatures below 32 degrees (rather 

than 40 degrees as proposed) and above 

90 degrees (unchanged from the 

proposed rule). 

• Finally, AMS removed the 

proposed allowance to temporarily 

confine birds to reseed outdoor areas. 

The final rule allows for confinement 

due to risk to soil or water quality 

(§ 205.241(d)(4)). 

Responses to Public Comment 

General Conditions (Avian) 

(Comment) Some comments noted 

that the proposed rule’s section on avian 

living conditions did not include the 

specific phrase, ‘‘Continuous total 

confinement of any animal indoors is 

prohibited.’’ The commenters noted that 

the prohibition was included in the 

section on mammalian living conditions 

at § 205.239(a) and requested that it also 

be included in the final rule’s section on 

avian living conditions at § 205.241(a). 

(Response) AMS agrees with these 

comments and has added the phrase, 

‘‘Continuous total confinement of any 

animal indoors is prohibited’’ to the 

avian living condition requirements at 

§ 205.241(a). Prior to this final rule, the 

USDA organic regulations prohibited 

continuous total confinement for all 

organic livestock, and AMS agrees it 

should continue to apply to all organic 

livestock in the final rule. 

(Comment) A comment requested that 

AMS modify the proposed requirement 

that birds be able to ‘‘stretch their 

wings’’ indoors to instead require space 

that allows birds to ‘‘fully stretch both 

wings simultaneously.’’ 

(Response) AMS agrees that this 

modification better describes the intent 

and meaning of the requirement. The 

final rule, at § 205.241(a)(1), requires 

that poultry housing be sufficiently 

spacious to allow all birds to, ‘‘stretch 

both wings simultaneously.’’ 

Ammonia 

(Comment) AMS received numerous 

comments on the proposed 

requirements related to monitoring 

ammonia in poultry houses and 

ammonia compliance thresholds 

included in the proposed rule. 

Comments argued that monthly 

ammonia monitoring, as proposed, 

would not be sufficient to identify 

problems and could result in longerterm exposure to elevated ammonia 

levels and have harmful effects. Many of 

these comments requested weekly 

(rather than monthly) testing, and that 

ammonia monitoring must be done at 

the height of the birds’ heads, to ensure 

that testing reflects the birds’ actual 

exposure to ammonia. In terms of the 

ammonia thresholds proposed by AMS, 

many comments requested that AMS 

increase the action limit from 10 ppm to 

20 ppm or 25 ppm. Comments noted 

that these higher levels would align 

with third-party standards and still 

support bird health. 

(Response) In response to comments, 

the final rule increases the frequency of 

required testing from monthly to weekly 

and requires that testing be done at bird 

head height. AMS expects these 

revisions to § 205.241(b)(2) will result in 

better outcomes for bird health. AMS 

has also increased the action limit in the 

proposed rule of 10 ppm to 20 ppm in 

the final rule. If ammonia levels exceed 

20 ppm, producers must implement 

additional practices to reduce ammonia 

levels below 20 ppm and perform more 

frequent monitoring. Ammonia levels 

must not exceed 25 ppm. 

Lighting 

(Comment) Several commenters 

requested that poultry have access to 

sufficient natural light indoors, citing 

animal health and welfare. Commenters 

requested natural light be provided 

during daylight hours for mature avian 

species; in cases where this would be 

difficult to achieve, commenters 

requested that lighting must be full 

spectrum to mimic a natural system. 

(Response) As a general requirement 

at § 205.241(a), the final rule requires 

that birds have year-round access to 

outdoors and direct sunlight. AMS finds 

that these provisions address 

commenters’ concern for sufficient 

access to natural light and the 

expression of natural behaviors. 

(Comment) Commenters asked AMS 

to require a minimum of eight hours of 

continuous light (daylight or artificial) 

over a 24-hour period. 

(Response) AMS finds that artificial 

light sources can be permitted to help 

meet the minimum light intensity 

during cloudy weather or darker 

seasonal conditions but should not 

prolong daylight more than 16 

continuous hours. AMS finds that 

continuous low level or no light does 

not mimic a natural system, nor does it 

allow birds to express their natural 

instincts and thus is not appropriate for 

organic management. AMS has decided 

not to specify a particular amount of 

required light to provide operations 

flexibility for their site-specific 

conditions. Further, AMS recognizes 

that not all organic operations have 

lighting systems that allow for gradual 

lowering of light intensity. Therefore, 

AMS clarified that artificial light 

intensity should (rather than must) be 

lowered gradually to encourage hens to 

move to perches or settle for the night. 

(Comment) Several comments noted 

that artificial light should be used only 

to mimic daylight and encourage natural 

behaviors, and not to manipulate weight 

gain or laying habits. 

(Response) AMS agrees that artificial 

light should be used only to mimic 

daylight and encourage natural 

behaviors. AMS added the statement at 

§ 205.241(b)(3) that ‘‘Artificial light 

spectrum may not be manipulated to 

increase feed intake and growth rate.’’ 

(Comment) Commenters asked AMS 

to require a minimum of eight hours of 

continuous darkness over a 24-hour 

period. 

(Response) The final rule adds the 

statement at § 205.241(b)(3) that 

operations must provide a minimum of 

eight hours of continuous darkness per 

24-hour period. 

(Comment) Several comments noted 

that the proposed rule did not establish 

a minimum requirement for indoor light 

intensity. Some commenters requested a 

requirement that an inspector be able to 

read and write with lights turned off on 

a sunny day to create a standard of 

measurement. Some commenters stated 

that third-party certifications require at 

least one foot candle of light throughout 

the building. 

(Response) AMS determined that it 

would not be feasible for inspectors to 


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Federal Register / Vol. 88, No. 211 / Thursday, November 2, 2023 / Rules and Regulations 75423 

76 Global Animal Partnership standards for laying 

hens require 8 inches for every 100 hens when 

doors are only open on one side of the house. When 

doors are open on both sides of the house, the 

standards require 5 inches for every 100 hens. 

Available at: https://globalanimalpartnership.org/ 

standards/laying-hen/. 

77Available at: https://www.nass.usda.gov/ 

Surveys/Guide_to_NASS_Surveys/Ag_Resource_

Management/ARMS_Broiler_Factsheet/ 

Poultry%20Results%20-%20Fact%20Sheet.pdf. 

verify a producer’s compliance with this 

requested requirement and has not 

included such a requirement in the final 

rule. 

(Comment) Commenters asked AMS 

to confirm that the proposed artificial 

lighting standards at § 205.241(b)(3) 

covered all types of fully feathered 

birds, not just layer chickens. 

(Response) The artificial lighting 

standards at § 205.241(b)(3) are 

applicable to the production of all types 

of fully feathered birds. AMS updated 

the regulatory text to clarify this 

standard applies to all fully feathered 

birds. 

Exit Areas 

(Comment) Stakeholders requested 

more specificity for exit areas, arguing 

the proposed rule does not provide 

clarity for implementation to ensure 

sufficient outdoor access. Comments 

focused on minimum size, spacing, and 

quantity of exit doors. Many comments 

requested a requirement that exit areas 

must be designed so that more than one 

bird at a time can pass through each 

opening. Many comments also 

suggested specific sizing and 

dimensions for exit areas, with most 

suggesting a combined exit area length 

be at least 12 feet per 1,000 square feet 

of the house available to the birds. This 

standard would align with European 

Union organic standards (4 m per 100 

m2). Others suggested a requirement for 

at least one exit for every 50 feet (15 

meters) along the two longest sides of 

the house, while others recommended 

that exit doors be placed so any bird 

could be no farther than 50 feet from an 

exit door. This standard would align 

with Canadian organic standards and 

some third-party welfare standards. 

Other comments also requested more 

specificity for how to encourage birds to 

go outside and to include a requirement 

that operations demonstrate that birds 

access the outdoors (e.g., demonstrate 

all birds exit the house within an hour 

of opening doors). 

(Response) AMS recognizes that exit 

areas have been unregulated and that 

ready access to the outdoors—a primary 

intent of this rule—has not always been 

provided to all certified flocks. AMS 

also recognizes the need for a consistent 

understanding throughout the industry 

to support a competitive playing field. 

The final rule confirms and clarifies that 

poultry houses must have sufficient exit 

areas to allow birds to access the 

outdoors. AMS is also making two 

modifications to the proposed 

requirements based on comments. First, 

AMS is requiring that exit areas be 

‘‘appropriately distributed and sized’’ 

rather than ‘‘appropriately distributed’’ 

in response to comments that the size of 

doors (in addition to the distribution of 

doors) is important for providing access 

to the outdoors. For example, a very 

narrow door might restrict passage of 

birds and restrict access to the outdoors. 

Second, AMS is referencing a 

quantitative standard for exit areas in 

the final rule, as requested by numerous 

comments. The final rule requires 

producers to provide at least 1 linear 

foot of exit area per 360 birds, and no 

less than 1 linear foot for flocks that 

have fewer than 360 birds. 

Theoretically, this quantity of exit area 

allows all birds in a house to exit (or 

enter) a house within one hour (60 

minutes), assuming one bird passes 

through a door every 10 seconds (360 

birds × 10 seconds/bird = 3,600 seconds 

or 60 minutes). This requirement is 

comparable to a third-party animal 

welfare standard that requires five 

inches of doorway per 100 hens.76

While AMS is providing a 

quantitative requirement in the final 

rule, the rule also provides flexibility for 

operations to provide less exit space, so 

long as they and their certifier ensure 

that exit areas allow all birds to have 

ready access to outdoor space. AMS is 

providing this flexibility because we 

understand there might be houses that 

do not meet the ratio but can 

demonstrate all birds have ready access 

to the outdoors. Because of the wide 

variety of housing provided by poultry 

producers and possible differences in 

bird behavior between farms, AMS 

believes that compliance is best 

determined by organic certifying agents 

during their annual on-site inspections 

and reviews of operations. A specific 

standard will, however, provide a 

common reference point for certifying 

agents to assess compliance with the 

outdoor access requirement. 

AMS evaluated the standard proposed 

by commenters for 12 linear feet of door 

per 1,000 square feet of poultry house, 

but AMS determined this would not be 

an appropriate metric. Specifically, this 

requirement did not scale appropriately 

for houses of all sizes (due to a nonlinear relationship between the 

perimeter of an object and the area of 

the object). In other words, a large house 

would have been required to have more 

doors than is practical or feasible. 

Instead, AMS is adopting a standard for 

the final rule that relies only on the 

number of birds to calculate the 

necessary door number. 

AMS also considered comments that 

recommended birds not be farther than 

50 feet from an exit door. AMS chose 

not to adopt this recommendation 

because some poultry houses may only 

provide doors along one side of the 

house, and houses can be 50 feet wide 

or more.77 Ultimately, AMS determined 

that a standard based on the number of 

birds in the house would be the most 

scale-neutral option across the various 

housing types using for organic 

production. The final rule establishes a 

standard of one linear foot of exit area 

per 360 birds. Together with the 

requirement in this section 

(§ 205.241(b)(4)) that exit areas be 

appropriately distributed and sized, 

AMS believes this standard is an 

appropriate baseline. In the case a 

producer can demonstrate an alternative 

ratio meets the requirement for ready 

access to the outdoors, a producer 

would be in compliance if the certifier 

accepts the deviation. 

Flooring and Dust Bathing 

(Comment) Many comments 

requested that AMS revise the amount 

of solid floor area required in indoor 

housing with slatted or mesh floors. 

Comments asked AMS to lower the 

minimum required solid floor area to 15 

percent of total floor space (the 

proposed rule would have required 30 

percent). Comments acknowledged that 

the proposed 30 percent minimum was 

an NOSB recommendation but noted 

that a 15 percent minimum would be 

more consistent with current practice in 

the organic industry and more 

consistent with third-party animal 

welfare standards. 

(Response) Solid floor areas provide 

birds with a space to dust bathe and 

scratch. AMS has reduced the minimum 

amount of solid floor space from 30 

percent to 15 percent in § 205.241(b)(7). 

AMS agrees with comments that 15 

percent solid floor area will support 

animal welfare and the natural 

behaviors of scratching and dust 

bathing. The final rule not only requires 

that birds will have access to areas 

indoors for these activities but also 

requires that birds have access to 

outdoor areas. These outdoor areas will 

also be available for birds to express 

these natural behaviors and to maintain 

animal health (by allowing for dust 

bathing). 

(Comment) One commenter requested 

a higher indoor stocking density limit 


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75424 Federal Register / Vol. 88, No. 211 / Thursday, November 2, 2023 / Rules and Regulations 

78AMS established the alternative space 

requirements (expressed as square feet per bird) by 

considering the average weight of breeds, weight of 

birds at time of sale, relative use of breeds in the 

industry, and the standard deviation of weights by 

breed. 

for mobile housing that provides yearround access to large amounts of 

pasture. This commenter also stated that 

these types of mobile housing should 

not be required to provide indoor areas 

for dust bathing and scratching, as the 

outdoor space provides these areas. 

(Response) AMS agrees that outdoor 

areas can provide sufficient space for 

birds to engage in natural behaviors 

such as dust bathing and scratching. 

The final rule in § 205.241(b)(6) exempts 

mobile housing from the scratching and 

dust bathing requirements inside of the 

house if there is sufficient outdoor space 

that can provide area for these 

behaviors. AMS elects not to change the 

stocking density requirements for 

mobile housing. The final rule permits 

a higher indoor stocking density for 

mobile housing than it does for other 

housing systems, except for aviary 

housing (which provides access to the 

vertical space in a house). The 

maximum stocking density for mobile 

housing already considers that birds 

have greater access to outdoor space in 

these systems, so further reduction of 

space per bird is not warranted. 

Space Requirements 

(Comment) Some comments requested 

that AMS express space requirements in 

terms of square feet per bird rather than 

maximum pounds of bird per square 

foot, as AMS proposed. Comments 

argued this method for space 

calculations aligns better with thirdparty standards and that calculations 

would be simpler under this method. 

Comments noted that the proposed 

method (which relies on bird weight) is 

more burdensome, as bird weights 

constantly change, especially when 

birds are young, and some producers do 

not track the weight of their birds. 

Comments also stated that requirements 

based on the weight of birds could 

result in an excessive recordkeeping 

burden and require additional time to 

verify at inspections. 

(Response) AMS recognizes that 

verification of compliance could be 

simpler in some cases by expressing the 

space requirements in terms of square 

feet required per bird. This may be 

especially true in cases where bird 

weights are not known, or a producer 

has variously sized breeds within the 

flock. Therefore, the final rule offers an 

alternative method for calculating space 

requirements in terms of minimum 

required square feet per bird. These 

calculations will require producers and 

certifying agents to know only the 

number of birds and the area of the 

space (indoor or outdoor). 

AMS has established the alternative to 

be equivalent to the space required for 

a heavy bird for the type (layer, broiler, 

or pullet). For layer standards, AMS 

assumed a 6.7 lb. bird; for broilers, a 

10.0 lb. bird; and for pullets, a 5.0 lb. 

bird.78 For example, the alternative of 

1.5 square feet per bird (aviary housing) 

is equivalent to the requirements for a 

6.7 lb. layer at 4.5 lbs. per square foot. 

Many producers will comply with the 

space requirements expressed in these 

terms, even though a higher stocking 

density would likely be allowed by 

calculating the weight of birds per 

square foot. However, the alternative 

will simplify the calculations for some 

producers, especially smaller producers, 

and the addition responds to the many 

comments that requested a standard 

expressed as square feet required per 

bird. 

The final rule also retains the 

proposed rule’s space requirements that 

are expressed in terms of maximum 

pounds of bird per square foot. 

Producers and certifiers may use either 

method to demonstrate compliance; 

they need not demonstrate compliance 

with both methods. AMS provides more 

extensive discussion of this topic in the 

above subsection titled ‘‘Description of 

Final Policy.’’ 

(Comment) Some commenters 

believed that AMS should require more 

indoor space per bird to reduce 

crowding. On the other hand, other 

commenters believed that less space 

should be required indoors, especially 

for broilers. Many comments on broiler 

indoor space requested that AMS raise 

the stocking density to a maximum of 

six pounds per square foot for broilers, 

rather than the five pounds per square 

foot limit set by the proposed rule. 

Some of these comments also requested 

that if the final rule did adopt a 

standard of five pounds per square foot, 

AMS provide a five-year 

implementation period instead of the 

three-year period discussed in the 

proposed rule. These comments stated 

that five years would be necessary to 

construct new houses and avoid supply 

disruption. 

(Response) AMS is maintaining the 

indoor space requirements for the 

various housing types, as proposed. For 

pullets and layers, the indoor space 

requirements largely reflect the current 

industry standard for organic producers 

and various third-party humane and 

animal care standards. For broilers, 

AMS anticipated in the proposed rule 

that broilers would need to be provided 

with more space, and the costs 

associated with those changes are 

described in the Regulatory Impact 

Analysis for this rule. In 

acknowledgement of comments that 

construction of new poultry houses will 

require time, AMS is allowing five years 

for compliance with the broiler indoor 

and outdoor space requirements in the 

final rule. AMS believes that the 

stocking densities established by this 

rule balance NOSB recommendations, 

public input, and industry best practices 

to establish a reasonable national 

standard for organic production and to 

assure consumers that organically 

produced eggs and broilers meet a 

consistent standard, as required by 

OFPA (7 U.S.C. 6501). 

(Comment) Some commenters 

believed that AMS should require more 

outdoor space per bird than proposed, 

while other commenters believed that 

less outdoor space could be required. 

Comments supporting more outdoor 

space noted that international organic 

standards and third-party certifications 

require more space per bird, and they 

asserted that more space would be 

necessary to provide animals with 

vegetation in outdoor areas. Comments 

in favor of less outdoor space noted that 

all birds do not go outdoors at once, 

even if large outdoor areas are provided. 

(Response) The final rule maintains 

the outdoor stocking densities, as 

proposed, and added an alternative 

method for measuring compliance based 

on square feet per bird, which avoids 

the need to weigh birds. The stocking 

densities established by this rule 

balance NOSB recommendations, public 

input, and industry best practices to 

establish a reasonable baseline for 

organic production and, in turn, support 

the purposes set forth in OFPA, i.e., to 

assure consumers that organic products 

are produced according to a consistent 

standard (7 U.S.C. 6501). The new 

standard represents an upward 

harmonization of outdoor space 

requirements under the organic rule 

while still providing for a robust organic 

poultry market. 

(Comment) Some comments requested 

a revision to AMS’s discussion on how 

to calculate and verify compliance with 

indoor and outdoor space requirements. 

In the proposed rule, AMS described 

that a producer could stock a poultry 

house to exceed minimum space 

requirements in anticipation of 

mortalities that would reduce the 

number of birds and eventually increase 

the space available per bird. 

Commenters were concerned that 

adopting this approach would lead to 

houses with higher stocking densities 


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Federal Register / Vol. 88, No. 211 / Thursday, November 2, 2023 / Rules and Regulations 75425 

79 ‘‘Prevention of Salmonella Enteritidis in Shell 

Eggs During Production, Storage, and 

Transportation (Layers with Access to Areas 

Outside the Poultry House): Questions and Answers 

Regarding the Final Rule: Guidance for Industry,’’ 

FDA, Center for Food Safety and Applied Nutrition, 

August 2022, https://www.fda.gov/media/86276/ 

download. 

and reduce a certifier’s ability to enforce 

the requirements. 

(Response) AMS has reconsidered its 

position and is adopting the position 

that a producer must always comply 

with the minimum standards 

established by the final rule. The final 

rule establishes minimum space 

requirements for chickens based on bird 

type, age, and housing system, and 

producers must meet these standards to 

comply with the rule. 

(Comment) Some comments requested 

that AMS expand the rule to include 

minimum requirements for species 

other than chickens (Gallus gallus), 

including turkeys, ducks, and other 

animals. 

(Response) AMS has not added 

specific minimum space requirements 

for species other than chickens in this 

final rule. The NOSB did not finalize 

recommendations for other avian 

species and AMS did not propose any 

such requirements, so AMS is not 

including minimum space requirements 

for other species in the final rule. 

However, the final rule includes many 

requirements that do apply to all avian 

species in §§ 205.238, 205.241, and 

205.242. Similarly, the final rule 

includes many requirements that apply 

to all mammalian and non-avian species 

at §§ 205.238, 205.239, and 205.242. 

Indoor Conditions (Other) 

(Comment) Comments asked AMS to 

clarify that flooring in slatted/mesh 

floor poultry houses cannot be included 

as perch space for layers. 

(Response) The slatted floors of some 

houses are physically similar to perches, 

but floor space may not be counted as 

perch space. In response to comments, 

AMS specifies in the final rule at 

§ 205.241(b)(5) that floors in slatted/ 

mesh floor housing cannot be counted 

as perch space. Additionally, the 

definition of perch at § 205.2 describes 

that a perch is above the floor or ground 

to clarify that flooring is not a perch for 

the purposes of this rule. 

(Comment) Some comments objected 

to AMS’s proposed requirements at 

§ 205.241(b)(12) and § 205.241(c)(7) that 

describe what may be considered indoor 

space and outdoor space. The proposed 

rule described that a porch could be 

included in the calculation of space 

available. Some comments argued that 

AMS should not allow porches to ever 

count as outdoor space and that a 

prohibition of porches as outdoor space 

would better fit with the objective of the 

rule. Another suggested that these 

sections brought more confusion than 

clarity about what should count as 

indoor or outdoor space. Others 

expressed concern that the proposed 

rule might allow a producer to reduce 

both the indoor and outdoor space 

provided to birds by claiming porches 

as both indoor and outdoor space. 

Finally, some comments noted the 

description could cause interpretation 

issues for the organic mammalian 

standards, as some common mammalian 

housing structures are roofed with open 

sides (such as a freestall barns for dairy 

cattle) but are considered indoors. 

(Response) AMS has revised 

§ 205.241(c)(7) to further clarify 

acceptable types of outdoor space. AMS 

removed the words ‘‘porches and lean to 

type [structures]’’ from the paragraph to 

avoid confusion. The term ‘‘porch’’ is 

not defined by these regulations, and 

AMS wants to avoid inconsistent 

interpretation of the term. The revised 

language focuses on what qualifies a 

structure as outdoor space: (1) the 

structure must be unenclosed; and (2) 

birds must be able to move freely from 

the structure to other outdoor areas. A 

certifier must assess if an unenclosed 

roofed structure may be considered 

outdoor space. AMS believes this 

decision is best left to certifiers working 

in conjunction with producers and in 

evaluation of an operation’s practices 

related to use of these areas. AMS chose 

to leave the words ‘‘enclosed porches’’ 

at § 205.241(a)(12) because we believe 

this is helpful guidance for the industry: 

in some cases, an area previously used 

as a porch might qualify as indoor 

space. Finally, AMS has updated the 

definition of ‘‘outdoors’’ in § 205.2 to 

clarify that enclosed structures with 

open sides, such as the freestall barns 

and hoop barns commonly used in nonavian production, do not qualify as 

outdoors. 

Outdoor Conditions (Other) 

(Comment) Several comments 

requested an increase in the percentage 

of soil required in outdoor space from 

50 to 75 percent, stating that a higher 

amount of soil is needed to encourage 

birds to utilize outdoor space. 

Commenters also noted that birds may 

not use the outdoor space if much of it 

is concrete, as it may burn their feet in 

higher temperature climates. Other 

commenters suggested that soil be 

required within a certain distance from 

housing exit areas to encourage the use 

of outdoor space by birds. Comments 

ranged from general guidelines to more 

specific requests, such as requiring that 

vegetated and soil areas should be no 

farther than 30 feet away from exit 

doors. 

(Response) AMS has revised the 

outdoor space soil requirement in 

§ 205.241(c)(2) to better align with 

commenter and consumer expectations. 

The final rule requires that 75 percent 

of outdoor space must be soil. AMS 

elects not to establish specific 

regulations for how far away soil and 

vegetation should be from exit doors. 

The increase in percentage of soil cover 

will encourage the use of outdoor space 

by birds without the need for 

prescriptive distance requirement. The 

final rule continues to allow some 

outdoor areas to not be soil. AMS 

believes this allowance is necessary, as 

some houses may have adjacent non-soil 

areas for drainage or to prevent rodents 

from entering houses. The allowance for 

25 percent non-soil outdoor area also 

supports producer efforts and FDA 

recommendations for preventing 

rodents in outdoor areas, such as a 6- 

foot strip along the periphery of an 

outdoor area that is filled with gravel or 

another non-soil substance.79

(Comment) Many commenters 

requested that AMS add a requirement 

in § 205.241 that producers include 

‘‘suitable enrichments’’ in outdoor areas 

to encourage birds to utilize outdoor 

space. 

(Response) AMS has not added 

language requiring ‘‘suitable 

enrichments’’ to encourage the use of 

outdoor space. Instead, AMS increased 

the required amount of soil in outdoor 

areas to 75 percent. This change is 

meant to encourage greater use of 

outdoor space. AMS encourages 

producers to adopt practices that 

encourage birds to go outdoors—see 

§ 205.241(c)(1), which require producers 

to provide outdoor access at a young 

age. AMS determined that a requirement 

for ‘‘suitable enrichment’’ in this rule 

would be difficult to measure or enforce 

and could vary greatly from one 

operation to another. 

(Comment) Several comments 

requested that the definition of outdoor 

space be clarified. Specifically, 

commenters requested a clear definition 

of ‘‘maximal vegetative cover,’’ arguing 

that the term ‘‘maximal’’ is subjective 

and that operations located in droughtprone or water restricted areas have 

limited ability to ensure maximal 

vegetative cover. 

(Response) AMS clarifies the 

requirements for outdoor space by 

removing the term ‘‘maximal vegetative 

cover’’ from the vegetation requirement 

at 205.241(c)(2). AMS recognizes that 

‘‘maximal’’ vegetative cover is not 


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75426 Federal Register / Vol. 88, No. 211 / Thursday, November 2, 2023 / Rules and Regulations 

80 ‘‘FDA Issues Final Guidance for Shell Egg 

Producers who Provide Laying Hens with Access to 

Areas Outside the Poultry House,’’ U.S. Food & 

defined by the rule and varies based on 

season, climate, geography, stage of 

production, etc. The change allows 

operations flexibility to meet the 

vegetation requirement across various 

conditions and provides additional 

clarity of composition of outdoor space. 

(Comment) Many commenters 

requested that the definition of ‘‘pasture 

pens’’ be revised to clarify that floored 

(e.g., wire mesh) structures are 

prohibited, and that animals should be 

able to move around and express natural 

behaviors when inside of pasture pens. 

(Response) The definition of ‘‘pasture 

pens (avian)’’ describes that pasture 

pens are floorless pens. In response to 

public comment, AMS revises the 

definition of ‘‘pasture pens’’ to note that 

they allow birds to express natural 

behaviors. Birds in pasture pens must 

have direct access to the ground without 

intervening floor, including wire or 

mesh, so they can scratch, dust bathe, 

roost (for pullets and layers), etc. AMS 

also clarifies that the definition of 

pasture pens applies to avian species, as 

ruminant producers may also use the 

term but with a different meaning. 

Confinement 

(Comment) AMS received many 

comments related to temporary 

confinement of birds due to outdoor 

temperatures. The proposed rule would 

have allowed producers to confine birds 

for inclement weather, including when 

outdoor temperatures are below 40 

degrees Fahrenheit or above 90 degrees 

Fahrenheit. Many comments requested 

that AMS reduce the lower threshold for 

confinement from 40 degrees to 32 

degrees, arguing that birds would not be 

harmed by outdoor temperatures in that 

range. Other comments requested AMS 

narrow the temperature for outdoor 

access, so outdoor access would only be 

required for outdoor temperatures 

between 60 degrees and 80 degrees, for 

example. Comments in favor of a 

narrower range for outdoor access noted 

that opening exit doors on poultry 

houses would strain ventilation 

systems, waste fuel and electricity, 

increase the litter moisture content (and 

thereby increase ammonia levels), and 

increase deaths due to severe stress. 

(Response) AMS has revised the final 

rule to reduce the low temperature 

threshold from 40 degrees to 32 degrees 

(F) in § 205.241(d)(1). The lower 

threshold better describes the 

conditions that may qualify as 

‘‘inclement weather,’’ a term that was 

added to the organic regulations by a 

February 2010 final rule (‘‘Access to 

Pasture (Livestock),’’ 75 FR 7153). The 

existing term is defined as weather 

‘‘characterized by temperatures (high or 

low) . . . that can cause physical harm 

to livestock,’’ but it does not specify 

thresholds for high or low temperatures 

that might cause harm. This final rule 

provides temperature ranges for avian 

(not mammalian or non-avian) livestock 

to clarify when temporary confinement 

of birds for heat or cold is appropriate. 

For additional discussion on this 

requirement please see the Overview of 

Policy (§ 205.241) section above. 

AMS is not adopting 

recommendations from comments to 

allow producers to confine animals if 

temperatures are outside of a narrower 

range (e.g., 60–80 degrees). While AMS 

recognizes that growth or production 

may increase when birds are maintained 

within a narrower temperature range, 

existing regulations (see § 205.239(b)(1) 

and the definition of ‘‘inclement 

weather’’ at § 205.2) do not permit 

confinement for this reason. The final 

rule seeks to clarify the bounds of the 

term to allow producers to confine 

animals for dangerous weather, but not 

misuse that allowance to confine 

animals for weather that is less than 

ideal for production or growth. Neither 

existing requirements nor this final rule 

permit temporary confinement within a 

narrow range of temperatures to 

maximize production yields or growth 

rates. The final rule aligns with AMS’s 

intent when AMS added the term 

‘‘inclement weather’’ to the organic 

regulations (75 FR 7159). AMS does not 

believe that an allowance to confine 

animals outside a narrow range would 

satisfy consumer expectations. 

(Comment) Many comments 

requested that AMS remove language in 

§ 205.241(d)(4) that would have allowed 

operations to temporarily confine birds 

during reseeding of outdoor areas. 

Comments expressed concern that this 

language may enable prolonged 

confinement, potentially for the entire 

life of the animal. One comment stated 

that the certifying agent should have the 

authority to determine if reseeding is 

the appropriate course of action for 

mitigating soil or water quality issues. 

(Response) AMS has removed the 

phrase ‘‘including to establish 

vegetation by reseeding outdoor space’’ 

from § 205.241(d)(4). This means that 

operations may not confine birds solely 

to reseed and reestablish vegetation in 

outdoor access areas. Additionally, this 

rule prohibits continuous total 

confinement of poultry indoors (see the 

general requirements for avian living 

conditions at § 205.241(a)). The rule 

does permit operations to temporarily 

confine birds when there is a risk to soil 

and water quality. However, this 

confinement must be temporary, must 

be done only to correct a risk to soil and 

water quality, cannot be continuous 

throughout the life of the birds, and is 

subject to the certifying agent’s review 

of the operation’s management of 

outdoor space. 

Additional Animal Welfare 

Requirements 

(Comment) Some comments requested 

that AMS impose additional animal 

welfare requirements for broiler 

production, such as maximum growth 

rates and breed requirements (for use of 

slower growing breeds). 

(Response) AMS has not received 

recommendations from the NOSB 

related to this topic and did not include 

such restrictions in the proposed rule; 

therefore, the final rule adopts no 

additional requirements on this subject. 

However, AMS notes that 

§ 205.238(a)(1) requires selection of 

species and types of livestock that are 

suitable for site-specific conditions and 

resistant to prevalent diseases and 

parasites. 

Biosecurity and Food Safety 

(Comment) Most commenters who 

discussed poultry biosecurity stated that 

increased outdoor access will have 

negative health outcomes for birds. 

Some commenters argued the rule 

would contradict the U.S. Food and 

Drug Administration’s protocols 

requiring producers to prevent contact 

with Salmonella enteritidis. In support 

of the use of porches, commenters stated 

that producers use outdoor porches to 

both provide outdoor access under the 

existing standard and help safeguard 

flocks from vermin and indigenous 

birds that can be vectors for diseases. 

Comments cited research suggesting 

outdoor access can subject poultry to 

disease. Additionally, some comments 

suggested that outdoor access would 

jeopardize the organic industry’s ability 

to provide safe food. A few comments 

asserted that under-utilized or barren 

outdoor areas could have a negative 

impact on pathogen and disease control. 

They noted that bare soil can result in 

dust containing dried fecal matter, 

which could be blown into nearby crops 

and present food safety concerns. 

On the other hand, some commenters 

found that the proposed rule would 

support biosecurity and food safety 

measures, including organic producers’ 

ability to mitigate biosecurity risks and 

prevent disease outbreaks in their 

organic flocks. These comments argued 

the rule aligns with FDA guidance on 

the Egg Safety Rule,80 and referenced 


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Federal Register / Vol. 88, No. 211 / Thursday, November 2, 2023 / Rules and Regulations 75427 

Drug Administration, August 2022, https://

www.fda.gov/food/cfsan-constituent-updates/fdaissues-final-guidance-shell-egg-producers-whoprovide-laying-hens-access-areas-outside-poultry. 

81https://www.ams.usda.gov/sites/default/files/ 

media/NOP%20Livestock%20Final%

20Rec%20Animal%20Handling%20and

%20Transport%20to%20Slaughter.pdf. 

82Formal Recommendation by the National 

Organic Standards Board (NOSB) to the National 

Organic Program. December 2, 2011. https://

www.ams.usda.gov/sites/default/files/media/

NOP%20Livestock%20Final%20Rec%

20Animal%20Handling%20and%20

Transport%20to%20Slaughter.pdf. 

research indicating that outdoor access 

can improve bird and flock health. They 

argued that outdoor access is not the 

determining factor in disease outbreaks 

and deaths and found the research and 

scientific data on the topic to be 

inconclusive. One commenter noted 

that operations are already successfully 

managing compliance with biosecurity, 

food safety, and egg safety requirements. 

Another noted that physical alterations 

provide one way for organic producers 

to maintain proper biosecurity for their 

flocks.80 These comments concluded 

that outdoor access is still consistent 

with the Egg Safety rule. 

(Response) AMS recognizes the 

importance of protective measures to 

avoid disease outbreaks and contact 

with Salmonella enteritidis. The rule 

includes provisions for strengthening 

biosecurity and food safety measures to 

ensure that organic poultry operations 

do not put their flocks at greater risk for 

exposure or infection. These include 

allowing temporary confinement for 

conditions under which the ‘‘health, 

safety, or well-being of the animal could 

be jeopardized,’’ including for specific 

disease outbreaks. The rule also requires 

producers to manage vegetative areas to 

mitigate harborage for rodents and other 

pests as well as prevent stray poultry, 

wild birds, cats, and other animals from 

entering poultry houses. It allows 

fencing, netting, or other materials over 

all or part of the outdoor areas (provided 

the areas are not ‘‘inside of an enclosed 

building or housing structure,’’ which is 

the definition in § 205.2 of ‘‘indoor 

space’’) to prevent predators and other 

wild birds from entering. AMS 

understands that biosecurity response is 

a comprehensive action. 

At this time, AMS finds the research 

is inconclusive regarding the correlation 

between outdoor access and decreased 

food and animal safety. AMS receives 

regular updates from APHIS regarding 

Highly Pathogenic Avian Influenza 

(HPAI) and other potential outbreaks. 

The USDA website remains a resource 

for certifying agents seeking information 

on HPAI detection. Additionally, AMS 

may provide future guidance to clarify 

the Agency’s expectations in the event 

of diseases or threats. Ultimately, AMS 

recognizes that meaningful outdoor 

access is fundamental to the organic 

regulations and is expected by the 

market. This rule allows organically 

raised birds room to express natural 

behaviors and advances OFPA’s 

purpose of creating consistent organic 

standards. 

E. Transport and Slaughter (§ 205.242) 

Description of Final Policy 

AMS has added a new section to the 

organic regulations at § 205.242 titled 

‘‘Transport and slaughter’’ to address 

the care of organic animals during 

transport and throughout the slaughter 

process, including care prior to 

slaughter and methods of slaughter. 

Section 205.242 is divided into three 

subsections: transportation, mammalian 

slaughter, and avian slaughter. 

The changes are made in response to 

a December 2011 NOSB 

recommendation 81 and public 

comments received in response to the 

August 2022 OLPS proposed rule, 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 an animal is 

killed, existing organic regulations for 

handling organic products become 

relevant for the processing, packaging, 

and sale of organic animal products. 

The requirements of this rule apply to 

the care of live animals. 

Transport Requirements (§ 205.242(a)) 

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 organic operations ‘‘avoid 

animal mistreatment on the farm, during 

transport to, or at the slaughter plant.’’ 82

The NOSB noted that their 

recommended regulatory language 

reflects third-party animal welfare 

certification standards and common 

practices within the industry. The 

NOSB also specifically recommended 

that AMS adopt the ‘‘necessary’’ 

requirements from their 

recommendation to avoid increasing 

paperwork burden or certification costs 

and to encourage small slaughter plants 

to seek or maintain 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 final 

rule 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. However, 

some specific requirements that were 

recommended by the NOSB and not 

already detailed in existing regulations 

and laws are also included. 

Section 205.242(a)(1) requires that 

organic animals are clearly identified 

during transport but provides flexibility 

on how the identity is maintained 

during transport. Section 205.242(a)(2) 

sets minimum fitness requirements for 

livestock to be transported to buyers, 

auction facilities, or slaughter facilities. 

Limiting the scope of the requirements 

to these destinations means the 

regulation does not limit transport on 

the farm where the animal is managed. 

Section 205.242(a)(2)(i) requires that 

calves have a dry navel cord and the 

ability to stand and walk without 

assistance before they are transported to 

buyers, auction facilities, or slaughter 

facilities. 

Section 205.242(a)(2)(ii) prohibits 

transport of seriously crippled and nonambulatory animals to buyers, auction 

facilities, or slaughter facilities. These 

animals must be treated until their 

health condition improves and they can 

walk (i.e., they are ambulatory), or if an 

animal’s recovery is not possible, it may 

be euthanized (see also § 205.238(c)(7) 

and (8), and § 205.238(e)). 

Sections 205.242(a)(3) and (4) set 

minimum standards for the trailer, 

truck, shipping container, or other mode 

used for transporting organic livestock. 

The mode of transportation must 

provide seasonally appropriate 

ventilation to protect livestock against 

cold or heat stress. This provision 

requires that air flow be adjusted 

depending on the season and 

temperature. In addition, bedding is 

required to be provided on trailer floors 

and in holding pens as needed to keep 

livestock clean, dry, and comfortable. 

AMS recognizes that in some cases 

keeping clean and dry bedding is 

impossible or even unsafe; therefore, 

use of bedding must be appropriate to 

the species and type of transport. If 


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83FSIS Directive 6900.2, Revision 2, Humane 

Handling and the Slaughter of Livestock, August 15, 

2011. 

84Humane Handling and Slaughter Requirements 

and the Merits of a Systematic Approach to Meet 

Such Requirements, FSIS, 69 FR 54625, September 

9, 2004. 

roughage is used as bedding, the 

bedding needs to be organically 

produced and handled. Bedding is not 

required for poultry crates. 

Section 205.242(a)(5) requires an 

operation to describe how organic 

management and animal welfare will be 

maintained for transport that exceeds 

eight hours, measured from the time all 

animals are loaded onto a vehicle until 

the vehicle arrives at its final 

destination. This may include 

arrangement for water and organic feed. 

AMS also finds that an eight-hour 

transportation threshold better aligns 

with transportation time limits 

established by third-party animal 

welfare standards. 

Section 205.242(a)(6) requires that 

operations transporting livestock to sale 

or slaughter have emergency plans in 

place that adequately address problems 

reasonably possible during transport. 

Such emergency plans could include 

how animal welfare would be 

maintained, what to do if livestock 

escape during transport, or how to 

euthanize an animal injured during 

transport. Shipping and/or receiving 

operations are also required to include 

these plans in their OSPs. 

Slaughter and the Handling of Livestock 

in Connection With Slaughter 

(§ 205.242(b)) 

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. This final rule 

reiterates that compliance with these 

regulations, as determined by FSIS, is 

required for certified organic livestock 

operations. The requirements defer, in 

large part, to existing regulations and 

law while also aiming to ensure that 

USDA-accredited certifying agents have 

access to relevant records. The rule 

seeks to avoid undue burden on 

certified organic slaughter facilities, as 

undue burden could have the effect of 

reducing the availability of certified 

organic slaughter facilities. Section 

205.242(b) regarding mammalian 

slaughter clarifies 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 they are handled and 

slaughtered). This new subsection 

(§ 205.242(b)), titled ‘‘Mammalian 

slaughter,’’ governs mammals defined as 

‘‘livestock’’ or ‘‘exotic animals’’ under 

the FSIS regulations. Under the FSIS 

regulations, ‘‘livestock’’ are cattle, 

sheep, swine, goat, horse, mule, or other 

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. 

Section 205.242(b)(1) requires 

certified organic slaughter facilities to 

be in full compliance, as determined by 

FSIS, with the Humane Methods of 

Slaughter Act (HMSA) of 1978 (7 U.S.C. 

1901 et seq.) and FSIS’s implementing 

regulations. The HMSA requires that 

humane methods be used for handling 

and slaughtering livestock and defines 

humane methods of slaughter. In the 

HMSA, Congress found ‘‘that the use of 

humane methods in the slaughter of 

livestock prevents needless suffering; 

results in safer and better working 

conditions for persons engaged in the 

slaughtering industry; brings about 

improvement of products and 

economies in slaughtering operations; 

and produces other benefits for 

producers, processors, and consumers 

which tend to expedite an orderly flow 

of livestock and livestock products in 

interstate and foreign commerce’’ (7 

U.S.C. 1901). The HMSA is referenced 

in the Federal Meat Inspection Act 

(FMIA) at 21 U.S.C. 603 and 21 U.S.C. 

610(b), 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 

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.83 The regulations 

at 9 CFR part 309 govern ante-mortem 

inspection and ensure that only healthy 

ambulatory animals are slaughtered, and 

that non-ambulatory animals 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. 

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.84 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. 

AMS added a new section 

(§ 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-forservice 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 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. 

Section 205.242(b)(3) requires that all 

certified organic slaughter facilities 

provide any FSIS noncompliance 


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Federal Register / Vol. 88, No. 211 / Thursday, November 2, 2023 / Rules and Regulations 75429 

85Treatment of Live Poultry before Slaughter, 

FSIS, 70 FR 56624, September 28, 2005. 

86FSIS Directive 6100.3, Revision 1, Ante-Mortem 

and Post-Mortem Poultry Inspection, April 30, 

2009. 

87FSIS Notice 07–15, Instructions for Writing 

Poultry Good Commercial Practices Noncompliance 

Records and Memorandum of Interview Letters for 

Poultry Mistreatment, January 21, 2015. 

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. 

Operations must provide these records 

to certifying agents during inspection or 

upon request so that the certifying agent 

may verify that the slaughter facility is 

in compliance and has taken all 

corrective actions. If records reveal that 

an organic operation had not taken 

corrective actions required by FSIS 

within the time period allowed by FSIS, 

the certifying agent may 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, operations must provide the 

relevant humane slaughter 

noncompliance records and corrective 

action records to certifying agents 

during the inspections or upon request. 

Slaughter and the Handling of Poultry 

in Connection With Slaughter 

(§ 205.242(c)) 

The final rule addresses avian 

slaughter facilities at § 205.242(c). 

Section 205.242(c)(1) clarifies the 

authority of AMS, certifying agents, and 

State organic programs to review 

noncompliance records related to the 

use of good commercial 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 organic 

standards for avian slaughter apply to 

all species biologically considered avian 

or birds. The NOSB did not directly 

address avian slaughter requirements. 

However, AMS added avian slaughter 

requirements for consistency with the 

new mammalian slaughter requirements 

and to provide consistent slaughter 

requirements for certified organic 

operations. 

While the HMSA does not apply to 

poultry, under the PPIA at 21 U.S.C. 

453(g)(5), a poultry product is 

considered adulterated if it is in whole, 

or in part, the product of any poultry 

that has died by means other 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 applicable 

FSIS Directives, as determined by FSIS, 

are required under the 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.85

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 

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.86 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.87

Section 205.242(c)(2) requires that all 

certified organic slaughter facilities 

provide, during the annual organic 

inspection, any FSIS noncompliance 

records and corrective action records 

related to the use of good commercial 

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. The 

operation must provide these records to 

the certifying agent at inspection or 

upon request so that the certifying agent 

may 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, operations 

must provide the relevant 

noncompliance records and corrective 

action records to the certifying agent 

during inspections or upon request. 

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 


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75430 Federal Register / Vol. 88, No. 211 / Thursday, November 2, 2023 / Rules and Regulations 

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 added handling and slaughter 

standards for such poultry that is either 

exempt from or not covered by the 

inspection requirement of the PPIA. 

These requirements 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. Specifically, 

§ 205.242(c)(3)(i) prohibits hanging, 

carrying, or shackling any lame birds by 

their legs. Birds with broken legs or 

injured feet may suffer needlessly if 

carried or hung by their legs. Such birds 

are required to either be euthanized or 

made insensible before being shackled. 

AMS also added § 205.242(c)(3)(ii) to 

require that all birds hung or shackled 

on a chain or automated slaughter 

system must be stunned prior to 

exsanguination (bleeding). This 

requirement for stunning prior to 

exsanguination only applies to 

producers who shackle birds on a chain 

or automated system; therefore, it does 

not prohibit the practice more common 

among small-scale producers of placing 

the birds in killing cones before 

bleeding them without stunning. 

Additionally, this requirement does not 

apply to religious 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, 

§ 205.242(c)(3)(iii) requires that all birds 

be irreversibly insensible prior to being 

placed in the scalding tank. 

Changes From Proposed to Final Rule 

AMS has made several changes to the 

regulatory text of the OLPS proposed 

rule when writing this final rule. 

Changes to the final rule are discussed 

below and are followed by specific 

topics and themes from public 

comment. 

• In the transport fitness 

requirements in § 205.242(a)(2)(ii), AMS 

added that ‘‘seriously crippled’’ 

animals, in addition to ‘‘nonambulatory’’ animals, must not be 

transported for sale or slaughter. This 

language is commonly used by the 

industry and prevents the inhumane 

and potentially unsafe slaughter of 

unwell animals that are still able to 

move. 

• To provide greater flexibility in 

transport, AMS added to § 205.242(a)(4) 

that ‘‘Use of bedding must be 

appropriate to the species and type of 

transport.’’ This change addresses 

public comment concerns about keeping 

clean, dry bedding and potential animal 

safety concerns. 

• AMS removed the requirement to 

always provide feed and water after 12 

hours of transport. The final rule 

includes a general requirement that 

operations must describe how they 

maintain organic management and 

animal welfare when transport time 

exceeds 8 hours. This time period better 

aligns with third-party animal welfare 

certifications. Additionally, AMS added 

the phrase ‘‘measured from the time all 

animals are loaded onto a vehicle until 

the vehicle arrives as its final 

destination’’ to clarify that transport 

time does not include onloading and 

offloading, which commenters noted 

could take three to four hours. 

• AMS removed specific reference to 

FSIS Directives 6100.3 and 6910.1 at 

§ 205.242(c)(1), as newer versions of 

these Directives could someday 

supersede these Directives. Instead, the 

final rule requires that slaughter 

operations comply with ‘‘applicable 

FSIS Directives.’’ 

• In response to public comment, 

AMS replaced in § 205.242(c)(3)(ii) the 

term ‘‘ritual slaughter’’ with ‘‘religious 

(or ritual) slaughter’’ and exempted this 

method of slaughter from some 

requirements. 

Responses to Public Comment 

AMS received many public comments 

from stakeholders across the organic 

industry discussing this section of the 

proposed rule. The majority of 

comments generally supported AMS’s 

proposed revisions. Many commenters 

requested further clarification of the 

proposed changes, particularly 

regarding the requirement for feed and 

water after 12 hours of transport and 

verification of compliance with 

slaughter requirements. 

Transport Time and Water and Organic 

Feed Requirements 

(Comment) AMS received many 

comments stating that it would be very 

difficult to meet the proposed 

requirement to provide water and 

organic feed if transport time exceeded 

12 hours. Commenters noted that 

transport times could exceed 12 hours 

due to unforeseen circumstances such 

as weather, natural disasters, traffic, and 

equipment breakdown. Comments 

discussed the practical challenges of 

stopping and offloading animals to 

provide them with water and feed en 

route to a destination. For example, 

these comments noted the challenge of 

locating and accessing a certified 

organic stopping point to unload and 

feed livestock. They also noted that 

offloading animals after crossing state 

lines would activate other federal 

requirements such as FSIS testing. 

Commenters also discussed the 

potential added stress that stopping and 

unloading (and reloading) could cause 

animals compared to continuous 

transportation to the destination. Other 

comments noted that loading and 

unloading could take up to four hours 

and that a 12-hour limit would only 

allow for 8 hours of transport. Some 

commenters recommended changing the 

time threshold to align with the 

standards of third-party certification 

labels while others requested a 

prohibition on all transport beyond a 

specific time cap. 

Another comment stated that the time 

restriction would result in sourcing 

lesser quality pullets for their operation, 

which could potentially reduce 

production and/or increase costs. Some 

commenters stated that this requirement 

could disproportionately impact smallscale producers and would not be 

neutral in terms of scale or geographic 

location. Comments also noted that the 

12-hour feed requirement would 

conflict with slaughter requirements to 

not feed 24 hours prior to slaughter. 

Several comments from certifiers, 

organic livestock producers, and a trade 

association requested that the rule not 

prescribe feed and water during 

transport but require operations to 

demonstrate organic management and 

animal welfare, which may include feed 

and water. 

(Response) AMS agrees that the 

proposed water and organic feed 

requirement may be difficult for some 

operations to meet. To provide greater 

flexibility for certified operations, the 

final rule removes the specific 

requirement in § 205.242(a)(5) for water 

and organic feed when transportation 

exceeds 12 hours. Instead, livestock 

operations must explain in their OSP 

how they will maintain organic 

management and animal welfare if 

transport time exceeds eight hours. 

AMS agrees with commenters that this 

eight-hour threshold better aligns with 

existing third-party animal welfare 

standards. To address commenters’ 

concerns about loading time, AMS has 

also clarified that transport time is 

measured from the time all animals are 

loaded onto a vehicle until the vehicle 

arrives at its final destination. AMS 

understands that some certifying agents 

already require livestock operators to 

explain in their OSP how they will 


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provide feed and water if traveling over 

12 hours. Under this rule, AMS expects 

operators to explain in their OSP how 

they will maintain organic management 

and animal welfare, which may include 

descriptions of access to feed and water. 

Certifying agents and inspectors may 

use this information to assess whether 

the management plans satisfy this rule’s 

requirements to maintain animal 

welfare during transport. AMS agrees 

with commenters that providing feed 

and water are examples of how an 

operation may maintain animal welfare, 

but the rule does not explicitly require 

the provision of feed and water to 

alleviate the challenges described above. 

(Comment) Some commenters noted 

that day-old chicks, which do not 

require additional feed since they have 

an absorbed yolk sac, often travel more 

than 12 hours from the hatchery to the 

final destination. Furthermore, 

commenters stated that providing chicks 

feed and water would be especially 

burdensome as well as time-consuming 

and requested AMS exempt day-old 

chicks from the requirement. 

(Response) AMS acknowledges that 

day-old chicks are sustained by their 

yolk sac and do not require feed or 

water for extended time periods. While 

most day-old chicks are not organic 

(organic management of poultry is 

required no later than the second dayof-life at § 205.236), AMS recognizes 

that some chicks are certified organic 

and can travel for 12 hours or more 

without feed and water. The final rule 

does not require feed or water during 

transport. Instead, operations must 

‘‘describe how organic management and 

animal welfare will be maintained’’ 

during transport. As for all species and 

types of livestock, an operation should 

describe in its OSP how it ensures the 

welfare of day-old chicks during 

transport, which may include feed and 

water. 

Fitness for Transport 

(Comment) Several comments 

requested clarification and additional 

criteria regarding an animal’s fitness for 

transport. They asked AMS to add 

categories of animals that should not be 

transported, such as newborn, pregnant, 

and recently calved animals. Others 

asked AMS to align the rule with 

international transport fitness standards 

or third-party animal welfare standards. 

(Response) AMS recognizes 

commenters’ request for additional 

clarify on an animal’s fitness for 

transport. The final rule states that ‘‘all 

livestock must be fit for transport.’’ The 

rule also addresses transport of young or 

newborn calves in at § 205.242(a)(2)(i): 

‘‘calves must have a dry navel cord and 

be able to stand and walk without 

human assistance.’’ Additionally, AMS 

added the term ‘‘seriously crippled’’ to 

§ 205.242(a)(2)(ii) to clarify that 

seriously crippled and non-ambulatory 

animals must not be transported for sale 

or slaughter. Seriously crippled is a 

commonly used and understood 

industry term that will help operations 

and certifying agents understand the 

scope of fitness for transport. AMS 

acknowledges some commenters’ desire 

for the rule to align with more 

prescriptive third-party animal welfare 

standards. However, AMS believes that 

the current regulatory text is sufficient 

to ensure the humane transport of 

organic livestock, while also providing 

operations with necessary flexibility to 

meet the standard. 

Bedding in Transport 

(Comment) Several comments 

discussed the proposed rule’s 

requirement to use bedding during 

transport. Some comments expressed 

concern that it may be difficult, 

impossible, or even dangerous (e.g., slip 

risk for livestock) to provide bedding in 

some situations. Others pointed out that 

operations need flexibility to use 

bedding in a way that is appropriate to 

the type of livestock and transport. 

Others mentioned that ‘‘clean’’ bedding 

is subjective and may not be necessary 

or feasible given the variability of 

transport time, transport type, and 

number and type of livestock. 

(Response) AMS recognizes that in 

certain circumstances, bedding is not 

ideal for trailer transport and that, in 

some cases, keeping clean, dry bedding 

is impossible or even unsafe (e.g., slip 

risk for certain animals). Therefore, the 

final rule allows for flexibility by 

requiring that bedding must be provided 

‘‘as needed’’ and ‘‘as appropriate to the 

species and type of transport.’’ This will 

allow operations to provide bedding 

that is beneficial to animal welfare but 

also appropriate to the type of livestock 

and transport, reducing undue burden 

and possible risk to livestock. 

Emergency Plans 

(Comment) A few comments 

requested clarification on the conditions 

under which an emergency plan is 

required and how certifying agents 

should evaluate such plans. 

(Response) The final rule requires 

emergency plans to address animal 

welfare problems that may occur during 

transport. Such emergency plans must 

describe how animal welfare will be 

maintained in emergencies, such as 

what to do if livestock escape during 

transport, or how to euthanize an 

animal injured during transport. 

Shipping and/or receiving operations 

must also have these emergency plans. 

Like all other applicable production and 

handling requirements in subpart C of 

the organic regulation, operations 

should describe their emergency plans 

in their OSP. To evaluate if an 

operation’s emergency plans comply 

with the rule, certifying agents should 

review this part of the OSP and verify 

its use during on-site inspection. 

Identification of Livestock in Transport 

(Comment) Several commenters noted 

that some operations may not currently 

meet the proposed requirement in 

§ 205.242(a)(1) that animals be clearly 

identified during transport and asked 

AMS to consider removing this 

requirement. 

(Response) AMS is retaining this 

requirement in the final rule because 

identification and traceability of all 

organic agricultural products, including 

livestock, is necessary to maintain 

traceability within supply chains and 

demonstrate organic integrity. The 

organic regulations require all certified 

operations to include audit trail 

documentation for the organic products 

they handle (§ 205.103(b)(3)). Audit trail 

documentation includes records that are 

‘‘sufficient to determine the source, 

transfer of ownership, and 

transportation of any agricultural 

product labeled as [organic]’’ (see 

definition of audit trail at § 205.2). 

Additionally, operations are already 

required to ‘‘maintain records sufficient 

to preserve the identity of all organically 

managed animals, including . . . 

transitioned animals’’ (§ 205.236(c)). 

This includes preserving the identity of 

organic livestock during transport. 

Therefore, this rule’s requirement to 

clearly identify and trace organic 

livestock during transport reinforces 

existing recordkeeping and traceability 

requirements, which are vitally 

important to maintaining and 

demonstrating the integrity of organic 

livestock. 

Recordkeeping and Compliance 

(Comment) One commenter argued 

that it is difficult to precisely track and 

record exact times that livestock spend 

in transit and that it is burdensome for 

livestock transporters to complete 

additional recordkeeping to verify that 

animals have been in transit for less 

than 12 hours. 

(Response) AMS revised 

§ 205.242(a)(5) to no longer require feed 

and water when transport time exceeds 

12 hours. Instead, this section requires 

that operations describe in their OSP 

how organic management and animal 

welfare will be maintained during 


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88 49 U.S.C. 80502. 

transport that is longer than eight hours. 

Because this change requires operations 

to plan and prepare for long transport 

times, rather than precisely track and 

record transport times, AMS does not 

believe this requirement will add 

repetitive recordkeeping burden for 

operations or transporters. 

(Comment) Several commenters were 

concerned that the rule’s limit on 

transport times may conflict with U.S. 

Department of Transportation (DOT) 

Federal Motor Carrier Safety 

Administration’s ‘‘hours of service’’ 

regulations and/or the Twenty-Eight 

Hour Law, which requires that animals 

transported for 28 consecutive hours 

must be offloaded for at least five 

consecutive hours to get feed, water, 

and rest.88

(Response) After reviewing the 

appropriate DOT regulations and law, 

AMS does not believe that the rule’s 

requirements conflict with other statutes 

or regulations pertaining to transport of 

organic livestock. The rule requires that 

operations describe in their OSP how 

organic management and animal welfare 

are maintained when transport time 

exceeds eight hours. Because the rule 

requires operations to plan and prepare 

for long transport times, rather than 

precisely track and adhere to transport 

times, this requirement does not pose a 

compliance conflict with the TwentyEight Hour Law and does not interfere 

with a driver’s ability to comply with 

the DOT Hours of Service regulations. 

Operations transporting organic 

livestock must still comply with the 

Twenty-Eight Hour Law and any other 

applicable livestock transport statute or 

regulation. 

Other Statutory and Regulatory 

Slaughter Requirements 

(Comment) Several comments 

expressed concern that the rule’s 

reference to other statutes and 

regulations in § 205.242(b) and (c) 

would require certifying agents to verify 

and enforce requirements beyond the 

scope of organic production and 

handling. Other commenters asked how 

certifying agents should initiate actions 

to suspend a facility’s organic 

certification if slaughter records reveal 

that an operation has not taken 

corrective actions required by FSIS. 

(Response) The rule requires that 

operations comply with other statutory 

and regulatory requirements related to 

the humane slaughter of livestock. AMS 

chose to reference these existing 

requirements because operations are 

already following these requirements. 

This prevents undue burden for 

operations to understand and comply 

with additional slaughter requirements 

unique to organic production and 

handling. 

Certifying agents and organic 

inspectors are not expected to determine 

an organic slaughter facility’s 

compliance with these laws and 

regulations, as that is the responsibility 

of government regulatory authorities 

such as FSIS. However, organic 

slaughter facilities must provide records 

of noncompliance and corrective actions 

that resulted from FSIS regulatory and 

enforcement action. These FSIS records 

are a valuable source of additional 

information that certifying agents can 

use to determine an operation’s 

compliance with the organic regulation 

and this rule’s animal welfare 

requirements. 

Medical Treatment and Humane 

Euthanasia Linked To Transport and 

Slaughter 

(Comment) One comment noted that 

§ 205.242(a)(2)(ii) requires medical 

treatment or euthanasia prior to 

transport but does not explicitly require 

this upon arrival at a slaughter facility. 

(Response) Although the rule does not 

explicitly require medical treatment and 

euthanasia at this point, the rule more 

generally requires that certified 

operations provide humane medical 

treatment and appropriate use of 

euthanasia at all times (see § 205.238(a), 

(b), and (e)). In this case, the certified 

slaughter facility, upon receiving a sick 

or injured animal, is responsible for that 

animal’s welfare and must provide the 

appropriate medical treatment or 

humanely euthanize the animal. 

F. Implementation and Compliance 

Dates for the Final Rule 

In the proposed rule, AMS requested 

public comments on the most 

appropriate and feasible 

implementation approach for the final 

rule. AMS also proposed timeframes for 

various aspects of the rule and 

specifically requested comments on two 

implementation options, namely 5 years 

or 15 years, for the outdoor space 

requirements for layer operations. AMS 

also invited comments on 

implementation timelines other than 

those proposed by AMS. 

For the final rule, AMS selected an 

implementation approach that requires 

compliance with the final rule as 

described below. Implementation or 

compliance dates are calculated from 

the effective date of the final rule; the 

specific dates that correspond with the 

descriptions below are listed in the 

DATES section at the beginning of this 

document. 

Certified operations must comply 

with the requirements of the final rule 

within one (1) year from the effective 

date, except: 

(a) Organic broiler operations already 

certified or certified within one year 

following the effective date of the final 

rule have an additional four years (i.e., 

five years from the effective date) to 

comply with the indoor and outdoor 

stocking density requirements for 

broilers in §§ 205.241(b)(10) and (c)(6), 

and the outdoor space requirements 

related to soil and vegetation in 

§ 205.241(c)(2). 

(b) Organic layer operations already 

certified or certified within one year 

following the effective date of the final 

rule have an additional four years (i.e., 

five years from the effective date) to 

comply with the outdoor space 

requirements for layers concerning 

outdoor stocking density, soil, and 

vegetation in §§ 205.241(c)(2) and (4)– 

(5). 

(c) Organic avian operations already 

certified or certified within one year 

following the effective date of the final 

rule have an additional four years (i.e., 

five years from the effective date) to 

comply with the applicable exit area 

requirements for avian operations in 

§ 205.241(b)(4). 

Operations applying for organic 

certification more than one year after 

the rule’s effective date will need to 

comply with all the rule’s requirements 

to become certified organic. AMS 

discusses and responds to public 

comments received on implementation 

of the final rule below. 

Response to Public Comment: 

Implementation for Layer Operations 

(Comment) AMS received many 

public comments about the 

implementation timeline for the outdoor 

requirements for layer operations, 

including many that supported 

alternative implementation timeframes 

(not Option 1 or Option 2 proposed by 

AMS). The majority of those 

commenters requested the shortest 

timeline possible—either an immediate 

implementation or a one-year 

implementation period. Nearly all 

comments argued that 15 years would 

be an excessively long implementation 

period for the final rule. Commenters 

stated that producers are already 

familiar with the proposed requirements 

and that consumers should not need to 

wait for products to meet their 

expectations. Commenters pointed out 

that many organic producers already 

comply with OLPS’s outdoor access 

standards, as they have understood 

those standards to be what was intended 

in the existing organic regulations. They 


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89For example see: https://www.regulations.gov/ 

comment/AMS-NOP-21-0073-29374; https://

www.regulations.gov/comment/AMS-NOP-21-0073- 

27673. 

90Because larger operations, like aviaries, tend to 

use porches, the level of production using porches 

is higher than the number of producers. Originally 

AMS had estimated this to be approximately 90%, 

but industry feedback during the OLPP rulemaking 

process stated that it was closer to 70% with the 

three other practices being about equal in the 

marketplace. However, during the OLPS Proposed 

Rule comment period, the only information AMS 

identified related to the number of operations with 

porches would indicate less than 37.7% of 

production has porches. See: https://

www.regulations.gov/comment/AMS-NOP-21-0073- 

39082. See the RIA for more information. 

felt it would be unfair to allow noncompliant producers 15 more years to 

benefit from cheaper production 

systems. Other comments noted that 

producers should have expected the 

requirements because of the regulatory 

history of the rule. Comments also 

emphasized the widespread support of 

the proposed rule and noted an 

immediate need to remedy the 

imbalance in the marketplace. 

Several comments wrote in support of 

the five-year implementation option 

(Option 1) for outdoor requirements for 

layer operations. These comments 

generally supported swift 

implementation, with many indicating 

that five years should be the maximum 

amount of time that AMS allows for 

producers to comply with the final rule. 

Many comments also stated that 

extending implementation of this rule 

past five years would erode trust in the 

organic label and contribute to further 

market failure. 

(Response) Despite the broad 

popularity of an implementation period 

shorter than Option 1 (e.g., immediate 

or one-year period), AMS has 

determined that the most appropriate 

implementation period for the outdoor 

space requirements for layer operations 

is five years. The Regulatory Impact 

Analysis that accompanies this final 

rule reflects this timeframe for the 

purposes of calculating the costs and 

benefits of this rule. AMS recognizes 

that a very brief implementation period 

would most quickly resolve the widely 

divergent outdoor layer practices that 

currently exist among organic layer 

operations. However, some currently 

certified organic operations will need to 

acquire land, build new facilities, and 

transition nonorganic land to organic 

production to meet the requirements of 

the final rule. Many of the comments 

favoring longer implementation periods 

highlighted these costs or the ability to 

recoup costs as a reason to allow for 

more time.89 AMS estimates that up to 

70% of production will need to modify 

facilities or exit.90

Because of these costs, AMS has 

determined that allowing currently 

certified organic layer operations (and 

operations obtaining certification within 

one year of the effective date) five years 

from the effective date to comply with 

the final rule is warranted and 

appropriate and would not cause excess 

burden. AMS also recognizes that some 

businesses will require capital to meet 

the requirements of the final rule, and 

time is required to adjust business and 

operational practices. The final rule 

adopts a five-year implementation for 

layer operations because AMS believes 

it fulfills the OFPA’s purpose to ensure 

consistency in standards in a timely 

manner, while also providing sufficient 

time for operations to complete 

activities to remain in compliance with 

outdoor space requirements. With five 

years to implement the outdoor 

requirements, layer operations will have 

sufficient time to acquire and transition 

land for outdoor areas (land requires a 

minimum of three years to transition to 

organic) and to build or modify facilities 

to meet the new requirements. If an 

operation chooses not to meet the 

requirements after five years, it may 

stop operating as organic or switch to 

another market. 

In response to comments that organic 

operations should have been aware of 

possible changes to the requirements 

(and should require less time to 

comply), AMS recognizes there is a 

lengthy regulatory history associated 

with this rule, as evidenced by the 

NOSB recommendations on these topics 

starting as early as 2009. However, AMS 

does not expect that producers should 

have anticipated the requirements in 

this final rule and modified their 

practices, nor could they have known 

the specific requirements of this final 

rule. Therefore, AMS believes that the 

five-year implementation period for the 

final rule is both appropriate and 

reasonable. 

(Comment) Many comments 

suggested that three years would be 

sufficient for existing organic layer 

operations to come into compliance 

with the rule without undue hardship. 

Comments noted that three years is the 

typical transition timeframe for 

operations to make capital and 

management investments to become 

certified organic. Some comments asked 

that AMS allow currently certified 

operations three years to comply, as this 

aligns with the three-year transition 

period for an operation transitioning to 

organic production. These commenters 

stated that existing organic layer 

operations should be treated the same as 

any new operation that seeks 

certification. A related comment 

suggested that AMS set a three-year 

compliance date, but allow an 

additional fourth year only for 

operations that could demonstrate they 

had made capital purchases and had 

been actively seeking certification prior 

to the final rule’s effective date. 

(Response) AMS recognizes that 

transition of land (for outdoor access) 

only requires three years and that some 

operations may be able to comply with 

this final rule within three years. 

Additionally, AMS recognizes that 

many organic operations have made 

significant investments in facilities that 

are currently certified by USDAaccredited certifying agents as meeting 

the current requirements. While three 

years may be sufficient for some 

operations to meet the requirements of 

the final rule, other operations could 

require more than three years to comply 

with the final rule. For example, 

operations may need to identify and 

acquire land, research, plan, build 

facilities, transition land for three years 

(for outdoor space), and secure 

certification. In consideration of the 

time required to complete these 

activities, AMS is providing for a fiveyear implementation period to allow 

layer operations to comply with the 

outdoor space requirements in this final 

rule. 

(Comment) Very few commenters 

wrote in support of a 15-year 

implementation for the outdoor 

requirements for layer operations. These 

commenters argued that this timeframe 

would better coincide with the 15-year 

IRS depreciation schedule for singlepurpose agricultural buildings (i.e., 

facilities that provide outdoor access via 

porches). They argued that operations 

built their facilities in ‘‘good faith’’ and 

should be able to realize the benefits of 

those investments. AMS also received 

comments suggesting a slightly shorter 

implementation timeline of 12.5 years. 

Similarly, these comments stated that 

some producers have made significant 

investments in systems that were 

permitted under previous policy 

interpretations and that the timeframe 

would allow producers to depreciate the 

value of existing facilities according to 

IRS depreciation schedules. 

On the other hand, most comments 

were strongly opposed to AMS adopting 

a 15-year implementation for the final 

rule. Comments noted that a 15-year 

implementation period would 

perpetuate the existing double standard, 

further erode consumer trust in the 

organic label, and make the work of 

organic certifiers difficult. AMS believes 

this length of implementation would 


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contradict OFPA’s purpose to assure 

consumers that organic products meet a 

consistent standard. Another noted that 

a 15-year implementation period would 

be exceedingly long and be at odds with 

the purpose of the statute. Others noted 

that the long timeframe would extend 

the economic burden and costs incurred 

by producers that already comply with 

the requirements in the final rule. These 

costs include costs of obtaining extra 

labels (e.g., third-party animal welfare 

certifications), extra advertising and 

marketing expenses (to differentiate 

their eggs under the same label), and 

extra expenses on the production level 

(such as the cost of maintaining 

appropriate outdoor pasture). Others 

argued that organic certification is a 

voluntary program, and that AMS 

should not allow additional time to 

operations that cannot meet the 

requirements that consumers expect. As 

noted by a commenter, it is a privilege 

afforded by the organic label’s robust 

standards and certification, not a right, 

to sell into the organic market. 

(Response) AMS has chosen not to 

adopt a 15-year or a 12.5-year 

implementation period for layer 

requirements in the final rule. Instead, 

AMS is providing five years for layer 

operations to comply with outdoor 

space requirements. AMS recognizes 

that a five-year implementation may not 

allow some operations to fully 

depreciate the value of their facilities. 

However, AMS is addressing several 

concerns by issuing this final rule, and 

mitigation of economic impacts to 

operations certified prior to the effective 

date of this final rule is only one of 

AMS’s objectives. AMS is also seeking 

to balance any impacts with an 

implementation timeframe(s) that will 

remedy the inconsistent interpretation 

and enforcement of the organic 

regulations. AMS appreciates that a long 

implementation timeframe would be 

least impactful for some operations, but 

AMS is not selecting this approach 

because it would likely undermine 

AMS’s other objectives in this final rule. 

Specifically, this option would pose a 

continued risk to consumer confidence 

in the organic label. 

Response to Public Comments: 

Implementation for Broilers and New 

Entrants, Exit Areas 

(Comment) Several comments from 

broiler operations stated that if AMS 

adopted a space requirement for broilers 

of 5.0 lbs. per square foot that they 

would need more than three years to 

comply with the requirement, which is 

the timeframe in the proposed rule. 

These commenters noted that a 5.0 lbs. 

per square foot stocking density is less 

than the current industry standard, and 

currently certified operations would 

need to build new poultry houses to 

produce at the same level and meet the 

requirement. Commenters were not 

necessarily opposed to the proposed 

requirement but requested five years to 

comply with the requirement rather 

than the three years proposed. 

(Response) The final rule provides 

five years for broiler operations to 

comply. AMS considered this rule 

comprehensively and determined that a 

stocking density of 5 lbs. per square foot 

is preferred over alternatives. See 

additional discussion on this topic in 

the ‘‘Responses to public comment’’ 

section of Section D, ‘‘Avian Living 

Conditions.’’ AMS recognizes that 

broiler operations will likely require 

five years to comply with the final rule’s 

stocking density requirements, as 

comments indicate that current 

practices exceed the maximum stocking 

rate required by this final rule. In 

response to comments, AMS is 

providing five years for broiler 

operations to comply with the indoor 

and outdoor stocking density 

requirements of the final rule. AMS 

expects this timeframe will give 

operations time to source, acquire, and 

potentially transition new land (a threeyear process). Further, while not the 

primary reason for AMS selecting this 

timeframe, the timeframe aligns that for 

broilers with that of layer operations, 

and in turn, simplifies the certifying 

agents’ implementation of the rule. 

Additionally, new entrants that 

become certified within one year of the 

final rule’s effective date will have until 

five years after the effective date to 

comply with all requirements. AMS is 

providing this additional flexibility in 

recognition of operations that may have 

started the process to become certified 

organic before publication of this final 

rule. The implementation timelines for 

broiler operations will allow operations 

to adjust practices to meet the 

requirements without causing 

disruption to the market. 

(Comment) Some comments 

supported the general timeline for 

allowing five years for implementation 

but requested that AMS provide less 

flexibility for new entrants. These 

commenters generally suggested that 

operations certified any later than one 

year after the final rule’s effective date 

should be required to comply with all 

the requirements to achieve 

certification. In the proposed rule, AMS 

described one implementation schedule 

that would have required new entrants 

in the first three years (after the effective 

date of the final rule) to comply with the 

final rule in five years from the effective 

date. 

(Response) As suggested by many 

comments, the final rule provides new 

entrants certified within the first year of 

the final rule’s effective date with five 

years (from the effective date) to 

comply. Operations certified any time 

after one year following the rule’s 

effective date will need to comply with 

the final rule to achieve certification. 

AMS believes that this timeline for new 

entrants is reasonable, as it should allow 

operations that have been planning to 

become certified (but are not yet 

certified) with an extended period to 

comply with the final rule. At the same 

time, a one-year period (rather than a 

three-year period) may reduce the 

amount of organic product on the 

market that does not comply with all 

requirements in the final rule, and better 

reflects AMS’s objective to assure 

consumers that organic products meet a 

consistent standard. 

(Comment) Some comments on 

implementation timeframes indicated 

that the requirements for exit areas 

should also be on a delayed 

implementation schedule, along with 

outdoor space requirements. 

(Response) AMS is clarifying that 

avian producers will have five years to 

comply with the requirements related to 

indoor space requirements related to 

exit areas at § 205.241(b)(4). See a 

discussion of this requirement in the 

AVIAN LIVING CONDITIONS section 

above. The requirements for exit areas at 

§ 205.241(b) are included within 

‘‘indoor space requirements’’ in the 

organization of the rule, but AMS 

recognizes these requirements are 

inseparable from outdoor space 

requirements (§ 205.241(c)), which may 

be implemented over a five-year period 

for layer and broiler operations. AMS is 

providing operations with five years to 

implement the exit area requirements at 

§ 205.241(b). This time should allow the 

necessary time for certifying agents to 

assess operations for compliance with 

the requirement and allow the necessary 

time for operations to modify practices 

and facilities, as necessary, to meet the 

requirement. Within one year of the 

effective date of the final rule, all 

operations, except for layer operations 

(which have a five-year implementation 

period for outdoor space requirements), 

must still comply with requirements 

described at § 205.241(c)(1) that require 

access to outdoor space and door 

spacing that promotes and encourages 

outside access for all birds on a daily 

basis. 


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91 Yan Heng, et al., (2013). Consumer Attitudes 

toward Farm-Animal Welfare: The Case of Laying 

Hens. Journal of Agricultural and Resource 

Economics 38(3):418–434. 

G. Severability 

In this final rule, we adopt additional 

organic standards for livestock. The 

constituent elements each operate 

independently to ensure consistent 

organic livestock standards. Were any 

element of this scheme stayed or 

invalidated by a reviewing court, the 

elements that remained in effect would 

continue to provide consistent organic 

livestock standards. For instance, 

organic consumers have long benefitted 

from Organic Rules governing organic 

production and handling. The 

provisions we adopt today would 

continue to ensure that organic products 

meet a consistent standard even if they 

did not extend to all organic livestock 

sectors. Similarly, the different livestock 

care practices regulated under this rule 

each pose distinct concerns for different 

aspects of organic livestock production. 

Finally, the benefit of the provisions for 

customers of any organic livestock 

product does not hinge on the same 

standards applying to other organic 

livestock products. Accordingly, we 

consider each of the provisions adopted 

in this final rule to be severable, both 

internally and from other provisions at 

7 CFR part 205. In the event of a stay 

or invalidation of any part of any 

provision, or of any provision as it 

applies to certain organic livestock 

handling or production practices, 

USDA’s intent is to otherwise preserve 

the rule to the fullest possible extent. 

Accordingly, AMS has added a 

severability provision in § 205.391 of 7 

CFR part 205. 

V. Regulatory Analyses 

A. Summary of Economic Analyses 

Pursuant to Subtitle E of the Small 

Business Regulatory Enforcement 

Fairness Act of 1996 (the Congressional 

Review Act), the Office of Information 

and Regulatory Affairs has determined 

that this action meets the criteria set 

forth in 5 U.S.C. 804(2). 

Executive Orders 12866 and 13563 

direct agencies to assess all costs and 

benefits of available regulatory 

alternatives and, if regulation is 

necessary, to select regulatory 

approaches that maximize net benefits 

(including potential economic, 

environmental, public health and safety 

effects, distributive impacts, and 

equity). Executive Order 13563 

emphasizes the importance of 

quantifying both costs and benefits, 

reducing costs, harmonizing rules, and 

promoting flexibility. This rule has been 

designated as a significant regulatory 

action (Sec. 3(f))(1) under Executive 

Order 12866, as updated by Executive 

Order 14094, and therefore, has been 

reviewed by OMB. 

The Regulatory Flexibility Act (5 

U.S.C. 601–612) requires agencies to 

consider the economic impact of each 

rule on small entities and evaluate 

alternatives that would accomplish the 

objectives of the rule without unduly 

burdening small entities or erecting 

barriers that would restrict their ability 

to compete in the market. 

AMS has prepared a Regulatory 

Impact Analysis (RIA) and Regulatory 

Flexibility Analysis (RFA) to address 

these objectives. The following 

discussion summarizes the economic 

analysis AMS performed to estimate the 

impact of this rule. A complete 

economic analysis is available at https:// 

www.regulations.gov/. You can access 

the economic analysis by searching for 

document number AMS–NOP–21–0073. 

Regulatory Impact Analysis 

AMS’s economic impact analysis 

describes the benefits and costs of the 

rule, with a focus on organic egg and 

broiler production, which AMS 

determined will drive the benefits and 

costs of this rule. We anticipate many of 

these producers will face additional 

production costs in acquiring outdoor 

space for layers and indoor space for 

broilers and will likewise generate 

benefits through increased consumer 

willingness to pay for these newly 

acquired organic poultry attributes. As 

stated above in the EXECUTIVE 

SUMMARY, AMS anticipates the 

annualized 20-year net benefit of this 

rule will be $59.1–$78.1 million. The 

following section will summarize some 

of the assumptions and methods of our 

analysis. For more detail, see the 

Regulatory Impact Analysis. 

To calculate benefits and costs in the 

organic egg market, AMS assessed 

producers’ current conditions and 

considered how producers may respond 

to the requirements. For organic layers, 

the key factor affecting compliance is 

the availability of land to accommodate 

all the birds at the required stocking 

density. Producers that are not already 

in compliance with the rule’s 

requirements are most likely to either 

acquire land or exit the organic market. 

(They could reduce flock size to 

accommodate the new spacing 

requirements or cease production, but 

AMS considers these outcomes unlikely 

as they are less profitable than either of 

the alternatives.) 

AMS used research that estimated 

consumers’ willingness to pay for 

layers’ outdoor access between $0.16 

and $0.25 per dozen eggs.91 By 

multiplying the midpoint of the low 

($0.16) and high ($0.25) points of that 

range by the projected number (in 

dozens) of organic eggs produced by 

layers that are estimated to newly have 

outdoor access as a result of this rule, 

AMS estimates that the 20-year 

annualized benefits for layer operations 

will range between $76.6–89.6 million. 

We estimate the annual costs for 

organic egg production are $28.1–$32.9 

million (discounted annualized value) if 

50% of egg production in 2023 

transitions to the cage-free egg market 

by the 5-year compliance date, with an 

additional temporary economic welfare 

loss of $8.7–$16.0 million. 

TABLE 3—EXECUTIVE SUMMARY: UNIT COSTS AND BENEFITS FOR EGGS AND BROILERS

Eggs 

dozen Broilers 

Unit Benefits and Costs 

Avg. Benefit Per Unit (Consumer Willingness to Pay) * .......................................................................................... 0.205 0.14/lb 

Cost Change in Average Total Cost of Production Per Unit .................................................................................. 0.06 0.02/lb 


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92Mulder, M., & Zomer, S. (2017). Dutch 

consumers’ willingness to pay for broiler welfare. 

Journal of Applied Animal Welfare Science, 20(2), 

137–154. This estimate is adjusted for the context 

and reduced by the average observed premium 

difference between American and European 

consumers across all sustainable food products 

from Li, S., & Kallas, Z. (2021). Meta-analysis of 

consumers’ willingness to pay for sustainable food 

products. Appetite, 163, 105239. 

93On October 13, 2010, AMS published a Notice 

of Availability of Draft Guidance and Request for 

Comments in the Federal Register (75 FR 62693). 

See Section D, ‘‘Organic Livestock Regulatory 

History,’’ for more detail. 

TABLE 3—EXECUTIVE SUMMARY: UNIT COSTS AND BENEFITS FOR EGGS AND BROILERS—Continued 

Eggs 

dozen Broilers 

Net Benefit per Unit Gaining Outdoor Access ........................................................................................................ 0.145 0.16/lb 

Total Annualized Benefits and Costs 

20-Year Annualized Discounted Benefits (3%) ($1,000) * ...................................................................................... $89,564 $35,641 

20-Year Annualized Discounted Benefits (7%) (1,000) * ........................................................................................ 76,641 31,467 

20-Year Annualized Discounted Costs (3%) (1,000) .............................................................................................. 32,893 5,491 

20-Year Annualized Discounted Costs (7%) (1,000) .............................................................................................. 28,147 4,848 

20-Year Annualized Discounted Economic Welfare Loss (3%) (1,000) ................................................................. 8,709 0 

20-Year Annualized Discounted Economic Welfare Loss (7%) (1,000) ................................................................. 16,046 0 

Total Annualized Net Benefits 

20-Year Annualized Discounted Net Benefits (3%) ($1,000) .................................................................................. $47,962 $30,149 

20-Year Annualized Discounted Net Benefits (7%) (1,000) .................................................................................... 32,448 26,619 

One-time Domestic Information Collection Cost (1,000) 4,930 

* Layer benefit reports the mid-point benefits of the two estimates ($0.16/dz. and $0.25/dz.). 

In the organic broiler industry, AMS 

assumes that organic broiler producers 

will build enough new facilities to 

comply with the stocking density 

requirements and remain in the organic 

market at their current production level. 

To calculate the benefits for broilers, 

AMS reviewed relevant research and 

established a willingness to pay of $0.14 

per pound of chicken from birds with 

more indoor space.92 Based on this, 

AMS estimates that the annual 

discounted benefits for broiler 

operations will range between $31.5– 

$35.6 million. We estimate the annual 

costs for organic broiler production at 

$4.8–$5.5 million. This reflects the costs 

of building additional housing to meet 

the indoor stocking density 

requirement. AMS considered several 

alternatives to this final rule, including 

different spacing and density 

requirements and alternatives to 

rulemaking altogether. These 

alternatives are discussed in more detail 

in the rule’s Regulatory Impact 

Analysis, but briefly, they are: 

• Guidance to the industry as an 

alternative to regulations—Based on 

public comments to draft guidance that 

AMS published regarding outdoor 

access for poultry, AMS has determined 

the organic poultry market needs more 

prescriptive guidelines to clarify the 

intent of the outdoor access 

requirements in the organic 

regulations.93

• Consumer education in lieu of 

rulemaking—AMS has determined that 

a campaign to educate consumers would 

have limited effectiveness and would 

not fulfill NOP’s mandate under OFPA 

to assure consumers that organic 

products meet a consistent standard. 

• Alternative space and density 

requirements—AMS considered a range 

of indoor stocking densities and outdoor 

space requirements. We compared 

NOSB recommendations with the 

standards of third-party animal welfare 

certifications and major organic trade 

partners like Canada and the European 

Union. We also considered the current 

operating conditions of organic 

producers and the risk of market 

disruptions if too many producers were 

forced out of the organic market. AMS 

balanced these competing interests in 

setting the standards for this final rule. 

• Implementation timeline—AMS 

compared the costs and benefits of the 

two implementation options (5 years 

and 15 years). We determined that the 

5-year option, despite slightly higher 

costs, resulted in greater net benefit 

annualized over 20 years than the 15- 

year option. Additionally, nearly all 

public comments found the 15-year 

option less preferable, with many 

stating that long implementation would 

erode their trust in the organic label. 

This public response indicates a 

financial risk that although we did not 

quantify, we did consider. AMS 

concluded that a 5-year implementation 

is the most beneficial option. 

AMS’s Regulatory Impact Analysis 

concludes that this rule is reasonably 

expected to provide a net benefit to the 

organic market. In addition, its 

provisions will ensure consistent 

standards as directed by OFPA and 

benefit consumers by reducing 

consumer welfare loss (i.e., the 

difference in value between attributes— 

such as outdoor access—consumers 

think they are paying for and those they 

are actually receiving). Furthermore, 

these provisions help minimize the risk 

to consumer confidence in the organic 

label, which affects all organic markets, 

not just eggs and chicken. For further 

information on AMS’s economic 

analysis, see the Regulatory Impact 

Analysis for this rule. 

Regulatory Flexibility Analysis 

AMS also performed additional 

analysis to determine the rule’s impact 

to domestic small businesses including 

avian and mammalian livestock 

producers and slaughter facilities that 

currently hold or are pursuing USDA 

organic certification, as well as organic 

certifying agents. This analysis revealed 

that the cost of implementing this rule 

will fall on certified organic egg and 

broiler producers. AMS finds that these 

requirements will not add significant 

costs to other organic livestock sectors 

because these requirements seek to 

codify existing industry practices. AMS 

expects that most organic layer 

operations affected by this rule and 

about one third of all organic broiler 

operations are small businesses as 

defined by Small Business 

Administration criteria. AMS expects 

that the costs to comply with the 

outdoor space requirements will be 


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more burdensome for larger organic 

layer producers and they are more likely 

to transition to a cage-free label. These 

operations will require significantly 

more land and will be less likely to have 

that area available for expansion. For 

small egg producers, business revenues 

would need to be less than $137,195 to 

$154,922 per firm for the rule to cost 

more than 3% of revenue. For small 

broiler producers, business revenues 

would need to be less than $117,456 to 

$132,632 per firm for the rule to cost 

more than 3% of revenue. AMS also 

expects that organic producers may 

have some increased costs to meet the 

reporting and recordkeeping 

requirements that will be associated 

with this rule. These are described in 

the Paperwork Reduction Act section. 

Additionally, while certifying agents are 

small entities that will be affected by 

this rule, AMS does not expect these 

certifying agents to incur substantial 

costs as a result of this action. 

A complete economic analysis of this 

rule is available at https://

www.regulations.gov/. You can access 

this rule and the economic analysis by 

searching for document number AMS– 

NOP–21–0073. 

B. Executive Order 12988 

Executive Order 12988 instructs each 

executive agency to adhere to certain 

requirements in the development of new 

and revised regulations to avoid unduly 

burdening the court system. This rule 

cannot be applied retroactively. States 

and local jurisdictions are preempted 

under 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 sec. 6514(b) of OFPA. 

States are also preempted under secs. 

6503 through 6507 of OFPA from 

creating certification programs to certify 

organic farms or handling operations 

unless the state programs have been 

submitted to, and approved by, the 

Secretary as meeting the requirements of 

OFPA. 

Pursuant to sec. 6507(b)(2) of OFPA, 

a state organic certification program that 

has been approved by the Secretary may 

contain additional requirements for the 

production and handling of agricultural 

products organically 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 OFPA, (b) not be 

inconsistent with OFPA, (c) not be 

discriminatory toward agricultural 

commodities organically produced in 

other States, and (d) not be effective 

until approved by the Secretary. 

In addition, pursuant to sec. 

6519(c)(6) of OFPA, this rulemaking 

does not supersede or 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, respectively, nor any of the 

authorities of the Secretary of Health 

and Human Services under the Federal 

Food, Drug and Cosmetic Act (21 U.S.C. 

301–399), nor the authority of the 

Administrator of the Environmental 

Protection Agency under the Federal 

Insecticide, Fungicide and Rodenticide 

Act (7 U.S.C. 136–136(y)). 

OFPA at 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. OFPA also 

provides that the U.S. District Court for 

the district in which a person is located 

has jurisdiction to review the 

Secretary’s decision. 

C. Executive Order 13132 

Executive Order (E.O.) 13132 

mandates that federal agencies consider 

how their policymaking and regulatory 

activities impact the policymaking 

discretion of States and local officials 

and how well such efforts conform to 

the principles of federalism defined in 

said order. This executive order only 

pertains to regulations with clear 

federalism implications. 

AMS has determined that this 

rulemaking conforms with the 

principles of federalism described in 

E.O. 13132. The rule does not impose 

substantial direct costs or effects on 

States, does not alter the relationship 

between States and the federal 

government, and does not alter the 

distribution of powers and 

responsibilities among the various 

levels of government. States had the 

opportunity to comment on the 

proposed rule. No States provided 

public comment on the federalism 

implications of this rule. Therefore, 

AMS has concluded that this 

rulemaking does not have federalism 

implications. 

D. Executive Order 13175 

This final rule has been reviewed in 

accordance with the requirements of 

E.O. 13175, ‘‘Consultation and 

Coordination with Indian Tribal 

Governments.’’ E.O. 13175 requires 

Federal agencies to consult and 

coordinate with Tribes on a 

government-to-government basis on 

policies that have Tribal implications, 

including regulations, legislative 

comments or proposed legislation, and 

other policy statements or actions that 

have substantial direct effects on one or 

more Indian Tribes, the relationship 

between the Federal Government and 

Indian Tribes, or on the distribution of 

power and responsibilities between the 

Federal Government and Indian Tribes. 

AMS has determined that the targeted 

scope of this final rule does not have 

substantial direct effects on one or more 

Tribes; however, AMS continues to seek 

opportunities engaging Tribal nations 

on new rulemaking. Accordingly, AMS 

hosted a virtual Tribal consultation 

meeting on September 9, 2021, where 

the draft proposed rule was discussed 

with Tribal leaders. No questions or 

concerns were brought to AMS’s 

attention about the proposed rule by any 

Tribal leaders at the meeting. 

Additionally, no public comments or 

form letter campaigns were received 

from Tribes expressing concern over 

Tribal implications of this rule. If a 

Tribe requests consultation in the 

future, AMS will work with the Office 

of Tribal Relations to ensure meaningful 

consultation is provided. 

E. Civil Rights Impact Analysis 

AMS has reviewed this rulemaking in 

accordance with the Department 

Regulation 4300–4, Civil Rights Impact 

Analysis, to address any major civil 

rights impacts the rule might have on 

minorities, women, and persons with 

disabilities. This rule will affect organic 

livestock producers; AMS determined 

that this rule has no potential for 

affecting organic livestock producers in 

protected groups differently than the 

general population of organic livestock 

producers. 

Protected individuals have the same 

opportunity to participate in NOP as 

non-protected individuals. USDA 

organic regulations prohibit 

discrimination by certifying agents. 

Specifically, § 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 

NOP to any person due to 


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94USDA OFPA: The Organic Foods Production 

Act of 1990 (OFPA), 7 U.S.C. 6501–6524, is the 

statute from which the Agricultural Marketing 

Service (AMS) derives authority to administer the 

National Organic Program (NOP), and authority to 

amend the regulations as described in this 

rulemaking. https://uscode.house.gov/ 

view.xhtml?path=/prelim@title7/ 

chapter94&edition=prelim. 

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 § 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, 

§ 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 

§ 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. 

F. Paperwork Reduction Act 

In accordance with the Paperwork 

Reduction Act of 1995 (44 U.S.C. 3501– 

3520) (PRA), AMS is requesting Office 

of Management and Budget (OMB) 

review and approval for a new 

information collection totaling 101,110 

hours for the reporting and 

recordkeeping requirements contained 

in this final rule. OMB previously 

approved information collection 

requests associated with the NOP as 

OMB control number 0581–0191. With 

OMB approval, AMS intends to merge 

this new information collection (OMB 

control number 0591–0293) request into 

the previously approved NOP 

information collection request (OMB 

control number 0581–0191). Presented 

in the proposed rule (87 FR 48562, 

August 09, 2022) and reiterated below, 

AMS describes and estimates the annual 

burden (i.e., the amount of time and cost 

of labor) for entities to prepare and 

maintain information to participate in 

this voluntary labeling program (USDA 

organic certification). OFPA provides 

authority for this action.94

Title: National Organic Program: 

Organic Livestock and Poultry 

Standards. 

OMB Control Number: 0581–0293. 

Expiration Date of Approval: Three 

years from OMB date of approval. 

Type of Request: New collection. 

Abstract 

Information collection and 

recordkeeping are necessary to 

implement reporting and recordkeeping 

necessitated by amendments to 

standards for organic livestock and 

poultry production under the USDA 

organic regulations (§§ 205.238, 

205.239, 205.241, and 205.242). This 

final rule clarifies and expands on 

existing USDA organic requirements to 

support consistent interpretation and 

enforcement of organic livestock 

standards. By doing so, it supports the 

purposes of OFPA, ‘‘to assure 

consumers that organically produced 

products meet a consistent standard’’ 

and to ‘‘establish national standards’’ for 

products marketed as organic, and to 

further facilitate interstate commerce of 

organic products (7 U.S.C. 6501). 

Additional information on the purpose 

and need for this rule is included in the 

BACKGROUND section of this rule. 

Overview 

All certified organic operations must 

develop and maintain an organic system 

plan (OSP) to comply with the USDA 

organic regulations (§ 205.201). The OSP 

must include a description of practices 

and procedures to be performed and 

maintained, including the frequency 

with which they will be performed. 

Under this final rule, organic livestock 

and poultry operations are subject to 

additional reporting requirements. The 

amendments to §§ 205.238, 205.239, 

205.241, and 205.242 require livestock 

and poultry operations to provide 

specific documentation as a part of the 

OSP related to their production 

practices—including minimum space 

requirements, outdoor access, 

preventive health care practices (e.g., 

physical alterations, euthanasia, parasite 

prevention plans), and humane 

transportation and slaughter practices. 

This documentation will enable 

certifying agents to make consistent 

certification decisions and facilitate 

fairness and transparency for the 

organic producers and consumers that 

participate in this market. 

The PRA requires AMS to estimate 

the reporting and recordkeeping burden 

of rulemaking. Per § 205.103 of the 

USDA organic regulations, operations 

must maintain and make available upon 

request such records as are necessary to 

demonstrate compliance. Sections 

205.501(a)(9) and 205.510(b) also 

require that accredited certifying agents 

must maintain and make available upon 

request records that are necessary to 

verify compliance and maintain 

accreditation. 

In response to overall public 

comments, and discussed in the 

overview of the rule above, AMS 

modified some reporting and 

recordkeeping requirements in this final 

rule. The final rule: 

1. Removes the requirement for 

certified operations to record lameness 

in livestock. 

2. Changes the ammonia monitoring 

requirements for poultry operations. 

Instead of recording ammonia levels 

monthly, operations must record 

ammonia levels weekly. 

AMS expects that most of the 

reporting and recordkeeping burden for 

this rule will occur in the first year after 

the rule’s effective date. During this 

time, new operations, existing 

operations, exempt operations, 

inspectors, certifying agents, and State 

Organic Programs will implement the 

new reporting and recordkeeping 

requirements. The estimated reporting 

and recordkeeping burden is described 

in sections Summary of Reporting 

Burden and Summary of Recordkeeping 

Burden. 

AMS expects ammonia monitoring to 

be the only increase in reporting and 

recordkeeping burden related to this 

rule for operations beyond the first year. 

Other reporting and recordkeeping 

requirements of this rulemaking would 

become routine to maintain after the 

first year and fall under existing 

reporting and recordkeeping burdens 

described in the NOP’s previously 

approved information collection request 

(OMB control number 0581–0191). 

Going forward, weekly ammonia 

monitoring will become a new routine 

activity that is not currently identified 

in the NOP’s approved information 

collection request. The new information 

that certified operations will be required 

to record and report for certification will 

assist certifying agents and inspectors 

with evaluating operations’ compliance 

with the USDA organic regulations. 

Beyond the first year, AMS expects no 

increase in reporting and recordkeeping 

burden for inspectors and certifying 

agents currently involved in livestock 

certification, as certifying agents are 

required to observe the same reporting 

and recordkeeping requirements to 

maintain accreditation. These current 

reporting and recordkeeping 

requirements are routine activities that 


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95U.S. BLS Inspectors: Bureau of Labor Statistics. 

Mean hourly wage for Agricultural Inspectors 

(Standard Occupational Classification (SOC) code 

45–2011) was $22.80. Occupational Employment 

and Wage Statistics. ‘‘May 2021 National 

Occupational Employment and Wage Estimates 

United States.’’ Published May 2021. https://

www.bls.gov/oes/current/oes_nat.htm#top. 

96U.S. BLS Benefits: Bureau of Labor Statistics. 

Domestic benefits were reported at 31 percent of 

total average civilian employer compensation costs. 

Economic News Release. Employer Costs for 

Employee Compensation Summary. ‘‘Employer 

Costs for Employee Compensation December 2022.’’ 

USDL–23–0488. Published March 17, 2023. https:// 

www.bls.gov/news.release/ecec.nr0.htm. 

are currently identified in the NOP’s 

approved information collection 

request. 

AMS expects this rule will impose 

only minor reporting and recordkeeping 

burden on exempt operations or State 

Organic Programs in the first year (see 

Table 4). Under the USDA organic 

regulations, some types of organic 

operations are exempt from the 

requirement for certification. This may 

include operations that sell less than 

$5,000 in organic products annually. 

However, these exempt operations must 

maintain records of organic 

management to support their organic 

claims (§ 205.101(i)). State Organic 

Programs enforce OFPA in their state 

under the authority of AMS and must 

observe the same reporting and 

recordkeeping requirements to maintain 

this authority. The current reporting and 

recordkeeping requirements for exempt 

operations and State Organic Programs 

are routine activities that are currently 

identified in the NOP’s approved 

information collection request. 

Recording and reporting information 

is essential to the integrity of the USDA 

organic industry. A record trail is a 

critical tool that inspectors, certifying 

agents, State Organic Programs, and 

AMS use to verify that organic 

management practices meet the 

requirements of OFPA and its 

regulations. The collected information 

also supports AMS’ mission, program 

objectives, and management needs by 

enabling AMS to assess the efficiency 

and effectiveness of the NOP. This 

information informs AMS decisions 

when evaluating compliance with OFPA 

and the USDA organic regulations, 

administering the NOP, and establishing 

the cost of the USDA organic program. 

Finally, this information supports 

AMS’s direct enforcement and response 

to noncompliances with the USDA 

organic regulations. 

Responses to Public Comment 

In the proposed rule (87 FR 48562, 

August 09, 2022), AMS invited 

comments from the public on the 

estimated reporting and recordkeeping 

burden required because of this 

rulemaking. Public comments relating to 

the paperwork burden generally 

indicated that the reporting and 

recordkeeping burdens were low and 

that the proposed changes should be 

implemented. 

AMS’s responses to comments on five 

specific questions posed by AMS 

follow. First, AMS sought comments on: 

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. 

(Comment) Two commenters 

indicated that the paperwork 

requirement associated with verifying 

transport times would be excessively 

burdensome for operations and also 

questioned if AMS had considered 

Department of Transportation (DOT) 

Hours of Service (HOS) regulations (49 

CFR 385.1(k)(1)). AMS’s complete 

response to this comment is discussed 

in more detail in TRANSPORT AND 

SLAUGHTER. 

(Response) In the final rule, AMS 

removed a proposed requirement for 

organic food and water after more than 

12 hours of transport. Instead, the final 

rule requires that operations describe 

how animal welfare is maintained if 

transport time exceeds eight hours. The 

final rule continues to require that 

operations keep records of transport 

times. AMS disagrees with comments 

that claimed transport records would be 

excessively burdensome. Long transport 

times for animals can negatively impact 

animal health and welfare if proper 

measures are not taken, and records are 

essential for certifiers to assess transport 

times. Furthermore, the rule does not 

specify or require an exact form or 

format for these records, to provide 

flexibility and reduce burden for 

producers to meet the requirement. 

AMS also requested comments on: 

The accuracy of the agency’s estimate of 

the burden of the proposed collection of 

information, including the validity of the 

methodology and assumptions used. 

(Comment) A commenter indicated 

that implementation of the new 

requirements of this rulemaking will 

take longer than one year. AMS’s 

response to this comment and other 

comments regarding the implementation 

timeline for this rulemaking is 

discussed in section IV.F, 

IMPLEMENTATION AND 

COMPLIANCE DATES. This commenter 

also indicated that the cost of this new 

burden will be higher than what was 

estimated in the proposed rule. They 

stated that this is because livestock 

inspectors collect more than the $30.70 

per hour rate reported in the proposed 

rule. Finally, the commenter indicated 

that additional reporting and recording 

at annual organic inspections was not 

fully accounted for, implying that 

inspections will take longer than AMS 

estimated. 

(Response) In the proposed rule, AMS 

estimated inspector wages and benefits 

by referencing data from the U.S. 

Bureau of Labor Statistics on 

Agricultural Inspectors (Standard 

Occupational Classification (SOC) code 

45–2011), and average civilian employer 

compensation costs.95 96 The commenter 

did not propose a different wage rate for 

inspectors that AMS could verify, nor 

did they suggest a different estimate of 

how long inspections will take to 

account for the new requirements. 

Therefore, AMS has not changed the 

methods used to estimate wages and 

benefits. However, in this final rule, 

AMS has updated the wages, benefits, 

and data on the number of operations 

(new, existing, and exempt), certifying 

agents, and inspectors to update the 

reporting and recordkeeping burden. 

The estimates of reporting and 

recordkeeping burden are discussed in 

sections Summary of Reporting Burden 

and Summary of Recordkeeping Burden. 

Additionally, AMS asked for 

comments on, ‘‘Ways to enhance the 

quality, utility, and clarity of the 

information to be collected.’’ 

(Comment) A commenter stated that 

AMS should reduce the paperwork 

burden on organic operations in areas 

where the reduction would not 

negatively impact animal welfare or 

overall compliance with the USDA 

organic regulations. The commenter did 

not state what portion(s) of the proposed 

reporting and recordkeeping 

requirements were unnecessary. 

(Response) Under the PRA (44 U.S.C. 

3501–3520) and in response to the 

comment, AMS has sought regulatory 

options that minimize paperwork 

burden. For example, AMS removed a 

specific requirement that would have 

required producers to keep detailed 

records related to lameness in a herd. 

AMS also sought comments on: 

Ways to minimize the burden of the 

collection of information on those who are to 

respond, including the use of appropriate 

automated, electronic, mechanical, or other 

technological collection techniques or other 

forms of information technology. 

(Comment) A commenter stated that 

poultry stocking density definitions and 

standards should refer to the number of 

animals in addition to the weight. Other 

commenters also stated that requiring 

slaughter facilities to provide AMS with 


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75440 Federal Register / Vol. 88, No. 211 / Thursday, November 2, 2023 / Rules and Regulations 

97USDA NOP OID: Organic Integrity Database, 

https://organic.ams.usda.gov/integrity/. 

98U.S. Bureau of Labor Statistics, https://

www.bls.gov. 

99Organization for Economic Co-Operation and 

Development (OECD), https://www.oecd.org/. 

100The World Bank, https://data.worldbank.org/. 

101USDA NOP OID: Organic Integrity Database, 

https://organic.ams.usda.gov/integrity/. 

102USDA NASS: Surveys of organic operations 

report that operations exempt from certification 

make up 11.5% of certified organic operations. 

Census of Agriculture, 2014 Organic Survey. 

Updated April 2016. https://agcensus.library.

cornell.edu/wp-content/uploads/2012-OrganicSurvey-ORGANICS.pdf. 

103USDA NOP OID: Organic Integrity Database, 

https://organic.ams.usda.gov/integrity/. 

104USDA NOP OID: Organic Integrity Database, 

https://organic.ams.usda.gov/integrity/. 

any noncompliance records or 

corrective actions issued by the USDA 

Food Safety and Inspection Service 

(FSIS) would be duplicative and 

unnecessary. They stated that FSIS 

inspectors are specifically trained to 

understand the Poultry Products 

Inspection Act (PPIA) and the 

Verification of Good Commercial 

Practices for Poultry, and therefore, 

FSIS should continue to oversee poultry 

slaughter, not AMS. Finally, they stated 

that requiring operations to report this 

information would possibly create 

jurisdictional issues between FSIS and 

AMS. 

(Response) Organic slaughter 

requirements and AMS’s justification 

for these regulatory changes are 

described in Section IV.E, TRANSPORT 

AND SLAUGHTER. As described in that 

section, organic certifying agents and 

inspectors are not expected to determine 

an organic slaughter facility’s 

compliance with these laws and 

regulations, as that is the responsibility 

of other government regulatory 

authorities (such as FSIS). However, 

organic slaughter facilities must provide 

records of noncompliance and 

corrective actions that resulted from 

FSIS regulatory and enforcement action. 

These FSIS records are a valuable 

source of information that certifying 

agents can use to determine an 

operation’s compliance with the organic 

regulation and this rule’s animal welfare 

requirements. AMS has not changed the 

estimation of reporting and 

recordkeeping burden for the new 

information collection requirements of 

this rulemaking based on these 

comments. 

Finally, AMS requested comments on 

its estimates and assumptions: 

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? 

(Comment) A few commenters 

expressed concern with the estimated 

future growth presented in the proposed 

rule. One stated that the proposed 

changes will impose additional 

financial burdens with little benefits to 

organic poultry operations. Commenters 

expressed concern that the number of 

organic operations would decrease 

rather than increase. 

(Response) AMS disagrees with the 

comment that this rulemaking will have 

little benefit on organic poultry 

operations. This rule clarifies and 

expands on regulations to support 

consistent interpretation and 

enforcement of organic livestock and 

poultry standards. The final rule 

specifies requirements for outdoor space 

(per bird), access to outdoor space from 

poultry houses (exit areas), and indoor 

thresholds for ammonia gas. The rule 

also elaborates on the current standards 

(7 CFR 205.239) related to situations 

that warrant temporary confinement of 

animals, among other requirements. 

AMS investigated the concern that 

organic operations will decrease and 

reevaluated the data used to estimate 

the growth of the organic livestock 

industry. In the proposed rule, data on 

overall organic operations was used to 

calculate an estimated growth rate. In 

response to comments, AMS refines the 

data in this final rule to focus on organic 

livestock operations. AMS searched 

organic livestock operations listed in the 

Organic Integrity Database on January 

01, 2022, and January 01, 2023.97 Based 

on this data—5,445 certified livestock 

operations in 2022 and 5,883 certified 

livestock operations in 2023—AMS 

changes the estimated future growth of 

organic livestock operations to eight 

percent (8%). AMS has updated the 

estimated reporting and recordkeeping 

burden accordingly. The estimated 

reporting and recordkeeping burden is 

discussed in Sections Summary of 

Reporting Burden and Summary of 

Recordkeeping Burden. 

Public Comments Conclusion 

The estimated reporting and 

recordkeeping burden for the new 

information collection requirements of 

this rulemaking are summarized in the 

Sections Summary of Reporting Burden 

and Summary of Recordkeeping Burden 

below. In general, public comment 

received did not dispute AMS’s estimate 

of the information collection reporting 

and recordkeeping burden presented in 

the proposed rule. 

In the proposed rule, AMS estimated 

that new and current organic operations 

would need four hours to incorporate 

the new reporting and recordkeeping 

requirements of this rulemaking into 

their OSPs (including one-time 

preparation of all practices, procedures, 

and information necessary to comply 

with these new requirements). AMS 

made changes in this final rule that 

decrease required reporting and/or 

recordkeeping related to lameness and 

increased the frequency of ammonia 

monitoring (see sections on Livestock 

Care and Production Practices Standard 

and Avian Living Conditions). However, 

AMS does not believe these changes 

will substantially affect the time 

operations will require to incorporate 

the new requirements into their OSPs. 

Table 4 describes the reporting and 

recordkeeping burden in more detail. 

AMS has updated the following data 

used to estimate reporting and 

recordkeeping burden: 

1. Wage and benefit data from the U.S. 

Bureau of Labor Statistics, Organization 

for Economic Co-Operation and 

Development (OECD), and the World 

Bank.98 99 100

2. Number of new, existing, and 

exempt organic operations.101 102

3. Number of domestic and foreign 

livestock inspectors and certifying 

agents.103

The estimated reporting and 

recordkeeping burden is discussed in 

Sections Summary of Reporting Burden 

and Summary of Recordkeeping Burden. 

Calculating Reporting and 

Recordkeeping Burden 

AMS identifies four types of entities 

(respondents) that will need to submit 

and maintain information to participate 

in organic livestock and poultry 

certification: 

1. Organic livestock and poultry 

operations. 

2. Accredited certifying agents. 

3. Inspectors. 

4. State Organic Programs. 

To understand the reporting and 

recordkeeping costs of this rulemaking 

more precisely, AMS calculated the 

potential impacts utilizing domestic and 

foreign labor rates (per hour) plus 

benefits. 

AMS calculates the time burden of the 

new reporting and recordkeeping 

requirements of this rulemaking by 

estimating the following: 

1. The number of respondents. 

2. Frequency of response. 

3. Total number of burden hours per 

year. 

The number of respondents is based 

on operation, certifier, inspector, and 

State Organic Program data from the 

Organic Integrity Database.104 The 

frequency of responses is estimated to 


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105U.S. BLS Benefits: Bureau of Labor Statistics. 

Domestic benefits were reported at 31 percent of 

total average civilian employer compensation costs. 

Economic News Release. Employer Costs for 

Employee Compensation Summary. ‘‘EMPLOYER 

COSTS FOR EMPLOYEE COMPENSATION— 

December 2022.’’ USDL–23–0488. Published March 

17, 2023. https://www.bls.gov/news.release/ 

ecec.nr0.htm. 

106World Bank—Foreign wages: The data reports 

that GDP per capita for OECD member countries is 

70.1% of U.S. GDP in 2021. Accessed March 22, 

2023. https://data.worldbank.org/indicator/ 

NY.GDP.PCAP.PP.CD. 

107OECD—Foreign benefits: The source of foreign 

benefit rates is based on the average Organization 

for Economic Co-Operation and Development 

(OECD) member countries tax wedge rate of 34.58% 

in 2021. Accessed March 22, 2023. https://

stats.oecd.org/Index.aspx?DataSetCode=AWCOMP. 

be the total annual responses and the 

number of responses per respondent in 

twelve months. The total number of 

burden hours per year is estimated to be 

the total annual responses multiplied by 

the number of hours per response. 

AMS estimates the cost (financial) 

burden of the new reporting and 

recordkeeping requirements of this 

rulemaking by estimating the following: 

1. Total hours per respondent. 

2. Total hours for all respondents. 

3. Capital and other non-labor costs 

per respondent. 

4. Total capital and other non-labor 

costs for all respondents. 

The total hours per respondent and 

for all respondents were estimated 

based on the number of respondents and 

the amount of time AMS estimates will 

be needed to report and record new 

information based on this rulemaking. 

Unchanged from the proposed rule, 

AMS describes in Table 4a and 4b the 

hours necessary for respondents to 

report and record new information 

required by this rulemaking. 

TABLE 4—ESTIMATED HOURS FOR RESPONDENTS TO REPORT AND RECORD NEW INFORMATION

Reporting or recordkeeping requirement description 

Number of 

reporting 

responses per 

respondent 

Reporting 

hours per 

response 

Annual 

recordkeeping 

hours per 

recordkeeper 

Operations 

Subpart B—Applicability exempt producers and handlers (11.5% of current total certified that are exempt from organic certification) document compliance and maintain records for not less than 3 yrs ........................................... 0 0 1 

Certified operators maintain records for not less than 5 years ...................................................................................... 0 0 2 

New operations submit their initial organic system plan (OSP): including one-time reading of the rule’s applicable 

regulatory requirements and preparation of all practices, procedures, and information necessary to comply with 

new livestock and poultry requirements ...................................................................................................................... 1 6 0 

Current certified operations submit updated OSP: including one-time reading of the rule’s applicable regulatory requirements and preparation of all practices, procedures, and information necessary to comply with new livestock 

and poultry requirements ............................................................................................................................................. 1 6 0 

Livestock and poultry operations’ first on-site inspection that includes new livestock and poultry practices and procedures ........................................................................................................................................................................ 1 2 0 

Certifying Agents 

Review of Application/Updates: agents review and process OSP applications/updates from livestock and poultry 

operations in compliance with new requirements for the first time and maintain records ......................................... 108 2 1 

Provide information and training to operations regarding livestock and poultry requirements ...................................... 1 3 n/a 

Accreditation of Certifying Agents—Form TM–10CG—Provide Policies, Procedures, Evidence of Expertise and 

Ability, describe organizational units, primary location, areas of certification (crops, livestock, and handling), 

States & foreign countries where they operate, lists of currently certified operations, conduct & provide results of 

performance evaluations of personnel & inspectors, conduct program evaluations of their certification activities, 

provide procedures for residue testing, and other information that will assist in evaluating their application, and 

comply with any other requirements. Includes one-time preparation of practices and procedures necessary to 

comply with new livestock and poultry practice requirements .................................................................................... 1 2 1 

Provide training to Certification Review Personnel and Inspectors regarding new livestock and poultry practices ...... 2 5 n/a 

Certification Review Personnel receive training regarding new livestock and poultry practices ................................... 1 5 n/a 

Inspectors 

Inspectors provide on-site inspection reports addressing new requirements for livestock and poultry operations to 

the certifying agent ...................................................................................................................................................... 33 2 n/a 

Inspectors receive 5 hours of training per new livestock and poultry practices ............................................................ 1 5 n/a 

State Organic Programs 

State Organic Programs: States submit proposed State Organic Program to Secretary .............................................. n/a n/a n/a 

States update State Organic Program to the Secretary ................................................................................................. 1 2 1 

To estimate the capital and other nonlabor costs of the reporting and 

recordkeeping requirements per 

respondent and on all respondents, 

AMS uses data on prevailing domestic 

and foreign wages and benefits.105 106 107

The estimated reporting and 

recordkeeping burden is discussed in 

Sections Summary of Reporting Burden 

and Summary of Recordkeeping Burden. 

Total (Domestic and Foreign) 

Information Collection Cost (Reporting 

and Recordkeeping) of Rulemaking: 

$4,929,563. 

AMS estimated a total of 7,346 

reporting and recordkeeping 

respondents, with 40,348 total 

responses (in the first year of 

implementing the new reporting and 

recordkeeping requirements, after which 

there are no additional responses), and 

an overall total burden of 113,934 hours. 

This total hourly burden averages 16 

hours per respondent, $671 per 

respondent, and $4,929,563 for all 

respondents. The data used to estimate 

reporting and recordkeeping burden is 

displayed in more detail in Table 5 and 

Table 6. 

1. Organic Livestock and Poultry 

Operations 

AMS estimated a total of 7,095 

reporting and recordkeeping 

respondents, with 12,824 total 

responses (in the first year of 

implementing the new reporting and 

recordkeeping requirements, after which 


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75442 Federal Register / Vol. 88, No. 211 / Thursday, November 2, 2023 / Rules and Regulations 

108USDA NOP OID: Organic Integrity Database, 

https://organic.ams.usda.gov/integrity/. 

109USDA NASS: Surveys of organic operations 

report that operations exempt from certification 

make up 11.5% of certified organic operations. 

Census of Agriculture, 2014 Organic Survey. 

Updated April 2016. https://agcensus.library.

cornell.edu/wp-content/uploads/2012-OrganicSurvey-ORGANICS.pdf. 

there are no additional responses), and 

an overall burden of 64,802 hours. 

Based on eight percent (8%) projected 

growth in livestock operations, AMS 

expects to add 475 operations to the 

5,937 operations currently certified for 

the livestock scope.108 In addition, AMS 

estimates that 683 exempt livestock 

operations will be impacted by the new 

recordkeeping requirements.109

AMS estimated nine burden hours per 

respondent, costing $430 per 

respondent, and $3,052,383 for all 

respondents. The data used to estimate 

reporting and recordkeeping burden is 

displayed in more detail in Table 5 and 

Table 6. 

2. Accredited Certifying Agents 

AMS estimated a total of 58 reporting 

and recordkeeping respondents, with 

13,766 total responses (in the first year 

of implementing the new reporting and 

recordkeeping requirements, after which 

there are no additional responses), and 

an overall burden of 35,345 hours. AMS 

estimated 609 burden hours per 

respondent, costing $26,013 per 

respondent, and $1,508,729 for all 

respondents. The data used to estimate 

reporting and recordkeeping burden is 

displayed in more detail in Table 5 and 

Table 6. 

3. Inspectors 

AMS estimated a total of 192 

reporting and recordkeeping 

respondents, with 6,604 responses (in 

the first year of implementing the new 

reporting and recordkeeping 

requirements, after which there are no 

additional responses), and an overall 

burden of 13,784 hours. AMS estimated 

72 burden hours per respondent, costing 

$1,919 per respondent, and $368,308 for 

all respondents. The data used to 

estimate reporting and recordkeeping 

burden is displayed in more detail in 

Table 5 and Table 6. Inspectors do not 

have recordkeeping obligations, as 

certifying agents maintain the records of 

inspection reports, so inspectors are not 

included in Table 5. 

4. State Organic Programs 

AMS estimated a total of one 

reporting and recordkeeping 

respondent, with one response (in the 

first year of implementing the new 

reporting and recordkeeping 

requirements, after which there are no 

additional responses), an overall burden 

of three hours, costing the respondent 

$143. The data used to estimate 

reporting and recordkeeping burden is 

displayed in more detail in Table 5 and 

Table 6. 

Summary of Reporting Burden 

Total All Reporting Burden Cost: 

$4,827,105. 

Estimate of Burden: Public reporting 

burden for this collection of information 

is estimated to average 15 hours per 

respondent. 

Respondents: New and existing 

certified organic and applicant livestock 

and poultry operations, certifying 

agents, inspectors, and State Organic 

Programs. 

Estimated Number of Reporting 

Respondents: 6,663. 

Estimated Number of Reporting 

Responses: 33,194. 

Estimated Total Reporting Burden on 

Respondents: 100,310 hours. 

Estimated Total Reporting Responses 

per Reporting Respondents: Five 

reporting responses per reporting 

respondent. 

AMS estimated a total of 6,663 

reporting respondents, with 33,194 total 

responses (in the first year of 

implementing the new reporting 

requirements, after which there are no 

additional responses), and an overall 

burden of 100,310 reporting hours. AMS 

estimated 15 burden hours per 

respondent, costing $643 per 

respondent and $4,287,105 for all 

respondents. The data used to estimate 

reporting burden is displayed in more 

detail in Table 5. 

1. Organic Livestock and Poultry 

Operations 

AMS estimated a total of 6,412 

reporting respondents, with 12,824 total 

responses (in the first year of 

implementing the new reporting 

requirements, after which there are no 

additional responses), and an overall 

burden of 38,472 reporting hours. AMS 

estimated six burden hours per 

respondent, costing $282 per 

respondent, and $1,811,193 for all 

respondents. The data used to estimate 

reporting burden is displayed in more 

detail in Table 5. 

2. Accredited Certifying Agents 

AMS estimated a total of 58 reporting 

respondents, with 13,766 total 

responses (in the first year of 

implementing the new reporting 

requirements, after which there are no 

additional responses), and an overall 

burden of 35,229 hours. AMS estimated 

607 burden hours per respondent, 

costing $25,927 per respondent and 

$1,503,778 for all respondents. The data 

used to estimate reporting burden is 

displayed in more detail in Table 5. 

3. Inspectors 

AMS estimated a total of 192 

reporting respondents, with 6,604 total 

responses (in the first year of 

implementing the new reporting 

requirements, after which there are no 

additional responses), and an overall 

burden of 13,784 hours. AMS estimated 

72 burden hours per respondent, costing 

$1,919 per respondent, and $368,308 for 

all respondents. The data used to 

estimate reporting burden is displayed 

in more detail in Table 5. 

4. State Organic Programs 

AMS estimated a total of one 

reporting respondent, with one response 

(in the first year of implementing the 

new reporting requirements, after which 

there are no additional responses), an 

overall burden of two hours, resulting in 

a total cost of $95 to the respondent. 

The data used to estimate reporting 

burden is displayed in more detail in 

Table 5. 

TABLE 5—SUMMARY OF REPORTING BURDEN

Organic operations reporting burden Number of 

respondents 110 111

Total 

reporting 

hours 

Average 

respondent 

hours 

Wage + 

benefits 112 96 113 114

Average 

respondent 

costs 

Total 

reporting 

costs 

Certified livestock operations—new and existing—Domestic ........................................................................ 5,334 42,673 6 $49.40 $395 $1,581,036 

Certified livestock operations—new and existing—Foreign ............................................................................ 1,078 8,623 6 35.59 285 230,156 


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110USDA NOP OID: Organic Integrity Database, 

https://organic.ams.usda.gov/integrity/. 111USDA NASS: Surveys of organic operations 

report that operations exempt from certification 

make up 11.5% of certified organic operations. 

Census of Agriculture, 2014 Organic Survey. 

Updated April 2016. https://agcensus.library.

cornell.edu/wp-content/uploads/2012-OrganicSurvey-ORGANICS.pdf. 

112U.S. BLS Inspectors: Bureau of Labor 

Statistics. Mean hourly wage for Agricultural 

Inspectors (Standard Occupational Classification 

(SOC) code 45–2011) was $22.80. Occupational 

Employment and Wage Statistics. ‘‘May 2021 

National Occupational Employment and Wage 

Estimates United States.’’ Published May 2021. 

https://www.bls.gov/oes/current/oes_nat.htm#top. 

113U.S. BLS Operations: Bureau of Labor 

Statistics. Mean hourly wage for Farmers, Ranchers, 

and Other Agricultural Managers (Standard 

Occupational Classification (SOC) code 11–9013) 

was $37.71. Occupational Employment and Wage 

Statistics. ‘‘May 2021 National Occupational 

Employment and Wage Estimates United States.’’ 

Published May 2021. https://www.bls.gov/oes/ 

current/oes_nat.htm#top. 

114U.S. BLS Certifiers and State Organic 

Programs (SOP): Bureau of Labor Statistics. Mean 

hourly wage for Compliance Officers (Standard 

Occupational Classification (SOC) code 13–1041) 

was $36.45. Occupational Employment and Wage 

Statistics. ‘‘May 2021 National Occupational 

Employment and Wage Estimates United States.’’ 

Published May 2021. https://www.bls.gov/oes/ 

current/oes_nat.htm#top. 

TABLE 5—SUMMARY OF REPORTING BURDEN—Continued 

Organic operations reporting burden Number of 

respondents 110 111

Total 

reporting 

hours 

Average 

respondent 

hours 

Wage + 

benefits 112 96 113 114

Average 

respondent 

costs 

Total 

reporting 

costs 

Operations total ...................................................... 6,412 51,296 6 ........................................ 377 2,414,924 

USDA accredited certifiers reporting burden 

Certifiers—Domestic ..................................................... 36 21,866 607 47.75 29,003 1,044,101 

Certifiers—Foreign ........................................................ 22 13,363 607 34.40 20,894 459,677 

Certifiers total ......................................................... 58 35,229 607 ........................................ 25,927 1,503,778 

Inspectors reporting burden 

Inspectors—Domestic ................................................... 113 8,555 76 29.87 2,257 255,529 

Inspectors—Foreign ...................................................... 79 5,228 66 21.57 1,433 112,778 

Inspectors total ....................................................... 192 13,784 72 ........................................ 1,919 368,308 

State Organic Programs reporting burden 

State Organic Programs ............................................... 1 2 2 47.75 95 95 

State Organic Programs total ................................ 1 2 2 ........................................ 95 95 

Total reporting burden—all respondents ........ 6,663 100,310 15 ........................................ 643 4,287,105 

Summary of Recordkeeping Burden 

Total All Recordkeeping Burden Cost: 

$642,458. 

Estimate of Burden: Public 

recordkeeping burden for this collection 

of information is estimated to average 

two hours per respondent. 

Respondents: New and existing 

certified operations, exempt operations, 

certifying agents, and State Organic 

Programs. 

Estimated Number of Recordkeeping 

Respondents: 7,154 respondents. 

Estimated Total Recordkeeping 

Burden on Respondents: 13,624 hours. 

AMS estimated a total of 7,154 

recordkeeping respondents (in the first 

year of implementing the new 

recordkeeping requirements, after which 

there are no additional responses). AMS 

estimated two burden hours per 

respondent and 13,624 total burden 

hours for all respondents, costing $90 

per respondent and $642,458 for all 

respondents. The data used to estimate 

the recordkeeping burden is displayed 

in more detail in Table 6. 

1. Organic Livestock and Poultry 

Operations 

AMS estimated a total of 7,095 

recordkeeping respondents (in the first 

year of implementing the new 

recordkeeping requirements, after which 

there is no additional recordkeeping). 

AMS estimated two burden hours per 

respondent and 13,507 total burden 

hours for all respondents, costing $90 

per respondent and $637,459 for all 

respondents. The data used to estimate 

the recordkeeping burden is displayed 

in more detail in Table 6. 

2. Accredited Certifying Agents 

AMS estimated a total of 58 

recordkeeping respondents (in the first 

year of implementing the new 

recordkeeping requirements, after which 

there are no additional responses) AMS 

estimated two burden hours per 

respondent and 116 total burden hours 

for all respondents, costing $85 per 

respondent and $4,952 for all 

respondents. The data used to estimate 

the recordkeeping burden is displayed 

in more detail in Table 6. 

3. State Organic Programs 

AMS estimated a total of one 

recordkeeping respondent (in the first 

year of implementing the new 

recordkeeping requirements, after which 

there are no additional responses), an 

overall burden of one hour, resulting in 

a total cost of $48 to the respondent. 

The data used to estimate the 

recordkeeping burden is displayed in 

more detail in Table 6. 

TABLE 6—SUMMARY OF RECORDKEEPING BURDENS

Organic operations recordkeeping burden Number of 

respondents 115 116

Total 

recordkeeping 

hours 

Average 

respondent 

hours 

Wage + 

benefits 117 96 118 119

Average 

respondent 

costs 

Total 

recordkeeping 

costs 

Certified livestock operations—new and existing—Domestic ............................................. 5,334 10,668 2 $49.40 $99 $527,012 

Certified livestock operations—new and existing—Foreign ................................................ 1,078 2,156 2 35.59 71 76,719 


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I 
75444 Federal Register / Vol. 88, No. 211 / Thursday, November 2, 2023 / Rules and Regulations 

115USDA NOP OID: Organic Integrity Database, 

https://organic.ams.usda.gov/integrity/. 

116USDA NASS: Surveys of organic operations 

report that operations exempt from certification 

make up 11.5% of certified organic operations. 

Census of Agriculture, 2014 Organic Survey. 

Updated April 2016. https://agcensus.library.

cornell.edu/wp-content/uploads/2012-OrganicSurvey-ORGANICS.pdf. 

117U.S. BLS Inspectors: Bureau of Labor 

Statistics. Mean hourly wage for Agricultural 

Inspectors (Standard Occupational Classification 

(SOC) code 45–2011) was $22.80. Occupational 

Employment and Wage Statistics. ‘‘May 2021 

National Occupational Employment and Wage 

Estimates United States.’’ Published May 2021. 

https://www.bls.gov/oes/current/oes_nat.htm#top. 

118U.S. BLS Operations: Bureau of Labor 

Statistics. Mean hourly wage for Farmers, Ranchers, 

and Other Agricultural Managers (Standard 

Occupational Classification (SOC) code 11–9013) 

was $37.71. Occupational Employment and Wage 

Statistics. ‘‘May 2021 National Occupational 

Employment and Wage Estimates United States.’’ 

Published May 2021. https://www.bls.gov/oes/ 

current/oes_nat.htm#top. 

119U.S. BLS Certifiers and State Organic 

Programs (SOP): Bureau of Labor Statistics. Mean 

hourly wage for Compliance Officers (Standard 

Occupational Classification (SOC) code 13–1041) 

was $36.45. Occupational Employment and Wage 

Statistics. ‘‘May 2021 National Occupational 

Employment and Wage Estimates United States.’’ 

Published May 2021. https://www.bls.gov/oes/ 

current/oes_nat.htm#top. 

TABLE 6—SUMMARY OF RECORDKEEPING BURDENS—Continued 

Organic operations recordkeeping burden Number of 

respondents 115 116

Total 

recordkeeping 

hours 

Average 

respondent 

hours 

Wage + 

benefits 117 96 118 119

Average 

respondent 

costs 

Total 

recordkeeping 

costs 

Exempt livestock operations (11.5% of certified) ............................................................ 683 683 1 49.40 49 33,728

Operations total ........................................ 7095 13,507 2 ........................................ 90 637,459 

USDA-accredited certifiers recordkeeping burden 

Certifiers—Domestic ....................................... 36 72 2 47.75 95 3,438

Certifiers—Foreign .......................................... 22 44 2 34.40 69 1,514

Certifiers total ........................................... 58 116 2 ........................................ 85 4,952 

State Organic Programs recordkeeping burden 

State Organic Programs ................................. 1 1 1 47.75 48 48 

State Organic Programs total .................. 1 1 1 ........................................ 48 48 

Total recordkeeping burden—all respondents ...................................... 7,154 13,624 2 ........................................ 90 642,458

G. Related Documents

Documents related to this final 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 final 

rule 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); 75 FR 7154 (February 17, 

2010); and 87 FR 19740 (April 5, 2022). 

AMS activities and documents that 

followed publication of the January 19, 

2017 OLPP final rule (82 FR 7042) are 

detailed above in Section II.D., Organic 

Livestock Regulatory History. 

On August 9, 2022, AMS published 

the OLPS proposed rule (87 FR 48562) 

to notify the public of the proposed 

changes to the organic livestock 

standards and to request comments on 

the proposed changes. 

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, the Agricultural Marketing 

Service amends 7 CFR part 205 as 

follows: 

PART 205—NATIONAL ORGANIC 

PROGRAM 

■ 1. The authority citation for part 205 

continues to read as follows:

Authority: 7 U.S.C. 6501–6524. 

■ 2. Amend § 205.2 by adding 

definitions for ‘‘Beak trimming’’,

‘‘Caponization’’, ‘‘Cattle wattling’’, ‘‘Debeaking’’, ‘‘De-snooding’’, ‘‘Dubbing’’,

‘‘Indoors or indoor space’’, ‘‘Induced

molting’’, ‘‘Mulesing’’, ‘‘Nonambulatory’’, ‘‘Outdoors or outdoor

space’’, ‘‘Perch’’, ‘‘Pullets’’, ‘‘Religious

(or ritual) slaughter’’, ‘‘Stocking

density’’, ‘‘Toe clipping’’, and

‘‘Vegetation’’ in alphabetical order to

read as follows:

§ 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 onequarter 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. 

* * * * * 


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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 and allows birds to 

continuously access areas outside the 

structure during daytime hours. 

(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: a slatted floor where perches, feed, 

and water are provided over a pit or belt 

for manure collection; and litter 

covering the remaining solid floor. 

(4) Floor litter housing. A fixed 

structure for avian species that has 

absorbent litter covering the entire floor. 

Induced molting. Molting that is 

artificially initiated. 

* * * * * 

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. Enclosed 

housing structures with open sides (e.g., 

open-sided freestall barns) are not to be 

considered outdoors or outdoor space. 

Outdoor space for avian species 

includes, but is not limited to: 

(1) Pasture pens (avian). Floorless 

pens, with full or partial roofing, that 

are moved regularly, provide direct 

access to soil and vegetation, and allow 

birds to express natural behaviors. 

(2) Shade structures that are not 

enclosed. 

* * * * * 

Perch. A rod- or branch-type structure 

above the floor or ground that 

accommodates roosting and allows birds 

to utilize vertical space. 

* * * * * 

Pullets. Female chickens or other 

avian species being raised for egg 

production that have not yet started to 

lay eggs. 

* * * * * 

Religious (or ritual) slaughter. 

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. 

* * * * * 

Stocking density. The liveweight or 

number of animals on a given area or 

unit of land. 

* * * * * 

Toe clipping. The removal of the nail 

and distal joint of the back two toes of 

a bird. 

* * * * * 

Vegetation. Living plant matter that is 

anchored in the soil by roots and 

provides ground cover. 

* * * * * 

■ 3. Revise § 205.238 to read as follows: 

§ 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 of the 

animal, including vitamins, minerals, 

proteins and/or amino acids, fatty acids, 

energy sources, and fiber (ruminants). 

(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 for identification purposes or 

the safety of the animal. Physical 

alterations must be performed: at a 

young age for the species, in a manner 

that minimizes stress and pain, and by 

a person that is capable of performing 

the physical alteration in a manner that 

minimizes stress and pain. 

(i) The following practices 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 onethird 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 or injury shall be 

undertaken in a manner that employs 

best management practices to promote 

the animal’s wellbeing and to minimize 

pain, stress, and suffering, with the use 

of allowed anesthetics, analgesics, and 

sedatives, as appropriate. 

(8) Monitoring of lameness; timely 

and appropriate treatment of lameness 

for the species; and mitigation of the 

causes of lameness. 

(b) Preventive medicines and 

parasiticides. Producers may administer 

medications that are allowed under 

§ 205.603 of this part to alleviate pain or 

suffering, and when preventive 

practices and veterinary biologics are 

inadequate to prevent sickness. 

Parasiticides allowed under § 205.603 of 

this part 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 animals, as allowed under 

§ 205.603 of this part. 

(3) Fiber bearing animals, as allowed 

under § 205.603 of this part. 

(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 § 205.603 

of this part, or any substance that 

contains a non-synthetic substance 

prohibited in § 205.604 of this part. Milk 

from animals undergoing treatment with 

synthetic substances that are allowed 

under § 205.603 of this part but have 

associated withdrawal periods cannot 

be sold, labeled, or represented as 

organic during the withdrawal period 

but may be fed to calves on the same 

operation. Milk from animals 

undergoing treatment with prohibited 

substances cannot be sold, labeled, or 

represented 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 § 205.603 of this part. 

(3) Administer hormones for growth 

promotion, production, or reproduction, 

except as provided in § 205.603 of this 

part. 

(4) Administer synthetic parasiticides 

on a routine basis. 


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(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 induced molting. 

(d) Parasite control plans. (1) Organic 

livestock operations must have 

comprehensive plans to minimize 

internal parasite problems in livestock, 

including preventive measures such as 

pasture management, fecal monitoring, 

and emergency measures in the event of 

a parasite outbreak. 

(2) [Reserved] 

(e) Euthanasia. (1) Organic livestock 

operations must have written plans for 

prompt, humane euthanasia for sick or 

injured livestock suffering from 

irreversible disease or injury. 

(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. 

■ 4. Revise § 205.239 to read as follows: 

§ 205.239 Mammalian and non-avian 

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 § 205.237 of this part, 

except as provided for in paragraphs (b), 

(c), and (d) of this section. 

(3) Appropriate clean, dry bedding. 

When roughages are used as bedding, 

they shall have been organically 

produced in accordance with this part 

by an operation certified under this part, 

except as provided in § 205.236(a)(2)(iii) 

of this part, and, if applicable, 

organically handled by operations 

certified under this part. 

(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) Indoor housing must have areas 

for bedding and resting that are 

sufficiently large, solidly built, and 

comfortable so that animals are kept 

clean and dry, as appropriate for the 

species, and free of lesions. 

(5) The use of yards, feeding pads, 

feedlots and laneways that shall be welldrained, 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 diseasecarrying organisms. 

(7) Dairy young stock may be housed 

in individual pens until completion of 

the weaning process, 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 

animals. 

(8) Swine must be housed in a group, 

except: 

(i) Sows may be housed individually 

at farrowing and during the suckling 

period; gestation and farrowing crates 

are prohibited; 

(ii) Boars; and 

(iii) Swine with multiple documented 

instances of aggression or for 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 grouphoused 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, freestalls, 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, 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 for natural breeding or to 

perform artificial insemination. Animals 

may not be confined to observe estrus, 

and animals may not be confined after 

breeding to confirm pregnancy; 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 


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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, any 

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. 

■ 5. Add § 205.241 to read as follows: 

§ 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 

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. Continuous total 

confinement of poultry indoors is 

prohibited. 

(b) Indoor space requirements. (1) 

Poultry housing must be sufficiently 

spacious to allow all birds to move 

freely, stretch both wings 

simultaneously, stand normally, and 

engage in natural behaviors. 

(2) Producers must monitor ammonia 

levels at least weekly by taking 

measurements at the height of the birds’ 

heads and implement practices to 

maintain ammonia levels below 20 

ppm. When ammonia levels exceed 20 

ppm, producers must implement 

additional practices and additional 

monitoring to reduce ammonia levels 

below 20 ppm. Ammonia levels must 

not exceed 25 ppm. 

(3) For layers and all other fully 

feathered birds, artificial light may be 

used to prolong the day length, to 

provide up to 16 hours of continuous 

light per 24-hour period (i.e., minimum 

of 8 hours of continuous darkness per 

24-hour period). Artificial light intensity 

should be lowered gradually to 

encourage hens to move to perches or 

settle for the night. Artificial light 

spectrum may not be manipulated to 

increase feed intake and growth rate. 

(4) Exit areas—poultry houses must 

have at least 1 linear foot of exit area for 

every 360 birds, measured across the 

base of the exit, but no less than one 

linear foot of exit area for flocks with 

fewer than 360 birds. Exit areas must be 

appropriately distributed and sized to 

ensure that all birds have ready access 

to the outdoors; 

(i) If exit areas are not provided at a 

ratio of at least 1 linear foot per 360 

birds, a certifier may approve practices 

that provide less than 1 linear feet per 

360 birds only if an operation describes 

its practices (in the organic system plan) 

and demonstrates that ready access to 

the outdoors is provided for all birds; 

(ii) 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. 

Floors in slatted/mesh floor housing 

cannot be counted as perch space. 

(6) All birds must have access to areas 

in the house that allow for scratching 

and dust bathing, except, that mobile 

housing may meet this requirement 

when paired with outdoor space that 

provides birds with areas for scratching 

and dust bathing. Litter must be 

provided and maintained in a dry 

condition in the house. 

(7) Non-mobile houses with slatted/ 

mesh floors must have 15 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 meet one or both 

of the following rates, expressed in 

different terms. 

(i) Mobile housing: not to exceed 4.5 

pounds per square foot; or, alternatively, 

a rate of at least 1.5 square feet per bird 

will comply with the requirement. 

(ii) Aviary housing: not to exceed 4.5 

pounds per square foot; or, alternatively, 

a rate of at least 1.5 square feet per bird 

will comply with the requirement. 

(iii) Slatted/mesh floor housing: not to 

exceed 3.75 pounds per square foot; or, 

alternatively, a rate of at least 1.8 square 

feet per bird will comply with the 

requirement. 

(iv) Floor litter housing: not to exceed 

3.0 pounds per square foot; or, 

alternatively, a rate of at least 2.2 square 

feet per bird will comply with the 

requirement. 

(v) Other housing: not to exceed 2.25 

pounds per square foot; or, alternatively, 

a rate of at least 3.0 square feet per bird 

will comply with the requirement. 

(9) For pullets (Gallus gallus), indoor 

stocking density must not exceed 3.0 


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pounds of bird per square foot; or, 

alternatively, a rate of at least 1.7 square 

feet per bird will comply with the 

requirement. 

(10) For broilers (Gallus gallus), 

indoor stocking density must not exceed 

5.0 pounds of bird per square foot; or, 

alternatively, a rate of at least 2.0 square 

feet per bird will comply with the 

requirement. 

(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 paragraph 

(d) of this section. 

(2) At least 75 percent of outdoor 

space must be soil. Outdoor space with 

soil must include 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; or, 

alternatively, a rate of at least 3.0 square 

feet per bird will comply with the 

requirement. 

(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; or, 

alternatively, a rate of at least 1.7 square 

feet per bird will comply with the 

requirement. 

(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; or, 

alternatively, a rate of at least 2.0 square 

feet per bird will comply with the 

requirement. 

(7) Outdoor space may include 

structures that are not enclosed (e.g., 

with roof but no walls) 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 32 

degrees F or above 90 degrees F. 

(2) The animal’s stage of life, 

including: 

(i) The first 4 weeks of life for broilers 

(Gallus gallus); 

(ii) The first 16 weeks of life for 

pullets (Gallus gallus); and 

(iii) Until fully feathered for bird 

species other than Gallus gallus. 

(3) Conditions under which the 

health, safety, or well-being of the 

animal could be jeopardized. 

(4) Risk to soil or water quality. 

(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 for nest 

box training 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 areas in a manner that does not 

put soil or water quality at risk. 

■ 6. Add § 205.242 to read as follows: 

§ 205.242 Transport and slaughter. 

(a) Transportation. (1) Certified 

organic livestock must be clearly 

identified as organic, and this identity 

must be traceable for the duration of 

transport. 

(2) All livestock must be fit for 

transport to buyers, auction or slaughter 

facilities. 

(i) Calves must have a dry navel cord 

and be able to stand and walk without 

human assistance. 

(ii) Seriously crippled and nonambulatory 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) During any transport and prior to 

slaughter, bedding must be provided on 

trailer floors and in holding pens, as 

needed, to keep livestock clean, dry, 

and comfortable. Use of bedding must 

be appropriate to the species and type 

of transport. Bedding is not required in 

poultry crates. When roughages are used 

for bedding, they must be certified 

organic. 

(5) For transport that exceeds eight 

hours, measured from the time all 

animals are loaded onto a vehicle until 

the vehicle arrives at its final 

destination, the operation must describe 

how organic management and animal 

welfare will be maintained. 

(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 


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Federal Register / Vol. 88, No. 211 / Thursday, November 2, 2023 / Rules and Regulations 75449 

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 applicable FSIS 

Directives. 

(2) Producers and handlers who 

slaughter organic poultry must provide 

all noncompliance records related to the 

use of good commercial 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 religious slaughter; and 

(iii) All birds must be irreversibly 

insensible prior to being placed in the 

scalding tank. 

■ 7. Add § 205.691 to read as follows: 

§ 205.691 Severability. 

If any provision of any subpart is 

declared invalid or the applicability 

thereof to any person or circumstance is 

held invalid, the validity of the 

remainder of any subpart or the 

applicability thereof to other persons or 

circumstances shall not be affected 

thereby. 

Erin Morris, 

Associate Administrator, Agricultural 

Marketing Service. 

[FR Doc. 2023–23726 Filed 11–1–23; 8:45 am] 

BILLING CODE 3410–02–P 


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