On August 9, 2022 the Agricultural Marketing Service (AMS), an agency within the United States Department of Agriculture (USDA), published a proposed rule that, if finalized, will amend the organic livestock and poultry production requirements. Since the creation of the National Organic Program (NOP), these requirements have gone through many changes. This blog post will explain the history and background of the organic livestock and poultry practices (OLPP) rule and explain AMS’s proposed amendments with a focus on those that affect outdoor space for poultry.
History and Background
The National Organic Foods Productions Act (OFPA) was signed into law in 1990. The OFPA created the National Organic Standards Board (NOSB), a 15 member federal advisory committee that “considers and makes recommendations on a wide range of issues involving the production, handling, and processing of organic products.” The OFPA also directed AMS to finalize federal regulations that carry out implement the OFPA.
According to the August 9 proposed rule, “between 1994 and 2011, the NOSB made nine recommendations regarding livestock health care and welfare in organic production.” 87 Fed. Reg. 48562, 48565. Additionally, during the 1990s AMS published two proposed rules aiming to implement the OFPA. In December of 2000, AMS published the organic regulations, which established the National Organic Program (NOP). The 2000 final rule established the original regulations on livestock health care practice standards and livestock living conditions.
These original regulations required organic poultry producers to provide their birds outdoor space. However, the original rule did not specify whether covered or screened “porches” are considered outdoor space. Porches, in this context, refer to elevated areas that grant the birds access to and from poultry houses, but usually do not allow the birds access to the ground. This lack of specification led to a case where a poultry producer sought organic certification, but a third-party organic certifier denied certification due to the producer’s use of screened-in porches. See Massachusetts Independent Certification, Inc. v. Johanns, 486 F.Supp.2d 105 (D. Mass. 2007). During agency adjudication, USDA held that the use of porches was an approved organic poultry production practice. As a result of this court decision, the August 9 proposed rule states:
“[U]se 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.”
To substantiate this claim, the proposed rule points to a March 2010 USDA Office of Inspector General (OIG) audit report which found inconsistent certification practices regarding outdoor access for poultry. The OIG recommended that AMS issue guidance on what the NOP requires for outdoor access for livestock. In response, AMS published a draft guidance to help clarify what “outdoor space” means. However, the guidance was never finalized.
In 2016, AMS published a proposed OLPP rule which aimed to, among other things, clarify living conditions for mammalian and avian livestock. In response to approximately 6,600 public comments, AMS revised the proposed rule and published a final rule on January 19, 2017. However, after the Trump administration came into office, it postponed the effective date of the 2017 OLPP rule three times. AMS, on March 13, 2018, withdrew the January 2017 final rule. AMS cited that it lacked legal authority to finalize rules on organic animal welfare and that the 2017 rule contained “substantive errors in the economic analysis”. After the withdrawal rule was published, AMS’s postponements and withdrawal were challenged in court. See Organic Trade Ass’n v. United States Dep’t of agric., 17-cv-1875 (D.D.C. Mar. 30, 2022); and see Center for Environmental Health v. Vilsack, 18-cv-01763 (N.D. Cal. March 4, 2022). The Trump administration concluded in a September 17, 2020 final decision that the economic analysis in both the 2017 OLPP rule and its withdrawal rule was flawed. Therefore, under the Trump administration, AMS’s main argument against these lawsuits was that AMS did not have the legal authority to finalize the 2017 OLPP rule and did not argue the flaws in the economic analysis.
In June 2021, Secretary Vilsack announced that USDA would “reconsider the prior Administration’s interpretation that the Organic Food Production Act does not authorize USDA to regulate the practices that were the subject of the Organic Livestock and Poultry Practices rule.” The August 9 proposed rule finds that AMS does have legal authority to regulate organic “livestock and poultry health care practices and living conditions, including regulations regarding animal welfare.” Specifically, the proposed rule finds that while the OFPA “addresses specific animal production practices for the organic program, OPFA does not prohibit the Secretary from adopting additional requirements about practices used in raising organic livestock.” 87 Fed. Reg. 48562, 48569.
AMS’s Proposed Amendments
The August 9 proposed rule is almost identical to the withdrawn 2017 OLPP final rule. The August 9 proposed rule proposes to add the same definitions the 2017 OLPP rule aimed to add. Some of these terms include “indoors or indoor space” and “outdoors and outdoor space”. The 2017 OLPP rule and the proposed rule prohibit certain physical alteration procedures and require euthanasia in certain circumstances to reduce pain, suffering, and stress on animals. Like the 2017 OLPP, the August 9 proposed rule creates two separate sections for mammalian and avian livestock living conditions. AMS states this is “to better reflect the needs and behaviors of the different species, as well as related consumer expectation.” 87 Fed. Reg. 48562, 48562. The proposed rule, again like the 2017 OLPP rule, also adds a section on transport and slaughter. This section implements new requirements for transporting organically raised livestock and clarifies how organic slaughter facilities should orient their practices around the Food Safety and Inspection Service’s regulations.
Although AMS can achieve the same outcome with the August 9 proposed rule by withdrawing the withdrawal, “striking the Withdrawal Rule would force the OLPP Rule to take immediate effect.” Center for Enviro. Health. This would have caused many organic operations to instantly fall out of compliance. By publishing a proposed rule and restarting the notice and comment period, covered entities will have time to come into compliance with the OLPP regulations.
The proposed rule suggests an implementation timeframe of one year except for the indoor space requirements for broiler chicken operations and the outdoor space requirements for layers chicken operations. The proposed rule suggests a three-year implementation window for broiler chicken operations to comply with the indoor space requirements. The proposed rule offers three options for implementation timeframes for layer operations and asks for comments on which the final rule should implement.
One minor change the August 9 proposed rule aims to make, which was absent from the 2017 OLPP rule, is to clarify that layer facilities must comply with the Food and Drug Administration’s (FDA) regulations on salmonella prevention in shell eggs found in title 21, part 118 of the Code of Federal Regulations. Although FDA finalized these regulations in 2009, FDA published a guidance document to answer questions regarding this rule on August 10, 2022.
AMS’s August 9, 2022, proposed rule on the organic livestock and poultry standards is AMS’s most recent effort to update these regulations. After many administration changes and subsequent litigation, the current proposed rule is substantially similar to the withdrawn 2017 final rule. Anyone interested is welcome to comment via Regulations.gov by October 11, 2022. AMS is hosting a listening session on August 19, 2022, from 12:00 p.m. Eastern Time.
To view the federal register notice for the organic livestock and poultry practice standards proposed rule, click here.
To view the withdrawal rule that withdrew the 2017 OLPP rule, click here.
To view the 2017 OLPP rule, click here.
To learn more about the National Organic Program, visit NALC’s National Organic Program Reading Room, here.
**This article was written by former NALC Staff Attorney Jana Caracciolo.