On October 25, 2023, Secretary Vilsack announced that the Agricultural Marketing Service (“AMS”) had finalized the Organic Livestock and Poultry Standards Rule. The final rule was released in the Federal Register on November 2, 2023. According to the United States Department of Agriculture (“USDA”), the purpose of the final rule is to “clarify aspects of the existing USDA organic regulations that are not interpreted or enforced in a consistent manner” and to “better assure consumers that organic livestock products meet a consistent standard, as intended by the Organic Foods Production Act.” A proposed rule was released in 2022 and the final rule adopted many of the proposed regulations. A prior National Agricultural Law Center article discussed the National Organic Foods Productions Act, National Organic Program, and the 2022 proposed rule.
This article discusses the changes adopted in the final rule including amending livestock care and production practices, amending living conditions standards for mammalian and avian species, and adding a section related to transportation and slaughter. Current certified organic producers will be required to comply with these new regulations to remain certified. Additionally, producers seeking to become certified organic will be required to comply with these new regulations.
The definitions contained in any regulation are important because they provide context to how the words or phrases are to be understood throughout the regulatory text. This is especially true for regulations that modify certain aspects of a USDA-administered program. Accordingly, USDA adopted certain terms under the final rule to provide context to the changes being made to the organic production standards. Under the final rule, USDA added definitions of several physical alterations that are prohibited for organic producers. The prohibited physical alterations now defined in the rule include beak trimming, caponization, cattle wattling, de-beaking, de-snooding, dubbing, mulesing, and toe clipping.
The final rule added a definition of induced molting, while also clarifying that induced molting is a prohibited practice. The final rule defines induced molting as “molting that is artificially initiated…includ[ing] various methods a producer may use to induce, or force, molting in a flock, such as withdrawal of feed or manipulation of light.”
The final rule also added definitions of “indoors or indoor space” and “outdoors and outdoor space”. USDA added these definitions because, as discussed below, the new rule requires a specified amount of indoor and outdoor space for avian species. Additionally, producers must provide outdoor space for livestock and poultry. The final rule defines indoors or indoor space as “the space inside of an enclosed building or housing structure available to livestock.” Indoor spaces for avian species include mobile housing, aviary housing, slatted or mesh floor housing, and floor litter housing. The final rule defines outdoors or outdoor space as “any area outside an enclosed building or enclosed housing structure” including avian pasture pens and unenclosed shade structures. The rule clarifies that open sided free stall barns, open sided poultry houses, and poultry porches and verandas are not outdoor spaces.
The final rule adopted the definition of non-ambulatory used in the Food Safety and Inspection Service regulations – “non-ambulatory disabled livestock are livestock that cannot rise from a recumbent position or that cannot walk, including, but not limited to, those with broken appendages, severed tendons or ligaments, nerve paralysis, fractured vertebral column, or metabolic conditions.” As discussed below, non-ambulatory animals may not be transported for sale or slaughter.
Lastly, the final rule added the definitions of “mobile housing” and “pasture pens” and clarified that producers may use these types of housing, but the birds must be able to express their natural behavior.
Livestock Care and Production Practices
The final rule amends the USDA organic livestock health care practice standard. The existing standard for physical alterations only requires that the alteration be performed “as needed to promote the animal’s welfare and in a manner that minimizes pain and stress.” The final rule amends this provision to clarify that physical alterations may only be performed for identification or safety reasons and may only be performed on young animals. The final rule limits when producers may clip needle teeth and dock tails. These alterations may only be performed “in response to documented instances of harm, and only with documentation that alternative steps to prevent such harm failed.” Additionally, if a producer chooses to clip needle teeth, clipping is limited to the top third of each tooth.
USDA added a section to the livestock health care practice standard listing the prohibited physical alteration practices, some of which were discussed above. Producers may not perform any of the following physical alterations on avian species:
- Toe clipping of chickens
- Toe clipping of turkeys unless with infrared at the hatchery
- Beak clipping after ten days of age
Producers may not perform any of the following physical alterations on mammalian species:
- Tail docking of cattle
- Wattling of cattle
- Face branding of cattle
- Tail docking of sheep shorter than the distal end of the caudal fold
- Mulesing of sheep
The final rule affirms that producers may not “sell, label, or represent as organic any animal or edible product derived from any animal treated with antibiotics, any substance that contains a synthetic substance not [on the approved list], or any substance that contains a non-synthetic substance [on the prohibited list]. Instead, treatment using any of these substances requires that the animal be removed from organic status. The usage of synthetic substances, under the rule, is even further limited. Synthetic substances, included on §205.603 of the National List, are only allowed to alleviate pain or suffering, or in situations where preventative practices and veterinary biologics are inadequate to prevent sickness. Hormones, whether synthetic or non-synthetic, may not be used to promote growth or for reproductive purposes.
For lactating animals, the new rule also outlines additional requirements about the use of milk from an animal treated with §205.603 synthetic substances. During a listed withdrawal period for these substances, the milk cannot be sold, labeled, or represented as organic. However, during that time it may be used to feed organic calves on the same operation. As a reminder, the milk of animals treated with substances prohibited may not be used to feed organic livestock.
In terms of animal welfare, the final rule affirms the existing health care standard that prohibits producers from withholding treatment from an animal. USDA has clarified that if none of the listed medications ease the animal’s suffering, producers are required to treat the animal even if the animal would lose its organic status. Further, producers may not euthanize an animal to avoid utilizing an unapproved treatment. Instead, euthanasia should be used as a last resort, when approved or unapproved treatments fail. The final rule provides a list of prohibited euthanasia methods and directs producers to follow the American Veterinary Medical Association Guidelines for the Euthanasia of Animals.
The final rule separates the existing living conditions standard into two distinct sections – living conditions for mammalian species, which includes honeybees, and living conditions for avian species. USDA separated these sections because it recognizes that mammalian and avian species require different living conditions and husbandry practices.
Under the mammalian livestock standard, a requirement was added by the final rule to provide enough space in the shelter for animals to lie down, stand up, and fully stretch their limbs and allow animals to express normal behavioral patterns over a 24-hour period. This change is consistent with state animal confinement laws enacted recently. Additionally, the final rule outlines when animals may be housed individually or must be housed in groups. Dairy calves may now only be housed individually until the weaning process is completed as long as the individual pens meet the requirements in the rule. Additionally, swine must be housed in groups with a few limited exceptions for boars and aggressive animals, and while farrowing and suckling. However, gestation and farrowing crates are prohibited. Further, the final rule clarifies that animals may be temporarily confined for breeding, but they may not be confined to observe estrus or to confirm pregnancy.
The new avian living condition standard applies to chickens, turkeys, geese, quail, pheasants, and any other bird species raised for organic eggs, meat, or agricultural products. The final rule describes the requirements for indoor and outdoor spaces and prohibits total confinement of poultry indoors. USDA provided producers with two ways to calculate the amount of indoor and outdoor space needed for their operations. The first option for calculating space allows producers to provide a specified amount of space per amount of live bird weight, which requires producers to know the live weights of their birds. The second option allows producers to provide a specified amount of space per individual bird, which requires producers to know how many birds they have. The space requirements are outlined in the final rule and differ depending on whether the space is indoors or outdoors and whether the bird is a layer, pullet, or broiler. Similar to the mammalian standard, the avian standard provides a list of circumstances that allow for temporary confinement of birds.
Transportation and Slaughter
The final rule adds a section regulating transportation and slaughter of organic animals. According to AMS “[the] care of livestock is relevant up to the time of slaughter and some practices during transport and/or slaughter should affect an animal’s organic certification.”
Producers are required to ensure organic animals are clearly identified as organic during transport and the identity must be able to be traced for the duration of transport. Organic producers are required to keep records of organic animals and tracing their identity throughout transport, reinforces this requirement. Animals must be fit for transport while being transported from the farm to buyers and auction and slaughter facilities. Additionally, producers cannot transport calves that do not have a dry navel or cannot stand or walk without assistance or animals that are seriously crippled or non-ambulatory. The new section requires modes of transportation to have season-appropriate ventilation and bedding appropriate for the species and mode of transportation. Bedding is not required in poultry crates. Lastly, the rule requires procedures in place to address maintaining organic certification and animal welfare for trips exceeding eight hours, and to address emergency problems like escaping livestock.
The new mammalian and avian slaughter sections reiterate that organic producers must follow all Food Safety Inspection Service laws, regulations, and directives. The new rule separates regulations for mammalian and avian slaughter. The mammalian slaughter regulations apply to livestock and exotic species. The avian slaughter regulations apply to all species considered avian or birds. Both sections require producers or handlers who receive noncompliance notices related to humane handling and slaughter to provide those notices to organic certifying agents during inspections or upon request. Producers or handlers must also provide all records of corrective actions. It is important for producers to provide certifying agents with corrective actions because certifying agents can revoke a facility’s organic certification if corrective action is not taken. Some poultry producers are exempt from the Poultry Products Inspection Act and the final rule outlines the slaughter requirements for these organic poultry producers.
Most operations must comply with the new requirements within one year of the effective date of the final rule, which is January 2, 2024. However, there are limited exceptions for specified operations that are already certified or certified within one year of the effective date. Broiler operations will receive an additional four years to comply with the indoor and outdoor stocking density requirements and soil and vegetation outside requirements. Layer operations will receive an additional four years to comply with stocking density, soil, and vegetation outdoor requirements. Avian operations will receive an additional four years to comply with exit area requirements.
To read the final rule, click here.
To read the prior NALC article discussing the proposed rule, click here.
For more NALC resources on the National Organic Program, click here.