Background

The OLPS Rule¹ is the result of several years of regulatory flip-flopping. A previous version of the OLPS Rule was published on the last day of the Obama Administration² only to be delayed several times and eventually withdrawn by the Trump Administration on the grounds that the administration did not view itself as having the authority to mandate animal welfare practices under the Organic Foods Production Act (OFPA).³ In issuing the current rule, USDA explained that it now believes it does have such authority.⁴

The OLPS Rule follows USDA’s Strengthening Organic Enforcement Final Rule (SOE Rule) that was issued earlier this year and for which compliance is required by March 19, 2024. The SOE Rule is the NOP’s most significant update to the organic regulations since the OFPA was implemented, and is expected to mark a significant increase in oversight and enforcement authority of the NOP.⁵ The OLPS Rule likewise marks a significant expansion to NOP requirements for livestock production.

Summary of Changes

The OLPS Rule amends the existing NOP regulations in 7 C.F.R. Part 205 by adding more specific requirements pertaining to the care of organic livestock. Livestock that can be certified organic under the NOP 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 production of other agricultural products (e.g., feed, fiber). We highlight below key changes implemented by the OLPS Rule:

• Physical Alteration Practices: The rule prohibits the following physical alteration practices and adds definitions for several terms: de-beaking, de-snooding, caponization, toe clipping in chickens and turkeys in certain instances, beak trimming in certain instances, tail docking of cattle, wattling of cattle, face branding of cattle, tail docking of sheep in certain instances, and mulesing of sheep. The rule maintains that physical alterations are only permitted for identification and safety purposes, and they must be performed at a young age in a manner that minimizes pain and stress.
• Preventative Health Care Practices: Organic producers must establish and maintain preventative health care practices, including developing a plan to minimize internal parasite problems in organic livestock and a plan to monitor and treat lameness in animals. A new provision also notes that livestock producers must identify and record treatment of sick and injured animals in health records.
• Avian Living Conditions: A major change in the rule specifies that the NOP’s existing livestock living condition standards are unique to mammalian species and adds a new living conditions section specific to poultry, which includes indoor and outdoor space requirements. USDA asserts that these changes are needed to meet consumers' expectations of organic animal-raising practices and provide a uniform approach for producers to implement, eliminating ambiguity in the previous standards. These requirements include, but are not limited to:
  • Conditions on space allowances, noting that indoor housing must “allow all birds to move freely, stretch both wings simultaneously, stand normally, and engage in natural behaviors.”⁶ The rule also provides specifics on perch space for layers.
  • Requirements for ammonia monitoring indoors; ammonia levels must not exceed 25 ppm.
  • Indoor stocking density must be at minimum between 2.25 and 4.5 pounds per square foot for layers, depending on the type of housing, 3.0 pounds per square foot for pullets, and 5.0 pounds per square foot per broilers.
  • Outdoor stocking density must be at least 2.25 pounds per square foot for layers, 3 pounds per square foot for pullets, and 5 pounds per square foot for broilers.
  • Housing must provide sufficient exit areas for birds to access the outdoors.
  • Outdoor space must be at least 75% soil, prohibiting producers from only providing outdoor concrete pads, commonly called “porches.”

The avian rules also provide that organic poultry operations must manage manure in a way that does not contaminate crops, soil, or water.

• Transport of animals: The rule creates a new section adding requirements for the transport of organic livestock to sale or slaughter, noting that certified organic livestock must be clearly identified as organic and traceable for the duration of transport. For transport lasting longer than eight hours, entities must explain how organic management and animal welfare requirements will be maintained throughout. In all instances, the entity responsible for overseeing the transport of livestock must maintain records showing that transport times “are not detrimental to the welfare of the animals” and otherwise meet the requirements of the NOP’s regulations. Accordingly, the mode of transport must protect livestock from cold or heat as appropriate.
• Euthanasia: The Rule clarifies that euthanizing an animal is only permitted to minimize its pain and suffering when no other treatments are available, including treatments that would disqualify the animal from organic status. In addition, organic operations must have written plans for prompt, humane euthanasia in relation to its use for sick or injured livestock.
• Slaughter: The rule adds a new section regarding slaughter, which clarifies that operations must adhere to USDA Food Safety and Inspection Service (FSIS) humane slaughter standards. The new provisions also provide specific requirements for operations that may be exempt from the requirements of the Poultry Products Inspection Act and slaughter organic poultry.

Effective Dates

The OLPS Rule takes effect on January 2, 2024. Industry must comply by January 2, 2025, with the following extended compliance timelines for certain requirements:

• Layer operations that obtain organic certification before January 2, 2025 (including currently certified layer operations) have until January 2, 2029, to comply with the associated outdoor stocking density requirements and soil and vegetation requirements (new 7 CFR §§ 205.241(c)(2), (c)(4), and (c)(5)).
• Broiler operations that obtain organic certification before January 2, 2025 (including currently certified layer operations) have until January 5, 2029, to comply with the associated outdoor stocking density requirements and soil and vegetation requirements (new 7 CFR §§ 205.241(b)(10), (c)(2), and (c)(6)).
• All poultry operations that obtain organic certification before January 2, 2025 (including currently certified operations) have until January 2, 2029, to comply with the provisions regarding poultry house exit area requirements (new 7 CFR 205.241(b)(4)).

Looking Ahead

The OLPS Rule and the SOE Rule both indicate the NOP is working to align NOP standards and enforcement with consumer expectations and strengthen oversight of the NOP’s regulations. We are available to assist with questions regarding both rules.

References

1 88 Fed. Reg. 75394 (Nov. 2, 2023); see USDA Publishes New Standards for Organic Livestock and Poultry Production, Promotes More Competitive Organic Market, USDA Press Release (Oct. 25, 2023), https://www.usda.gov/media/press-releases/2023/10/25/usda-publishes-new-standards-organic-livestock-and-poultry.

2 Organic Livestock and Poultry Practices Final Rule, 82 Fed. Reg 7042 (Jan. 19, 2017).

3  Organic Livestock and Poultry Practices Final Rule Withdrawal, 83 Fed. Reg. 10775 (March 13, 2018).

4 88 Fed. Reg. 75394, 75397 (Nov. 2, 2023) (“USDA now disagrees with the rationale and narrow textual reading in the [Trump administration 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 . . . .”).

5  Our summary of the SOE Rule can be found here.

6 7 CFR § 205.241(b)(1).