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By Ed Maltby, Executive Director, NODPA
The Organic Livestock and Poultry Standards Proposed Rule (OLPS) was published on August 9, 2022. According to the proposed rule language, it “will provide clarity for the production of organic livestock and poultry, consistent with recommendations provided by USDA’s Office of Inspector General and nine separate recommendations from the National Organic Standards Board, (NOSB).” A recent history of this Proposed Rule is that it is based on the Organic Livestock and Poultry Practices final rule (OLPP Rule) published on January 19, 2017. The USDA decided to delay implementation of the Final Rule to allow the new administration to review the Rule.
On December 18, 2017, USDA withdrew the OLPP Final Rule “because of its emergent view that the agency lacked the legal authority for the rulemaking, substantive errors in the economic analysis for the rule, and a lack of market failure (82 FR 59988).” On March 13, 2018, AMS published a final rule (Withdraw Rule) withdrawing the OLPP Rule for the reasons stated above (83 FR 10775). The decade of work by producers, consumers and the organic community in building consensus that went into the regulation was ignored by the Trump administration at a cost to the strength and integrity of the organic seal. Lawsuits, a change in administration, advocacy from the organic community, and recognition that USDA AMS analysis was flawed, brought a change in direction from USDA. In June 2021, Secretary Vilsack announced that he had redirected NOP to begin rulemaking 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.’’
The Organic industry has been lagging behind the different states’ ballot propositions and conventional livestock groups that have published Animal Welfare Standards for different ruminants, non-ruminants and poultry. The Humane Society, Animal Welfare Approved and other organizations have been critical of the lack of livestock welfare standards mandated by organic regulations, plus the lack of consistency in application of existing regulation, especially with poultry. Organic producers are forced to pay for increased inspection from other labels to meet the consumer standards being demanded by their buyers. Most organic livestock and poultry operations currently meet or exceed the OLPS, with a few very large operations that do not.
The proposed 15-year avian outdoor access implementation for existing operations is excessive and undermines the very fabric of organic integrity. What do we tell consumers that these operations are not organic by regulation but will be in 15 years? We have had the same problem with access to pasture in organic dairy and origin of livestock with the varying conditions and standards that creates confusion and force consumers to rely on unofficial surveys to make purchases. This regulation is not new, not a surprise, and should be implemented immediately for all new operations that are starting up. A 3-year provision for existing operations should be adequate for adapting to the outdoor access. New rules are usually required to be implemented within 1 year. Organic standards should not be based on the IRS depreciation schedule or the loss of income for operations that choose not to follow the standards. The integrity of organic in the marketplace for all organic producers relies upon clear and consistent rules that all operations follow. Consumers should feel confident that organic livestock products meet the gold standard of animal welfare and environmental sustainability.
The lack of clear standards for poultry has threatened to weaken the integrity of the organic label with consumers, as the emergence of organic mega-dairies did to organic milk in 2008. Without the publication and implementation of credible standards, organic livestock will lose market share to other certifications that are not so rigorous in their accountability but clearer in their requirements that meet consumer expectations. There is also an increasing need to clarify regulations for the worldwide market since imports of organic meat and dairy have increased substantially over the last decade, and we need a level playing field for all participants.
There are only a few changes to the regulation and implementation timeframe between the OLPP and the proposed OLPS. One notable area is the clear banning of porches to be used as outside access. Porches are roofed in enclosures with screens to prevent any access to the outside. The argument about porches dates to 2002 and a court case that a Massachusetts certifier lost when they tried to de-certify an organic poultry operation. The allowance for porches has allowed many large-scale operations to exist on limited acreage and exploit the organic standards. Ending this provision will bring back the credibility of the outside access standards and the organic seal on certified egg production. The language in § 205.241(c)(7) says that porches can be used but without screens. To avoid any confusion porches should not be included in outside structures that can be used as outside access.
The other question to ask is why does the NOP want only 50% of soil for outside access for poultry without specifying what the other 50% should be? They do say at § 205.241(c)(7) that the outdoor access can be porches without screens so that the poultry can freely access other outdoor space. This leaves the option of having 50% soil and 50% lean to building with gravel or concrete floors. There is no way that poultry can adopt natural behavior on gravel or concrete or any other surface except soil. It’s like saying that a free stall barn with the sides rolled up but easy access to the outside counts as outside access, as many did up to 2010. With dairy there is a requirement for a certain percentage of diet from pasture but there is nothing similar for poultry. Put the feed and water in a ‘lean-to’ type structure and birds will have no incentive to go outside. As a compromise the building must have pasture within 40 feet of the main building is a step better than just having porches but leaves the opportunity for many loopholes. The National Organic Coalition has draft language the reads “The vegetated and soil areas cannot be more than 40 feet from the doors of the building. Gravel and concrete in the outdoor access area must be limited to areas of high usage only, such as feeding and watering areas, walkways, areas directly outside the doorways, drainage areas and driplines that receive roof runoff.”
The section of the regulation, §205.238(a)(2), requires a feed ration sufficient to meet the animal’s nutritional needs. The regulation adds ‘resulting in appropriate body condition” which is a subjective determination influenced by species, breed, stage of life, age, gender, and time of year; not to mention, inspector qualification and experience. Body scoring is a quantitative measure that does not fit particularly well in organic systems. Inspectors need to be trained to recognize conditions that are averse to the animals exhibiting their “natural behavior” and to recognize this during the times they are temporarily confined. Dairy livestock are managed in a variety of different geographic locations and under many different constraints to preserve soil and water quality. It is unrealistic to expect that all organic inspectors can be trained to conduct even the most basic condition scoring of dairy cattle, especially of those animals that are grazing rather than continuously housed. Animal welfare problems that become apparent during the inspection should be assessed by management and certifier holistically within general herd management.
Below are examples of the Rule’s lack of clarity, which make certification and enforcement almost impossible:
Organic certification is voluntary. As producers we have looked at the practical implementation of these standards at every size of operation and different geographic location, especially in terms of climate change that is altering growing conditions. Organic production is not possible everywhere and not for every farmer. Organic poultry farms may have to reduce the size of their operation to meet the organic regulations rather than compromise with easier regulations because of the fear of lawsuits and pressure from agri-business. Organic regulations need to remain the gold standard for farm to plate certification not a compromise between vested interests who have established operations.
NODPA will be providing detailed written comments on a few areas of OLPS where the wording needs to be more explicit to allow for consistent interpretation. Regulation needs to be unambiguous in reflecting intent to allow producers to implement the standard and for certifiers to provide consistent inspection standards to avoid ‘certifier’ shopping. The wording of the regulation needs to be able to withstand legal enforcement and political interference.
Comments on the Proposed Rule need to be submitted by 11:59 p.m. ET, October 11, 2022. You can use the Federal eRulemaking Portal: https://www.regulations.gov. Follow the instructions for submitting written comments. AMS strongly prefers comments be submitted electronically. However, written comments may be submitted (i.e., postmarked) via mail to Erin Healy, MPH., Director Standards Division, National Organic Program, USDA–AMS–NOP, Room 2646-So., Ag Stop0268, 1400 Independence Ave. SW, Washington, DC 20250–0268. Mailed comments must be postmarked by October 11, 2022.