On April 7, 2016, USDA posted a proposed rule — the Organic Livestock and Poultry Practices (OLPP) Rule — to clarify existing federal organic regulations re-lated to animal welfare standards. The rule was published in the Federal Register on April 13, and the comment period closed on July 13. The department is now evaluating those comments and will likely publish a final rule in the next few months.
This rulemaking was based on a 2011 National Organic Standards Board (NOSB) recommendation, which sets standards for indoor and outdoor space require-ments for organic poultry and livestock, and adds definitions to which practices are allowed and prohibited under organic regulations.
Key Changes to Current Regulations in the Proposed Rule
The detailed list of the proposed changes from the Federal Register is printed in this issue of The Natural Farmer, but a short summary is:
• Distinct welfare provisions are provided for mammalian and avian liverstock
• Outdoor access for poultry cannot have a solid roof overhead
• Outdoor space requirements for poultry must be less than 2.25 poinds of hen per square foot of outdoor space
• Outdoor space must have 50% soil cover
• Indoor space requirements for poultry must be less than 2.25 pounds of hen per square foot of indoor space (allowances up to 4.5 pounds per square
foot are made for pasture-based and aviary-stype production systems)
• Further clarity is given on justifications for confinement indoors for livestock and poultry
• Further clarity is proviced on physical alterations that are allowed and prohibited
• Proposed implementation timeline following the issuance of a final rule is: 1 year for all new organic operations; 3 years for new livestock housing construction; 5 years for all certified operations to be in full compliance
These USDA’s proposed rules have been a long time coming. In 2002, when the National Organic Program (NOP) was finally established, the NOSB, a committee that includes farmers, processors, retailers, and environmentalists, overwhelmingly approved recommendations specifically stating that “bare surfaces other than soil (e.g. metal, concrete, wood) do not meet the intent of the National Organic Standards.”
But that wasn’t binding—it had the legal effect of a suggestion. Thus the 2011 NOSB clarifications, after years of debate and input from stakeholders, in which the board put more specific recommendations that would guarantee the hens a minimum of 2 square feet each, both inside and outside, and access to soil.
After considering all these concerns, the USDA finally presented the rule to the public last spring.
In the fourteen years since the NOP was established, tremendous changes have taken place in the marketplace. Growing at double digits the whole time, the US organic food market is now at $39 billion per year, over four times as large as it was when the NOP was established. During that time, more and more organic production has gone into packaged, processed products. These products, in turn, have been increasingly produced by large companies — many of which are divisions of, or wholly owned by, some of the largest corporations in the country.
Many of the recipes for these processed products are dependent upon eggs. Even though it still makes up just a tiny fraction of the overall egg market, the growth in organic egg sales has been nothing short of explosive. From 2014 to 2015, when total egg sales in the U.S. were down 1.1 percent, organic egg sales increased an astonishing 119.8 percent.
Up to now processors have been able to purchase organic eggs from very large suppliers (one hates to call them “farmers”) with 100,000 or more layers. But growers at that scale cannot realistically give their birds access to soil. The amount of land they would be required to own to physically do so would be uneconomical, without even figuring the costs of security, food and water delivery, manure management, and personnel.
While an estimated ninety-five percent of organic egg producers are already following the proposed rules, according to the Organic Trade Association (OTA), the 5 percent who haven’t been following the USDA’s lead just happen to sell one in four organic eggs on the market.
How have they been able to remain certified when the current standards call for “access to outdoors”?
“We wrote ‘access to outdoors,’ but somehow the words we tried weren’t clear enough,” said George Siemon, chief executive of Organic Valley, the largest U.S. cooperative of organic farmers, with more than 1,800 members producing dairy, eggs, and produce and a key advocate of the 1990 Organic Food Production Act. “We’ve had a bunch of people start up egg houses that have a little screened porch,” he said. “We had nothing like that in mind.”
Right from the beginning of the NOP, in the fall of 2002, The Country Hen, a Hubbardston, Massachusetts egg producer, was turned down for organic certification by the NOFA/Mass certification program. The program recognized that the company’s 5 acre operation was not large enough to provide out-door access for their thousands of layers.
Owner George Bass, unwilling to be so easily deterred, immediately called Washington, set up a meeting with Richard Mathews, the NOP head at the time, and emerged from that meeting the next day with a ruling that porches would meet the outdoor requirement.
Although the NOFA/Mass certification program still refused to back down and the matter was ultimately settled by a lawsuit (in which the judge ruled the USDA had the ultimate authority to waive it’s own rules), other large egg producers quickly adopted the screened porch approach. These were usually on pavement, under a roof, and without a large enough door or floor space to admit many birds at a time.
The new rules by the U.S. Department of Agriculture finally eliminate this option, specifying that outdoor access must include soil (as opposed to asphalt), open air without a roof, and no more than 2.25 pounds of bird for every square foot of outdoor space.
It is understandable that the egg producers who have used this “porch” waiver to the rules are now up in arms. The changes they must make to their op-erations to accommodate these new rules will be expensive. That is why organic eggs raised in a truly pasture-based or free range system, which is possible on smaller farms, sell for $5 a dozen and up. The care and management to maintain such a system is not cheap.
In addition to having to pay more for organic eggs, processors might find that suppliers of such eggs may not as easily produce to the volume and timing standards required for industrial food production.
Industrial organic egg production, a strange phrasing if ever there was one, has been well documented by Cornucopia Institute, an organic watchdog which released the second edition of its report, Scrambled Eggs, last December. It points to such producers as Herbruck’s Poultry Ranch as an example of inadequate outdoor access.
Greg Herbruck, executive vice president of the company, stands by their housing system. “A porch is an approved method, approved by the USDA and National Organic Program,” he said. “We have been certified every year.” His company’s Green Meadow site in Saranac, Mich., will eventually house 2 million hens in 18 houses and currently holds about 1.7 million to 1.8 million hens.
Herbruck also appears to be one of the largest of the industrial organic egg producers in the country, saying his company alone has at one point or another produced almost 20 percent of all organic eggs sold in the U.S.
Herbruck has been in Washington raising concerns about the rule. He says that 70 percent of organic egg production would have significant trouble meet-ing the regulations and that his 2-million-hen operation doesn’t have enough land to meet the requirement. He also argues that his hens, if living outside, would be exposed to diseases and predators.
In his comments to the NOSB he says: “We fear these changes will limit consumer access to organic products rather than encourage growth of the organic market.” The requirements for soil-based, uncovered living areas, he said, both “assaults hen health” and “greatly increase[s] the risk to public health.” Similar concerns were raised in 2010 by a group of commercial-size egg farms, including Herbruck’s, as well as Cal-Maine Foods, Kreher’s Farm Fresh Eggs, and Oakdell Egg Farms.
Even though the early Congressional opposition to the changes through an appropriation rider did not pass, there are still plenty of opportunities for Congress to throw a monkey wrench into the mix. Rumors of them abound and the financial interests at stake are significant. We probably have not heard the end of the lobbyists’ complaints about how these are too burdensome!
Opponents of the Agriculture Department’s organic animal welfare proposal also have allies among state veterinarians. In comments filed on the rule the National Assembly of State Animal Health Officials and several individual state veterinarians say “outdoor access” provisions would undermine biosecuri-ty instructions that the USDA gave to poultry producers after the avian influenza outbreak last year, as well as FDA requirements for preventing salmo-nella. The USDA in the proposal acknowledges that direct outdoor exposure and contact with wild birds and animals is a known risk, wrote Susan Keller, president of the NASAHO. “It must be questioned whether this proposal emphasizes marketing above poultry health, and if so, whether the risk to the entire national poultry industry has been considered.”
While it’s the impact on the egg industry that has drawn the loudest complaints, the opposition to the new standards isn’t just about eggs. The proposed update includes stricter requirements for the production of poultry, beef, pork, and dairy as well. Some groups representing these industries, including the National Cattleman’s Beef Association and the National Pork Producers’ Council, filed requests for more time.
“We have not been a part of this process in the past and have requested additional time to review the standards being put forward,” an NCBA spokesper-son said.
The rule’s supporters saw this as an election-year attempt to get it kicked down the road to the new administration, which may be less friendly to organic farmers. While the proposed regulation would have a direct impact on organic beef and pork farmers, that’s not what these concerns are about, said An-drew deCoriolis of Farm Forward. “Those industries are not worried about the small percent of organic operators they represent,” he said. “They are more concerned with having [animal welfare] standards be part of a federal livestock program.”
Some in the organic food sector, meanwhile, were embroiled in a furious lobbying battle over a possible amendment to block or weaken the proposed new regulations. Shortly after the proposals were released, a one-page rider was slipped into a congressional appropriations bill. Although it was ultimately defeated, it would have eliminated all funding for the stricter new rule.
It said funding can’t be used “to write, prepare, or publish” the final rule on organic animal welfare, or “to implement or enforce the proposed rule” pending an independent economic assessment.
“This sort of rider is not that uncommon with rulemaking,” said Cary Coglianese, a law professor at the University of Pennsylvania and director of the Penn Program on Regulation.
The USDA, for its part, stood by its embattled proposal. “Strengthening standards for organic livestock and poultry will ensure that we meet consumers’ demand for transparency and integrity,” the agency said in a statement. “The proposed rule meets the recommendations of the National Organic Stand-ards Board and USDA’s own Inspector General, setting needed standards for organic animals … and establishing a level playing field for all producers.”
Charges that producers cannot afford the new standards are disputed by proponents of the new rules. “Producing food that meets the USDA Organic label is a choice for farmers. And consumers who choose to buy certified organic foods want that label to mean something. If any producers choose not to up-date their production practices to fall in line with the proposed Organic Livestock and Poultry Practices, there are numerous farmers eager to fill any gap in supply that may occur with some producers exiting the organic market,” says the Organic Trade Association.
As for the risk to public health, OTA’s Senior Crop and Livestock Specialist Nate Lewis points out that the Animal and Plant Health Inspection Service has reviewed the proposed rule and concluded that there wouldn’t be a negative impact on biosecurity related to avian flu or other poultry diseases.
Animal welfare groups also see the new rule as an improvement, though they would like provisions on pain relief for dehorning animals and space re-quirements for pigs, among other things. Farm Forward, the ASPCA, and the Animal Welfare Institute, for example, have all expressed their support. “No system is perfect,” said Suzanne McMillan, content director of ASPCA’s farm animal welfare campaign. “[But] the rules are a significant leap for-ward for animal welfare.”
A number of other farm groups also support the rule. During the scare about the Appropriations rider, the National Farmers Union and 36 other farm, consumer and industry groups sent a letter to the committee urging the senators to leave the rule alone. The rule “will provide certainty about what pro-cedures are allowed under the organic program … and maintain the integrity of the organic seal,” the groups say.
The Organic Trade Association was actively involved in fashioning and pushing for the rule, both behind the scenes and in public action alerts and letters to members.
During the concern about a blocking rider in congress, the group developed a “Don’t Play Chicken with Organic” slogan that brought it a lot of attention. It pointed out the voluntary nature of organic certification, reviewed the long study period taken to deliberate on new standards, and concluded that strong welfare standards are critical to preserving trust in the organic label.
In response to USDA’s request for comments, OTA convened a task force to analyze the proposed rule. The mandate of the task force was to assist OTA in developing comments to USDA-NOP on the rule that would reflect the current perspectives of the organic livestock sector. The focus of the task force was to ensure that the specifics within the proposed rule accurately reflect NOSB recommendations, lent themselves to consistent implementation and en-forcement by Accredited Certifying Agencies and USDA, and leveled the playing field for organic livestock and poultry producers across the nation. Over the course of the spring and summer task force subcommittees comprised of organic livestock operators representing eggs, broilers, beef, dairy, and swine, along with accredited certifiers, have met and discussed the proposed revisions and their impact on the organic sector.
Most of the smaller organic farmers were represented in this process by their own groups, such as the NOFAs, which in turn were members of, or actively consulted by, the National Organic Coalition (NOC). NOC ultimately called for support for the rule and suggested several amendments to make it strong-er, such as requiring that the 50% of poultry outdoor space which must be soil but also be covered in green vegetation and requiring more outdoor space for layers than the suggested level of 2.25 pounds of bird per square foot.
An article by NOC executive director Abby Youngblood is being printed in this issue for those interested in their position.