[Federal Register Volume 82, Number 218 (Tuesday, November 14, 2017)]
[Rules and Regulations]
[Pages 52643-52644]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-24675]



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 Rules and Regulations
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  Federal Register / Vol. 82, No. 218 / Tuesday, November 14, 2017 / 
Rules and Regulations  

[[Page 52643]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 205

[Doc. No. AMS-NOP-15-0012; NOP-15-06]
RIN 0581-AD74


National Organic Program (NOP); Organic Livestock and Poultry 
Practices

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Final rule; delay of effective date.

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SUMMARY: The United States Department of Agriculture's Agricultural 
Marketing Service (AMS) is delaying the effective date of the Organic 
Livestock and Poultry Practices final rule published in the Federal 
Register on January 19, 2017 (OLPP final rule), until May 14, 2018.

DATES: As of November 9, 2017, the effective date of the final rule 
published on January 19, 2017 (82 FR 7042), delayed on February 9, 2017 
(82 FR 9967), further delayed on May 10, 2017 (82 FR 21677), is further 
delayed until May 14, 2018.

FOR FURTHER INFORMATION CONTACT: Paul Lewis, Ph.D., Director, Standards 
Division. Telephone: (202) 720-3252; Fax: (202) 260-9151.

SUPPLEMENTARY INFORMATION: The OLPP final rule amends the organic 
livestock and poultry production requirements of the USDA organic 
regulations by adding new provisions for livestock handling and 
transport for slaughter and avian living conditions; and expands and 
clarifies existing requirements covering livestock care and production 
practices and mammalian living conditions. The rule finalized a 
proposed rule that AMS published in the Federal Register on April 13, 
2016 (81 FR 21955). The OLPP final rule was scheduled to become 
effective on March 20, 2017. Consistent with the memorandum of January 
20, 2017, to the heads of executive departments and agencies from the 
Assistant to the President and Chief of Staff, entitled, ``Regulatory 
Freeze Pending Review,'' on February 9, 2017, AMS delayed the effective 
date of the OLPP final rule until May 19, 2017.
    Because significant policy and legal issues addressed within the 
final rule warranted further review by USDA, AMS delayed the effective 
date by an additional 180 days from May 19, 2017 to November 14, 2017. 
In addition, AMS published a notice of proposed rulemaking (NPRM) that 
solicited public comments on the direction that USDA should take with 
respect to the rule. The NPRM presented four options for agency action: 
``Option 1: Implement,'' allowing the Organic Livestock and Poultry 
Practices final rule to take effect on November 14, 2017; ``Option 2: 
Suspend,'' suspending the Organic Livestock and Poultry Practices final 
rule indefinitely; ``Option 3: Delay,'' delaying the Organic Livestock 
and Poultry Practices final rule's effective date beyond November 14, 
2017; and ``Option 4: Withdraw,'' withdrawing the Organic Livestock and 
Poultry Practices final rule. The 30-day public comment period closed 
on June 9, 2017.
    AMS received over 47,000 comments on the four options for agency 
action. Over 40,000 of commenters, including over 34,600 submitted as 
form letters, supported ``Option 1: Implement''; twenty-eight other 
commenters supported ``Option 4: Withdraw''; a few chose ``Option 2: 
Suspend''; and only one chose ``Option 3: Delay.'' The remaining 
commenters did not indicate a clear preference.
    Most commenters supporting ``Option 1: Implement'' expressed 
concern animals would be harmed if USDA did otherwise. Some said 
consumers expect animal welfare to be a part of organic certification 
and consumers are concerned about humane transport and slaughter 
procedures. Noting the inclusive nature of the rule development 
process, these commenters advocated for clear, consistent standards so 
that organic farmers would be on a ``level playing field.'' Others said 
they believed ``Option 1: Implement'' would strengthen USDA's organic 
seal broadly and benefit organic farmers.
    Commenters supporting ``Option 2: Suspend'' included veterinarians 
and farmers, and commenters supporting ``Option 4: Withdraw'' included 
organic producers and trade associations. These commenters gave similar 
reasons for their positions, including the economic costs and 
regulatory compliance burdens; increased consumer prices and reduced 
availability of organic eggs; biosecurity and food safety risks; and 
potentially higher avian mortality rates. Some commenters stated that 
the Organic Livestock and Poultry Practices final rule is unnecessary 
because current regulations are sufficient and the final rule is 
outside the scope of the NOP's authority and role. Others noted the 
significant investment costs in land and facilities that would be 
required to implement the poultry space and outdoor access 
requirements, making business unsustainable for many organic farmers. 
This final rule adopts Option 3: Delay, so that important questions 
regarding USDA's statutory authority to promulgate the OLPP rule and 
the likely costs and benefits of that rule, can be more fully assessed 
through the notice and comment process prior to AMS making a final 
decision on whether the OLPP final rule should take effect.
    The Organic Livestock and Poultry Practices final rule consisted, 
in large part, of rules clarifying how producers and handlers 
participating in the National Organic Program must treat livestock and 
poultry to ensure their wellbeing. (82 FR 7042.) Although animal 
welfare is an important USDA priority, AMS believes that OFPA's 
reference to additional regulatory standards ``for the care'' of 
organically produced livestock is limited to health care practices 
similar to those specified by Congress in the statute, rather than as 
reflecting a stand-alone concern for animal welfare. AMS intends to 
seek public comment on this interpretation.
    AMS also is concerned that the Organic Livestock and Poultry 
Practices final rule is not consistent with USDA regulatory policy 
principles, including those expressed in Executive Orders 12866 and 
13563, because the requirements in that rule may not represent the most 
innovative and least burdensome tools for achieving regulatory ends; 
may impose costs that are not justified by the potential benefits; and 
may not reasonably be tethered to OFPA's statutory text, nature, and 
purpose. AMS intends to seek public comment on these questions. Of 
note, during the course of

[[Page 52644]]

reviewing the rulemaking record for the OLPP final rule, AMS discovered 
a significant, material error in the mathematical calculation of the 
benefits estimates. With the material error, the regulatory impact 
analysis presented costs and benefits in a table that could be 
reasonably interpreted to conclude that benefits were likely to exceed 
the costs. (82 FR 7083-82 FR 7084.) However, AMS believes that the 
regulatory impact analysis' calculation of benefits was flawed because 
the incorrect calculation was applied for the 3 percent and 7 percent 
discount rates. Re-analysis using the correct mathematical calculations 
suggests that this error was material. It is not appropriate for AMS to 
allow a final rule to become effective based on a record containing 
such a material error. AMS intends to seek public comment on the 
revised calculation of benefits.
    Due to these significant concerns regarding statutory authority 
for, and costs and benefits of, the OLPP rule, including the question 
whether the OLPP final rule was based on a mathematically flawed 
assessment of benefits, AMS is selecting Option 3: Delay. AMS is 
issuing this final rule to further delay the effective date for until 
May 14, 2018 to allow for AMS to issue another notice of proposed 
rulemaking to receive comments on USDA statutory authority under the 
OFPA to regulate animal welfare; the likely costs and benefits of the 
OLPP rule viewed in terms of the statutory objectives of the OPFA, as 
interpreted above; whether the OLPP rule's requirements represent the 
most innovate and least burdensome way to achieve regulatory ends; and 
the revised calculations and analysis of the benefits of the OLPP rule. 
This delay will provide additional time for AMS to solicit comment on 
these important issues and review all the comments prior to making a 
final decision on the direction of the OLPP final rule.
    To preserve the status quo rather than allow an expansive set of 
new requirements to become effective only to be delayed, suspended, or 
withdrawn a short time later and to allow AMS to receive and consider 
comments on the issues discussed above, this final rule action is 
effective upon publication because AMS believes that the 30-day delay 
is impracticable, unnecessary, and contrary to the public interest. 
When agencies establish good cause for an immediate effective date, 
Congress intended that, combined with unavoidable time limitations, 
``the primary consideration was to be the `convenience or necessity of 
the people affected.' '' United States v. Gavrilovic, 551 F.2d 1099, 
1104 (8th Cir. 1977) (citing S.Rep.No.752, 79th Cong., 1st Sess. 15 
(1946); H.R.Rep.No.1980, 79th Cong., 2d Sess. 25 (1946)). Ordinarily, 
the thirty-day waiting period gives stakeholders and the public a 
reasonable time to adjust behavior. Omnipoint Corp. v. F.C.C., 78 F.3d 
620, 630 (D.C. Cir. 1996). In this case, however, a thirty-day waiting 
period would require stakeholders to begin changing their behavior to 
comply with the OLPP final rule, when that rule may be delayed, 
suspended, or withdrawn after the agency has completed review of 
comments in response to an notice of proposed rulemaking that will 
present the issues discussed above. It is also contrary to the public 
interest to allow a final rule that is based on a flawed record to 
become effective. Thus, and for the reasons stated above, waiting for 
thirty days to delay the effective date of the OLPP final rule is not 
warranted by ``convenience'' and would be unnecessary and contrary to 
the public interest.

    Dated: November 8, 2017.
Sonia N. Jimenez,
Acting Associate Administrator, Agricultural Marketing Service.
[FR Doc. 2017-24675 Filed 11-9-17; 8:45 am]
 BILLING CODE 3410-02-P