Table of Contents I. Executive Summary A. Purpose and Need for the Rule B. Summary of Provisions II. General Information A. Does this proposed rule apply to me? B. What should I consider as I prepare my comments for AMS? III. Background A. Purpose and Need for the Rule B. NOSB Recommendations on Mushrooms and Pet Food C. Community and Stakeholder Feedback D. Authority IV. Organic Mushroom Standard A. Mushroom Background B. Need for Organic Mushroom Standard C. Overview of Proposed Amendments V. Organic Pet Food Standard A. Pet Food Background B. Need for Organic Pet Food Standard C. Overview of Proposed Amendments VI. Regulatory Analyses A. Executive Orders 12866, 13563, 14094, and the Regulatory Flexibility Act B. Executive Order 12988 C. Executive Order 13132 D. Executive Order 13175 E. Civil Rights Impact Analysis F. Paperwork Reduction Act I. Executive Summary A. Purpose and Need for the Rule

This proposed rule would amend the USDA organic regulations to establish specific standards for organic mushroom production and organic pet food handling. Specific standards are necessary to resolve inconsistency and uncertainty in these two markets. AMS is addressing standards for pet food and mushrooms together in this rule because both markets are currently hampered by the lack of specific regulations that are suitable for these particular products. Both markets exhibit inconsistent interpretations of the organic regulations by certifiers and uncertainty around regulatory requirements that are likely to deter investments in the sectors. In addition, the National Organic Standards Board (NOSB) has made recommendations to revise the regulations for these organic products, and these changes are supported by the organic industry. Finally, both organic mushrooms and pet food are developing markets that would benefit from clearer standards to facilitate and promote growth.

The organic regulations do not currently include standards specific to mushrooms and pet food. Although some mushrooms and pet food products are currently being certified using the general organic standards, the current regulations are an imperfect fit for both mushroom and pet food production and do not address unique aspects of either product. For example, some certifying agents use the current crop production standards to certify organic mushrooms or the handling standards for processed products to certify organic pet food. In both cases, certifying agents and operations extrapolate from the organic standards to fit organic mushroom and pet food production. This creates varying and inconsistent interpretations of the organic regulations, such that some mushroom producers are required to use organic inputs where others are not, and some pet food manufacturers are allowed to use slaughter by-products where others are not. The inconsistent certification and enforcement practices for organic mushrooms and pet food fail to meet one of the purposes of the Organic Food Production Act (OFPA), that is, to assure consumers that organically produced products meet a consistent standard (7 U.S.C. 6501(2)).

Additionally, the National Organic Program (NOP) has received feedback from stakeholders that the lack of specific standards for mushrooms and pet food creates uncertainty that may deter development in these markets. Clearer and more specific standards would give businesses certainty about how they should produce organic mushrooms and pet food, which would create the conditions necessary for the growth of the organic mushroom and pet food markets. Addressing uncertainty and inconsistency in organic mushroom and pet food production is important for market development. Ensuring consistent standards across the organic industry also protects the integrity of the organic seal by building customer trust in the label.

Through the amendments in this proposed rule, AMS would establish standards for organic mushroom production and pet food handling. The proposed rule would:

• Add the term “mushroom” to the definitions of “crop” and “wild crop;”

• Establish definitions for “mushroom,” “mushroom substrate,” “mycelium,” “spawn,” and “spawn media;”

• Create a new section titled Mushroom Production Practice Standard;

• Require that operations use organic mushroom spawn and substrate when commercially available;

• Add mushroom-specific requirements for organic compost production;

• Establish definitions for “pet” and “pet food” for the purposes of the USDA organic regulations only;

• Add a new paragraph to the organic handling standard describing the requirements for production and labeling of pet food, including composition (what can be included in organic pet food) and labeling requirements; and

• Add synthetic taurine (an amino acid) to the National List to allow its use in organic pet food.

You may be affected by this proposed rule if you are engaged in organic mushroom production or pet food handling. Potentially affected entities may include, but are not limited to, the following:

• Organic pet food manufacturers;

• Organic mushroom producers;

• Individuals or business entities that are considering organic certification for pet food or mushrooms;

• Existing livestock, mushroom, and handling operations that are currently certified organic under the USDA organic regulations; and

• USDA-accredited certifying agents, inspectors, and certification review personnel.

This list is not exhaustive but identifies key entities that this rule may affect. Other types of entities may also be affected. To determine whether you or your business may be affected by this action, you should carefully examine the regulatory text and discussion below. If you have questions regarding the applicability of this rule to a particular entity, contact the person listed under FOR FURTHER INFORMATION CONTACT .

AMS seeks comment from the public and organic stakeholders regarding the proposed amendments, especially on the following topics:

1. Is the regulatory language and accompanying discussion in this document clear enough to allow producers, handlers, and certifying agents to comply with the proposed requirements?

2. Do the proposed amendments create any conflict with current organic regulations?

3. Would a one-year implementation period (from the effective date of a final rule) be appropriate for affected operations to comply with these proposed changes? If not, what timeframe would be appropriate?

4. Are there any concerns about the proposed requirements for compost used in organic mushroom operations? Are there any additional health and sanitary issues that AMS has not considered? Would the proposed requirements hinder any current methods of substrate preparation? Would the proposed changes impact other organic sectors and if so, how?

5. Are there any concerns about the proposed requirements for producing certified organic spawn? What are the barriers to producing certified organic spawn for mushroom production? How would this rule affect these barriers?

6. Stakeholders and data indicate that many organically produced mushrooms are sold as conventional mushrooms. Why are certified organic mushroom operations producing significantly more organic mushrooms than they are selling as certified organic? What could be included in this rule to help ensure that mushrooms that are produced organically can be sold as organic?

7. What factors have kept pet food manufacturers from seeking organic certification? Are there barriers that the proposed rule does not address?

8. Are there any additional synthetic, nonsynthetic, or nonorganic substances required in pet food to meet pet health needs that are not included in the proposed rule?

9. Are slaughter by-products commonly used in organic pet food? Are there obstacles to greater use of organic slaughter by-products in organic pet food? Is there existing data on the organic slaughter by-product market utilization and prices?

This proposed rule would amend the USDA organic regulations to establish specific standards for organic mushroom production and organic pet food handling. The purpose of these amendments is to resolve uncertainty and inconsistency in how the organic regulations apply to these two products. Based on market penetration data and feedback from stakeholders, AMS believes that removing regulatory uncertainty as a barrier will create conditions that offer a reasonable expectation for growth in these two markets and other latent markets that support them, such as mushroom substrate and organic slaughter by-products.

New rulemaking is needed because the current organic regulations do not include standards specific to mushrooms and pet food. Some certifying agents certify organic mushrooms using the current crop production standards and some certify pet food using a combination of livestock feed standards and handling standards for processed products; however, the current regulations do not address the unique needs of either product. The current crop production standards are intended primarily for plant production and do not fully address the unique biology of mushrooms. This is because mushrooms are fungi, not plants, and have different production practices and materials requirements. Plants are usually grown outdoors and photosynthesize energy from the sun; however, mushrooms are most commonly grown in indoor, controlled environments and draw energy from substrate material. These biological and production differences mean the organic crop production standards do not always fit mushrooms well. Certifier requirements are currently inconsistent, and producers may be inconsistently applying the organic standards to aspects such as substrate, spawn, and compost for mushroom production.

Similarly, the current organic regulations do not address pet food. Producers and certifiers apply a combination of the handling standards for processed products and the organic livestock feed standards, but their practices are not uniform. The handling standards are appropriate for verifying the processing, handling, product composition, and labeling requirements for multi-ingredient processed agricultural products but lack specific allowances for nutrients that are necessary for pets. The livestock feed standards include allowances for many of those nutrients but include prohibitions on common pet food ingredients, such as slaughter by-products. Slaughter by-products ( e.g., animal and poultry by-product meal; animal liver) make up approximately 23 percent of the composition of conventional pet food, in part to meet protein levels required by federal and state regulations on pet food. 1 Applying the livestock feed regulations to organic pet food production inhibits the market for organic slaughter by-products. These contradictions create uncertainty for businesses that currently produce organic pet food and are a barrier to businesses that would like to produce organic pet food or sell slaughter by-products into that market. AMS estimates that this rule could ensure consistent demand for over 14 million pounds of organic meat and organic slaughter by-products annually, with approximately half of that demand being for organic slaughter by-products. Based on feedback from stakeholders, AMS finds it likely that organic meat and slaughter by-product demand will grow over time beyond this estimate after implementation of specific rules.

This rule would also address feedback from the organic industry, which has asked USDA to implement NOSB recommendations more generally, including implementing standards for these two products. AMS hosted a virtual prioritization listening session in spring 2022. Oral and written comments encouraged AMS to prioritize rulemaking for additional practice standards, including organic pet food and mushrooms. The proposed changes in this rule are based on NOSB recommendations for mushroom production and pet food handling in response to the organic industry's interest in further developing the organic standards.

Market penetration data supports the idea that the organic mushroom and organic pet food markets have a reasonable expectation of growth if uncertainty and inconsistency are removed as barriers. Both markets currently lag behind their most-comparable organic sectors. In 2021, sales of organic fruits and vegetables accounted for a 15.5 percent share of all fruit and vegetable sales in the United States, 2 but organic mushrooms only accounted for 10.8 percent of all mushroom sales. 3 Considering that the consumer experience of purchasing mushrooms is typically no different than purchasing fruits and vegetables (they are packaged similarly and found in the same section of the grocery store) it is reasonable to conclude that some external barrier is inhibiting the organic mushroom market. Similarly, organic pet food accounts for only 0.41 percent of all pet food sales, whereas sales of organic non-food products (the closest analog to pet food, as a product that is purchased not for humans to eat) accounted for 1.2 percent of all non-food sales. 4

In short, AMS believes that clear and consistent standards for organic mushrooms and pet food may create the conditions necessary for organic markets to develop. Regulatory certainty encourages investment in nascent markets; investment increases production capacity; and production enables market growth. Clear standards would promote growth in the development of these markets by increasing consistency in certification and enforcement and removing uncertainty as a regulatory barrier to production and certification. Additionally, growth in these markets is likely to ensure consistent demand for organic inputs in underdeveloped markets like organic meat and slaughter by-products. Because mushrooms and pet food have unique growing conditions and requirements, AMS provides additional discussion of the need for organic standards in each industry in their respective sections below (see “IV. Mushrooms, B. Need for Organic Mushroom Standard” and “V. Pet Food, B. Need for Organic Pet Food Standard”).

Several times in its history, the NOSB has recognized the unique production needs of organic mushrooms and pet food and recommended standards specific to each market. The Board recommended organic mushroom standards in April 1995  5 and again in October 2001. 6 Subsequently, the NOSB made a recommendation on organic pet food standards in November 2008, 7 and in April 2013, the NOSB proposed amending the National List to allow taurine for use in pet food. 8 This proposed rule is AMS's first rulemaking action related to these recommendations; we discuss the NOSB's recommendations below.

In 2001, the NOSB recommended:

• Preventing contact between organically produced mushrooms or mushroom growth substrates and prohibited substances;

• Requiring the use of organic spawn when commercially available;

• Requiring organically produced agricultural materials in mushroom substrate; and

• Allowing nonorganic wood products ( e.g., sawdust) in mushroom substrate if trees have not been treated with prohibited substances for three years prior to harvest and have not been treated with prohibited substances after harvest.

AMS investigated rulemaking following this recommendation but did not publish a proposed rule.

In November 2008, the NOSB recommended that organic claims on pet food should be regulated under a combination of organic livestock feed standards and organic processed products labeling requirements. 9 The NOSB recommended:

• Clarifying which animals the pet food requirements would apply to by defining “pets” in the regulations;

• Labeling organic pet food using a framework consistent with labeling for organic human food, allowing the “organic” claim that requires a minimum of 95 percent organic ingredients and the “made with organic (specified ingredients or food group(s))” claim that requires a minimum of 70 percent organic ingredients;

• Clarifying that organic slaughter by-products can be a component of organic pet food; and

• Adding taurine for use in pet food to the National List of allowed synthetic substances. 10

This proposed rule is the first rulemaking action from AMS to address these recommendations on organic pet food.

When developing this proposed market development rule, AMS considered industry and stakeholder requests for specific mushroom and pet food standards in addition to the NOSB recommendations. In March 2022, the National Organic Program (NOP) hosted a public listening session to give stakeholders the opportunity to comment on NOP's rulemaking priorities. 11 During the listening session, many stakeholders asked that AMS prioritize rulemaking for products that are currently being certified without standards specific to their unique production categories. This includes mushrooms and pet food. Several stakeholders specifically suggested developing mushroom standards and noted that existing crop standards, including compost requirements, are not appropriate for mushroom production. Similarly, some commenters discussed the importance of establishing consistent pet food standards, naming it as another product currently being certified without standards specific to its unique production demands.

AMS also engaged directly with mushroom experts, producers, and trade associations about organic mushroom production. These discussions affirmed that specific standards for the production and handling of organic mushrooms are needed. These industry stakeholders stated that recognizing mushrooms as a fungal crop cultivated under unique and specialized conditions would foster greater consistency in how organic mushrooms are cultivated and certified. AMS also learned what aspects of mushroom production need mushroom-specific requirements: compost requirements, origin and composition of substrate materials used for growing mushrooms, and origin and composition of spawn.

Discussions with experts in the pet food industry revealed that the key challenge with labeling pet food as organic is uncertainty around the allowance of certain ingredients. For example, under the current organic regulation, it is unclear if pet food manufacturers may use meat ( e.g., edible part of animal muscle and organs) or slaughter by-products ( e.g., animal and poultry by-product meal; animal liver) in organic pet food, and whether some necessary synthetic ingredients in pet food, such as taurine, are allowed. Inconsistencies in organic claims on pet food can also contribute to consumer uncertainty or mistrust of organic labels. Additionally, stakeholders have noted that allowing organic slaughter by-products in organic pet food would allow livestock producers and slaughter facilities to earn organic premiums for these organic slaughter by-products, which would otherwise be sold without a premium for use in nonorganic products. AMS estimates that this rule could ensure consistent demand for over 7 million pounds of organic slaughter by-products annually, which is likely to grow over time. 12

Overall, this rulemaking incorporates several NOSB recommendations and stakeholder feedback to address the need for specific standards for mushrooms and pet food. Adding these specific standards is expected to support the development of organic markets for these industries by reducing uncertainty among certifiers, consumers, producers, and manufacturers.

The Organic Foods Production Act of 1990 (OFPA)  13 authorizes the USDA to promulgate regulations to establish an organic certification program for producers and handlers of agricultural products (7 U.S.C. 6503(a)). This proposed rule would establish new production and certification standards for two products that currently lack specific standards. This proposed rule would, in turn, support the three purposes of OFPA: “(1) to establish national standards governing . . . organically produced products; (2) to assure consumers that organically produced products meet a consistent standard; and (3) to facilitate interstate commerce in . . . food that is organically produced” (7 U.S.C. 6501). The proposed rule would clarify how producers and certifiers should interpret existing organic regulations as they pertain to mushroom or pet food production, which would assure consumers that the organic label on these products guarantees a consistent standard. The proposed rule would assure producers that they operate in a fair and competitive environment with clear rules that all must follow.

USDA administers organic standards through the Agricultural Marketing Service (AMS) National Organic Program (NOP). Final regulations establishing the NOP and the USDA organic regulations were published on December 21, 2000 (65 FR 80548)  14 and were first implemented on October 21, 2002. 15 Through these regulations, AMS oversees national standards for the production, handling, labeling, and sale of organically produced agricultural products.

Mushrooms are the fleshy, spore-bearing, fruiting body of some species of fungus. Mushrooms grow from mycelium, which grows below the surface as a root-like network of cells. Commercial mushrooms are grown from spawn, a combination of mycelium and a media (like grains or minerals to carry the mycelium), in controlled indoor environments. In commercial mushroom production, spawn is introduced onto mushroom substrate to grow mushrooms, comparable to how seeds are planted to grow crops.

The mushroom lifecycle is a circular phenomenon that cultivators seek to mimic. In this cycle, spores germinate and then produce hyphae that form mycelium. Mycelium grows by consuming nearby organic material in the cropping container substrate. Fruiting ( i.e., formation of mushrooms) occurs when particular conditions are met, such as when the mycelium is well developed, and the humidity and temperature conditions are favorable. The fruiting bodies ( i.e., the mushrooms) then create more spores to continue the cycle.

Mushroom growers use spawn—a small amount of material with mycelium growing on it—to produce mushrooms. Spawn can be compared to plant seeds in an agricultural setting; however, an important distinction is that spawn lacks the energy storage of a seed. Seeds store energy to use during germination, whereas spawn must draw energy from substrate materials such as compost. Because of this dependence on the production substrate and the fact that spawn consumes the substrate, the materials used in it are an important part of the composition and growth of the mushrooms.

Mushroom substrate is generally made of composted and/or uncomposted materials, depending on the species of mushroom, and may contain grain, wood, vermiculite, or other ingredients. In mushroom production, inoculation refers to the introduction of spawn to mushroom substrate. Inoculation methods vary depending on the species of mushroom and the mushroom substrate material it grows on. Mycelium grows within the production substrate after it is inoculated, ultimately producing mushrooms. Depending on the type of mushroom, producers may sometimes harvest multiple crops of mushrooms from one batch of inoculated substrate. Once the production cycle is complete and mushrooms are harvested, a new batch of inoculated mushroom substrate is generally needed to produce a new batch of mushrooms.

For the 2021-2022 growing season, the U.S. mushroom crop volume was 702 million pounds with sales of $1.02 billion. 16 The Agaricus bisporus species of mushrooms accounted for approximately 97 percent of the total sales volume and approximately 93 percent of the total value. 17 Agaricus includes white mushrooms (including common, button, and champignon varieties, among others) and brown mushrooms (including crimini/cremini, Swiss, Roman, Italian, and Portobello/Portabello/Portabella varieties, among others). Outside of the Agaricus varieties, there are a multitude of cultivated “specialty” mushrooms including shiitake, oyster, enoki, maitake, pompom, and others. Some of these specialty mushrooms include foraged (wild) mushrooms and specialty mushrooms that are intentionally cultivated outdoors. In 2021, 10.8 percent of all mushrooms produced were sold as organic, compared to 15.5 percent of all fruits and vegetables. 18 19 Agaricus mushrooms accounted for approximately 82 percent of the total production volume of organic mushrooms; the remainder were specialty mushrooms. 20

This proposed rule would create specific standards for organic mushroom production to promote consistency, fair competition, and market growth. As of June 2023, at least 39 certifying agents certify 272 organic mushroom operations. 21 However, the lack of mushroom-specific standards means there is significant variation in how these operations are certified. About 75 percent of certifying agents that oversee organic mushroom production use the organic regulations' crop standards to certify mushrooms, and the remaining 25 percent either follow the NOSB's recommendations on mushrooms, or other standards such as those of the European Union. More specifically, some certifying agents require mushroom substrate to be organic, and some do not. Likewise, some certifying agents require spawn to be organic, and some do not.

A key challenge is that the organic crop standards are designed for terrestrial plants, while mushrooms are the fruiting bodies of fungi—a different kingdom of organisms. Fungi require different growing conditions than plants. Mushrooms are grown from spawn, not seed. Generally, mushrooms are not grown in soil like plants; they are grown in substrate material made of composted plant material, minerals, sawdust, and/or logs. Finally, mushrooms do not photosynthesize like plants; they absorb compounds from their environment to use as sources of energy.

The current organic regulations do not address the unique biological differences noted above. Specifically, the regulations lack detail and requirements for spawn, substrate, and compost used in organic production. Consequently, certifying agents have developed their own policies about spawn, substrate, and compost in mushroom production, leading to variation in how organic mushrooms are certified and creating confusion around what practices operations should use. The absence of consistent standards also creates an uneven playing field and encourages “certifier shopping”—as operations learn about discrepancies, they may pressure their certifier to change their interpretation of the standards or switch to another certifier.

Unfair competition caused by different interpretations of the organic mushroom standards, as well as the possibility of future regulatory changes, could reduce the willingness of businesses to invest in this sector. AMS aims to address these problems by developing one clear standard for organic mushroom production. Certifying agents would have clear rules to follow and competition among operations would be fairer. This would give businesses greater confidence in the stability of the industry and would encourage them to invest in organic mushroom growing operations and organic mushroom inputs.

This proposed rule would amend the USDA organic regulations (7 CFR part 205) by adding new provisions for producing mushrooms that are sold, labeled, or represented as organic. This action would prescribe consistent standards for producers of organic mushrooms, as detailed below.

AMS proposes to amend § 205.2 by adding five new terms (“mushroom,” “mushroom substrate,” “mycelium,” “spawn media,” and “spawn”) and revising three existing terms (“compost,” “crop,” and “wild crop”), as described below.

AMS proposes to define “mushroom” as the fruiting body of a fungus. The term “mushroom” is primarily used to describe the agricultural product that consumers purchase.

AMS proposes to define “mushroom substrate” as the base material from which mushrooms are cultivated or grown. This substrate acts as a media for fungus to grow on to produce mushrooms and provides the energy and nutrients required for mushrooms to grow. This substrate may be composed of composted material, uncomposted materials, or both, as described under § 205.210(c).

AMS proposes to define “mycelium” as a mass of branching, thread-like hyphae (fungal structures). Mycelium is the main body portion of a fungus from which mushrooms grow. In commercial mushroom production, mycelium is also used to colonize or inoculate spawn media to produce spawn and a subsequent crop of mushrooms.

AMS proposes to define “spawn media” as a carrier, such as grains or minerals, that, when colonized with fungal mycelium, creates spawn. Spawn media, once combined with mycelium, is defined separately as “spawn.” Grain, sawdust, and vermiculite are common ingredients in spawn media.

AMS proposes to define “spawn” as spawn media that has been colonized by fungal mycelium, which is used to inoculate mushroom substrate ( i.e., mushrooms are not harvested from spawn). Spawn, a combination of mycelium and spawn media, is used to inoculate mushroom substrate. Mushrooms grow from mushroom substrate after spawn is applied to (and inoculates) the mushroom substrate.

AMS proposes to simplify the definition of “compost” so that the definition would cover compost for use in mushroom production. The current definition of “compost” includes compost production requirements ( e.g., minimum time and temperature) that are specific to plant production. However, compost for mushroom production is typically made using lower temperatures and shorter timeframes. The current definition of compost, with its plant production-specific details, is therefore not ideal for producers who need to create or use compost for mushroom production.

This rulemaking proposes to remove the plant production-specific composting requirements from the current definition of compost and add “or substrate” to the end of the definition. This leaves a general definition that allows the production of compost that meets the specific needs of either plants or mushrooms: the product of a managed process through which microorganisms break down plant and animal materials into more available forms suitable for application to the soil or substrate. Plant production-specific composting requirements remain in the regulation at § 205.203(c)(2)—Soil fertility and crop nutrient management practice standard. This rule also adds mushroom-specific composting requirements, as described below in the section titled Mushroom production practice standard (§ 205.210).

AMS proposes to amend the terms “crop” and “wild crop” to include mushrooms. AMS proposes to include mushrooms in these definitions to clarify that operations may use certain crop production standards in subpart C to produce mushrooms.

AMS proposes to add a new section (§ 205.210) to the USDA organic regulations to describe production practice standards for organic mushrooms. Many of the existing production requirements in subpart C can be applied to mushroom production. However, because of their unique biology, mushroom production demands certain practices that are different from plant production. This new section clarifies which of the existing crop production requirements a mushroom producer should use and adds several mushroom-specific requirements.

AMS proposes in § 205.210(a) that mushroom operations must manage their operations following most of the existing regulations governing crop production, including §§ 205.200, 205.201, 205.202 as applicable, 205.206(a)(2) and (3), and 205.206(b) through (f). These sections cover general production requirements (§ 205.200); organic production and handling system plans (§ 205.201); land requirements (§ 205.202); and crop pest, weed, and disease management (§ 205.206). Organic mushroom operations, like all other organic operations, must have an organic system plan that describes how the operation complies with applicable parts of the USDA organic regulations.

Because mushrooms have unique biology and production needs, not all existing crop production requirements apply to organic mushroom production. This means that mushroom operations do not need to follow all the requirements in the soil fertility and crop nutrient management practice standard at § 205.203, the seeds and planting stock practice standard at § 205.204, or the crop rotation practice standard at § 205.205. Unlike plants, which acquire energy from photosynthesis, mushrooms absorb sources of energy (like sugars and other organic compounds) from their surroundings. Therefore, most of the soil fertility and nutrient management practices in § 205.203 are not appropriate for mushroom production. However, mushroom producers would have to follow the same nutrient management requirements as plant producers described in § 205.203(d)(1) through (5) and (e). These paragraphs describe acceptable and prohibited forms of nutrient management.

Similarly, mushroom production does not involve seeds or planting stock, and mushrooms are not grown in rotations for fertility or disease suppression, so §§ 205.204-205.205 are not appropriate for mushroom production.

Proposed paragraph 205.210(b) would require operations to manage mushroom substrates and spawn media in a way that avoids environmental contamination. AMS proposes that mushroom substrates, spawn media, spent mushroom substrates, and spent spawn media must be managed to avoid the contamination of any mushrooms, spawn, substrate, soil, or water by pathogenic organisms, heavy metals, or residues of prohibited substances. This provision aligns with the requirement in § 205.203(c), which requires operations to prevent environmental contamination from materials applied to soil. Likewise, this proposed requirement also aligns with the requirement in § 205.200 to protect natural resources. Section 205.210(b) would require operations to handle materials in a way that avoids contamination throughout the entire mushroom production process, from spawn creation, to growing mushrooms, to disposal of spent substrate.

Operations that only produce organic spawn and do not produce organic mushrooms would also be subject to the provisions in paragraph (b). Spawn media is usually incorporated into the substrate when spawn is applied to a mushroom production bed. In cases where a spawn producer decides not to use a batch of spawn and disposes of the spawn, the operations would need to dispose of spent spawn media in a manner that avoids contamination of mushrooms, spawn, substrate, soil or water by pathogenic organisms, heavy metals, or residues of prohibited substances.

In § 205.210(c), AMS proposes requirements for what mushroom substrate and spawn media can be made of and what materials may be used in substrate production. This proposed paragraph is divided into subparagraphs to address the acceptable use of four types of materials: composted plant and animal materials, uncomposted plant materials, non-agricultural natural substances, and synthetic substances.

Proposed paragraph (c)(1) describes requirements for composted plant and animal materials for use in mushroom substrate and spawn media. This section details time, temperature, and composition requirements for composting plant and animal materials for use in mushroom production. The proposed rule would require that compost feedstock reach at least 131 °F for at least three days during the composting process. The compost must not be treated with any prohibited substances per the existing requirements at § 205.203(e)(1). AMS does not propose a maximum temperature for mushroom compost production. The proposed mushroom compost requirements are consistent with industry standards. The proposed minimum temperature requirement would allow mushroom producers the flexibility to compost their feedstock at higher temperatures for a longer period if warranted.

AMS proposes in § 205.210(c)(2) that uncomposted plant materials for use in mushroom substrate and spawn media must be organically produced if commercially available. However, nonorganically produced uncomposted plant materials may be used in mushroom production when an equivalent organically produced variety is not commercially available. In this case, prohibited substances may not be applied to the nonorganically produced uncomposted plant materials after harvest. Certifiers must use the definition of commercial availability in § 205.2 to validate an operation's claim that organically produced plant materials necessary for mushroom production are not commercially available.

Paragraphs (c)(3) and (4), together with the proposed amendment to the definition of “crop” in § 205.2 to include mushrooms, would allow mushroom operations to use natural (nonsynthetic) substances and/or synthetic substances in accordance with the National List of Allowed and Prohibited Substances for organic crop production. These provisions are appropriate for crop operations and are consistent with the framework in § 205.105(a) and (b) regarding allowed and prohibited substances in organic production. Paragraph (c)(3) would allow the use of natural (nonsynthetic) substances in mushroom substrate and spawn media. Examples include mined gypsum, chalk, and clay. However, operations must not use nonsynthetic substances prohibited for use in organic production in § 205.602 of the National List. Paragraph (c)(4) would also permit the use of synthetic substances allowed for use in organic crop production listed at § 205.601 of the National List. Examples include sanitizers, including chlorine products (like sodium hypochlorite) and hydrogen peroxide; micronutrients listed at § 205.601(j)(7); and microcrystalline cheesewax (which is on the National List at § 205.601(o)(1) and annotated for use as a production aid exclusively in log-grown mushrooms). Use of these substances in mushroom substrate and spawn media must also follow all applicable substance-specific restrictions included in the National List. Paragraph (c)(4), along with the proposed revision to the definition of “crop” in § 205.2 to include mushrooms, would enable mushroom operations to select from the already familiar list of substances allowed in crop production.

AMS proposes in § 205.210(d) that spawn used in organic mushroom production must be organic. Organic spawn must (1) use organic agricultural products ( e.g., organic grain) in the spawn media and (2) the spawn must be under continuous organic management once mycelium is applied to the organic spawn media. However, if organic spawn is not commercially available, an operation may use nonorganic spawn to produce a crop of organic mushrooms. Certifiers must use the definition of commercial availability in § 205.2 to validate an operation's claim that organic spawn is not commercially available.

Finally, AMS proposes to update § 205.601 to clarify that mushrooms are within the scope of organic crop production. The current regulations at § 205.601(i) and (j) use the phrases “As plant disease control” and “As plant or soil amendments” to describe types of synthetic substances, grouped by function, that may be used in organic crop production. AMS proposes to replace the term “plant” with “crop” in these phrases. Because AMS is proposing to revise the definition of crop (§ 205.2) to include mushrooms, the proposed changes would allow the use of the materials on the National List in paragraphs (i) and (j) in mushroom production. This is discussed in additional detail above (see § 205.210(c)(3) and (4)). AMS notes that certifying agents who currently apply the crop production standards to mushroom production currently permit these substances in mushroom production.

AMS proposes in this rule to regulate organic claims on pet food using the existing regulatory framework for processed organic products (§ 205.270, Organic handling requirements) to clarify the composition and labeling requirements for organic pet food. These amendments would allow organic pet food to be labeled and sold as “100% organic,” “organic,” or “made with organic (specified ingredients or food group(s)).” The proposed changes would clarify that pet food is distinct from livestock feed, which has its own composition and labeling requirements (see §§ 205.237 and 205.301(e)). This proposed rule defines “pet” as “Any domestic animal not used for the production and sale of food, fiber, or other agricultural-based consumer products.” The rule defines “pet food” as “Any commercial feed prepared and distributed for pet consumption.” Throughout this proposed rule, the term “pet food” is used to refer to all pet foods, including food for pets other than dogs and cats, unless otherwise noted. Feed for zoo animals (such as large cats) falls outside the scope of the proposed definitions for pet food, since zoo animals fall outside the definition of “pet”—they are not domestic animals.

This rule proposes to regulate only the organic claims of organic pet food: specifically, what it can contain and how it must be labeled. Other aspects of the manufacture, marketing, and sale of pet food—including its healthfulness and safety, nutritional value and composition, and suitability for pets—fall under the Food and Drug Administration's (FDA) authority. All pet food manufacturers, organic or otherwise, must comply with relevant federal and state regulations pertaining to pet food safety. The framework for pet food regulation, summarized below, provides context for several provisions in the proposed organic pet food standards.

Pet food labels are regulated at the federal and state levels. At the federal level, the FDA is responsible for overseeing and enacting the requirements of the Federal Food, Drug, and Cosmetic Act (FD&C Act), which requires that pet food be safe, properly manufactured, and adequately labeled. 22 The FDA requires certain information on all animal feed labels: proper identification of the product, net quantity statement, name and place of manufacturer or distributor, and a proper listing of all ingredients. 23 Some states enforce their own labeling regulations in addition to those administered by FDA. Most of these states follow the recommendations of the Association of American Feed Control Officials (AAFCO), an independent trade organization. They require a product name that complies with AAFCO pet food labeling rules, the species of pet for which the product is intended, a guaranteed analysis showing the basic nutrient composition, and in some cases a statement of nutritional adequacy and feeding directions. 24

Pet food is often formulated as a complete nutrition product— i.e., the sole source of nourishment for pets. It typically contains ingredients from agricultural sources and supplemental nutrients to meet the nutrient requirements of the animal. These ingredients (including supplemental nutrients) do not require FDA's pre-market approval if they are on an FDA-maintained list of ingredients Generally Recognized As Safe (GRAS). 25 The National Academy of Sciences' National Research Council (NRC) and AAFCO provide information on the nutrient requirements of dogs and cats at each stage of life ( e.g., growth, reproduction, adult maintenance) to guide the formulation of nutritionally adequate pet foods. The NRC has listed and described essential nutrients in its 2006 publication, “Nutrient Requirements of Dogs and Cats.”  26 AAFCO maintains on its website more recently updated Nutrient Profiles for the various stages of life. The minimum nutrient levels specified in the AAFCO Nutrient Profiles are generally consistent with NRC Nutrient Requirement tables and are updated periodically as NRC recommendations change.

This proposed rule would not supersede the requirements of the FDA or state regulatory bodies, including nutrient requirements established according to the guidance of NRC or AAFCO. Instead, this rule is intended to work jointly with those requirements and more narrowly regulate what manufacturers must do to label their pet food “organic” or claim it is “made with organic (specified ingredients or food group(s)).” Additionally, by including organic pet food in the organic regulations, the proposed rule would clarify the process for adding substances to the National List specifically for use in organic pet food. Future amendments to the National List could be made, as necessary, in accordance with the process, requirements, and criteria described in OFPA (see 7 U.S.C. 6517 and 6518).

The U.S. pet food market is a large and growing market in the United States. According to recent data from the American Pet Products Association (APPA), 66 percent of U.S. households own a pet, which is around roughly 86.9 million homes. 27 In 2022, the pet food market in the United States was valued at $58.1 billion and is projected to increase to $62.7 billion in 2023. While the conventional pet food market is already substantial, the organic pet food market is relatively new, with few organic brands able to penetrate the market. In 2022, the organic pet food market was valued at $129 million but had substantial growth of 5.3 percent over 2021, which was the highest recorded growth since 2013. 28 As of 2021, the organic pet food market is still less than one percent of the total pet food market, 29 and AMS believes there is potential for further growth.

AMS expects that as the number of organic options for pets increases, an untapped market of organic consumers may seek out and purchase organic pet food for the same reasons that they purchase other organic foods. Additionally, demand for pet food was driven up by the COVID-19 pandemic when many people chose to adopt pets while living and working from home. According to an American Society for the Prevention of Cruelty to Animals (ASPCA) survey, around 23 million homes (nearly one in five homes in the United States) adopted a cat or dog during the pandemic. 30

Most dry and wet pet foods are multi-ingredient products because multiple ingredients are needed to meet the nutritional needs of a pet. The multi-ingredient nature of most pet foods creates a challenge for manufacturers—the organic regulations describe requirements for processed human food, but it is not clear if pet food should follow the same rules. In addition, there is uncertainty about which ingredients are allowed and how certain ingredients can be used in organic pet food. An example is synthetic taurine, which is a necessary ingredient in some pet food, but is not on the National List for use in organic pet food. This limits the types of pet food that can be certified as organic to single-ingredient pet food and treats, in turn limiting the size of the organic pet food market overall. Revising the organic regulations to clearly state how pet food can be labeled organic would allow companies to produce multi-ingredient dry and wet food products that are certified organic and still meet the complete nutritional needs of pets. Additionally, under the current organic regulations, it is unclear if pet food manufacturers may use meat or slaughter by-products in organic pet food, which likely limits the production of organic pet food. AMS expects that these changes would encourage additional growth in the small organic pet food market and other latent organic markets that support it, such as organic slaughter by-products.

The lack of specific standards for organic pet food creates inconsistency and uncertainty around labeling and composition requirements for organic pet food. These regulatory gaps increase the risk for businesses in the organic pet food market, hinder production innovation, and limit the market for organic slaughter by-products.

For example, some certifying agents have used the composition requirements for organic livestock feed (§ 205.301(e)) to certify pet food as organic, but livestock feed produced under the organic standards may not sufficiently address pets' nutrient needs. Specifically, the organic livestock feed composition requirements (§ 205.301(e)(2)) state that livestock feed must be produced “in conformance with § 205.237.” Section 205.237(a) requires that all agricultural ingredients be organically produced and handled, and § 205.237(b)(5) prohibits feeding slaughter by-products to mammals or poultry; however, slaughter by-products are a commonly used protein source in pet food. Furthermore, although the organic livestock feed standards allow the use of vitamins and minerals (§ 205.603(d)), the composition requirements for livestock feed do not allow certain synthetic amino acids that are commonly used in pet food, such as taurine. In some cases, certifying agents may not adhere strictly to the livestock feed standards and some may allow organic slaughter by-products while others do not. This type of inconsistency creates uncertainty for companies considering entering the market. It also reduces the organic premiums that livestock producers and slaughterhouses could otherwise gain.

While some certifying agents have used the composition requirements for organic livestock feed (§ 205.301(e)) to certify pet food as organic, others have used only the handling standards in § 205.270 to certify pet foods as organic. These standards allow organic ingredients ( e.g., organic slaughter by-products) and allow nonorganic ingredients that appear on the National List at §§ 205.605 and 205.606, but the standards do not explicitly allow the vitamin and mineral ingredients that appear on the National List for livestock production at § 205.603(d).

This proposed rule would resolve these problems by, first, establishing that pet food is not to be regulated as organic livestock feed and thereby allowing organic slaughter by-products in organic pet food. Allowing slaughter by-products in organic pet food would also increase demand for certified organic slaughter by-products and create new income streams for organic livestock producers and slaughterhouses. Second, the proposed rule would clarify that vitamins, minerals, and taurine are allowed ingredients in organic pet food. Third, the rule would clarify that certain nonorganic content is permitted in pet food, in accordance with the labeling categories at § 205.301(a) through (d).

The product that forms the largest share of the entire pet food market—kibble  31 or dry “complete and balanced”  32 pet food intended to supply a pet's daily nutritional needs—is a processed product, but the current handling regulations do not allow additive nutrients and vitamins (such as taurine) that pets need to meet nutritional requirements. The proposed rule would resolve this problem by explicitly allowing the vitamin and mineral feed additives referenced in §§ 205.603(d)(2) and (3) for use in pet food and by adding taurine to the National List in § 205.605(b) as an allowed substance in pet food. The natural form of taurine, which is present in raw meat, is lost when heated—a step in the processing of many pet food products. 33 Because of this, synthetic forms of taurine are often added to certain pet foods. By adding synthetic taurine to the National List for use in organic pet food only, this proposed rule would provide for the use of taurine in organic pet food.

Additionally, this proposed rule would regulate pet food under the composition and labeling requirements for processed products referenced in § 205.270. This would allow producers to use both the “organic” and “made with organic (specified ingredient or food group(s))” labeling claims on multi-ingredient products that contain some nonorganic content. These two labeling claims are regulated under the USDA organic regulations (§§ 205.301, 205.303, and 205.304) and are used extensively by certified organic handlers. “Organic” products must contain at least 95 percent organic ingredients, while “made with organic” products must contain at least 70 percent organic ingredients. In both cases, any nonorganic ingredient(s) must also meet specific criteria. 34 This proposed rule would provide pet food manufacturers flexibility to use organic ingredients in a “made with organic” pet food product without having to reach the higher 95 percent ingredient threshold for “organic” products. This clarification would allow pet food companies to increase organic content in their product line.

Finally, under the current organic regulations, it is unclear if pet food manufacturers may use meat or slaughter by-products in organic pet food, limiting the production of pet food and demand for organic slaughter by-products based on certifier interpretation. AMS estimates that by clarifying slaughter by-products are allowed, this rule will allow for more flexible and affordable organic pet food options and could ensure consistent demand for over 7 million pounds of organic by-products annually. 35 Based on feedback from stakeholders, AMS finds it likely that this clarification will also increase growth in these markets.

In conclusion, this rule would address inconsistencies in how certifying agents are applying the current organic regulations to pet food. It would also resolve regulatory uncertainties that artificially increase risk in the organic pet food market. Addressing these inconsistencies and uncertainties would create the conditions necessary for the organic pet food and related markets to grow.

This proposed rule would amend the USDA organic regulations (7 CFR part 205) by defining “pet” and “pet food” in the regulations and adding a new paragraph for pet food in § 205.270, organic handling requirements. This action would integrate organic pet food standards into existing USDA organic labeling categories for agricultural products (subpart D of part 205) and specify the ingredients that can be included in pet food labeled “organic” or “made with organic (specified ingredients or food group(s)).” Table 2 provides a summary of the proposed amendments to the USDA organic regulations to incorporate pet food composition and labeling standards.

AMS is proposing to amend § 205.2 by adding two new terms, “pet” and “pet food.”

AMS is proposing to define “pet” as “any domestic animal not used for the production and sale of food, fiber, or other agricultural-based consumer products.” This term establishes a distinction between animals raised as pets and animals raised for food or fiber ( i.e., “livestock,” as defined at § 205.2). Animals used for food or in the production of food, fiber, feed, or other agricultural-based consumer products are “livestock” under the USDA organic regulations (§ 205.2) and must be produced under all applicable organic livestock requirements. Feed requirements for organic livestock are described at § 205.237 and would not apply to organic pet food, and vice versa.

By creating a regulatory distinction between pets and other animals whose feed is subject to organic regulation, the proposed rule would allow organic pet food to contain organic slaughter by-products (except when prohibited by Federal or State laws and regulations, see proposed § 205.270(c)). This distinction is significant for pet food production because current regulations do not allow slaughter by-products in livestock feed (§ 205.237(b)(5)), but slaughter by-products are commonly used as a protein source in pet food. Additionally, organic livestock must consume only organic agricultural products (§ 205.237(a)), whereas the proposed rule would allow nonorganic agricultural ingredients to be used in pet food under the same labeling categories as other processed organic foods. Together, these clarifications are expected to increase the types of usable ingredients in organic pet food production and increase the commercial viability of organic pet food.

AMS is proposing to define “pet food” as “any commercial feed prepared and distributed for pet consumption.” The proposed definition for “pet food” distinguishes organic pet food products from organic livestock feed products. This action is consistent with the NOSB recommendation. 36 It also addresses a concern expressed by pet food manufacturers that applying the livestock feed composition requirements to pet food could limit product formulation and participation in the organic market because of the lack of available organic protein sources, particularly rendered products such as poultry meal. Unless otherwise noted, the term “pet food” refers to all pet foods, including food for pets other than dogs and cats. Feed for zoo animals (such as large cats) is not included in the proposed definition, as zoo animals are not domestic animals and therefore fall outside the definition of “pets.”

This proposed rule would add a new paragraph (c) to § 205.270—Organic handling requirements—to describe requirements for the composition, processing, and labeling of organic pet food. The requirements would permit the types of processing allowed in paragraph (a) and the types of nonorganic ingredients allowed in paragraph (b) and proposed paragraph (c), and prohibit the practices and materials not allowed in paragraph (d) (please note that the proposed rule would redesignate, or rearrange, current paragraph (c) of this section as paragraph (d)). By including pet food criteria as part of the handling standards but clearly separating the criteria from the livestock feed composition and labeling standards, the proposed rule would ensure that pet food is not subject to the prohibition of slaughter by-products that exists for livestock feed. The proposed rule would allow slaughter by-products in pet food under the same composition and labeling requirements for other multi-ingredient products described at § 205.301(a) through (d) and (f).

Paragraph (b) would permit organic pet food, like any other processed organic product, to contain nonagricultural and nonorganic substances allowed by the National List in § 205.605 (such as taurine, as proposed) and § 205.606. These ingredients may be used in processed pet food products sold as “organic” or “made with organic (specified ingredients or food group(s)).” Additionally, the proposed rule would allow vitamins and minerals in § 205.603(d)(2) and (3) for enrichment or fortification of pet food. Vitamins and minerals are often required to meet the nutritional needs of pets.

The proposed rule would also clarify that pet food labeled as organic must be labeled pursuant to the applicable portions of subpart D of the organic regulations (proposed § 205.270(c)). In particular, this means that organic pet food should be labeled according to the product composition requirements at § 205.301(a) through (d), and that pet food may use the following labeling categories: (1) “100 percent organic;” (2) “organic,” (3) “made with organic (specified ingredients or food group(s));” or (4) products containing less than 70 percent organic ingredients. This proposed action would allow the labeling of organic pet food using the same framework as most processed organic products (rather than the labeling requirements for livestock feed at § 205.301(e)).

The proposed changes to § 205.270 would not replace or modify requirements pertaining to pet food that are applicable under other federal or state laws or regulations. Any ingredients in pet food must comply with all applicable federal and state laws and regulations. AMS only regulates the organic claims of organic pet food. All other aspects of pet food production and sale must follow the relevant federal and state laws and regulations.

AMS proposes to modify the National List to allow the use of synthetic taurine in pet food. The rule proposes to add taurine to § 205.605, which describes nonagricultural substances allowed as ingredients in or on processed products labeled as “organic” or “made with organic (specified ingredients or food group(s)).” The proposed listing for taurine also specifies that taurine can be used only in pet food and not in other organic multi-ingredient products. Taurine is an amino sulfonic acid that many pets (all cats and some dog breeds) require but cannot obtain in adequate amounts by consuming pet food that does not contain added taurine. For that reason, AAFCO's cat nutrient profiles require taurine, and it is a common synthetic additive in pet foods.

This proposed addition follows an NOSB recommendation to add taurine to the National List as an allowed substance for use exclusively in pet foods. The NOSB concluded that taurine is necessary to meet nutritional requirements for cats. Also, based on public comment, the NOSB determined that taurine can also be necessary for dogs' nutrition, and, therefore, recommended taurine be allowed in pet food generally. AMS agrees with the NOSB's rationale and recommendation since taurine is essential for pet health and adequate taurine levels cannot be achieved using organic agricultural ingredients alone when pet food is cooked. This proposed rule, if finalized, would amend the regulations to provide for the use of taurine.

Individuals may petition to add other substances to the National List for use in organic pet food. Because organic pet food must meet all applicable federal and state laws and regulations, any person or organization petitioning to add a substance to the National List for use in organic pet food must ensure the use of that substance is consistent with applicable federal and state laws and rules. Synthetic substances petitioned for use in pet food would also be evaluated according to the existing criteria in OFPA (7 U.S.C. 6517 and 6518) and the USDA organic regulations (§ 205.600).

This rule does not meet the criteria of a “significant regulatory action” under Executive Order 12866, as supplemented by Executive Order 13563 and updated by Executive Order 14094. Therefore, the Office of Management and Budget (OMB) has not reviewed this rule under those orders.

The Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612) requires agencies to consider the economic impact of each rule on “small entities” and evaluate alternatives that would accomplish the objectives of the rule without unduly burdening small entities or erecting barriers that would restrict their ability to compete in the market. The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to the action. Section 605 of the RFA allows an agency to certify a rule in place of preparing an analysis if the rulemaking is not expected to have a significant economic impact on a substantial number of small entities. AMS has concluded that this rule, if promulgated, will not have a significant economic impact on a substantial number of small entities, and, therefore, an analysis is not included. Below, AMS presents information about the industry and the possible effects of the rule on small entities to support this conclusion.

The Small Business Administration (SBA) sets size criteria for each industry described in the North American Industry Classification System (NAICS) to delineate which operations qualify as small businesses. SBA's size standards are expressed in terms of number of employees or annual receipts and indicate the maximum allowed for an entity to be considered small. 37

Mushroom Producers. AMS has considered the economic impact of this rulemaking on small mushroom producers. At the time of this analysis, small organic mushroom producers were listed under NAICS code 111411 (Mushroom Production) as grossing equal to or less than $4,500,000 per year. 38 AMS estimates that out of 229 domestic operations reporting sales of organic mushrooms, 14 operations exceed that threshold. 39 While most organic mushroom operations that would be affected by this rule are small entities, this rule has the potential to impose only minor costs on them related to paperwork burden (see Paperwork Reduction Action section below) and costs associated with sourcing organic spawn and substrate materials, when commercially available. AMS concludes that this rule, if promulgated, will not have a significant economic impact on a substantial number of these small entities.

Pet Food Operations. AMS has considered the economic impact of this rulemaking on small organic pet food producers. At the time of this analysis, small organic pet food producers were listed under NAICS code 311111 (Dog and Cat Food Manufacturing) as employing equal to or fewer than 1,250 employees. 40 AMS estimates that given the small size of the organic pet food market, most organic pet food operations are small entities. Pet food operations may incur small one-time paperwork costs (see Paperwork Reduction Act section below), but the proposed rule would establish standards for organic pet food handling that align with many existing industry practices. Additionally, the rule could allow operations to use additional inputs ( e.g., taurine) in pet food. AMS concludes that this rule, if promulgated, will not have a significant economic impact on a substantial number of these small entities.

Certifying agents. This proposed rule would also affect certifying agents that certify organic mushroom or pet food operations. At the time of this analysis, the SBA defined small agricultural service firms, which include certifying agents, as those having annual receipts equal to or less than $19,500,000 (NAICS code 541990—All Other Professional, Scientific and Technical Services). There are currently 74 USDA-accredited certifying agents, and AMS believes most of these certifying agents are small entities. Certifying agents must already comply with the current regulations and already certify these operations. Certifying agents may incur minor one-time paperwork costs (see Paperwork Reduction Act section below). However, this rule would reduce the current burden of creating and maintaining individual policies for organic mushroom production and organic pet food handling. AMS concludes that this rule, if promulgated, will not have a significant economic impact on a substantial number of these small entities.

Executive Order 12988 instructs each executive agency to adhere to certain requirements in the development of new and revised regulations to avoid unduly burdening the court system. This proposed rule complies with these requirements. This rule would not be applied retroactively. Additionally, to prevent duplicative regulation, States and local jurisdictions are preempted under OFPA from creating accreditation programs for private persons or state officials who want to become certifying agents of organic farms or handling operations. A governing state official would have to apply to USDA to be accredited as a certifying agent, as described in OFPA (7 U.S.C. 6514(b)). States are also preempted under sections 6503 through 6507 of OFPA from creating certification programs to certify organic farms or handling operations unless the state programs have been submitted to, and approved by, the Secretary as meeting the requirements of OFPA.

Pursuant to section 6507(b)(2) of OFPA, a state organic certification program that has been approved by the Secretary may, under certain circumstances, contain additional requirements for the production and handling of agricultural products organically produced in the state and for the certification of organic farm and handling operations located within the state. Such additional requirements must (a) further the purposes of OFPA, (b) not be inconsistent with OFPA, (c) not be discriminatory toward agricultural commodities organically produced in other States, and (d) not be effective until approved by the Secretary.

In addition, pursuant to section 6519(c)(6) of OFPA, this rulemaking would not supersede or alter the authority of the Secretary under the Federal Meat Inspection Act (21 U.S.C. 601-624), the Poultry Products Inspection Act (21 U.S.C. 451-471), or the Egg Products Inspection Act (21 U.S.C. 1031-1056), concerning meat, poultry, and egg products, respectively, nor any of the authorities of the Secretary of Health and Human Services under the Federal Food, Drug and Cosmetic Act (21 U.S.C. 301-399i), nor the authority of the Administrator of the Environmental Protection Agency under the Federal Insecticide, Fungicide and Rodenticide Act (7 U.S.C. 136-136y).

OFPA at 7 U.S.C. 6520 provides for the Secretary to establish an expedited administrative appeals procedure under which persons may appeal an action of the Secretary, the applicable governing State official, or a certifying agent under the statute that adversely affects such person or is inconsistent with the organic certification program established under OFPA. OFPA also provides that the U.S. District Court for the district in which a person is located has jurisdiction to review the Secretary's decision.

Executive Order 13132 mandates that federal agencies consider how their policymaking and regulatory activities impact the policymaking discretion of States and local officials and how well such efforts conform to the principles of federalism defined in said order. This executive order only pertains to regulations with clear federalism implications.

AMS has determined that this proposed rule conforms with the principles of federalism described in E.O. 13132. The rule would not impose substantial direct costs or effects on States, would not alter the relationship between States and the federal government, and would not alter the distribution of powers and responsibilities among the various levels of government. States have the opportunity to comment on any potential federalism implications during this proposed rule's comment period. AMS will consider these comments when assessing the federalism implications of any final rule.

Executive Order 13175 requires Federal agencies to consult and coordinate with Tribes on a government-to-government basis on policies that have Tribal implications, including regulations, legislative comments, or proposed legislation. Additionally, other policy statements or actions that have substantial direct effects on one or more Indian Tribes, the relationship between the Federal Government and Indian Tribes, or on the distribution of power and responsibilities between the Federal Government and Indian Tribes also require consultation. After consultation with the USDA Office of Tribal Relations, AMS has determined that a Tribal consultation for this rulemaking is not necessary, as it is unlikely to impact Tribes. However, AMS will conduct a Tribal consultation if stakeholders request one.

AMS has reviewed this rulemaking in accordance with the Departmental Regulation 4300-4, Civil Rights Impact Analysis, to address any major civil rights impacts the rule might have on minorities, women, and/or persons with disabilities. After a careful review of the rule's intent and provisions, AMS determined that there is no evidence that this proposed rule would have adverse civil rights impacts on organic producers identifying as minorities, women, and/or persons with disabilities. Additionally, this proposed rule would not impose any requirements related to eligibility for benefits and services on protected classes, nor would the rule have the purpose or effect of treating classes of persons differently.

Protected individuals have the same opportunity to participate in NOP as non-protected individuals. USDA organic regulations prohibit discrimination by certifying agents. Specifically, 7 CFR 205.501(d) of the current regulations for accreditation of certifying agents provides that “No private or governmental entity accredited as a certifying agent under this subpart shall exclude from participation in or deny the benefits of the National Organic Program to any person due to discrimination because of race, color, national origin, gender, religion, age, disability, political beliefs, sexual orientation, or marital or family status.” Section 205.501(a)(2) requires certifying agents to “[d]emonstrate the ability to fully comply with the requirements for accreditation set forth in this subpart,” including the prohibition on discrimination. The granting of accreditation to certifying agents under § 205.506 requires the review of information submitted by the certifying agent and an on-site review of the certifying agent's client operation. Further, if certification is denied, § 205.405(d) requires that the certifying agent notify the applicant of their right to file an appeal to the AMS Administrator in accordance with § 205.681.

These regulations provide protections against discrimination, thereby permitting all producers, regardless of race, color, national origin, gender, religion, age, disability, political beliefs, sexual orientation, or marital or family status, who voluntarily choose to adhere to the rules and qualify, to be certified as meeting NOP requirements by an accredited certifying agent. This action in no way changes any of these protections against discrimination.

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521) (PRA), AMS is requesting OMB approval for a new information collection totaling 851 hours for the reporting and recordkeeping requirements contained in this proposed rule. OMB previously approved information collection requests (ICR) associated with the NOP and assigned OMB control number 0581-0191. AMS intends to merge this new information collection, upon OMB approval, into the approved 0581-0191 collection. Below, AMS describes and estimates the annual burden, i.e., the amount of time and cost of labor, for entities to prepare and maintain information to participate in this proposed voluntary labeling program. OFPA, as amended, provides authority for this action.

Title: National Organic Program: Market Development for Mushrooms and Pet Food.

OMB Control Number: 0581-NEW.

Expiration Date of Approval: Three years from OMB date of approval.

Type of Request: New collection.

Abstract: Information collection would be necessary to implement reporting required by the proposed standards for organic mushroom production and pet food handling under the USDA organic regulations (§§ 205.210 and 205.270). This proposed rule would establish USDA organic requirements in these sectors to support consistent interpretation and remove regulatory uncertainty. By doing so, it would support the purposes of OFPA, “to assure consumers that organically produced products meet a consistent standard” and to “establish national standards” for products marketed as organic (7 U.S.C. 6501). Additional information on the purpose and need for this rule is included in the BACKGROUND section of this rule.

Information collection and recordkeeping would be required to demonstrate compliance with proposed new § 205.210 and proposed amendments to § 205.270 of the USDA organic regulations, 7 CFR part 205, that establish standards for mushroom production and pet food handling. Historically, while mushrooms have been managed as a crop and pet food has been manufactured in compliance with the livestock feed and/or handling standards, AMS has received reports that the lack of specific standards for mushrooms and pet food handling deters business investment and creates inefficiencies in these markets.

Mushrooms are not plants. They do not photosynthesize and are generally grown in controlled environments. While mushrooms can comply with most of the existing regulations governing crop production, including §§ 205.200-202 and 205.206, they have very distinct growing requirements that differ from plant crops and are not directly addressed in the current organic regulations. AMS is proposing to add § 205.210 to the USDA organic regulations to describe the specific practice standards for mushrooms that codify the processes and materials allowed in organic mushroom operations. This includes mushroom substrate requirements instead of the soil fertility and crop nutrient management requirements in § 205.203 and spawn production requirements in lieu of the parallel seeds and planting stock practice requirements in § 205.204.

AMS is proposing to apply the existing framework for the organic handling requirements at § 205.270 to pet food composition and labeling. Some parties interested in creating organic feed stated that it was not clear if organic pet food was allowed to contain slaughter by-products, which are prohibited in livestock feed. This proposed rule would clearly permit the use of slaughter by-products from organic livestock in organic pet food by establishing pet food regulations outside of the livestock feed standards.

These amendments would require one-time additional reporting for already certified pet food and mushroom operations, accredited certifying agents, and inspectors. Existing organic mushroom and pet food operations would need to review their existing organic system plans for compliance, certifiers would have to review the updated plans, and certifiers/inspectors would need training on the new regulation. The reporting burden for new and exempt operations in these sectors would remain unchanged from the current ICR, and recordkeeping burdens from the current ICR would remain unchanged for all respondents. Beyond the first year, AMS expects no increase in reporting and recordkeeping burden for any respondents. The continuing reporting and recordkeeping requirements are routine activities that are currently identified in the NOP's approved ICR.

The following section briefly discusses the statutory authority underlying this request for information (“RFI”), as well as some of the historical background relevant to dishwashers, residential clothes washers (“RCWs”), and consumer clothes dryers.

The Energy Policy and Conservation Act, Public Law 94-163, as amended (“EPCA”), 1 authorizes DOE to regulate the energy efficiency of a number of consumer products and certain industrial equipment. (42 U.S.C. 6291-6317, as codified) Title III, Part B of EPCA  2 established the Energy Conservation Program for Consumer Products Other Than Automobiles. (42 U.S.C. 6291-6309) These products include dishwashers, RCWs, and consumer clothes dryers, the subjects of this document. (42 U.S.C. 6292(a)(6), (7), and (8), respectively)

The energy conservation program under EPCA consists essentially of four parts: (1) testing, (2) labeling, (3) the establishment of Federal energy conservation standards, and (4) certification and enforcement procedures. Relevant provisions of EPCA include definitions (42 U.S.C. 6291), test procedures (42 U.S.C. 6293), labeling provisions (42 U.S.C. 6294), energy conservation standards (42 U.S.C. 6295), and the authority to require information and reports from manufacturers (42 U.S.C. 6296).

Federal energy efficiency requirements for covered products established under EPCA generally supersede State laws and regulations concerning energy conservation testing, labeling, and standards. (42 U.S.C. 6297(a)-(c)) DOE may, however, grant waivers of Federal preemption in limited circumstances for particular State laws or regulations, in accordance with the procedures and other provisions set forth under EPCA. (42 U.S.C. 6297(d))

Subject to certain criteria and conditions, DOE is required to develop test procedures to measure the energy efficiency, energy use, or estimated annual operating cost of each covered product. (42 U.S.C. 6295(r)) Manufacturers of covered products must use the prescribed DOE test procedure as the basis for certifying to DOE that their product complies with the applicable energy conservation standards and as the basis for any representations regarding the energy use or energy efficiency of the product. (42 U.S.C. 6295(s) and 42 U.S.C. 6293(c)). Similarly, DOE must use these test procedures to evaluate whether a basic model complies with the applicable energy conservation standard(s). (42 U.S.C. 6295(s)). The DOE test procedures for dishwashers appear at title 10 of the Code of Federal Regulations (CFR) part 430, subpart B, appendices C1 and C2. The DOE test procedures for RCWs appear at 10 CFR part 430, subpart B, appendices J and J2. The DOE test procedures for consumer clothes dryers appear at 10 CFR part 430, subpart B, appendices D1 and D2.

EPCA prescribed energy conservation standards for dishwashers, RCWs, and consumer clothes dryers (42 U.S.C. 6295(g)(1) and (10)(A); 42 U.S.C. 6295(g)(2) and (9)(A); and 42 U.S.C. 6295(g)(3)) and directed DOE to conduct future rulemakings to determine whether to amend these standards. (42 U.S.C. 6295(g)(4) and (10)(B); 42 U.S.C. 6295(g)(4) and (9)(B); and 42 U.S.C. 6295(g)(4)) Not later than six years after the issuance of any final rule establishing or amending a standard, DOE must publish either a notice of determination (“NOPD”) that standards for the product do not need to be amended, or a NOPR including new proposed energy conservation standards (proceeding to a final rule, as appropriate). (42 U.S.C. 6295(m)(1)) DOE must make the analysis on which a NOPD or NOPR is based publicly available and provide an opportunity for written comment. (42 U.S.C. 6295(m)(2)) Not later than two years after a NOPR is issued, DOE must publish a final rule amending the energy conservation standard for the product. (42 U.S.C. 6295(m)(3)(A))

DOE must follow specific statutory criteria for prescribing new or amended standards for covered products, including dishwashers, RCWs, and consumer clothes dryers. Any new or amended standard for a covered product must be designed to achieve the maximum improvement in energy efficiency that the Secretary of Energy (“Secretary”) determines is technologically feasible and economically justified. (42 U.S.C. 6295(o)(2)(A)) Furthermore, DOE may not adopt any standard that would not result in the significant conservation of energy. (42 U.S.C. 6295(o)(3)(B))

Moreover, DOE may not prescribe a standard if DOE determines by rule that the establishment of such standard will not result in significant conservation of energy (or, for certain products, water), or is not technologically feasible or economically justified. (42 U.S.C. 6295(o)(3)(B)) In deciding whether a proposed standard is economically justified, DOE must determine whether the benefits of the standard exceed its burdens. (42 U.S.C. 6295(o)(2)(B)(i)) DOE must make this determination after receiving comments on the proposed standard, and by considering, to the greatest extent practicable, the following seven statutory factors:

(1) The economic impact of the standard on manufacturers and consumers of the products subject to the standard;

(2) The savings in operating costs throughout the estimated average life of the covered products in the type (or class) compared to any increase in the price, initial charges, or maintenance expenses for the covered products that are likely to result from the standard;

(3) The total projected amount of energy (or as applicable, water) savings likely to result directly from the standard;

(4) Any lessening of the utility or the performance of the covered products likely to result from the standard;

(5) The impact of any lessening of competition, as determined in writing by the Attorney General, that is likely to result from the standard;

(6) The need for national energy and water conservation; and

(7) Other factors the Secretary considers relevant.

Further, EPCA, as codified, establishes a rebuttable presumption that a standard is economically justified if the Secretary finds that the additional cost to the consumer of purchasing a product complying with an energy conservation standard level will be less than three times the value of the energy savings during the first year that the consumer will receive as a result of the standard, as calculated under the applicable test procedure. (42 U.S.C. 6295(o)(2)(B)(iii))

EPCA, as codified, also contains what is known as an “anti-backsliding” provision, which prevents the Secretary from prescribing any amended standard that either increases the maximum allowable energy use or decreases the minimum required energy efficiency of a covered product. (42 U.S.C. 6295(o)(1)) Also, the Secretary may not prescribe an amended or new standard if interested persons have established by a preponderance of the evidence that the standard is likely to result in the unavailability in the United States in any covered product type (or class) of performance characteristics (including reliability), features, sizes, capacities, and volumes that are substantially the same as those generally available in the United States. (42 U.S.C. 6295(o)(4))

Additionally, EPCA specifies requirements when promulgating an energy conservation standard for a covered product that has two or more subcategories. A rule prescribing an energy conservation standard for a type (or class) of product must specify a different standard level for a type or class of products that has the same function or intended use if DOE determines that products within such group (A) consume a different kind of energy from that consumed by other covered products within such type (or class); or (B) have a capacity or other performance-related feature which other products within such type (or class) do not have and such feature justifies a higher or lower standard. (42 U.S.C. 6295(q)(1)) In determining whether a performance-related feature justifies a different standard for a group of products, DOE considers such factors as the utility to the consumer of such a feature and other factors DOE deems appropriate. Id. Any rule prescribing such a standard must include an explanation of the basis on which such higher or lower level was established. (42 U.S.C. 6295(q)(2))

Finally, pursuant to the amendments to EPCA contained in the Energy Independence and Security Act of 2007, Public Law 110-140, any final rule for new or amended energy conservation standards promulgated after July 1, 2010, is required to address standby mode and off mode energy use. (42 U.S.C. 6295(gg)(3)) Specifically, when DOE adopts a standard for a covered product after that date, it must, if justified by the criteria for adoption of standards under EPCA (42 U.S.C. 6295(o)), incorporate standby mode and off mode energy use into a single standard, or, if that is not feasible, adopt a separate standard for such energy use for that product. (42 U.S.C. 6295(gg)(3)(A)-(B)) DOE's current test procedures and standards for dishwashers, RCWs, and consumer clothes dryers address standby mode and off mode energy use.

The Administrative Procedure Act (“APA”), 5 U.S.C. 551 et seq., provides among other things, that “[e]ach agency shall give an interested person the right to petition for the issuance, amendment, or repeal of a rule.” (5 U.S.C. 553(e)) Pursuant to this provision of the APA, the Competitive Enterprise Institute (“CEI”) petitioned DOE for the issuance of a rule establishing a new product class under 42 U.S.C. 6295(q) that would cover dishwashers with a cycle time of less than one hour from washing through drying. 3 On October 30, 2020, DOE published a final rule that established a product class for standard-size dishwashers with a cycle time for the normal cycle  4 of 60 minutes or less. 85 FR 68723 (“October 2020 Final Rule”).

Following this, having determined that similarities exist between the consumer use of dishwashers, RCWs, and consumer clothes dryers ( i.e., products that provide consumer utility over discrete cycles with programmed cycle times, and consumers run these cycles multiple times per week on average), DOE published a final rule on December 16, 2020, that established product classes for top-loading RCWs and certain classes of consumer clothes dryers with a cycle time of less than 30 minutes, and front-loading RCWs with a cycle time of less than 45 minutes. 85 FR 81359 (“December 2020 Final Rule”).

The October 2020 Final Rule and the December 2020 Final Rule specified that the short-cycle product classes created by their respective rules are not currently subject to energy or water conservation standards. 85 FR 68723, 68742; 85 FR 81359, 81376.

On January 19, 2022, DOE published a final rule (“January 2022 Final Rule”) revoking the October 2020 Final Rule and the December 2020 Final Rule on the basis that those earlier rules resulted in amended energy conservation standards for the short-cycle product classes, but did not determine whether relevant statutory criteria for amending standards were met. 87 FR 2673. The January 2022 Final Rule reinstated the prior product classes and applicable standards for these covered products. Id.

On March 17, 2022, various States filed a petition in the Fifth Circuit Court of Appeals seeking review of a final rule revoking two final rules that established product classes for residential dishwashers with a cycle time for the normal cycle of 60 minutes or less, top-loading RCWs and certain classes of consumer clothes dryers with a cycle time of less than 30 minutes, and front-loading RCWs with a cycle time of less than 45 minutes (collectively, “short-cycle product classes”). The petitioners argued that the final rule revoking the short-cycle product classes violated EPCA and was arbitrary and capricious. On January 8, 2024, the United States Court of Appeals for the Fifth Circuit granted the petition for review and remanded the matter to DOE for further proceedings consistent with the Fifth Circuit's opinion. See Louisiana v. United States Department of Energy, 90 F.4th 461 (5th Cir. 2024).

In this request for information, DOE is commencing a rulemaking process on remand from the Fifth Circuit (the Remand Proceeding) by soliciting further information, relevant to the issues identified by the Fifth Circuit, regarding any short cycle product classes. DOE intends to use the data and information collected in response to this request for information to conduct the analysis required by 42 U.S.C. 6295(q)(1)(B) to determine whether any short-cycle products have a “capacity or other performance-related feature [that] . . . justifies a higher or lower standard from that which applies (or will apply) to other products. . . .”

The current standards applicable to residential clothes washers, dishwashers, and consumers clothes dryers are in 10 CFR 430.32(g)(4), 10 CFR 430.32(f)(1), and 10 CFR 430.32(h)(3), respectively. In addition, EPCA's anti-backsliding provision precludes DOE from prescribing any amended standard “which increases the maximum allowable energy use” of a covered product. 42 U.S.C. 6295(o)(1).

In this request for information, DOE is soliciting further information, relevant to the issues identified by the Fifth Circuit, regarding short-cycle product classes for dishwashers, RCWs, and consumer clothes dryers. DOE intends to use the data and information collected in response to this request for information to conduct the analysis required by 42 U.S.C. 6295(q)(1)(B) to determine whether short-cycle products should be subject to a different standard than non-short-cycle products.

In this section, DOE has identified specific information and data on which it seeks input regarding “short cycles” for dishwashers, RCWs, and consumer clothes dryers.

As discussed, the October 2020 Final Rule and December 2020 Final Rule established short-cycle product classes for dishwashers with a normal cycle time of 60 minutes or less; top-loading standard-size RCWs with an average cycle time of less than 30 minutes and front-loading standard-size RCWs with an average cycle time of less than 45 minutes; and vented electric standard-size clothes dryers and vented gas clothes dryers with a cycle time of less than 30 minutes. 85 FR 68723; 85 FR 81359, 81360.

Issue 1: DOE requests information on whether manufacturers optimize their dishwasher, RCW, or consumer clothes dryer normal cycles for a target cycle length, and if so, what target cycle times are considered. DOE requests data indicating what a consumer-acceptable cycle time is for the normal cycle in dishwashers, RCWs, and consumer clothes dryers.

Issue 2: DOE requests data indicating how consumers trade off preferences between cycle time and other product characteristics.

As presented in the rulemaking dockets for the October 2020 Final Rule and the December 2020 Final Rule, DOE has previously published the following cycle time data: the results of DOE testing of 31 standard-size dishwashers, including Cleaning Indexes;  5 individual test cycle and average cycle time data for 23 top-loading standard-size RCWs and 20 front-loading standard-size RCWs tested by DOE;  6 cycle time data for 6 vented electric standard-size and 8 vented gas consumer clothes dryers tested by DOE;  7 and cycle time data for an additional 245 vented electric standard-size and 110 vented gas consumer clothes dryers from the ENERGY STAR product database. 8

Issue 3: DOE requests information on dishwashers, RCWs, and consumer clothes dryers that are currently available on the market with normal cycle times that meet consumer expectations of a short cycle for each product. For any such models, DOE requests data on the energy and water consumption. DOE also requests data and information on whether and how such products contain any unique design attributes or performance characteristics compared to other products with longer normal cycle times, and what drives such differences from a design perspective.

Issue 4: DOE seeks data regarding the historical change in cycle times for dishwashers, RCWs, and consumer clothes dryers.

In addition, DOE notes that most basic models of dishwashers, RCWs, and consumer clothes dryers also provide multiple cycles outside the normal cycle. For instance, a dishwasher may have a quick cycle, heavy cycle, delicates, etc. in addition to the normal cycle. These additional cycles may provide either longer or shorter cycle times than the normal cycle and may also be designed to optimize other performance characteristics or be optimized for different loads than the normal cycle.

Issue 5: For all models, DOE requests comment on how manufacturers design or optimize any shorter cycle(s) on a given model differently than the normal cycle on that same model. DOE further requests information on whether any design or performance tradeoffs are made on these shorter cycles, and if so, what those tradeoffs are and to what extent they differ from the normal cycle.

Issue 6: DOE requests comment on whether manufacturers plan to (or would continue to) maintain two separate product lines—one optimized to meet consumer demand for short cycles, and one optimized for attributes other than cycle time—and if so, DOE requests information on the financial impacts of developing and maintaining two separate product lines instead of one. DOE further requests comment on which product line manufacturers would prioritize, if they decided to offer only a single product line.

Issue 7: DOE requests information on consumer preferences for: (1) a short cycle as the normal cycle and (2) the presence of short cycles available as cycle types outside the normal cycle.

Issue 8: DOE requests historical market information on any dishwashers, RCWs, or consumer clothes dryers that have been advertised or designed to provide a short cycle, and the relevant performance attributes of such products (including but not limited to energy use, water use, and cleaning performance).

Issue 9: For all models, not limited to those designed for a short cycle as the normal cycle, DOE requests data and information about consumer behaviors that affect energy and water consumption, such as pre-washing, handwashing, and running multiple cycles on the same load, and whether and how these behaviors may change according to the cycle selected.

Issue 10: For all models, not limited to those designed for a short cycle as the normal cycle, DOE requests data regarding cycle time and energy and water consumption that would demonstrate whether a separate standard level whether higher or lower should be considered for products with a given cycle length pursuant to 42 U.S.C. 6295(q)(2).

DOE invites all interested parties to submit in writing by the date specified in the DATES section of this document, comments and information on matters addressed in this document and on other matters relevant to short cycles for dishwashers, RCWs, and consumer clothes dryers.

Submitting comments via www.regulations.gov. The www.regulations.gov web page requires you to provide your name and contact information. Your contact information will be viewable to DOE Building Technologies Office staff only. Your contact information will not be publicly viewable except for your first and last names, organization name (if any), and submitter representative name (if any). If your comment is not processed properly because of technical difficulties, DOE will use this information to contact you. If DOE cannot read your comment due to technical difficulties and cannot contact you for clarification, DOE may not be able to consider your comment.

However, your contact information will be publicly viewable if you include it in the comment or in any documents attached to your comment. Any information that you do not want to be publicly viewable should not be included in your comment, nor in any document attached to your comment. If this instruction is followed, persons viewing comments will see only first and last names, organization names, correspondence containing comments, and any documents submitted with the comments.

Do not submit to www.regulations.gov information for which disclosure is restricted by statute, such as trade secrets and commercial or financial information (hereinafter referred to as Confidential Business Information (“CBI”)). Comments submitted through www.regulations.gov cannot be claimed as CBI. Comments received through the website will waive any CBI claims for the information submitted. For information on submitting CBI, see the Confidential Business Information section.

DOE processes submissions made through www.regulations.gov before posting. Normally, comments will be posted within a few days of being submitted. However, if large volumes of comments are being processed simultaneously, your comment may not be viewable for up to several weeks. Please keep the comment tracking number that www.regulations.gov provides after you have successfully uploaded your comment.

Submitting comments via email, hand delivery/courier, or postal mail. Comments and documents submitted via email, hand delivery/courier, or postal mail also will be posted to www.regulations.gov. If you do not want your personal contact information to be publicly viewable, do not include it in your comment or any accompanying documents. Instead, provide your contact information on a cover letter. Include your first and last names, email address, telephone number, and optional mailing address. The cover letter will not be publicly viewable as long as it does not include any comments.

Include contact information each time you submit comments, data, documents, and other information to DOE. If you submit via postal mail or hand delivery/courier, please provide all items on a CD, if feasible, in which case it is not necessary to submit printed copies. No faxes will be accepted.

Comments, data, and other information submitted to DOE electronically should be provided in PDF (preferred), Microsoft Word or Excel, WordPerfect, or text (ASCII) file format. Provide documents that are not secured, written in English and free of any defects or viruses. Documents should not contain special characters or any form of encryption and, if possible, they should carry the electronic signature of the author.

Campaign form letters. Please submit campaign form letters by the originating organization in batches of between 50 to 500 form letters per PDF or as one form letter with a list of supporters' names compiled into one or more PDFs. This reduces comment processing and posting time.

Confidential Business Information. Pursuant to 10 CFR 1004.11, any person submitting information that he or she believes to be confidential and exempt by law from public disclosure should submit via email two well-marked copies: one copy of the document marked confidential including all the information believed to be confidential, and one copy of the document marked “non-confidential” with the information believed to be confidential deleted. DOE will make its own determination about the confidential status of the information and treat it according to its determination.

It is DOE's policy that all comments may be included in the public docket, without change and as received, including any personal information provided in the comments (except information deemed to be exempt from public disclosure).

DOE considers public participation to be a very important part of the process for developing energy conservation standards. DOE actively encourages the participation and interaction of the public during the comment period in this process. Interactions with and between members of the public provide a balanced discussion of the issues and assist DOE. Anyone who wishes to be added to the DOE mailing list to receive future notices and information about this process or would like to request a public meeting should contact Appliance and Equipment Standards Program staff at (202) 287-1445 or via email at ApplianceStandards Questions@ee.doe.gov.

The Secretary of Energy has approved publication of this request for information.

This document of the Department of Energy was signed on February 29, 2024, by Jeffrey Marootian, Principal Deputy Assistant Secretary for Energy Efficiency and Renewable Energy, pursuant to delegated authority from the Secretary of Energy. That document with the original signature and date is maintained by DOE. For administrative purposes only, and in compliance with requirements of the Office of the Federal Register, the undersigned DOE Federal Register Liaison Officer has been authorized to sign and submit the document in electronic format for publication, as an official document of the Department of Energy. This administrative process in no way alters the legal effect of this document upon publication in the Federal Register .

The FAA invites you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under ADDRESSES . Include “Docket No. FAA-2024-0464; Project Identifier MCAI-2022-01556-T” at the beginning of your comments. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. The FAA will consider all comments received by the closing date and may amend this proposal because of those comments.

Except for Confidential Business Information (CBI) as described in the following paragraph, and other information as described in 14 CFR 11.35, the FAA will post all comments received, without change, to regulations.gov , including any personal information you provide. The agency will also post a report summarizing each substantive verbal contact received about this NPRM.

CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this NPRM contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this NPRM, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this NPRM. Submissions containing CBI should be sent to Yaser Osman, Aviation Safety Engineer, FAA, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; phone: 860-386-1786; email: yaser.m.osman@faa.gov . Any commentary that the FAA receives which is not specifically designated as CBI will be placed in the public docket for this rulemaking.

The FAA issued AD 2021-09-03, Amendment 39-21516 (86 FR 20266, April 19, 2021); corrected April 27, 2021 (86 FR 22111) (AD 2021-09-03), for certain Airbus Canada Limited Partnership Model BD-500-1A10 and BD-500-1A11 airplanes. AD 2021-09-03 was prompted by an MCAI originated by Transport Canada, which is the aviation authority for Canada. Transport Canada issued AD CF-2021-10, dated March 18, 2021 (Transport Canada AD CF-2021-10), to correct an unsafe condition.

AD 2021-09-03 requires repetitive replacements of the ELT antenna with a new ELT antenna and repetitive inspections for damage of the exterior fuselage skin around the ELT antenna attachment area. The FAA issued AD 2021-09-03 to address ELT antenna failure, which can lead to the loss of the ELT antenna and the development of fuselage cracks that can result in an inability to maintain cabin pressure.

Since the FAA issued AD 2021-09-03, Transport Canada superseded Transport Canada AD CF-2021-10 and issued Transport Canada AD CF-2022-67, dated December 6, 2022 (Transport Canada AD CF-2022-67) (also referred to as the MCAI), to correct an unsafe condition for certain Airbus Canada Limited Partnership Model BD-500-1A10 and BD-500-1A11 airplanes. The MCAI states that since Transport Canada AD CF-2021-10 was issued, an aluminum ELT antenna has been made available to prevent ELT antenna failures resulting from vibration loads induced by air vortices shed by the Gogo 2Ku antenna radome. In addition, there was an in-service failure of an ELT antenna that occurred before the repetitive replacement interval required by Transport Canada AD CF-2021-10 was reached. The MCAI also states installation of the aluminum ELT antenna terminates the requirements of Transport Canada CF-2022-67, and that the applicability has been limited to airplanes on which the aluminum ELT antenna has not been installed in production.

The FAA is proposing this AD to address ELT antenna failure, which can lead to the loss of the ELT antenna and the development of fuselage cracks that can result in an inability to maintain cabin pressure. You may examine the MCAI in the AD docket at regulations.gov under Docket No. FAA-2024-0464.

Although this proposed AD does not explicitly restate the requirements of AD 2021-09-03, this proposed AD would retain all of the requirements of AD 2021-09-03. Those requirements are referenced in Transport Canada AD CF-2022-67, which, in turn, is referenced in paragraph (g) of this proposed AD.

Transport Canada AD CF-2022-67 specifies procedures for:

• Repetitive replacements of the ELT antenna with a new ELT antenna and repetitive inspections for damage (including cracking) of the exterior fuselage skin around the ELT antenna attachment area, and

• A one-time replacement of the ELT antenna with a new aluminum ELT antenna, and detailed inspection for damage (including cracking) of the exterior fuselage skin around the ELT antenna attachment holes, and repair of any damage, which terminate the repetitive replacements and inspections.

This material is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

This product has been approved by the aviation authority of another country and is approved for operation in the United States. Pursuant to the FAA's bilateral agreement with this State of Design Authority, it has notified the FAA of the unsafe condition described in the MCAI referenced above. The FAA is issuing this NPRM after determining that the unsafe condition described previously is likely to exist or develop in other products of the same type design.

This proposed AD would require accomplishing the actions specified in Transport Canada AD CF-2022-67 described previously, except for any differences identified as exceptions in the regulatory text of this proposed AD.

In the FAA's ongoing efforts to improve the efficiency of the AD process, the FAA developed a process to use some civil aviation authority (CAA) ADs as the primary source of information for compliance with requirements for corresponding FAA ADs. The FAA has been coordinating this process with manufacturers and CAAs. As a result, the FAA proposes to incorporate Transport Canada AD CF-2022-67 by reference in the FAA final rule. This proposed AD would, therefore, require compliance with Transport Canada AD CF-2022-67 in its entirety through that incorporation, except for any differences identified as exceptions in the regulatory text of this proposed AD. Service information required by Transport Canada AD CF-2022-67 for compliance will be available at regulations.gov under Docket No. FAA-2024-0464 after the FAA final rule is published.

The FAA estimates that this AD, if adopted as proposed, would affect 56 airplanes of U.S. registry. The FAA estimates the following costs to comply with this proposed AD:

The FAA estimates the following costs to do any necessary on-condition actions that would be required based on the results of any required actions. The FAA has no way of determining the number of aircraft that might need these on-condition actions:

The FAA invites you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under ADDRESSES . Include “Docket No. FAA-2024-0463; Project Identifier AD-2023-00792-T” at the beginning of your comments. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. The FAA will consider all comments received by the closing date and may amend this proposal because of those comments.

Except for Confidential Business Information (CBI) as described in the following paragraph, and other information as described in 14 CFR 11.35, the FAA will post all comments received, without change, to regulations.gov, including any personal information you provide. The agency will also post a report summarizing each substantive verbal contact received about this NPRM.

CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this NPRM contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this NPRM, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this NPRM. Submissions containing CBI should be sent to Michael Closson, Aviation Safety Engineer, FAA, 2200 South 216th St., Des Moines, WA 98198; phone: 206-231-3973; email: Michael.P.Closson@faa.gov. Any commentary that the FAA receives that is not specifically designated as CBI will be placed in the public docket for this rulemaking.

The FAA has received a report of multiple unusual spoiler deployments, which resulted in an un-commanded roll to the right during cruise. The related “SPOILERS” fault light on the P5-3 panel came on, and the spoiler control electronics (SCE) issued spoiler 10 fault code 27-01630. This event was noted as intermittent and was seen on multiple flights. A subsequent investigation found the root cause of the event was wire chafing damage due to spoiler control wire bundles riding on the landing gear beam rib in the right wing trailing edge due to non-conforming installation of spoiler wire bundles that occurred during production. This condition, if not addressed, could result in loss of control of the airplane.

The FAA is issuing this NPRM after determining that the unsafe condition described previously is likely to exist or develop on other products of the same type design.

The FAA reviewed Boeing Alert Requirements Bulletin 737-27A1325 RB, dated July 14, 2023. This service information specifies procedures for spoiler control wire bundles clearance measurement and applicable on-condition actions. On-condition actions include a detailed inspection of the spoiler control wire bundles and adjacent structure for chafing damage, repair of any spoiler control wire bundles and any structural damage, and adjustment of the spoiler control wire bundles to ensure clearance requirements are met.

This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in ADDRESSES .

This proposed AD would require accomplishing the actions specified in the service information already described, except for any differences identified as exceptions in the regulatory text of this proposed AD. For information on the procedures, see this service information at regulations.gov under Docket No. FAA-2024-0463.

The FAA estimates that this AD, if adopted as proposed, would affect 207 airplanes of U.S. registry. The FAA estimates the following costs to comply with this proposed AD:

The FAA estimates the following costs to do any necessary repairs that would be required based on the results of the proposed inspection. The agency has no way of determining the number of aircraft that might need these repairs:

The FAA has included all known costs in its cost estimate. According to the manufacturer, however, some or all of the costs of this proposed AD may be covered under warranty, thereby reducing the cost impact on affected operators.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.

The FAA is issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: General requirements. Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

The FAA determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.