National Organic Program (NOP); Final Decision on Organic Livestock and Poultry Practices Rule and Summary of Comments on the Economic Analysis Report
| Published date | 17 September 2020 |
| Citation | 85 FR 57937 |
| Record Number | 2020-19939 |
| Section | Rules and Regulations |
| Court | Agricultural Marketing Service |
This section of the FEDERAL REGISTER
contains regulatory documents having general
applicability and legal effect, most of which
are keyed to and codified in the Code of
Federal Regulations, which is published under
50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by
the Superintendent of Documents.
Rules and Regulations Federal Register
57937
Vol. 85, No. 181
Thursday, September 17, 2020
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
7 CFR Part 205
[Document Number AMS–NOP–20–0037;
NOP–20–03]
RIN 0581–AD75
National Organic Program (NOP); Final
Decision on Organic Livestock and
Poultry Practices Rule and Summary
of Comments on the Economic
Analysis Report
AGENCY
: Agricultural Marketing Service,
Agriculture Department (USDA).
ACTION
: Final decision.
SUMMARY
: On April 23, 2020, the United
States Department of Agriculture
Agricultural Marketing Service (AMS)
published the Economic Analysis
Report related to the Organic Livestock
and Poultry Practices final rule (OLPP
Rule), published on January 19, 2017,
and the final rule withdrawing the
OLPP Rule (Withdrawal Rule),
published on March 13, 2018. AMS
sought comment to evaluate the analysis
in the Economic Analysis Report and to
decide whether additional action should
be taken in regard to the OLPP Rule.
The public comment process for the
Economic Analysis Report is being
conducted consistent with an Order of
the United States District Court for the
District of Columbia, which granted
USDA’s Motion to Remand a legal
challenge to the Withdrawal Rule for
purposes of clarifying and
supplementing the record regarding the
economic analysis underlying both the
OLPP Rule and the Withdrawal Rule.
(See Organic Trade Association v.
USDA; Civil Action No. 17–1875 (RMC)
(March 12, 2020), ECF No. 112). After
reviewing the Economic Analysis
Report and the public comments on it,
AMS is issuing this Final Decision
concluding that no additional
rulemaking action with respect to the
OLPP Rule is necessary.
DATES
: September 17, 2020.
FOR FURTHER INFORMATION CONTACT
:
Jennifer Tucker, Ph.D., Deputy
Administrator, National Organic
Program, Telephone: (202) 720–3252.
Fax: (202) 205–7808.
SUPPLEMENTARY INFORMATION
: The Final
Decision may be accessed under the
following docket number available via
Regulations.gov: AMS–NOP–20–0037;
NOP–20–03. Additional supporting
documents and related materials may
also be referenced under this docket
number.
Documents related to this Final
Decision include: Organic Food
Production Act (OFPA) (7 U.S.C. 6501–
6524) and its implementing regulations
(7 CFR part 205); the Organic Livestock
and Poultry Practices (OLPP) proposed
rule published in the Federal Register
on April 13, 2016 (81 FR 21956); the
OLPP Rule published in the Federal
Register on January 19, 2017 (82 FR
7042); the final rule delaying the OLPP
Rule’s effective date until May 19, 2017,
published in the Federal Register on
February 9, 2017 (82 FR 9967); the final
rule delaying the OLPP Rule’s effective
date until November 14, 2017,
published in the Federal Register on
May 10, 2017 (82 FR 21677); a second
proposed rule presenting the four
options for agency action listed in
Section I, supra, published in the
Federal Register on May 10, 2017 (82
FR 21742); a final rule further delaying
the OLPP final rule’s effective date until
May 14, 2018, published in the Federal
Register on November 14, 2017 (82 FR
52643); a proposed rule explaining
AMS’ intent to withdraw the OLPP final
rule, published in the Federal Register
on December 18, 2017 (82 FR 59988);
the Withdrawal Rule, published in the
Federal Register on March 13, 2018 (83
FR 10775); a request for comment on the
OLPP Economic Analysis Report
published in the Federal Register on
April 23, 2020 (85 FR 22664).
Table of Contents
Background
Summary of and Responses to Comments
Received
1. Costs Were Inflated and Benefits Were
Discounted
2. Benefit Calculations Do Not Include
Broiler Submarket
3. Value of Prohibition on Forced Molting
Not Included in Willingness to Pay
Calculations
4. Sample Bias
5. Increase in Mortality Rates of Layers
from 5% to 8%
6. Correction to Lay Rates
7. Assumptions on Future Growth of
Production
Comments on General Policy or Beyond the
Scope of the Request for Comments
AMS Final Decision and Rationale
Background
The OFPA authorizes the United
States Department of Agriculture (USDA
or Department) to establish national
standards governing the marketing of
certain agricultural products as
organically produced. The national
standards are to assure consumers that
organically produced products meet a
consistent standard and to facilitate
interstate commerce in fresh and
processed food that is organically
produced. USDA’s Agricultural
Marketing Service (AMS) administers
the National Organic Program (NOP)
under 7 CFR part 205.
On January 19, 2017, AMS published
the OLPP Rule. After delaying the
effective date of the OLPP Rule until
May 14, 2018, AMS published the
Withdrawal Rule on March 13, 2018,
which withdrew the OLPP Rule. In the
Withdrawal Rule, AMS explained that it
had discovered three mathematical and
methodological errors in the Regulatory
Impact Analysis for the OLPP Rule
(Final RIA), and that the Final RIA was
thus incorrect in its assessment of the
costs and benefits of the OLPP Rule. In
connection with promulgating the
Withdrawal Rule, AMS published a
modified Regulatory Impact Analysis
(Withdrawal RIA) that sought to correct
for the three identified errors in the
Final RIA while otherwise holding that
analysis constant. Based on the
modified analysis in the Withdrawal
RIA, AMS projected that the costs of the
OLPP Rule likely exceeded its benefits,
and that projection was one of the
factors on which AMS based its
withdrawal of the OLPP Rule. AMS also
concluded in the Withdrawal Rule that
there was no market failure in the
organic industry sufficient to warrant
the particular regulations established by
the OLPP Rule. Separate and apart from
these economic and market-based
considerations, AMS determined in the
Withdrawal Rule that the statutory
authority under OFPA did not permit
the agency to regulate the organic
industry based solely on concerns
regarding animal welfare, and that the
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OLPP Rule thus exceeded the scope of
AMS’s authority under the statutory
scheme.
In the fall of 2017, the Organic Trade
Association (OTA) filed a lawsuit in the
U.S. District Court for the District of
Columbia, challenging AMS’s delay of
the OLPP Rule’s effective date; OTA
subsequently amended its complaint to
challenge the Withdrawal Rule. On
October 31, 2019, OTA filed a motion
for summary judgment accompanied by
several extra-record attachments,
including a privately commissioned
analysis of the Withdrawal RIA
performed by Dr. Thomas Vukina, a
consultant and professor of economics
at North Carolina State University. In
the course of reviewing Dr. Vukina’s
analysis, AMS independently
discovered that the Withdrawal RIA had
failed to fully correct for one of the
previously identified flaws and that the
Final RIA contained additional flaws
that had not previously been discerned
or corrected.
In light of that discovery, on January
3, 2020, USDA filed a motion to
suspend the summary judgment
proceedings and requested voluntary
remand to determine how to address the
additional methodological flaws
discovered in the prior RIAs. On March
12, 2020, the District Court granted that
request. See Organic Trade Association
v. USDA; Civil Action No. 17–1875
(RMC) (March 12, 2020), ECF No. 112
(the Order). In the Order, the District
Court set a deadline of 180 days for the
USDA to complete the action(s) that it
was going to take on remand. The
District Court also set a September 8,
2020 deadline for AMS to report back to
the Court on the outcome of these
proceedings.
Consistent with these developments,
AMS directed a methodological review
of the Final RIA and Withdrawal RIA,
which was undertaken by an AMS
economist that was not involved in the
promulgation of the OLPP Rule or the
Withdrawal Rule. That review resulted
in the preparation of a report that
summarized and explained its findings
(Economic Analysis Report or Report).
In the Economic Analysis Report, AMS
first provided a backdrop by explaining
the three errors that had been identified
in the Withdrawal RIA: (1) The incorrect
application of the discounting formula;
(2) the use of an incorrect willingness to
pay value for eggs produced under the
new open access requirements; and (3)
the incorrect application of a
depreciation treatment to the benefit
calculations. The Report explained that
although the Withdrawal RIA correctly
identified these errors and properly
addressed the first two errors (incorrect
discounting methodology and
willingness-to-pay values), it had not
fully removed the incorrect depreciation
treatment from the cost and benefit
calculations, which erroneously
reduced the calculation of both costs
and benefits.
The Report went on to identify and
discuss four categories of additional
errors in the Final RIA that were
previously undetected and therefore
inadvertently carried forward to the
Withdrawal RIA. These are: (1)
Inconsistent or incorrect documentation
of key calculation variables; (2) an error
in the volume specification affecting
benefits calculations in two of three
scenarios considered; (3) the incorrect
use of production values in the benefits
calculations that do not account for
projected increased mortality loss; and
(4) aspects of the cost calculations that
resulted in certain costs being ignored,
underreported, or inconsistently
applied. In addition, the Report
described certain minor errors that did
not have a material impact on the cost
and benefit calculations. On April 23,
2020, AMS published the Economic
Analysis Report, with a request for
public comment, in the Federal Register
(85 FR 22664). AMS sought public
comment to evaluate the analysis in the
Economic Analysis Report and to decide
whether additional action should be
taken in regard to the OLPP Rule in light
of the issues identified. The public
comment period ended on May 26,
2020.
After reviewing the public comments,
AMS is affirming the findings in the
Economic Analysis Report, modifying
its economic analysis of the OLPP Rule
to the extent discussed herein, and
issuing this Final Decision concluding
that no additional rulemaking action
with respect to the OLPP Rule is
necessary as a consequence of those
findings. This Final Decision explains
AMS’ rationale for these determinations
in light of the findings contained in the
Economic Analysis Report and the
public comments received.
Summary of and Responses to
Comments Received
AMS received 551 comments
responding to the request for comment
on the Economic Analysis Report.
Several commenters provided
substantive comments on the Economic
Analysis Report and AMS addresses
those comments in detail below. Many
commenters addressed matters that
were not related to the issues outlined
in the Economic Analysis Report but
rather pertained to policy
considerations that, in the commenters’
view, weighed in favor of the OLPP rule
and against its withdrawal. These
comments generally were beyond the
scope of this proceeding.
1. Costs Were Inflated and Benefits Were
Discounted
One commenter stated that the
Economic Analysis Report appeared to
inflate the costs of the OLPP Rule by
front-loading them so that they were
discounted less, while also minimizing
or disregarding the benefits by heavily
discounting them in the future. The
commenter did not provide additional
detail as to why he believed the costs
and benefits of the OLPP Rule were
improperly allocated, and AMS is thus
limited in its ability to provide a
meaningful response to the comment.
However, AMS believes that it is
important to clarify that the purpose of
the Economic Analysis Report was
simply to identify errors in the previous
RIAs, including as to methodological
choices that appeared unreasonable or
inadvertent, and assess the materiality
of those errors. Importantly, the Report
did not attempt to redo the cost-benefit
analysis in the prior RIAs or recalculate
the costs and benefits of the OLPP Rule
based on any assessment about the
impact of those errors. It also did not
evaluate any costs or benefits
themselves, or independently assess
when those costs and benefits would be
realized. Therefore, the commenter’s
disagreement with the allocation of
costs and benefits would appear to be a
methodological critique of the Final
RIA, rather than the Economic Analysis
Report itself, or—in other words—a
perceived additional flaw in the Final
RIA not identified by the Economic
Analysis Report.
To the extent that is the commenter’s
intent, AMS disagrees with the critique.
AMS believes that, after correcting for
the improper depreciation methodology
and the other flaws outlined in the
Economic Analysis Report, the Final
RIA’s approach to allocating costs and
benefits over the 15-year analysis period
was methodologically reasonable. The
costs were allocated to different years of
the analysis period based on the dates
on which regulatory reforms were
required to be implemented, as well as
an assessment of the steps necessary for
producers to come into compliance by
those dates. Those allocations reflect the
age of various capital investments across
the industry, and distinctions between
one-time, up-front land acquisition costs
(on the one hand) and recurring annual
costs (on the other). The benefit
allocations were similarly based upon
the assumption that producers not
already in compliance would not come
into compliance until the date they were
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1
One commenter cited the 2014 Vukina,
Andersen, and Muth paper on broilers, which in
turn referenced the 2012 ‘‘Phase 2 Report in USDA,
Agricultural Marketing Service, National Organic
Program’’, that estimated a 30 percent increase in
WTP for broiler indoor space. Both these papers
ultimately rely primarily on the 2006 McVittie,
Moran and Nevison working paper to construct
their WTP estimate for broiler indoor space.
2
Similarly, the 2006 McVittie, Moran and
Nevison paper studied the preferences of British
consumers, not U.S. consumers. As noted by AMS,
a 2012 Vukina, Anderson, Muth, and Ball paper on
broilers stated, ‘‘British consumers are probably
somewhat different than U.S. consumers. They have
different levels of real disposable income, and they
are likely to have different sets of preferences. For
example, there is ample casual evidence that
European consumers are, on average, more
concerned with animal welfare than their U.S.
counterparts,’’ Economic Impact Analysis of
Proposed Regulations for Living Conditions for
Organic Poultry—Revised Phase 2 Report at 2–2,
prepared for Agricultural Marketing Service (Aug.
2012).
required to do so, and the Final RIA
assessed benefits flowing from that date
forward based on the projected output
of those producers. Beyond the errors
already identified in the Withdrawal
RIA and Economic Analysis Report,
AMS believes that this approach to
allocating costs and benefits was
reasonable, and the commenter has not
provided sufficient detail for AMS to
conclude otherwise.
The same commenter also stated that
the Economic Analysis Report
improperly corrected for any errors in
the RIAs, skewing the results in the
opposite direction. He also stated that
AMS’s explanation of the depreciation
error schedule was not transparent and
verifiable, and that AMS did not make
available the workbooks showing the
raw data and formulas used to calculate
the costs and benefits. With regard to
the assertion that the Report skewed
results in the opposite direction, AMS
reiterates that the intent of the
Economic Analysis Report was not to
undertake a correction of the errors in
the prior RIAs but simply to identify
them and discuss how they may have
impacted the prior economic analyses.
AMS acknowledges that such
discussion, in some places, may have
suggested that the errors could have
been addressed in various ways and
discussed how such corrections would
change the analysis, and is subject to
criticism in that regard. However, the
commenter did not provide any
information regarding why he believes
that the Economic Analysis Report
skewed the results in the opposite
direction, or explain the method he
thought AMS should have used instead
or why, or even specify the
methodological components that he
believed were improperly corrected.
AMS is therefore unable to respond to
this comment further. With respect to
the commenter’s assertion that AMS did
not made its underlying workbooks and
analysis available, AMS disagrees.
These documents were published in the
Federal Register and posted on
regulations.gov when AMS published
the Economic Analysis Report.
2. Benefit Calculations Do Not Include
Broiler Submarket
Another commenter stated that AMS
failed to consider benefits in the broiler
sub-market arising from the OLPP Rule.
As this comment reflects, the Final RIA
quantified the costs to broiler producers
to comply with the OLPP Rule but did
not attempt to quantify or otherwise
estimate any benefits that may have
resulted from such compliance. AMS
did not identify this as an error in either
the Withdrawal RIA or the Economic
Analysis Report. AMS notes that no
reliable numbers for benefits
attributable to the broiler sub-market
existed in the literature that was
available at the time that the OLPP Final
Rule was published. The commenters
cite to a 2006 McVittie, Moran and
Nevison paper, a 2014 Vukina,
Andersen, and Muth paper on broilers,
and a 2017 Mulder and Zomer paper for
estimates of the welfare benefits of
increased indoor space for broilers.
However, these papers were based on
working paper research that had not
been peer reviewed and thus were not
suitable for use as an official estimate in
a regulatory analysis.
1
Furthermore, the
2017 Mulder and Zomer paper was not
published until after the Final RIA was
published and was focused on the
preferences of Dutch consumers
generally, whose preferences might not
be reflective of those of U.S. organic
consumers.
2
However, to the extent that
existing research suggests that American
consumers are willing to pay a price
premium for organic broilers produced
in compliance with the indoor stocking
density requirements of the OLPP Rule,
AMS acknowledges that the Final RIA
may have underestimated the benefits of
the OLPP Rule by assigning a $0 value
to those benefits. If so, AMS agrees that
this is another flaw in the Final RIA in
addition to the errors described in the
Economic Analysis Report.
3. Value of Prohibition on Forced
Molting Not Included in Willingness To
Pay Calculations
Some commenters stated that the
Economic Analysis Report failed to
explain why the reduced willingness to
pay (WTP) values utilized in the
Withdrawal RIA were justified. These
commenters also claimed that the
Economic Analysis Report failed to
consider the benefits of the OLPP Rule’s
ban on forced molting. One commenter
argued that the correct WTP value
should be the sum of WTP values for
outdoor access and the prohibition on
forced molting that were found in the
2013 Heng, et al. study. The commenter
further argued that because these two
values are positive, the sum of both
WTP values is greater than the outdoor
access WTP value by itself.
The value of the OLPP Rule’s
prohibition on forced molting was not
separately considered in the WTP
analysis in either the Final RIA or the
Withdrawal RIA. In the Final RIA, AMS
used an estimated WTP range from the
2013 Heng et al. study that attempted to
assess consumers’ willingness to pay for
eggs produced in a cage-free
environment, with outdoor access, and
without induced molting, among
consumers that were and were not given
information about the environmental
impacts of those practices. In the
Withdrawal RIA, AMS explained that
this range was overstated as a measure
of benefits attributable to the OLPP Rule
because a cage-free environment was
already required for organic egg
production under regulations pre-dating
the OLPP Rule. Thus, in the Withdrawal
RIA, AMS used the estimated value
range for the consumer WTP for outdoor
access alone, found in the 2013 Heng et
al. study, to calculate the benefit of the
rule (per dozen eggs produced). AMS
acknowledges that the Withdrawal Rule
incorrectly stated that the prohibition
on induced molting was already
included in existing regulations and did
not attempt to measure or include the
benefits that might flow from that
prohibition. However, AMS does not
believe that this error materially affected
the benefits calculation. First, AMS
notes that the molting prohibition was
not considered on either side of the
cost-benefits calculation; that is, just as
AMS did not attribute any benefits to
this provision, nor did it measure the
provision’s costs. If AMS were to
separately consider the benefits of this
provision, it would also need to
consider its costs, which would likely
include the higher cost of acquiring
replacement pullets, lower production,
and lost opportunities to take advantage
of seasonal increases in egg demand.
AMS believes, however, that it was
methodologically appropriate to exclude
the molting prohibition from both
components of the analysis, because
most organic producers were likely
already complying with this prohibition
prior to the promulgation of the OLPP
Rule. Molting, which is synonymous
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3
Forced molting is an industry practice that
restores the egg-laying productivity of egg-laying
hens. Following their hatching, young egg-laying
hens (pullets) are raised in specialized facilities that
restrict the bird’s exposure to light, which
stimulates egg production. At 18 weeks of age,
layers are moved to egg production facilities. At 20
weeks, hens begin laying small, undersized eggs.
Eggs increase in size throughout the layer’s life, but
peak production (in terms of number of eggs
produced) occurs at 20 weeks and then gradually
declines. Without molting, at approximately 80 to
85 weeks, the first cycle of production is complete
and layers are replaced with new hens acquired
from pullet-raising operations. By molting birds for
approximately 7 weeks when the layers are
approximately 68 weeks old, the first cycle of
production is shortened but allows for a second
cycle of production that typically ends lasts 35
weeks or until the birds are 105 to 115 weeks old.
4
Jacquie Jacob and Tony Pescatore, ‘‘Molting
Small-scale Commercial Egg Flocks in Kentucky’’,
2018 Univ. of Kentucky Cooperative Extension
Service, ASC–236 (‘‘A molt . . . probably cannot be
done with small flocks that are exposed to natural
daylength.’’)
5
In 2016, approximately 4.8 percent of all 7.4
billion table eggs produced in the United States
were organically certified (NASS, Survey of Organic
Agriculture, 2017, NASS, Monthly Chicken and Egg
Report, February 28, 2017). In that year, the
maximum share of laying flocks that had been
molted was 21.3 percent (NASS, Monthly Chicken
and Egg Report, February 28, 2017).
6
However, AMS notes that even if it were
appropriate to separately consider the costs and
benefits of the molting prohibition, it would be
inappropriate to adopt the commenter’s suggestion
that AMS simply sum the values of the WTP for
outdoor access and the WTP for forced molting in
the 2013 Heng et al. study. First, the 2013 Heng et
al. study did not find a significant effect of a
prohibition on forced molting on consumer WTP
within its analysis. While the 2013 Heng et al. study
reported positive WTP values for different subsets
of the average consumer, it also stated that ‘‘the
means for welfare-related attributes Access,
CageFree, and NoMolting were statistically not-
different from zero.’’ In general, the lack of
significance for a parameter estimate for a variable
in a statistical model indicates that the variation
seen in the data capturing the effect of that variable
cannot be distinguished from that which would
occur from ordinary, random effects. Second, the
consumer choice experiment of the Heng et al.
(2013) article may have exhibited scope
insensitivity. See Alaya Spencer-Cotton, Marit E.
Kragt and Michael Burton ‘‘Spatial and Scope
Effects: Valuations of Coastal Management
Practices’’ Journal of Agricultural Economics
69(2018)3:833–851. Scope insensitivity occurs
when a consumer’s stated valuation of a product
with different socially beneficial attributes does not
increase as more socially beneficial attributes are
added to the product. Notably, Heng et al. (2013)
observed that ‘‘few differences are seen in the WTP
distributions because of perceived differences in
product quality’’ regarding induced molting and
explained that WTP differences in this category
generally flowed from assessments regarding social
and animal welfare benefits.
7
However, to the extent WTP of existing
consumers were to materially differ from those of
future consumers, it would affect the benefits
calculation in potentially complex ways, given that
a core assumption underlying the benefits
calculation was the projection that the market for
organic eggs would more than quadruple over the
analysis period.
with forced molting
3
in a production
setting, is induced in a flock by
restricting the birds’ diet and daily light
exposure for two to three weeks. In this
period, the birds molt, or lose and
replace their feathers. Several weeks
after their regular diet and access to
light exposure are restored, a second egg
production cycle begins with a reduced
peak and duration compared to the first
cycle. In general, the tradeoffs between
whether to molt existing flocks or
replace them consider the cost of
acquiring new hens and the timing of
increased production of eggs (a product
with very seasonal demand). However,
this choice is severely constrained in
the context of organic production, even
without the prohibition contained in the
OLPP Rule. Under the existing
regulations (i.e., those that were in effect
prior to the promulgation of the OLPP
Rule and after its withdrawal), induced
molting practices would be
operationally difficult. Under these
provisions, organic laying hens are
required to have outdoor access, a
condition that prevents the farmer from
limiting light exposure through most of
the year. Similarly, organic laying hens
are required to be cage-free, a situation
that allows layers to potentially acquire
additional nutrition from the feed of
other layers, the manure of other layers,
and outdoor foraging. Because the
farmer cannot entirely control the bird’s
light exposure or nutrient consumption,
induced molting, under current organic
rules, is economically impractical.
4
Furthermore, AMS has no data
indicating that induced molting is
commonly used in organic farming.
AMS thus believes that this practice is
likely rare in organic flocks even absent
an express prohibition,
5
and that
considering this prohibition in the
economic analysis would do little to
create new costs or benefits. AMS
therefore concludes that independent
consideration of the molting provision
would not have materially changed the
WTP value and that it was appropriate
to exclude these costs and benefits from
the assessment of costs and benefits in
the Withdrawal RIA.
6
4. Sample Bias
Another commenter argued that the
Final RIA and the Withdrawal RIA
introduced sample bias error in their
estimation of organic consumers’ WTP
because the 2013 Heng study on which
AMS based these estimations
considered the entire consumer market
for eggs rather than just the consumers
in the existing market for organic eggs,
which the commenter argued were the
true beneficiaries of the OLPP Rule.
Whether the relevant market consists
solely of existing consumers of organic
eggs or encompasses both existing and
potential future consumers is not well
established in the literature. The market
growth rate assumed by the Final and
Withdrawal RIAs was 12.7% per
annum, which was based on growth
rates in the years preceding the OLPP
Rule. AMS notes that if this growth rate
continued as projected, it would mean
that the organic market would grow
81% in five years and 105% within six
years, a value which substantially
exceeds U.S. population growth. Such
growth therefore assumes that either
new organic consumers are entering the
market from the non-organic market or,
in a far less likely scenario, that existing
organic egg consumers are dramatically
increasing their egg consumption every
year. It is inconsistent to assume that
markets grow at extraordinarily high
rates based on suggestions that some
previously conventional egg consumers
are now purchasing organic, while
simultaneously assuming that only the
preferences of consumers previously
purchasing organic products should be
considered in the calculation of WTP
values. Moreover, the commenter did
not provide any reason to differentiate
between the WTP of existing organic
consumers and organic consumers that
might enter the market as a result of the
OLPP Rule, or to assume that existing
organic customers would have a higher
WTP than the new organic customers
for the characteristics considered in the
RIAs. Indeed, the opposite could be true
if the new customers are motivated to
enter the market by the additional
regulation encompassed by the OLPP
Rule. Thus, AMS disagrees with this
commenter’s suggestion that the WTP
values should have been based solely on
literature studying existing organic
consumers.
7
5. Increase in Mortality Rates of Layers
From 5% to 8%
Several commenters stated that the
Final RIA t erroneously projected that
mortality rates of organic layers would
rise from 5% to 8% as a result of the
OLPP Rule, and thus erroneously
lowered egg production rates in light of
that projection. They argued that the
Economic Analysis Report’s finding that
the projected increase in mortality was
not fully incorporated into the benefits
calculation and thus led to an
overestimation of benefits by 1.4 percent
was in error because the Economic
Analysis Report did not examine the
original projected increase. In support of
this critique, some of these commenters
opined that actual flock records show
lower mortality rates and provide better
data than the sources cited by the
Economic Analysis Report. However,
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8
https://www.aphis.usda.gov/aphis/ourfocus/
animalhealth/monitoring-and-surveillance/nahms/
nahms_poultry_studies/.
9
Monique Bestman and Judith Bikker-Ouwejan
‘‘Predation in Organic and Free-Range Egg
Production’’ Animals 2020 10,177.
they did not provide any flock records
in support of this claim.
In the Final RIA, AMS projected that
mortality rates of organic layers would
rise by three percentage points, from a
mortality rate of 5 percent to a mortality
rate of 8 percent, as a result of the new
outdoor access requirements that would
expose layers to increased risks of
disease and predation. This mortality
allowance responded to public
comments on the Final RIA and was
guided by data from the Animal and
Plant Health Inspection Service (APHIS)
National Animal Health Monitoring and
Surveillance (NAHMS) 2013 Layers
study.
8
The Economic Analysis Report
made reference to this component of the
Final RIA’s analysis, but it did not itself
make or modify any projections
regarding increased mortality rates
because doing so would disturb the
baseline levels of production. Rather,
the Economic Analysis Report simply
noted that AMS failed to fully
incorporate the projected mortality
increase into the Final RIA. While the
Final RIA’s cost estimates did reflect the
lower egg production level based on
projected higher mortality, the benefits
were calculated on the unadjusted
production levels without considering
the lower production levels resulting
from the mortality adjustment.
Regarding the accuracy of the
mortality rate increase used by AMS,
one commenter cited a survey by the
Organic Trade Association conducted
during the Economic Analysis Report’s
public comment period as showing that
the mortality rate for laying hens was
6.07 percent. However, AMS does not
have access to this data or the details of
how it was collected, and the Agency
thus cannot assess its methodological
soundness or rely on it as being
representative of the industry for the
purposes of these proceedings.
Furthermore, AMS finds support for its
prior assumption of a 3 percent
mortality increase in a 2020 study by
Bestman and Bikker-Ouwejan,
9
which
finds that, ‘‘on average, 3.7 percent of
hens in organic/free-range flocks were
estimated to be killed by predators,
while total mortality is 12.2 percent.’’
This suggests that AMS’s assumed 3
percentage point increase in mortality
under the OLPP Rule accurately
captures the likely increase in layer
mortality from predation under the new
open access requirement.
The commenter also cites Leenstra et
al. (2014) as showing different rates of
hen mortality by farm types, including
organic, free-range, barn, and caged, and
argues from these trends for the ‘‘use of
a zero excess mortality attributable to
outdoor access because even if,
currently, there is some degree of excess
mortality due to outdoor access, by the
time [the OLPP Final Rule] is fully
implemented, technological and
management advances are likely to
eliminate the existing differences’’ OTA
comment on the Economic Analysis
Report at 8. However, the commenter
provided no data or information in
supporting this argument and AMS
finds it to be being highly speculative
about the future direction of technology,
as well as inconsistent with the Bestman
study. More importantly, although AMS
acknowledges that a range of viewpoints
regarding the impact of the outdoor
access provisions on the mortality levels
of organic layers is supported by
differing literature, for purposes of this
Economic Analysis Report, AMS
continues to believe that the loss rate
projections in the Final RIA were
methodologically sound and reasonable.
6. Correction to Lay Rates
A commenter stated that the
Economic Analysis Report erred by
concluding that annual egg production
rates should be reduced from 24.7708
dozen eggs per layer to 23.0406 dozen
eggs per layer because the lower figure
relies on AMS Market News Report data
rather than other data that the
commenter believes to be more
representative of the industry. AMS
disagrees with this comment. Although
the Final RIA assumed the average
number of eggs laid per hen was
24.7708 dozen, that figure was used
without citation and, based on AMS
market data available, it overestimates
the number of eggs produced by 7.51
percent compared to the estimates
provided in the contemporaneous
Market News Report. The 24.7708 dozen
estimate in the Final RIA was also larger
than the estimate used in the
Preliminary RIA, which cited a rate of
284 eggs/hen/year from pasture
production, which is equivalent to 23.67
dozen per year. The Economic Analysis
Report noted that this error may be
related to the fact that, although the
Final RIA stated that AMS Market News
data reported 14 million organic layers
in production in 2016 based on April
data, that statement was incorrect. AMS
Market News actually reported an
estimated 11,350,500 organic layers in
each of the four reporting weeks in
April of 2016 in its ‘‘Weekly USDA
Certified Organic Poultry and Eggs’’
report. It was not until the November
2016 report that the estimated flock was
increased to 14,087,500 layers.
Additionally, the Economic Analysis
Report explained that the highest level
of organic egg production reported
between April 2016 and January 2017
was 207,497 multiplied by 30-dozen
cases, or 6,224,910 dozen eggs per week.
The Economic Analysis Report
calculated the laying rate at this highest
level of weekly production, based on
52.143 weeks per year, and a laying
flock 14,087,500 birds, to equal
324,584,359 dozen eggs produced per
year, which yields an average of 276.49
eggs, or 23.0406 dozen, per laying hen
per year. AMS believes that this
methodology was appropriate.
A commenter stated that the AMS
Market News Weekly USDA Certified
Organic Poultry and Eggs Report should
not be considered representative of the
industry because the USDA report
includes the disclaimer ‘‘does not reflect
all organic production; estimates are
based on data collected from industry
cooperators and other sources.’’ An
alternative higher production rate
24.689 dozen was suggested by the
commenter. That estimate, however, is
based on a sample of 5.62 million layers
and is not publicly available. Because
the size of this sample is only 40
percent of the size of the AMS data
surveying 14.087 million layers, it is an
even less robust sample of egg
production than the AMS Market News
Weekly Report and thus is likely to be
less representative of the industry than
the figures on which AMS relied.
7. Assumptions on Future Growth of
Production
Finally, multiple commenters
disagreed with the Final RIA’s
assumption that organic egg production
will grow at the 12.7 percent rate that
is applied in two of the three scenarios
considered in the Final RIA. These
commenters stated that by failing to
recognize growth opportunities
presented by new OLPP compliant
operations, the growth rate assumptions
in the Final RIA are too low. They
further argued that, under the three
scenarios considered by the Department,
there was no reason for the Final RIA to
assume that some organic producers
would exit the market rather than
comply with the OLPP Rule, given the
strong demand and a growing market.
They further contended that, even if
some producers did exit the market,
other OLPP compliant producers would
replace them and that the Final RIA
underestimated these new entrants’
effects on the assumed growth rate of
12.7% per annum.
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10
Another commenter said that AMS was
incorrect to use the Small Business
Administration’s (SBA) threshold of $15 million in
annual revenue as the cut-off for small organic
farms in the Final RIA, given the size differences
between the organic and non-organic submarkets.
However, this comment falls well outside the scope
of the request for comments on the Economic
Analysis Report and AMS will not address it
further.
The Economic Analysis Report did
not critique the soundness of either the
Final RIA’s assumption that the
industry would continue to grow by
12.7 percent annually over the 15-year
period or its assumption that some
organic producers would exit the
industry rather than comply with the
rule. Based on comments to the
preliminary RIA, AMS increased its
assumed rate of industry growth when
it issued the Final RIA and it
maintained that rate unchanged in the
Withdrawal RIA. AMS continues to
believe that this assumed rate
appropriately incorporated industry
information and expectations that were
available at the time of the Final RIA’s
publication, which suggested an average
growth rate of 12.7 percent across the
preceding decade. The Economic
Analysis Report addressed only the lack
of consistency in the calculated
production levels based on the assumed
rate of growth and industry exit under
the three scenarios considered in the
Final RIA. For example, the Economic
Analysis Report found that the Final
RIA had multiple instances where the
production levels used in the benefits
and cost calculations of the RIA did not
reflect the production levels implied by
the assumed growth rates. AMS notes
that even the 12.7 percent value
assumed robust growth far exceeding
annual growth in other sectors and was
based on explosive growth in the
organic industry that may have been
due, in part, to independent factors not
attributable to the organic label, such as
lack of supply in the conventional
markets. AMS believes that there is no
reason to assume that growth would
exceed that average rate 12.7 percent per
year across the entire 15-year period,
especially in light of the increased costs
expected to result from the OLPP Rule
and considerations of market
maturation.
Comments on General Policy or Beyond
the Scope of the Request for Comments
The limited purpose of this notice-
and-comment proceeding was to assist
AMS in forming a final assessment
regarding the methodological soundness
of the OLPP Final RIA and Withdrawal
RIA and any policymaking conclusions
that flow from that assessment. Most
commenters provided their views on
other aspects of the OLPP rulemaking,
namely legal and policy arguments in
favor of the OLPP Rule that do not relate
to the methodology of the RIAs. Those
views include opinions regarding
AMS’s legal authority to promulgate the
OLPP Rule, the role of the NOSB in the
rulemaking process, the support of
stakeholders for the OLPP Rule, and the
perceived benefits of the OLPP Rule.
Although AMS appreciates these
comments, they are beyond the scope of
the request for comment and thus AMS
is not providing responses to them in
light of the limited scope of this
proceeding. This proceeding was not
intended to fully reopen the legal and
policy discussion regarding the OLPP
Rule. Those issues have already been
the subject of three notice-and-comment
proceedings in the last four years. To
the extent the comments reiterate
opinions already expressed during the
rulemaking proceedings on the OLPP
Rule, the delay of its effective date, and
the Withdrawal Rule, AMS refers to the
discussions of those rulemaking
documents that provide its analysis and
responses to those comments.
Commenters also made assertions
regarding benefits of the OLPP that did
relate, in some respect, to the soundness
of AMS’s analysis of costs and benefits
but were speculative and difficult, if not
impossible, to validate and/or quantify.
For example, commenters argued that
the Economic Analysis Report
underestimated the importance of
animal welfare to organic consumers,
how the OLPP Rule would increase
consumer knowledge of animal welfare
practices in organic production, and
how such knowledge could, in turn,
increase organic consumer’s willingness
to pay organic price premiums.
However, these asserted benefits are
highly speculative and their proponents
proffered no data or studies supporting
or quantifying the alleged relationships
between animal welfare practices,
consumer knowledge of the same, and
the impact of such knowledge on
organic consumers’ WTP. Furthermore.
AMS believes that the Final RIA and, by
extension, the Withdrawal RIA,
expressly considered this idea by
relying on research that attempted to
measure consumer WTP for animal
welfare attributes. Thus, AMS does not
agree that these critiques identify any
additional errors in the Final RIA or the
Withdrawal RIA. Moreover, AMS notes
that the organic regulations existing
prior to the OLPP Rule set standards for
livestock and poultry healthcare, feed,
and living conditions. The significant
expansion of the organic egg laying
flock, organic egg production, and
reported sales under these regulations
demonstrate consumer trust in current
practices and requirements.
Some commenters similarly argued
that other alleged benefits of the OLPP
Final Rule should have been considered
in the Economic Analysis Report,
including increased consumer
confidence in the organic label; greater
uniformity in organic practices; a more
level playing field among producers; the
promotion of soil fertility and nutrient
recycling; a reduction or prevention of
certain external costs generated by
factory farms such as pollution; a
reduction in import fraud; and a
preservation of organic equivalency
arrangements with foreign trading
partners. However, the existence and
scope of those benefits are speculative at
best and the commenters proffered no
data or studies quantifying or otherwise
supporting the purported benefits. Thus,
AMS believes that the opinions in these
comments reflect policy disagreements
regarding the possible consequences of
the OLPP Rule, rather than
methodological flaws in the economic
analyses. AMS has already responded to
the substance of these comments in the
prior rulemaking proceedings.
Some commenters disagreed with
USDA’s use of the cost benefit analysis
generally, stating that such analyses
should not apply to programs in which
participation is entirely voluntary.
However, as noted in the proposed rule
explaining AMS’s intent to withdraw
the OLPP Final Rule, published in the
Federal Register on December 18, 2017
(82 FR 59988), the Office of
Management and Budget designated
withdrawal of the OLPP Final Rule an
economically significant regulatory
action, thereby necessitating a cost
benefit analysis undertaken pursuant to
Executive Orders 12866 and 13563, and
these Executive Orders make no
distinction between mandatory and
voluntary programs. Other commenters
said that AMS wrongly considered the
costs and benefits to large factory
farms,
10
whose industrialized
production models the commenters
asserted were innately non-organic.
However, AMS regulates organic
processes and it permits a variety of
organic production practices. It does not
presume the compatibility of certain
production practices and models with
organic requirements, and if a factory
farm is able to develop and adhere to an
approved organic system plan that
complies with existing regulations, then
AMS will deem it organic, regardless of
its size or structure.
Some commenters stated that AMS
should issue a corrected Regulatory
Impact Analysis for the OLPP
Withdrawal Rule instead of preparing a
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report cataloguing and explaining the
errors in both the Final RIA and the
Withdrawal RIA. However, after AMS
identified the additional errors in
December 2019, it determined that the
prudent course was to proceed
incrementally by first identifying the
errors and then deciding what to do
about them. Had AMS decided that
further policymaking was necessary,
AMS agrees that preparation of a new
RIA might have been appropriate, but
AMS has decided against such further
preparation for the reasons stated below.
AMS disagrees that it should have
attempted to correct the errors in the
Final RIA. The errors in that RIA were
so pervasive and intertwined with the
rest of the analysis, and certain
methodological choices so poorly
documented, that it would be difficult
to attempt to isolate and fully correct for
each documented error. In light of the
pervasive errors discovered to date and
the failure to document certain
methodological choices, AMS could not
be confident that other errors may not
later come to light, thus necessitating
further corrections. Furthermore, even if
the errors could be isolated from the rest
of the analysis and fully corrected, the
data underlying the cost benefit
calculations date back to at least 2014 or
earlier and thus may no longer be valid,
especially in light of the economic
changes occasioned by the COVID–19
pandemic. The only way that USDA
could confidently address all of the
errors and account for changing
economic conditions would be to start
the cost benefit analysis over from
scratch. However, AMS believes that it
would not have been possible to
complete a new regulatory impact
analysis, seek and address comments on
that analysis, and finalize it within the
time constraints imposed by the Court’s
order.
Additionally, as explained in the
Withdrawal Rule, USDA does not
believe that the OFPA provides
statutory authority for the OLPP Rule or
(even if it did) that there has been a
market failure that makes an
intervention in the market necessary
and thus warrants the use of limited
agency resources to complete a new
RIA. As noted in the discussion of
market failure or the lack thereof in the
Withdrawal Rule (83 FR 10775), a
variety of organic production practices
may be employed to meet organic
production standards and the existence
of such variety is not an indication of
a significant market failure. Moreover,
as shown by the Organic Trade
Association’s annual 2019 Organic
Industry Survey, demand for organic
eggs and poultry was strong in the years
prior to the promulgation of the OLPP
Rule and has remained so since its
withdrawal.
Finally, when USDA sought remand
of the OLPP Withdrawal Rule from the
District Court for the District of
Columbia, it explained that it was doing
so ‘‘to address whether [the identified
flaws] require changes to the economic
analysis,’’ and did not commit that it
would necessarily undertake a new or
corrected cost benefit analysis for the
rule. As explained in this Final
Decision, AMS has determined that it
would not be feasible or prudent to
attempt to correct the prior economic
analyses and that preparation of a new
analysis would not be an appropriate
use of agency resources in light of
AMS’s other bases for withdrawing the
OLPP Rule. Instead, USDA has
produced the Economic Analysis Report
and this final decision, which conclude
that the RIAs for the OLPP Rule and
Withdrawal Rule are seriously flawed
and thus did not produce a reliable
projection of costs and benefits, and
AMS is withdrawing its prior
conclusions regarding the economic
impacts of the OLPP Rule to reflect
these assessments without initiating
further policy changes.
Another commenter questioned the
integrity of the Economic Analysis
Report, stating that its author, Dr.
Peyton Ferrier, did not conduct an
independent peer review of the OLPP
Rule and Withdrawal Rule RIA’s
because he is an AMS employee who
was tasked with reaffirming the agency’s
withdrawal decision. It stated that the
Economic Analysis Report should be
more properly considered a Litigation
Report. AMS acknowledges that Dr.
Peyton Ferrier is currently an AMS
economist, but he was not involved in,
nor was he an AMS economist at the
time of, the development, drafting, or
review of the OLPP RIA, the OLPP Rule,
the Withdrawal RIA, or the Withdrawal
Rule. Therefore, he was able to provide
an independent perspective on the
integrity of the methodology and
calculations used by other USDA
economists and organic program who
were involved in the preparation of the
RIAs for the prior rulemakings, and he
did in fact conduct an independent peer
review of those RIAs. Furthermore, Dr.
Ferrier was not asked to opine on what
the USDA’s final decision on the OLPP
rulemaking should be, and he did not
advocate for a particular outcome in the
Economic Analysis Report. Rather, he
supplied underlying data and his
analysis of that data, which USDA has
considered in making and explaining
this Final Decision.
Commenters also criticized Dr.
Ferrier’s reliance upon a 2013 article by
Yan Heng, Hikaru Hanawa Peterson,
and Xianghong Li (Heng et al.) for its
values of consumer WTP for outdoor
access. AMS actually considered
estimates of consumer WTP from
several studies, but Heng et al. (2013)
was specifically cited in the Economic
Analysis Report because that study
supplied the figures that AMS relied
upon in projecting the anticipated
benefits of the OLPP in the Final RIA
and Withdrawal RIA. As previously
noted, the narrow purpose of the
Economic Analysis Report was to
review and critique the two prior RIAs
and the errors in those RIAs revolved
around the 2013 Heng study. Thus, it
was relevant to the discussion of certain
identified flaws or weaknesses in those
analyses and Dr. Ferrier appropriately
made it his focus.
Other comments challenged the
Economic Analysis Report on the
ground stated that the RIAs and
Economic Analysis Report were not
transparent and that the data and
formulas that were used to prepare them
had not been made publicly available or
were inconsistent with the available
private sector data, thus rendering them
unreproducible and unverifiable. While
the previous RIAs may not have been
fully transparent in their modeling,
AMS disagrees with commenter
assertions that the Economic Analysis
Report is not transparent in its
modeling. The Economic Analysis
Report comprehensively catalogues and
explains errors presented in the
previous RIAs, particularly those in the
cost calculations and depreciation
schedules. Furthermore, when AMS
published the Economic Analysis
Report, it also published several
supporting documents and files
explaining the report’s data and
formulations in the rulemaking docket
on regulations.gov. AMS is unaware of
the private sector data referenced in
specific comments and the commenters
did not provide those data.
One commenter stated that USDA
failed to give commenters sufficient
time to review and comment on the
Economic Analysis Report because
USDA did not expand the comment
period on the report from 30 days to 60
days, as requested. However, a 60 day
comment period would not have
allowed AMS to complete the necessary
steps to draft and publish the Economic
Analysis Report, review and analyze the
comments on the report, and complete
this Final Decision by the deadline set
by the District Court in the District of
Columbia. Additionally, the Regulatory
Impact Analysis for the OLPP Final Rule
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1
To view the proposed rule, supporting
documents, and the comments we received, go to
https://www.regulations.gov/docket?D=APHIS-
2011-0044.
has been available since January 2017,
and the Regulatory Impact Analysis for
the OLPP Withdrawal Rule has been
publicly available since March 2018.
Furthermore, USDA identified and
described concerns regarding those RIAs
in public litigation filings on January 3,
January 24, and February 21, 2020.
Thus, although the Economic Analysis
Report was not itself published until
April 23, 2020, AMS believes that
commenters had ample opportunity to
familiarize themselves with the Final
RIA and the Withdrawal RIA and that
30 days was sufficient to review a report
analyzing specific flaws in those
documents.
AMS Final Decision
The purpose of the remand was to
clarify and supplement the record
regarding the OLPP and Withdrawal
Rules in light of new facts and
information that came to USDA’s
attention in December 2019, and for
AMS to make a decision on whether
further rulemaking action or economic
analysis is warranted in light of that
new information. USDA accomplished
this goal by commissioning Dr. Peyton
Ferrier to review the RIAs for the OLPP
Final Rule and OLPP Withdrawal Rule
and to articulate the impact of his
findings on the existing regulatory
framework under the Withdrawal Rule.
Pursuant to this process, Dr. Peyton
produced the Economic Analysis Report
setting forth his conclusion that there
were significant methodological flaws in
both RIAs, and AMS solicited public
comment on the findings in the Report.
After careful consideration of the
Economic Analysis Report and the
comments received thereupon, USDA
finds nothing in those comments that
would cause it to reject or modify the
findings of that report, and it affirms the
findings of the report.
The Economic Analysis Report
discredits the Final RIA because that
RIA contained multiple methodological
errors that were carried forward to the
Withdrawal RIA and conclusively
demonstrate its untrustworthiness. The
Final RIA incorrectly applied a
discounting formula to future benefits,
used an inappropriate WTP for the
value of eggs produced under the OLPP
Rule’s outdoor access requirements, and
applied depreciation to the benefits of
the rule but not the costs. The
Withdrawal RIA corrected the first two
errors, but it only partially corrected the
third because it attempted to remove the
depreciation treatment from the benefits
calculation but did not fully do so. The
Economic Analysis Report also found
four other significant errors in the Final
RIA that went undiscovered until they
were brought to light by a review that
was prompted by Dr. Thomas Vukina’s
extra-record analysis, and which thus
carried over into the Withdrawal RIA.
These results indicate that the Final RIA
was significantly flawed and caused the
Withdrawal RIA to be flawed. To the
extent the Withdrawal Rule formed an
assessment of the likely costs and
benefits of the OLPP Rule based on that
flawed analysis, AMS hereby modifies
that assessment and concludes simply
that the Final RIA does not support
promulgation of the OLPP Rule in light
of its significant flaws. Implementing
the OLPP Rule based on such a flawed
economic analysis is not in the public
interest. AMS makes no changes to the
conclusions set forth in the Withdrawal
Rule that did not rely on the flawed
RIAs and leaves the remainder of the
Withdrawal Rule intact. In light of these
findings and conclusions, USDA sees no
basis for, and thus has decided not to
take, any further regulatory actions or to
make any policy changes with respect to
the OLPP Rule.
Bruce Summers,
Administrator, Agricultural Marketing
Service.
[FR Doc. 2020–19939 Filed 9–16–20; 8:45 am]
BILLING CODE P
DEPARTMENT OF AGRICULTURE
Animal and Plant Health Inspection
Service
9 CFR Part 93
[Docket No. APHIS–2011–0044]
RIN 0579–AD65
Brucellosis and Bovine Tuberculosis:
Importation of Cattle and Bison
AGENCY
: Animal and Plant Health
Inspection Service, Agriculture
Department (USDA).
ACTION
: Final rule.
SUMMARY
: We are amending the
regulations governing the importation of
cattle and bison with respect to bovine
tuberculosis and brucellosis to establish
a system to classify foreign regions as a
particular status level for bovine
tuberculosis and a particular status level
for brucellosis. We are also establishing
provisions for modifying the bovine
tuberculosis or brucellosis classification
of a foreign region. Finally, we are
establishing conditions for the
importation of cattle and bison from
regions with the various classifications.
The changes will make the requirements
clearer and assure that they more
effectively mitigate the risk of
introduction of these diseases into the
United States.
DATES
: Effective October 19, 2020.
FOR FURTHER INFORMATION CONTACT
: Dr.
Kelly Rhodes, Senior Staff Veterinarian,
Regionalization Evaluation Services, VS,
APHIS, 4700 River Road, Unit 38,
Riverdale, MD 20737–1236; (301) 851–
3300.
SUPPLEMENTARY INFORMATION
:
Background
The regulations in 9 CFR part 93,
subpart D (§§ 93.400–93.436, referred to
below as part 93 or the subpart), contain
requirements for the importation of
ruminants into the United States to
address the risk of introducing or
disseminating diseases of livestock
within the United States. Part 93
currently contains provisions that
address the risk that imported bovines
(cattle or bison) may introduce or
disseminate brucellosis or bovine
tuberculosis (referred to below as
tuberculosis) within the United States.
The current regulations, which may be
divided into requirements that are
generally applicable to most exporting
countries and specific requirements that
are applicable to Canada, Mexico, and
the Republic of Ireland, do not account
for changes in disease programs or
disease prevalence that could increase
or decrease the risk of spread of
brucellosis or bovine tuberculosis posed
by the importation of cattle or bison
from foreign regions.
On December 16, 2015, we published
in the Federal Register (80 FR 78461–
78520, Docket No. APHIS–2011–0044) a
proposal
1
to amend the regulations by
consolidating the domestic regulations
governing tuberculosis and those
governing brucellosis, as well as to
revise the tuberculosis- and brucellosis-
related import requirements for cattle
and bison to make these requirements
clearer and ensure that they more
effectively mitigate the risk of
introduction of these diseases into the
United States.
We solicited comments concerning
our proposal for 90 days ending March
15, 2016. We extended the deadline for
comments until May 16, 2016, in a
document published in the Federal
Register on March 11, 2016 (81 FR
12832–12833). We received 164
comments by the close of the extended
comment period. Of those comments,
122 addressed the domestic provisions
of the proposed rule and 42 addressed
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