In a Federal Register notice published Dec. 18, the US Department of Agriculture argues that the sweeping changes to how organic animals are housed, transported and slaughtered outlined in the Organic Livestock and Poultry Practices final rule exceed the statutory authority of the National Organic Program.
It also argues that the estimated financial benefits of the rule were based on “significant, material errors,” and could have “unintended consequences” that could stunt the organic market’s future development and growth.
The Organic Trade Association, which is fighting the proposal in court, says the move is a “groundless step by USDA” that “is being taken against a backdrop of nearly universal support among the organic businesses, and consumers.”
The association points out that “by the department’s own count, out of the more than 47,000 comments the department received in the last public comment period for the regulation, 99% were in favor of the rule becoming effective without future delay on Nov. 14. USDA noted that only 28 comments out of the 47,000-plus comments were in favor of a withdrawal of the rule.”
In addition to going against the “overwhelming” public support for the rule and “growing consumer demands for food transparency,” OTA says the USDA’s action violates Congress’ intention that industry and consumers work together to develop organic standards.
USDA claims rule oversteps Congressional intent
While USDA acknowledges that the Organic Foods Product Act of 1990 does reference industry’s ability to develop additional regulatory standards “for the care” of organically produced livestock, it says the statute limits those standards to health care practices similar to those specified by Congress in the statute, and therefore does not cover elements such as additional space requirements and quality of life standards.
“Nothing in [the statute] authorizes the broadly prescriptive, stand-alone animal welfare regulations contained in the OLPP final rule. Rather, [it] authorizes USDA to regulate with respects to discrete aspects of animal production practices and materials: breeder stock, feed and growth promoters, animal health care, forage and record-keeping,” USDA writes in the notice.
Further it notes, the statute identifies prohibited health care practices as including subtherapeutic doses of antibiotics, routine synthetic internal parasiticides, and medications, other than vaccinations, absent illness.
“Reading the plain language in context, AMS now believes that the authority granted [in the statute] for the Secretary to issue regulations fairly extends only to those aspects of animal care that are similar to those described … and that are shown to be necessary to meet the congressional objectives,” the Federal Register notice explains.
OTA counters in the statement that the organic standards are not mandatory, but rather voluntary – allowing for those who deem them overly prescriptive not to implement them and not be certified organic.
USDA questions economic benefit of rule
USDA also argues the rule should be withdrawn because the benefits of the rule were based on mathematical errors that make it appear as if the benefits outweigh the cost.
“AMS found the calculations of benefits contained mathematical errors in calculating the discount rates of 7% and 3%. AMS also found the estimated benefits over time were handled differently than were the estimated costs over time. In addition, the range used for estimating the benefit interval could be replaced with more suitable estimates,” the agency writes in the notice.
After correcting for these errors, USDA says there is “little, if any, economic justification for the OLPP final rule.”
It goes on to say that the “overly prescriptive regulations” could actually harm the economy by discouraging technological and social innovation, especially by small firms and consumers, distorting or even preventing technological development.
“Lacking evidence of the material market failure to justify prescriptive regulatory action, AMS is concerned the OLPP rule may hamper market-driven innovation and evolution and impose unnecessary regulatory burden,” it adds.
The withdrawal of the regulation, however, would save industry money and allow for ongoing innovation and development.
For example, it argues that in the poultry industry alone, removing the regulation would create a cost savings of $8.2 to $31 million annually, plus additional cost savings of $1.95 to $3.9 million from paperwork reduction.
Again, OTA disagrees, arguing that removing the regulation “could damage a marketplace that is giving American farmers a profitable alternative, creating jobs and improving the economies of our rural areas.”
The integrity of organic seal would remain intact, USDA argues
Finally, in the Federal Register notice USDA counters OTA’s claims that blocking the regulation would harm the integrity of the organic seal by allowing inconsistent practices and not requiring producers to meet consumer expectations.
The agency writes: “While AMS recognizes that the purpose of the OFPA is to assure consumers that organically produced products should meet a consistent and uniform standard, that purpose does not imply that there should be no variation in organic production practices.”
Rather, it argues, “a variety of production methods may be employed to meet the same standard. Some may be more labor intensive and others more capital intensive, and some may be appropriate for small operations while others are appropriate for large operations. … Thus variation in production practices is expected and does not stand as an indicator of a significant market failure.”
USDA also argues that third-party certifications can help fill a void left by the regulation’s removal.
The proposed withdrawal is not set in stone, yet, and OTA plans to continue to fight it in court. Similarly, stakeholders have 30 days to submit comments on the proposal.