Public Comment Needed for the Organic Livestock & Poultry Practices Final Rule

On April 23, 2020, the USDA Agricultural Marketing Service (AMS) published a Federal Register Notice requesting public comment on an Economic Analysis Report related to the Organic Livestock and Poultry Practices (OLPP) final rule (published on January 19, 2017) and final rule withdrawal (published on March 13, 2018).

The Economic Analysis Report (EAR) summarizes the agency’s review of the Regulatory Impact Analysis (RIA) for both the OLPP final rule and OLPP final rule withdrawal. The EAR includes findings that the Final Rule RIA contained several material errors. The Withdrawal RIA corrected some of those errors, but did not identify or correct all of the errors and incorporated incomplete and incorrect information into its analysis. The USDA seeks comment on the findings in the EAR and their impact on the Withdrawal Rule. Further detail on the request for comments is below, though essentially our understanding is that this request for comments is somewhat unique in that there are no posed questions for the community to answer. In a report from the Organic Trade Association (OTA) we understand that the findings of the analysis seem to be an effort to change the base information to ensure that the costs of the rule are greater than the benefits. It would seem that this is a measure to ensure the rule is never published. We want to do what we can to provide information to show that the benefits outweigh the costs, and that the rule should be published without delay. We encourage you to provide comments.

The public has only 30 days to analyze and comment on the Report and we’ve used some of that to consult with other industry stakeholders to put together this notification for our clients. The public comments will inform a final analysis, to be published in the Federal Register in the form of a second notice later in 2020, explaining USDA’s final conclusions pertaining to the EAR.

Comments due by: Comments must be received by May 26, 2020.

What should you include in your comments: All livestock producers should comment in support of the OLPP regulation and explaining the positive economic impact it would have on your operation.

Egg producers and marketers should specifically provide comments on:

  • Mortality rate
  • Egg production

The OTA has provided a toolkit for egg producers and marketers. Included is OTA’s summary of the new report and request for comments, summarized key talking points, and instructions for calculating egg production. OTA has drafted letters for egg producers and marketers to adapt for your unique comment. The toolkit also includes a survey from OTA for data they intend to include in their comments in support of the OLPP rule. Please do not send the survey back to MOSA.

As a reminder, the OLPP this rule was intended to:

  • Clarify how producers and handlers must treat livestock and poultry to ensure their health and well-being throughout life, including transport and slaughter.
  • Specify which physical alterations are allowed and prohibited in organic livestock and poultry production.
  • Establish minimum indoor and outdoor space requirements for poultry.

Past newsletter issues have covered the OLPP regulations fully but if you need additional information or help figuring out if your operation would comply, contact us and we’ll help you out.

Submit your comments online: You may submit comments on this document via the Federal eRulemaking Portal at Docket number AMS-NOP-20-0037; NOP-20-03; or Regulatory Information Number (RIN): 0581-AD75

Submit your comments by mail: Dr. Jennifer Tucker, National Organic Program, USDA-AMS-NOP, 1400 Independence Ave. SW, Room 2642-So., Ag Stop 0268, Washington, DC 20250-0268.

Follow these instructions: All submissions received must include docket number AMS-NOP20-0037; NOP-20-03 or Regulatory Information Number (RIN): 0581-AD75. You should clearly indicate the topic to which your comment refers, state your position(s), and include relevant information and data to support your position(s). All comments and relevant background documents posted to will include any personal information provided.

For further information contact: Jennifer Tucker, Ph.D., Deputy Administrator, National Organic Program, Telephone: (202) 720-3252. Fax: (202) 205-7808

Background information from the request for comments: On January 19, 2017 (82 FR 7042), AMS published the OLPP Rule. After delaying the effective date of the OLPP Rule (82 FR 9967, 82 FR 21677, and 82 FR 52643), AMS published the Withdrawal Rule on March 13, 2018 (83 FR 10775), which withdrew the OLPP Rule. AMS explained the withdrawal on the basis that, among other things, the Final RIA had incorrectly calculated the costs and benefits of the OLPP Rule and had wrongly concluded that the benefits of the rule exceeded the costs. AMS also published the Withdrawal RIA in support of the Withdrawal Rule that sought to correct for three identified errors in the Final RIA. In the Withdrawal RIA, AMS found that the projected costs of the OLPP Rule likely exceeded its benefits. As separate and independent bases for the Withdrawal Rule, AMS also concluded that it lacked the legal authority under the Organic Foods Production Act to promulgate the OLPP Rule and that there was no market failure in the organic industry sufficient to warrant the particular regulations established by the OLPP Rule.

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 additional flaws in the Final RIA, which had inadvertently been carried through to the Withdrawal RIA.

In light of those flaws, on January 3, 2020, USDA filed a motion to suspend the summary judgment proceedings and requested voluntary remand. On March 12, 2020, the District Court granted that request. Subsequently, AMS completed its initial review of the flaws in the Final RIA and Withdrawal RIA and is now publishing the results of the review, i.e., the EAR, for public comment. AMS intends to publish its final analysis, as informed by public comment, in time to report back to the District Court by the court-ordered deadline of September 8, 2020.

AMS commissioned one of its economists, Dr. Peyton Ferrier, to conduct a thorough review of both RIAs and to prepare the EAR cataloguing his findings. Dr. Ferrier was not involved in the administrative processes leading to the OLPP Rule or the Withdrawal Rule and therefore was able to provide an independent perspective on the integrity of the methodology and calculations underlying the prior rulemakings. The EAR describes his principle findings which can be found on


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