2023-06885. Origin of Livestock; New Information Collection

AGENCY:

Agricultural Marketing Service, USDA.

ACTION:

Notification and request for comments.

SUMMARY:

In accordance with the Paperwork Reduction Act of 1995, this notice announces the Agricultural Marketing Service's (AMS) intention to request approval from the Office of Management and Budget for a new information collection related to livestock production practices under the USDA organic regulations.

DATES:

Comments must be received by June 26, 2023 to be assured of consideration.

ADDRESSES:

Interested persons are invited to submit comments concerning this notification by using the electronic process available at https://www.regulations.gov. Written comments may also be submitted to Valeria Frances, Agricultural Marketing Specialist, National Organic Program, AMS/USDA, 1400 Independence Ave. SW, Room 2642–South, Ag Stop 0268, Washington, DC 20250–0268. All comments should reference the document number and the date and page number of this issue of the Federal Register . All comments received will be posted without change, including any personal information provided, at https://www.regulations.gov and will be included in the record and made available to the public.

FOR FURTHER INFORMATION CONTACT:

Erin Healy, Director, Standards Division, National Organic Program. Phone: [phone], Email: [e-mail].

SUPPLEMENTARY INFORMATION:

Title: National Organic Program.

OMB Number: 0581–new.

Type of Request: New—Variances at 7 CFR 205.236(d)(1).

Abstract: On April 5, 2022, AMS published the “Origin of Livestock” (OOL) final rule (87 FR 19740) related to livestock production practices under the USDA organic regulations (7 CFR part 205). The final rule clarified that organic dairy operations may transition nonorganic animals to organic production once—after that, any animals added to an operation must have been organically managed from the last third of gestation. To provide flexibility, the final rule allows small, certified operations to request a variance from the rule's one-time transition requirement under limited conditions specified at 7 CFR 205.236(d). This is a new variance with an information collection burden for which there has not been public comment. In this request, AMS is seeking public comment on the burdens, costs, and other effects of the information collection required by the new variance.

AMS invites comment on the following topics: (1) whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on those who are to respond, including the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.

Authority and Need for Information Collection

The Organic Foods Production Act of 1990 (OFPA), as amended (7 U.S.C. 6501–6524), authorizes the Secretary of Agriculture to establish the National Organic Program (NOP) and accredit certifying agents to certify that farms and businesses meet national organic standards. The purpose of OFPA is to: (1) establish national standards governing the marketing of certain agricultural products as organically produced products; (2) assure consumers that organically produced products meet a consistent standard; and (3) facilitate interstate commerce in fresh and processed food that is organically produced. 7 U.S.C. 6501.

Reporting and recordkeeping are essential to the integrity of the organic certification system. A paper trail is a critical element in carrying out the mandate of OFPA and the NOP. Reporting and recordkeeping serve the AMS mission, program objectives, and management needs by providing information on the efficiency and effectiveness of the program. The collected information is the basis for evaluating compliance with OFPA and the USDA organic regulations, administering the program, making management and program planning decisions, and establishing the cost of the program. It also supports administrative and regulatory actions in response to noncompliance with OFPA and the USDA organic regulations.

In general, the information collected is used by USDA, State programs, and certifying agents. Information is created and submitted by State and foreign program officials, peer review auditors, certifying agents, organic inspectors, certified organic producers and handlers, entities seeking accreditation or certification, and parties interested in changing the National List of Allowed and Prohibited Substances in §§ 205.600–205.607. Information collections require most of these entities to establish and maintain record-keeping procedures and to maintain space for records.

Origin of Livestock Final Rule and Variance Requests

AMS amended the OOL requirements for dairy animals under the USDA organic regulations with a final rule published on April 5, 2022 (87 FR 19740). The final rule followed a proposed rule published on April 28, 2015 (80 FR 23455) and two subsequent comment periods (October 1, 2019, 84 FR 52041; May 12, 2021, 86 FR 25961). All comments can be accessed at https://www.regulations.gov (search for the Docket ID “AMS–NOP–11–0009”).

The final rule clarifies requirements related to organic dairy production under the USDA organic regulations and specifies how and when nonorganic dairy animals may be transitioned or converted to organic production. The final rule grants a one-time allowance for transitioning nonorganic animals to organic production to operations that (1) are not already certified for organic livestock production and that (2) have never transitioned animals. The final rule also allows variances for the movement of transitioned animals under limited scenarios. Specifically, the AMS Administrator ^[1] may issue case-by-case variances for some operations to sell or transfer transitioned animals (see discussion at 87 FR 19750). The final rule allows businesses that the Small Business Administration (SBA) classifies as small in its regulations (see 13 CFR part 121) ^[2] to request a variance. For example, the SBA regulations currently establish that a dairy cattle operation is a small business if it takes in less than $3.25 million in annual receipts; and a goat farming operation is small if it has less than $2.25 million in annual receipts. AMS limits variances to small businesses to minimize the adverse economic impact on small entities, as directed by the Regulatory Flexibility Act.

Pursuant to 7 CFR 205.236(d)(1), a small, organic dairy operation ^[3] may request a variance from the OOL transitioned animal sourcing prohibitions only if:

• The certified operation selling the transitioned animals is part of a bankruptcy proceeding or a forced sale (§ 205.236(d)(1)(i)); or
• The certified operation has become insolvent, must liquidate its animals, and as a result has initiated a formal process to cease its operations (§ 205.236(d)(1)(ii)); or
• The certified operation wishes to conduct an intergenerational transfer of transitioned animals to an immediate family member § 205.236(d)(1)(iii)).

The OOL variance request process is very similar to the request process for temporary variances at § 205.290. Under the process described in the NOP Program Handbook,^[4] the operation must submit its request for a temporary variance in writing to its certifying agent and include supporting documentation justifying the need for the variance. Likewise, a certified operation requesting a variance to the OOL transitioned animal sourcing prohibition must submit a request in writing to its certifying agent. The operation must provide documentation to support the request ( e.g., contracts, evidence of forced/sale closure, family records, wills or trusts, bankruptcy filings, tax documentation, records to support size standard).

The certifying agent must review the request to determine whether it agrees with the reasons listed at § 205.236(d) and whether the documentation provided by the operation justifies the need for the variance. Within ten days of receipt, the certifying agent must submit the request to AMS, including the original request and supporting documentation, and recommend either granting or denying the variance. The certifying agent must provide the reasons for their recommendation and include any documentation that supports their recommendation. AMS then determines whether to grant the variance request.

Overview of Information Collection Burden

In general, compliance with USDA organic regulations requires information to be collected and maintained by USDA. In the final rule, AMS provided for a variance request process at § 205.236(d)(1). Certified operations may request a variance from the prohibition on the movement of transitioned animals for specific circumstances. This is a new variance process with information collection burden for which there has not been public comment. In this information collection request, AMS is seeking public comment on the information collection impacts due to the new variance procedures described at § 205.236(d)(1).

AMS has identified six respondent types in its currently approved information collection (0581–0191): certified operations (producers and handlers), certifying agents, inspectors, foreign governments, state organic programs, and petitioners. All these entities must have procedures, personnel, time, and space for recordkeeping. Any of these entities may wish to comment on the recordkeeping requirements of the OOL variance request process. Only two respondent types—certified operations (producers, specifically) seeking a variance and their certifying agents (accredited for livestock)—are expected to have information collection impacts in this new collection:

Certifying agents. Certifying agents are State, private, or foreign entities who are accredited by USDA to certify domestic and foreign producers and handlers as organic in accordance with OFPA and the USDA organic regulations. Each entity wanting to be an agent seeks accreditation from USDA, submitting information documenting its business operations and program expertise. Certifying agents determine if a producer or handler meets organic requirements, using detailed information from the operation documenting its specific practices and on-site inspection reports from organic inspectors. Administrative costs for reporting, disclosure of information, and recordkeeping vary among certifying agents. Factors affecting costs include the number and size of clients, the categories of certification provided, and the type of systems maintained.

When an entity applies for accreditation as a certifying agent, it must provide a copy of its procedures for complying with recordkeeping requirements (§ 205.504(b)(3)). Once accredited, agents must make their records available for inspection and copying by authorized representatives of the Secretary (§ 205.501(a)(9)). USDA charges certifying agents for the time required to do these document reviews.

Recordkeeping requirements for certifying agents are divided into three categories of records with varying retention periods: (1) records obtained from applicants for certification and certified operations, maintained five years, the same as OFPA's requirement for the retention of records by certified operations; (2) records created by certifying agents regarding applicants for certification and certified operations, maintained ten years, consistent with OFPA's requirement for maintaining all records concerning activities of certifying agents; and (3) records created or received by certifying agents regarding accreditation, maintained five years, consistent with OFPA's requirement for renewal of agent's accreditation (§ 205.510(b)).

Certified Operations (Producers and handlers). Producers and handlers, domestic and foreign, apply to certifying agents for organic certification, submit detailed information documenting their specific practices, provide annual updates to continue their certification, and report changes in their practices. Producers include farmers, livestock and poultry producers, and wild crop harvesters. Handlers include those who process or transform food, including millers, bulk distributors, food manufacturers, processors, or packers. Some handlers are part of a retail operation that processes organic products in a location other than the premises of the retail outlet. Administrative costs for reporting and recordkeeping vary among certified operators. Factors affecting costs include the type and size of operation, and the type of systems maintained.

Estimates of the time burden of information collection have been summarized on the AMS 71 Grid (supplementary document). Estimates of the reporting hour burden and the recordkeeping hour burden and costs are summarized here and in the Supporting Statement (supplementary document).

AMS calculates the costs to domestic and foreign respondents (certifying agents and certified operations) to more precisely understand the reporting and recordkeeping costs of the OOL final rule. At this time, 60% of organic producers and 59% of certifying agents are domestic and 40% of organic producers and 41% of certifying agents are based in foreign countries.^[5] For all respondents, AMS estimates: (1) the number of respondents; (2) the hours they spend, annually, creating and storing records to meet the paperwork requirements of the organic labeling program; and (3) the costs of those activities based on prevailing domestic ^[6] and foreign ^[7] wages and benefits.^[8 9]

For the 57 certifying agents that are accredited to certify livestock operations and for the estimated 28 organic dairy operations ^[10] that may request a variance per § 205.236, the total cumulative information collection burden for both reporting and recordkeeping is 106.25 hours for a total annual burden cost of $4,555. For each type of respondent, we describe the reporting burden and the recordkeeping burden below in narrative and in Table 1. Reporting Burden—Organic Operations & Certifying Agents and Table 2. Recordkeeping Burden—Organic Operations & Certifying Agents.

Total Reporting Burden Cost: $3,644.

Estimate of Burden: Public reporting burden for this collection of information is estimated to average 1 hour or 60 minutes per response.

Respondents: Certified operations and certifying agents.

Estimated Number of Reporting Respondents: 85.

Estimated Number of Reporting Responses: 85.

Estimated Total Reporting Burden on Respondents: 85 hours.

Estimated Total Reporting Responses per Reporting Respondents: 1 reporting response per reporting respondent.

AMS estimates the public reporting burden for this new information collection at 85 hours per year for a total cost of $3,644 (rounded) with a total number of 85 respondents. Respondents are comprised of organic dairy operations seeking variances and certifying agents reviewing and submitting the requests for a variance to the AMS Administrator. See Table 1 below for details.

Table 1—Reporting Burden (Rounded)—Organic Operations & Certifying Agents

	Number of respondents	Wage + benefits	Total reporting hours	Total reporting costs
USDA Certified Operations (Dairy)
USDA Certified Producers—Domestic (60%)	17	$49.40	17	$840
USDA Certified Producers—Foreign (40%)	11	35.52	11	391
USDA Organic Operations—All	28		28	1,231
USDA Certifying Agents Reporting Burden
USDA U.S.-Based Certifying Agents (59%)	34	47.75	34	1,624
USDA Foreign-Based Certifying Agents (41%)	23	34.34	23	790
Total USDA Certifying Agents—All	57		57	2,413
All Respondents—Reporting Burden	85		85	3,644

The total reporting burden for all 28 organic dairy operations that may seek variances is 28 hours (1 hour per response), with a total estimated reporting cost of $1,231. Of these 28 operations, 17 or 60% of operations are U.S. domestic operations and will have a reporting burden of 17 hours at a wage estimate of $49.40 per hour ($37.71 per labor hour ^[11] plus 31.0% in benefits,^[12] ) with a total cost of $840 annually. The remaining 40% or 11 operations are in foreign countries with a reporting burden of 11 hours at an estimated wage rate of $35.52 per hour ($26.39 per labor hour ^[13] plus 34.63% in benefits ^[14] ) with a total cost of $391 annually.

The total reporting burden for all 57 certifying agents accredited to certify livestock operations, including dairies that may request a variance, is 57 hours (1 hour per response), for a total calculated cost of $2,413. Of these 57 certifying agents, 34 or 59% of certifying agents are based in the U.S. with a reporting burden of 34 hours at an estimated wage rate of $47.75 per hour ($36.45 ^[15] plus 31% in benefits ^[16] ) with a total cost of $1,624 annually. The remaining 23 certifying agents, or 41%, are in foreign countries with a reporting burden of 23 hours at an estimated wage rate of $34.34 per hour ($25.50 ^[17] plus 34.63% ^[18] in benefits), with a total cost of $790 annually.

Total Recordkeeping Burden Cost: $911.

Estimate of Burden: Public recordkeeping burden for this collection of information is estimated to average 0.25 hours or 15 minutes per response.

Respondents: Certified operations and certifying agents.

Estimated Number of Recordkeeping Respondents: 85.

Estimated Number of Recordkeeping Responses: 85.

Estimated Total Recordkeeping Burden on Respondents: 21.25 hours.

Estimated Total Recordkeeping Responses per Recordkeeping Respondents: 1 recordkeeping response per recordkeeping respondent.

AMS estimates the public recordkeeping burden for this new information collection at 21.25 hours per year for a cost of $911 (rounded), with a total number of 85 respondents. Respondents are comprised of organic dairy operations that may need to seek a variance per § 205.236(d) and the certifying agents reviewing and submitting these requests for a variance on behalf of the organic operations. See Table 2 for the details.

Table 2—Recordkeeping Burden (Rounded)—Organic Operations & Certifying Agents

	Number of respondents	Wage + benefits	Total recordkeeping hours	Total recordkeeping costs
USDA Certified Operations (Dairy)
USDA Certified Producers—Domestic (60%)	17	$49.40	4.25	$210
USDA Certified Producers—Foreign (40%)	11	35.52	2.75	98
USDA Organic Operations—All	28		7.00	308
USDA Certifying Agents Reporting Burden
USDA U.S.-Based Certifying Agents (59%)	34	47.75	8.50	406
USDA Foreign-Based Certifying Agents (41%)	23	34.34	5.75	197
Total USDA Certifying Agents—All	57		14.25	603
All Respondents—Recordkeeping Burden	85		21.25	911

The total recordkeeping burden for all 28 organic dairy operations that may seek variances is 7 hours (.25 hours or 15 minutes per response), calculated at $308. Of these 28 operations, 60% or 17 operations are domestic with a recordkeeping burden of 4.25 hours at an estimated wage rate of $49.40 per hour ($37.71 per labor hour,^[19] plus 31.0% in benefits,^[20] ) with a total cost of $210 annually. The remaining 40% or 11 operations are in foreign countries with a recordkeeping burden of 2.75 hours at an estimated wage rate of $35.52 ($26.39 per labor hour,^[21] plus 34.63% in benefits,^[22] ) with a total cost of $98 annually.

The total recordkeeping burden of the 57 certifying agents accredited to certify organic livestock operations, including dairies, 14.25 hours (.25 hours or 15 minutes per response), calculated at $603. Of these 57 certifying agents, 59% or 34 are based in the U.S. with a recordkeeping burden of 8.5 hours at an estimated wage rate of $47.75 per hour ($36.45,^[23] plus 31% in benefits,^[24] ) with a total cost of $406 annually. The remaining 41% or 23 certifying agents are in foreign countries with a recordkeeping burden of 5.75 hours at an estimated wage rate of $34.34 ($25.73,^[25] plus 34.63% ^[26] in benefits), with a total cost of $197 annually.

Conclusion

AMS invites public comment on the following topics: (1) whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on those who are to respond, including the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.

AMS will summarize all responses to this notification and include its summary in the request for OMB approval. All comments will become a matter of public record.

Authority: 7 U.S.C. 6501–6524.

Erin Morris,

Associate Administrator, Agricultural Marketing Service.

Footnotes

1.  The Administrator includes a “representative to whom authority has been delegated to act in the stead of the Administrator” which could be the NOP Program Manager, i.e., the NOP Deputy Administrator.

2.   https://www.ecfr.gov/​current/​title-13/​chapter-I/​part-121/​subpart-A.

3.  AMS estimates that 2,832 certified organic dairy operations could be classified as small under the SBA standard. Within the 2016 ARMS data, 90 percent of organic dairy farms (300 of the 332) had fewer than 200 milking animals. Lacking more detailed information, AMS assumes that 90 percent of all organic dairy farms, or 2,832 operations of the 3,134 operations, qualify as small businesses under the SBA standard.

4.  NOP Program Handbook, NOP 2606 Instruction: Temporary Variances. Available at: https://www.ams.usda.gov/​sites/​default/​files/​media/​Program%20Handbk_​TOC.pdf.

5.  Organic Integrity Database (OID): August 18, 2022.

6.  The source of the specific hourly wage rates identified below is the National Compensation Survey: Occupational Employment and Wages for 2021, published March 2022 by the Bureau of Labor Statistics, Occupational Employment and Wages, https://www.bls.gov/​oes/​current/​oes_​nat.htm.

7.  Wages in foreign countries are benchmarked as 69.97% of U.S wages derived from World Bank estimates of Organization for Economic Co-Operation and Development (OECD) member countries in 2021 https://data.worldbank.org/​indicator/​NY.GDP.PCAP.PP.CD?​locations=​OE.

8.  Bureau of Labor Statistics News Release on Employer Costs for Employee Compensation, Benefits account for 31% of total average employer compensation costs, March 2022: https://www.bls.gov/​news.release/​ecec.nr0.htm.

9.  Benefit compensation rates at 34.63% of wage rates is based on an average of Organization for Economic Co-Operation and Development (OECD) benefits compensation rates for countries with USDA-accredited certifying agents. https://stats.oecd.org/​Index.aspx?​DataSetCode=​AWCOMP.

10.  AMS estimates that 1%, or 28 operations, of small organic dairy operations may seek a variance, annually, per § 205.236(d)). For comparison, AMS received a total of 10 temporary variance requests submitted under § 205.290 of the USDA organic regulations, and those procedures are available to all 46,277 organic operations.

11.  National Compensation Survey: Occupational Employment and Wage Estimates for 2021, published March 2022 by the Bureau of Labor Statistics. 11–9013 Farmers, Ranchers, and Other Agricultural Managers. https://www.bls.gov/​oes/​current/​oes_​nat.htm.

12.  Bureau of Labor Statistics News Release on Employer Costs for Employee Compensation, Benefits account for 31% of total average employer compensation costs, March 2022: https://www.bls.gov/​news.release/​ecec.nr0.htm.

13.  Wages in foreign countries are benchmarked as 69.97% of U.S wages derived from World Bank estimates of Organization for Economic Co-Operation and Development (OECD) member countries in 2021 https://data.worldbank.org/​indicator/​NY.GDP.PCAP.PP.CD?​locations=​OE.

14.  Benefit compensation rates at 34.63% of wage rates is based on an average of Organization for Economic Co-Operation and Development (OECD) benefits compensation rates for countries with USDA-accredited certifying agents. https://stats.oecd.org/​Index.aspx?​DataSetCode=​AWCOMP.

15.  National Compensation Survey: Occupational Employment and Wages for 2021, published March 2022 by the Bureau of Labor Statistics, Occupational Employment and Wages, 13–041 Compliance Officers https://www.bls.gov/​oes/​current/​oes_​nat.htm.

16.  Bureau of Labor Statistics News Release on Employer Costs for Employee Compensation, Benefits account for 31% of total average employer compensation costs, March 2022: https://www.bls.gov/​news.release/​ecec.nr0.htm.

17.  Wages in foreign countries are benchmarked as 69.97% of U.S. wages derived from World Bank estimates of Organization for Economic Co-Operation and Development (OECD) member countries in 2021 https://data.worldbank.org/​indicator/​NY.GDP.PCAP.PP.CD?​locations=​OE.

18.  Benefit compensation rates at 34.63% of wage rates is based on an average of Organization for Economic Co-Operation and Development (OECD) benefits compensation rates for countries with USDA-accredited certifying agents. https://stats.oecd.org/​Index.aspx?​DataSetCode=​AWCOMP.

19.  National Compensation Survey: May 2021 Occupational Employment and Wage Estimates, March 2022, published by the Bureau of Labor Statistics. 11–9013 Farmers, Ranchers, and Other Agricultural Managers. https://www.bls.gov/​oes/​current/​oes_​nat.htm.

20.  Bureau of Labor Statistics News Release on Employer Costs for Employee Compensation, Benefits account for 31% of total average employer compensation costs, March 2022: https://www.bls.gov/​news.release/​ecec.nr0.htm.

21.  Wages in foreign countries are benchmarked as 69.97% of U.S. wages derived from World Bank estimates of Organization for Economic Co-Operation and Development (OECD) member countries in 2021 https://data.worldbank.org/​indicator/​NY.GDP.PCAP.PP.CD?​locations=​OE.

22.  Benefit compensation rates at 34.63% of wage rates is based on an average of Organization for Economic Co-Operation and Development (OECD) benefits compensation rates for countries with USDA-accredited certifying agents. https://stats.oecd.org/​Index.aspx?​DataSetCode=​AWCOMP.

23.  National Compensation Survey: Occupational Employment and Wages, March 2022, published by the Bureau of Labor Statistics. Bureau of Labor Statistics, Occupational Employment and Wages, 13–041 Compliance Officers https://www.bls.gov/​oes/​current/​oes_​nat.htm.

24.  Bureau of Labor Statistics News Release on Employer Costs for Employee Compensation, Benefits account for 31% of total average employer compensation costs, March 2022: https://www.bls.gov/​news.release/​ecec.nr0.htm.

25.  Wages in foreign countries are benchmarked as 69.97% of U.S wages derived from World Bank estimates of Organization for Economic Co-Operation and Development (OECD) member countries in 2021 https://data.worldbank.org/​indicator/​NY.GDP.PCAP.PP.CD?​locations=​OE.

26.  Benefit compensation rates at 34.63% of wage rates is based on an average of Organization for Economic Co-Operation and Development (OECD) benefits compensation rates for countries with USDA-accredited certifying agents. https://stats.oecd.org/​Index.aspx?​DataSetCode=​AWCOMP.