National Organic Program; Market Development for Mushrooms and Pet Food, 17322-17338 [2024-04973]

Download as PDF 17322 Proposed Rules Federal Register Vol. 89, No. 48 Monday, March 11, 2024 This section of the FEDERAL REGISTER contains notices to the public of the proposed issuance of rules and regulations. The purpose of these notices is to give interested persons an opportunity to participate in the rule making prior to the adoption of the final rules. DEPARTMENT OF AGRICULTURE Agricultural Marketing Service 7 CFR Part 205 [Doc. No. AMS–NOP–22–0063] RIN 0581–AE13 National Organic Program; Market Development for Mushrooms and Pet Food Agricultural Marketing Service, USDA. ACTION: Proposed rule. AGENCY: The United States Department of Agriculture (USDA) Agricultural Marketing Service (AMS) proposes to amend the USDA organic regulations to clarify standards for organic mushrooms and organic pet food. Specific standards for these products do not currently exist. Instead, these products have been certified organic using the general organic standards for crops, livestock, and handling. However, this approach is not ideal as the current regulations do not address unique aspects of either product. AMS expects this rule would promote development of these markets by increasing regulatory certainty that would, in turn, encourage investment in the markets. The topics addressed by the proposed rule include sourcing of substrate and spawn in organic mushroom production, composting requirements for organic mushroom production, composition and labeling requirements for organic pet food, and the use of certain synthetic substances in organic pet food. DATES: Electronic or written comments on the proposed rule must be submitted by May 10, 2024. ADDRESSES: You may submit electronic comments on this proposed rule through the Federal eRulemaking Portal at https://www.regulations.gov (docket number AMS–NOP–22–0063). Instructions for submitting electronic comments are available at https:// www.regulations.gov. Comments may also be sent by mail to: Erin Healy, ddrumheller on DSK120RN23PROD with PROPOSALS1 SUMMARY: VerDate Sep<11>2014 17:20 Mar 08, 2024 Jkt 262001 Director, Standards Division, National Organic Program, USDA–AMS–NOP, 1400 Independence Ave. SW, Room 2642–So., Ag Stop 0268, Washington, DC 20250–0268. Instructions: All comments should include the docket number (AMS–NOP– 22–0063), and/or the Regulatory Information Number (RIN 0581–AE13) for this rulemaking. You should clearly indicate the topic and section number of this proposed rule to which your comment refers, state your position(s), offer any recommended language change(s), and include relevant information and data to support your position(s) (e.g., scientific, environmental, manufacturing, industry, or industry impact information, etc.). All comments and relevant background documents posted to https://www.regulations.gov will include any personal information provided. Erin Healy, Director, Standards Division, National Organic Program. Telephone: 202–720–3252. Email: Erin.Healy@ usda.gov. FOR FURTHER INFORMATION CONTACT: SUPPLEMENTARY INFORMATION: Table of Contents I. Executive Summary A. Purpose and Need for the Rule B. Summary of Provisions II. General Information A. Does this proposed rule apply to me? B. What should I consider as I prepare my comments for AMS? III. Background A. Purpose and Need for the Rule B. NOSB Recommendations on Mushrooms and Pet Food C. Community and Stakeholder Feedback D. Authority IV. Organic Mushroom Standard A. Mushroom Background B. Need for Organic Mushroom Standard C. Overview of Proposed Amendments V. Organic Pet Food Standard A. Pet Food Background B. Need for Organic Pet Food Standard C. Overview of Proposed Amendments VI. Regulatory Analyses A. Executive Orders 12866, 13563, 14094, and the Regulatory Flexibility Act B. Executive Order 12988 C. Executive Order 13132 D. Executive Order 13175 E. Civil Rights Impact Analysis F. Paperwork Reduction Act PO 00000 Frm 00001 Fmt 4702 Sfmt 4702 I. Executive Summary A. Purpose and Need for the Rule This proposed rule would amend the USDA organic regulations to establish specific standards for organic mushroom production and organic pet food handling. Specific standards are necessary to resolve inconsistency and uncertainty in these two markets. AMS is addressing standards for pet food and mushrooms together in this rule because both markets are currently hampered by the lack of specific regulations that are suitable for these particular products. Both markets exhibit inconsistent interpretations of the organic regulations by certifiers and uncertainty around regulatory requirements that are likely to deter investments in the sectors. In addition, the National Organic Standards Board (NOSB) has made recommendations to revise the regulations for these organic products, and these changes are supported by the organic industry. Finally, both organic mushrooms and pet food are developing markets that would benefit from clearer standards to facilitate and promote growth. The organic regulations do not currently include standards specific to mushrooms and pet food. Although some mushrooms and pet food products are currently being certified using the general organic standards, the current regulations are an imperfect fit for both mushroom and pet food production and do not address unique aspects of either product. For example, some certifying agents use the current crop production standards to certify organic mushrooms or the handling standards for processed products to certify organic pet food. In both cases, certifying agents and operations extrapolate from the organic standards to fit organic mushroom and pet food production. This creates varying and inconsistent interpretations of the organic regulations, such that some mushroom producers are required to use organic inputs where others are not, and some pet food manufacturers are allowed to use slaughter by-products where others are not. The inconsistent certification and enforcement practices for organic mushrooms and pet food fail to meet one of the purposes of the Organic Food Production Act (OFPA), that is, to assure consumers that organically produced products meet a consistent standard (7 U.S.C. 6501(2)). E:\FR\FM\11MRP1.SGM 11MRP1 Federal Register / Vol. 89, No. 48 / Monday, March 11, 2024 / Proposed Rules Additionally, the National Organic Program (NOP) has received feedback from stakeholders that the lack of specific standards for mushrooms and pet food creates uncertainty that may deter development in these markets. Clearer and more specific standards would give businesses certainty about how they should produce organic mushrooms and pet food, which would create the conditions necessary for the growth of the organic mushroom and pet food markets. Addressing uncertainty and inconsistency in organic mushroom and pet food production is important for market development. Ensuring consistent standards across the organic industry also protects the integrity of the organic seal by building customer trust in the label. B. Summary of Provisions Through the amendments in this proposed rule, AMS would establish standards for organic mushroom production and pet food handling. The proposed rule would: • Add the term ‘‘mushroom’’ to the definitions of ‘‘crop’’ and ‘‘wild crop;’’ • Establish definitions for ‘‘mushroom,’’ ‘‘mushroom substrate,’’ ‘‘mycelium,’’ ‘‘spawn,’’ and ‘‘spawn media;’’ • Create a new section titled Mushroom Production Practice Standard; • Require that operations use organic mushroom spawn and substrate when commercially available; • Add mushroom-specific requirements for organic compost production; • Establish definitions for ‘‘pet’’ and ‘‘pet food’’ for the purposes of the USDA organic regulations only; • Add a new paragraph to the organic handling standard describing the requirements for production and labeling of pet food, including composition (what can be included in organic pet food) and labeling requirements; and • Add synthetic taurine (an amino acid) to the National List to allow its use in organic pet food. ddrumheller on DSK120RN23PROD with PROPOSALS1 II. General Information A. Does this proposed rule apply to me? You may be affected by this proposed rule if you are engaged in organic mushroom production or pet food handling. Potentially affected entities may include, but are not limited to, the following: • Organic pet food manufacturers; • Organic mushroom producers; VerDate Sep<11>2014 17:20 Mar 08, 2024 Jkt 262001 • Individuals or business entities that are considering organic certification for pet food or mushrooms; • Existing livestock, mushroom, and handling operations that are currently certified organic under the USDA organic regulations; and • USDA-accredited certifying agents, inspectors, and certification review personnel. This list is not exhaustive but identifies key entities that this rule may affect. Other types of entities may also be affected. To determine whether you or your business may be affected by this action, you should carefully examine the regulatory text and discussion below. If you have questions regarding the applicability of this rule to a particular entity, contact the person listed under FOR FURTHER INFORMATION CONTACT. B. What should I consider as I prepare my comments for AMS? AMS seeks comment from the public and organic stakeholders regarding the proposed amendments, especially on the following topics: 1. Is the regulatory language and accompanying discussion in this document clear enough to allow producers, handlers, and certifying agents to comply with the proposed requirements? 2. Do the proposed amendments create any conflict with current organic regulations? 3. Would a one-year implementation period (from the effective date of a final rule) be appropriate for affected operations to comply with these proposed changes? If not, what timeframe would be appropriate? 4. Are there any concerns about the proposed requirements for compost used in organic mushroom operations? Are there any additional health and sanitary issues that AMS has not considered? Would the proposed requirements hinder any current methods of substrate preparation? Would the proposed changes impact other organic sectors and if so, how? 5. Are there any concerns about the proposed requirements for producing certified organic spawn? What are the barriers to producing certified organic spawn for mushroom production? How would this rule affect these barriers? 6. Stakeholders and data indicate that many organically produced mushrooms are sold as conventional mushrooms. Why are certified organic mushroom operations producing significantly more organic mushrooms than they are selling as certified organic? What could be included in this rule to help ensure that PO 00000 Frm 00002 Fmt 4702 Sfmt 4702 17323 mushrooms that are produced organically can be sold as organic? 7. What factors have kept pet food manufacturers from seeking organic certification? Are there barriers that the proposed rule does not address? 8. Are there any additional synthetic, nonsynthetic, or nonorganic substances required in pet food to meet pet health needs that are not included in the proposed rule? 9. Are slaughter by-products commonly used in organic pet food? Are there obstacles to greater use of organic slaughter by-products in organic pet food? Is there existing data on the organic slaughter by-product market utilization and prices? III. Background A. Purpose and Need for the Rule This proposed rule would amend the USDA organic regulations to establish specific standards for organic mushroom production and organic pet food handling. The purpose of these amendments is to resolve uncertainty and inconsistency in how the organic regulations apply to these two products. Based on market penetration data and feedback from stakeholders, AMS believes that removing regulatory uncertainty as a barrier will create conditions that offer a reasonable expectation for growth in these two markets and other latent markets that support them, such as mushroom substrate and organic slaughter byproducts. New rulemaking is needed because the current organic regulations do not include standards specific to mushrooms and pet food. Some certifying agents certify organic mushrooms using the current crop production standards and some certify pet food using a combination of livestock feed standards and handling standards for processed products; however, the current regulations do not address the unique needs of either product. The current crop production standards are intended primarily for plant production and do not fully address the unique biology of mushrooms. This is because mushrooms are fungi, not plants, and have different production practices and materials requirements. Plants are usually grown outdoors and photosynthesize energy from the sun; however, mushrooms are most commonly grown in indoor, controlled environments and draw energy from substrate material. These biological and production differences mean the organic crop production standards do not always fit mushrooms well. Certifier requirements are E:\FR\FM\11MRP1.SGM 11MRP1 ddrumheller on DSK120RN23PROD with PROPOSALS1 17324 Federal Register / Vol. 89, No. 48 / Monday, March 11, 2024 / Proposed Rules currently inconsistent, and producers may be inconsistently applying the organic standards to aspects such as substrate, spawn, and compost for mushroom production. Similarly, the current organic regulations do not address pet food. Producers and certifiers apply a combination of the handling standards for processed products and the organic livestock feed standards, but their practices are not uniform. The handling standards are appropriate for verifying the processing, handling, product composition, and labeling requirements for multi-ingredient processed agricultural products but lack specific allowances for nutrients that are necessary for pets. The livestock feed standards include allowances for many of those nutrients but include prohibitions on common pet food ingredients, such as slaughter byproducts. Slaughter by-products (e.g., animal and poultry by-product meal; animal liver) make up approximately 23 percent of the composition of conventional pet food, in part to meet protein levels required by federal and state regulations on pet food.1 Applying the livestock feed regulations to organic pet food production inhibits the market for organic slaughter by-products. These contradictions create uncertainty for businesses that currently produce organic pet food and are a barrier to businesses that would like to produce organic pet food or sell slaughter byproducts into that market. AMS estimates that this rule could ensure consistent demand for over 14 million pounds of organic meat and organic slaughter by-products annually, with approximately half of that demand being for organic slaughter by-products. Based on feedback from stakeholders, AMS finds it likely that organic meat and slaughter by-product demand will grow over time beyond this estimate after implementation of specific rules. This rule would also address feedback from the organic industry, which has asked USDA to implement NOSB recommendations more generally, including implementing standards for these two products. AMS hosted a virtual prioritization listening session in spring 2022. Oral and written comments encouraged AMS to prioritize rulemaking for additional practice standards, including organic pet food and mushrooms. The proposed changes in this rule are based on NOSB recommendations for mushroom production and pet food handling in 1 Institute for Feed Education & Research. (March 2020). ‘‘Pet food production and ingredient analysis.’’ VerDate Sep<11>2014 17:20 Mar 08, 2024 Jkt 262001 response to the organic industry’s interest in further developing the organic standards. Market penetration data supports the idea that the organic mushroom and organic pet food markets have a reasonable expectation of growth if uncertainty and inconsistency are removed as barriers. Both markets currently lag behind their mostcomparable organic sectors. In 2021, sales of organic fruits and vegetables accounted for a 15.5 percent share of all fruit and vegetable sales in the United States,2 but organic mushrooms only accounted for 10.8 percent of all mushroom sales.3 Considering that the consumer experience of purchasing mushrooms is typically no different than purchasing fruits and vegetables (they are packaged similarly and found in the same section of the grocery store) it is reasonable to conclude that some external barrier is inhibiting the organic mushroom market. Similarly, organic pet food accounts for only 0.41 percent of all pet food sales, whereas sales of organic non-food products (the closest analog to pet food, as a product that is purchased not for humans to eat) accounted for 1.2 percent of all nonfood sales.4 In short, AMS believes that clear and consistent standards for organic mushrooms and pet food may create the conditions necessary for organic markets to develop. Regulatory certainty encourages investment in nascent markets; investment increases production capacity; and production enables market growth. Clear standards would promote growth in the development of these markets by increasing consistency in certification and enforcement and removing uncertainty as a regulatory barrier to production and certification. Additionally, growth in these markets is likely to ensure consistent demand for organic inputs in underdeveloped markets like organic meat and slaughter by-products. Because mushrooms and pet food have unique growing 2 Organic Trade Association. (2022). Organic Industry Survey. p. 56. Note that AMS uses the 2021 data available in the Organic Trade Association’s 2022 survey because that was the data available while our economic analysis was under development. The 2022 data (released in May 2023), however, also demonstrates lagging market penetration: Mushroom sales lagged the 14.9 percent share that organic fruits and vegetables claimed, and organic pet food accounted for only 0.38 percent of all pet food sales. 3 USDA, National Agricultural Statistics Service, Agricultural Statistics Board. (August 26, 2022). ‘‘Mushrooms.’’ https://www.nass.usda.gov/ Publications/Todays_Reports/reports/ mush0822.pdf. 4 Organic Trade Association. (2022). Organic Industry Survey. p. 5. PO 00000 Frm 00003 Fmt 4702 Sfmt 4702 conditions and requirements, AMS provides additional discussion of the need for organic standards in each industry in their respective sections below (see ‘‘IV. Mushrooms, B. Need for Organic Mushroom Standard’’ and ‘‘V. Pet Food, B. Need for Organic Pet Food Standard’’). B. NOSB Recommendations on Mushrooms and Pet Food Several times in its history, the NOSB has recognized the unique production needs of organic mushrooms and pet food and recommended standards specific to each market. The Board recommended organic mushroom standards in April 1995 5 and again in October 2001.6 Subsequently, the NOSB made a recommendation on organic pet food standards in November 2008,7 and in April 2013, the NOSB proposed amending the National List to allow taurine for use in pet food.8 This proposed rule is AMS’s first rulemaking action related to these recommendations; we discuss the NOSB’s recommendations below. NOSB Recommendations on Mushroom Production In 2001, the NOSB recommended: • Preventing contact between organically produced mushrooms or mushroom growth substrates and prohibited substances; • Requiring the use of organic spawn when commercially available; • Requiring organically produced agricultural materials in mushroom substrate; and • Allowing nonorganic wood products (e.g., sawdust) in mushroom substrate if trees have not been treated with prohibited substances for three years prior to harvest and have not been treated with prohibited substances after harvest. AMS investigated rulemaking following this recommendation but did not publish a proposed rule. 5 NOSB. (April 24–28, 1995). ‘‘Final minutes of the National Organic Standards Board full board meeting.’’ https://www.dairyprogramhearing.com/ getfile32e532e5.pdf?dDocName=STELPRDC 5057442. 6 USDA, AMS. ‘‘NOSB recommendations: Fall 2011.’’ Accessed May 8, 2023. https:// www.ams.usda.gov/rules-regulations/organic/nosb/ recommendations/fall2001. 7 The NOSB’s November 2008 recommendation on organic pet food is available online at: https:// www.ams.usda.gov/rules-regulations/organic/nosb/ recommendations/fall2008. 8 USDA, NOP. (April 2013). ‘‘The Organic Integrity Quarterly.’’ https://www.ams.usda.gov/ sites/default/files/media/NOP%202013 %20April%20Newsletter.pdf. E:\FR\FM\11MRP1.SGM 11MRP1 Federal Register / Vol. 89, No. 48 / Monday, March 11, 2024 / Proposed Rules NOSB Recommendations on Pet Food In November 2008, the NOSB recommended that organic claims on pet food should be regulated under a combination of organic livestock feed standards and organic processed products labeling requirements.9 The NOSB recommended: • Clarifying which animals the pet food requirements would apply to by defining ‘‘pets’’ in the regulations; • Labeling organic pet food using a framework consistent with labeling for organic human food, allowing the ‘‘organic’’ claim that requires a minimum of 95 percent organic ingredients and the ‘‘made with organic (specified ingredients or food group(s))’’ claim that requires a minimum of 70 percent organic ingredients; • Clarifying that organic slaughter byproducts can be a component of organic pet food; and • Adding taurine for use in pet food to the National List of allowed synthetic substances.10 This proposed rule is the first rulemaking action from AMS to address these recommendations on organic pet food. C. Community and Stakeholder Feedback ddrumheller on DSK120RN23PROD with PROPOSALS1 When developing this proposed market development rule, AMS considered industry and stakeholder requests for specific mushroom and pet food standards in addition to the NOSB recommendations. In March 2022, the National Organic Program (NOP) hosted a public listening session to give stakeholders the opportunity to comment on NOP’s rulemaking priorities.11 During the listening session, many stakeholders asked that AMS prioritize rulemaking for products that are currently being certified without standards specific to their unique production categories. This 9 NOSB. (November 19, 2008). ‘‘Formal recommendation by the National Organic Standards Board (NOSB) to the National Organic Program (NOP).’’ https://www.ams.usda.gov/sites/default/ files/media/NOP%20Final%20Rec%20 Pet%20Food.pdf. 10 The 2008 recommendation listed taurine and other additives as ‘‘materials for possible petition to the National List for use in Pet Food.’’ In 2013, the NOSB passed a motion to specifically recommend listing taurine ‘‘as a feed additive for use in pet food, only.’’ See NOSB. (April 11, 2013). ‘‘Formal recommendation from: National Organic Standards Board (NOSB) to: the National Organic Program (NOP).’’ https://www.ams.usda.gov/sites/default/ files/media/NOP%20Livestock %20Final%20Rec%20Pet %20Food%20Amino%20Acid%20amended.pdf. 11 USDA, NOP. (March 21, 2022). ‘‘National Organic Program priorities listening session.’’ https://www.ams.usda.gov/event/national-organicprogram-priorities-listening-session. VerDate Sep<11>2014 17:20 Mar 08, 2024 Jkt 262001 includes mushrooms and pet food. Several stakeholders specifically suggested developing mushroom standards and noted that existing crop standards, including compost requirements, are not appropriate for mushroom production. Similarly, some commenters discussed the importance of establishing consistent pet food standards, naming it as another product currently being certified without standards specific to its unique production demands. AMS also engaged directly with mushroom experts, producers, and trade associations about organic mushroom production. These discussions affirmed that specific standards for the production and handling of organic mushrooms are needed. These industry stakeholders stated that recognizing mushrooms as a fungal crop cultivated under unique and specialized conditions would foster greater consistency in how organic mushrooms are cultivated and certified. AMS also learned what aspects of mushroom production need mushroom-specific requirements: compost requirements, origin and composition of substrate materials used for growing mushrooms, and origin and composition of spawn. Discussions with experts in the pet food industry revealed that the key challenge with labeling pet food as organic is uncertainty around the allowance of certain ingredients. For example, under the current organic regulation, it is unclear if pet food manufacturers may use meat (e.g., edible part of animal muscle and organs) or slaughter by-products (e.g., animal and poultry by-product meal; animal liver) in organic pet food, and whether some necessary synthetic ingredients in pet food, such as taurine, are allowed. Inconsistencies in organic claims on pet food can also contribute to consumer uncertainty or mistrust of organic labels. Additionally, stakeholders have noted that allowing organic slaughter by-products in organic pet food would allow livestock producers and slaughter facilities to earn organic premiums for these organic slaughter by-products, which would otherwise be sold without a premium for use in nonorganic products. AMS estimates that this rule could ensure consistent demand for over 7 million pounds of organic slaughter by-products annually, which is likely to grow over time.12 12 Data from the Institute for Feed Education & Research indicates that approximately 23 percent of the ingredient weight in conventional pet food is animal by-product and meal. This estimate is then applied to the estimate pounds of organic pet food as reported by the Organic Trade Association and PO 00000 Frm 00004 Fmt 4702 Sfmt 4702 17325 Overall, this rulemaking incorporates several NOSB recommendations and stakeholder feedback to address the need for specific standards for mushrooms and pet food. Adding these specific standards is expected to support the development of organic markets for these industries by reducing uncertainty among certifiers, consumers, producers, and manufacturers. D. Authority The Organic Foods Production Act of 1990 (OFPA) 13 authorizes the USDA to promulgate regulations to establish an organic certification program for producers and handlers of agricultural products (7 U.S.C. 6503(a)). This proposed rule would establish new production and certification standards for two products that currently lack specific standards. This proposed rule would, in turn, support the three purposes of OFPA: ‘‘(1) to establish national standards governing . . . organically produced products; (2) to assure consumers that organically produced products meet a consistent standard; and (3) to facilitate interstate commerce in . . . food that is organically produced’’ (7 U.S.C. 6501). The proposed rule would clarify how producers and certifiers should interpret existing organic regulations as they pertain to mushroom or pet food production, which would assure consumers that the organic label on these products guarantees a consistent standard. The proposed rule would assure producers that they operate in a fair and competitive environment with clear rules that all must follow. USDA administers organic standards through the Agricultural Marketing Service (AMS) National Organic Program (NOP). Final regulations establishing the NOP and the USDA organic regulations were published on December 21, 2000 (65 FR 80548) 14 and were first implemented on October 21, current market prices. Institute for Feed Education & Research. (March 2020). ‘‘Pet food production and ingredient analysis.’’ Organic Trade Association. (2022). Organic Industry Survey. p. 56. 13 The Organic Foods Production Act of 1990, 7 U.S.C. 6501–6524, is the statute from which the Agricultural Marketing Service derives authority to administer the NOP, and authority to amend the regulations as described in this proposed rule. This document is available at: https://uscode.house.gov/ view.xhtml?path=/prelim@title7/ chapter94&edition=prelim. 14 USDA, AMS. (December 21, 2000). ‘‘National Organic Program.’’ Final Rule. 65 FR 80548 (codified at 7 CFR part 205). https:// www.federalregister.gov/documents/2000/12/21/0032257/national-organic-program. E:\FR\FM\11MRP1.SGM 11MRP1 17326 Federal Register / Vol. 89, No. 48 / Monday, March 11, 2024 / Proposed Rules 2002.15 Through these regulations, AMS oversees national standards for the production, handling, labeling, and sale of organically produced agricultural products. IV. Organic Mushroom Standard ddrumheller on DSK120RN23PROD with PROPOSALS1 A. Mushroom Background Mushroom Biology and Production Mushrooms are the fleshy, sporebearing, fruiting body of some species of fungus. Mushrooms grow from mycelium, which grows below the surface as a root-like network of cells. Commercial mushrooms are grown from spawn, a combination of mycelium and a media (like grains or minerals to carry the mycelium), in controlled indoor environments. In commercial mushroom production, spawn is introduced onto mushroom substrate to grow mushrooms, comparable to how seeds are planted to grow crops. The mushroom lifecycle is a circular phenomenon that cultivators seek to mimic. In this cycle, spores germinate and then produce hyphae that form mycelium. Mycelium grows by consuming nearby organic material in the cropping container substrate. Fruiting (i.e., formation of mushrooms) occurs when particular conditions are met, such as when the mycelium is well developed, and the humidity and temperature conditions are favorable. The fruiting bodies (i.e., the mushrooms) then create more spores to continue the cycle. Mushroom growers use spawn—a small amount of material with mycelium growing on it—to produce mushrooms. Spawn can be compared to plant seeds in an agricultural setting; however, an important distinction is that spawn lacks the energy storage of a seed. Seeds store energy to use during germination, whereas spawn must draw energy from substrate materials such as compost. Because of this dependence on the production substrate and the fact that spawn consumes the substrate, the materials used in it are an important part of the composition and growth of the mushrooms. Mushroom substrate is generally made of composted and/or uncomposted materials, depending on the species of mushroom, and may contain grain, wood, vermiculite, or other ingredients. In mushroom production, inoculation refers to the 15 USDA, AMS. (March 20, 2001). ‘‘National Organic Program; Correction of the effective date under Congressional Review Act (CRA).’’ Final Rule. 66 FR 15619. https://www.federalregister.gov/ documents/2001/03/20/01-6836/national-organicprogram-correction-of-the-effective-date-undercongressional-review-act-cra. VerDate Sep<11>2014 17:20 Mar 08, 2024 Jkt 262001 introduction of spawn to mushroom substrate. Inoculation methods vary depending on the species of mushroom and the mushroom substrate material it grows on. Mycelium grows within the production substrate after it is inoculated, ultimately producing mushrooms. Depending on the type of mushroom, producers may sometimes harvest multiple crops of mushrooms from one batch of inoculated substrate. Once the production cycle is complete and mushrooms are harvested, a new batch of inoculated mushroom substrate is generally needed to produce a new batch of mushrooms. The U.S. Mushroom Market For the 2021–2022 growing season, the U.S. mushroom crop volume was 702 million pounds with sales of $1.02 billion.16 The Agaricus bisporus species of mushrooms accounted for approximately 97 percent of the total sales volume and approximately 93 percent of the total value.17 Agaricus includes white mushrooms (including common, button, and champignon varieties, among others) and brown mushrooms (including crimini/cremini, Swiss, Roman, Italian, and Portobello/ Portabello/Portabella varieties, among others). Outside of the Agaricus varieties, there are a multitude of cultivated ‘‘specialty’’ mushrooms including shiitake, oyster, enoki, maitake, pompom, and others. Some of these specialty mushrooms include foraged (wild) mushrooms and specialty mushrooms that are intentionally cultivated outdoors. In 2021, 10.8 percent of all mushrooms produced were sold as organic, compared to 15.5 percent of all fruits and vegetables.18 19 Agaricus mushrooms accounted for approximately 82 percent of the total production volume of organic mushrooms; the remainder were specialty mushrooms.20 16 USDA, National Agricultural Statistics Service, Agricultural Statistics Board. (August 26, 2022). ‘‘Mushrooms.’’ https://www.nass.usda.gov/ Publications/Todays_Reports/reports/ mush0822.pdf. 17 USDA, National Agricultural Statistics Service, Agricultural Statistics Board. (August 26, 2022). ‘‘Mushrooms.’’ . https://www.nass.usda.gov/ Publications/Todays_Reports/reports/ mush0822.pdf. 18 Organic Trade Association. 2022 Organic Industry Survey. p. 56. https://ota.com/marketanalysis/organic-industry-survey/organic-industrysurvey. 19 USDA, National Agricultural Statistics Service, Agricultural Statistics Board. (August 26, 2022). ‘‘Mushrooms.’’ https://www.nass.usda.gov/ Publications/Todays_Reports/reports/ mush0822.pdf. 20 USDA, National Agricultural Statistics Service, Agricultural Statistics Board. (August 26, 2022). ‘‘Mushrooms.’’ https://www.nass.usda.gov/ PO 00000 Frm 00005 Fmt 4702 Sfmt 4702 B. Need for Organic Mushroom Standard This proposed rule would create specific standards for organic mushroom production to promote consistency, fair competition, and market growth. As of June 2023, at least 39 certifying agents certify 272 organic mushroom operations.21 However, the lack of mushroom-specific standards means there is significant variation in how these operations are certified. About 75 percent of certifying agents that oversee organic mushroom production use the organic regulations’ crop standards to certify mushrooms, and the remaining 25 percent either follow the NOSB’s recommendations on mushrooms, or other standards such as those of the European Union. More specifically, some certifying agents require mushroom substrate to be organic, and some do not. Likewise, some certifying agents require spawn to be organic, and some do not. A key challenge is that the organic crop standards are designed for terrestrial plants, while mushrooms are the fruiting bodies of fungi—a different kingdom of organisms. Fungi require different growing conditions than plants. Mushrooms are grown from spawn, not seed. Generally, mushrooms are not grown in soil like plants; they are grown in substrate material made of composted plant material, minerals, sawdust, and/or logs. Finally, mushrooms do not photosynthesize like plants; they absorb compounds from their environment to use as sources of energy. The current organic regulations do not address the unique biological differences noted above. Specifically, the regulations lack detail and requirements for spawn, substrate, and compost used in organic production. Consequently, certifying agents have developed their own policies about spawn, substrate, and compost in mushroom production, leading to variation in how organic mushrooms are certified and creating confusion around what practices operations should use. The absence of consistent standards also creates an uneven playing field and encourages ‘‘certifier shopping’’—as operations learn about discrepancies, Publications/Todays_Reports/reports/ mush0822.pdf. 21 USDA, Organic Integrity Database. https:// organic.ams.usda.gov/Integrity/Home. Advanced search features can be accessed at https:// organic.ams.usda.gov/Integrity/Search. Certified mushroom producers may be found by narrowing a certified product search for ‘‘mushrooms’’ to operations with a certification status of ‘‘certified’’ and limiting results to the ‘‘Crops’’ scope. Output was manually cleaned to remove unrelated entries. E:\FR\FM\11MRP1.SGM 11MRP1 Federal Register / Vol. 89, No. 48 / Monday, March 11, 2024 / Proposed Rules they may pressure their certifier to change their interpretation of the standards or switch to another certifier. Unfair competition caused by different interpretations of the organic mushroom standards, as well as the possibility of future regulatory changes, could reduce the willingness of businesses to invest in this sector. AMS aims to address these problems by developing one clear standard for organic mushroom production. Certifying agents would have clear rules to follow and competition among operations would be fairer. This would give businesses greater confidence in the stability of the industry and would encourage them to invest in organic mushroom growing operations and organic mushroom inputs. 17327 C. Overview of Proposed Amendments This proposed rule would amend the USDA organic regulations (7 CFR part 205) by adding new provisions for producing mushrooms that are sold, labeled, or represented as organic. This action would prescribe consistent standards for producers of organic mushrooms, as detailed below. TABLE 1—OVERVIEW OF PROPOSED REGULATORY CHANGES TO ESTABLISH ORGANIC MUSHROOM PRODUCTION STANDARD Section title Type of action 205.2 ............................................... 205.2 ............................................... 205.210 ........................................... 205.601 ........................................... Adds new terms ............................. Amends existing terms .................. Adds new section .......................... Amends language at (i)–(j) ............ Sec. 205.2 (Terms Defined) AMS proposes to amend § 205.2 by adding five new terms (‘‘mushroom,’’ ‘‘mushroom substrate,’’ ‘‘mycelium,’’ ‘‘spawn media,’’ and ‘‘spawn’’) and revising three existing terms (‘‘compost,’’ ‘‘crop,’’ and ‘‘wild crop’’), as described below. 1. Mushroom AMS proposes to define ‘‘mushroom’’ as the fruiting body of a fungus. The term ‘‘mushroom’’ is primarily used to describe the agricultural product that consumers purchase. ddrumheller on DSK120RN23PROD with PROPOSALS1 2. Mushroom Substrate AMS proposes to define ‘‘mushroom substrate’’ as the base material from which mushrooms are cultivated or grown. This substrate acts as a media for fungus to grow on to produce mushrooms and provides the energy and nutrients required for mushrooms to grow. This substrate may be composed of composted material, uncomposted materials, or both, as described under § 205.210(c). 3. Mycelium AMS proposes to define ‘‘mycelium’’ as a mass of branching, thread-like hyphae (fungal structures). Mycelium is the main body portion of a fungus from which mushrooms grow. In commercial mushroom production, mycelium is also used to colonize or inoculate spawn media to produce spawn and a subsequent crop of mushrooms. 4. Spawn Media AMS proposes to define ‘‘spawn media’’ as a carrier, such as grains or minerals, that, when colonized with fungal mycelium, creates spawn. Spawn media, once combined with mycelium, is defined separately as ‘‘spawn.’’ Grain, VerDate Sep<11>2014 17:20 Mar 08, 2024 Jkt 262001 Proposed action Mushroom; Mushroom substrate; Mycelium; Spawn; Spawn media. Compost; Crop; Wild crop. Adds mushroom-specific standards to Subpart C. Replaces the term ‘‘plant’’ with the term ‘‘crop’’. sawdust, and vermiculite are common ingredients in spawn media. 5. Spawn AMS proposes to define ‘‘spawn’’ as spawn media that has been colonized by fungal mycelium, which is used to inoculate mushroom substrate (i.e., mushrooms are not harvested from spawn). Spawn, a combination of mycelium and spawn media, is used to inoculate mushroom substrate. Mushrooms grow from mushroom substrate after spawn is applied to (and inoculates) the mushroom substrate. 6. Compost AMS proposes to simplify the definition of ‘‘compost’’ so that the definition would cover compost for use in mushroom production. The current definition of ‘‘compost’’ includes compost production requirements (e.g., minimum time and temperature) that are specific to plant production. However, compost for mushroom production is typically made using lower temperatures and shorter timeframes. The current definition of compost, with its plant productionspecific details, is therefore not ideal for producers who need to create or use compost for mushroom production. This rulemaking proposes to remove the plant production-specific composting requirements from the current definition of compost and add ‘‘or substrate’’ to the end of the definition. This leaves a general definition that allows the production of compost that meets the specific needs of either plants or mushrooms: the product of a managed process through which microorganisms break down plant and animal materials into more available forms suitable for application to the soil or substrate. Plant production-specific PO 00000 Frm 00006 Fmt 4702 Sfmt 4702 composting requirements remain in the regulation at § 205.203(c)(2)—Soil fertility and crop nutrient management practice standard. This rule also adds mushroom-specific composting requirements, as described below in the section titled Mushroom production practice standard (§ 205.210). 7. Crop and Wild Crop AMS proposes to amend the terms ‘‘crop’’ and ‘‘wild crop’’ to include mushrooms. AMS proposes to include mushrooms in these definitions to clarify that operations may use certain crop production standards in subpart C to produce mushrooms. Sec. 205.210 (Mushroom Production Practice Standard) AMS proposes to add a new section (§ 205.210) to the USDA organic regulations to describe production practice standards for organic mushrooms. Many of the existing production requirements in subpart C can be applied to mushroom production. However, because of their unique biology, mushroom production demands certain practices that are different from plant production. This new section clarifies which of the existing crop production requirements a mushroom producer should use and adds several mushroom-specific requirements. AMS proposes in § 205.210(a) that mushroom operations must manage their operations following most of the existing regulations governing crop production, including §§ 205.200, 205.201, 205.202 as applicable, 205.206(a)(2) and (3), and 205.206(b) through (f). These sections cover general production requirements (§ 205.200); organic production and handling system plans (§ 205.201); land requirements E:\FR\FM\11MRP1.SGM 11MRP1 ddrumheller on DSK120RN23PROD with PROPOSALS1 17328 Federal Register / Vol. 89, No. 48 / Monday, March 11, 2024 / Proposed Rules (§ 205.202); and crop pest, weed, and disease management (§ 205.206). Organic mushroom operations, like all other organic operations, must have an organic system plan that describes how the operation complies with applicable parts of the USDA organic regulations. Because mushrooms have unique biology and production needs, not all existing crop production requirements apply to organic mushroom production. This means that mushroom operations do not need to follow all the requirements in the soil fertility and crop nutrient management practice standard at § 205.203, the seeds and planting stock practice standard at § 205.204, or the crop rotation practice standard at § 205.205. Unlike plants, which acquire energy from photosynthesis, mushrooms absorb sources of energy (like sugars and other organic compounds) from their surroundings. Therefore, most of the soil fertility and nutrient management practices in § 205.203 are not appropriate for mushroom production. However, mushroom producers would have to follow the same nutrient management requirements as plant producers described in § 205.203(d)(1) through (5) and (e). These paragraphs describe acceptable and prohibited forms of nutrient management. Similarly, mushroom production does not involve seeds or planting stock, and mushrooms are not grown in rotations for fertility or disease suppression, so §§ 205.204–205.205 are not appropriate for mushroom production. Proposed paragraph 205.210(b) would require operations to manage mushroom substrates and spawn media in a way that avoids environmental contamination. AMS proposes that mushroom substrates, spawn media, spent mushroom substrates, and spent spawn media must be managed to avoid the contamination of any mushrooms, spawn, substrate, soil, or water by pathogenic organisms, heavy metals, or residues of prohibited substances. This provision aligns with the requirement in § 205.203(c), which requires operations to prevent environmental contamination from materials applied to soil. Likewise, this proposed requirement also aligns with the requirement in § 205.200 to protect natural resources. Section 205.210(b) would require operations to handle materials in a way that avoids contamination throughout the entire mushroom production process, from spawn creation, to growing mushrooms, to disposal of spent substrate. Operations that only produce organic spawn and do not produce organic mushrooms would also be subject to the provisions in paragraph (b). Spawn VerDate Sep<11>2014 17:20 Mar 08, 2024 Jkt 262001 media is usually incorporated into the substrate when spawn is applied to a mushroom production bed. In cases where a spawn producer decides not to use a batch of spawn and disposes of the spawn, the operations would need to dispose of spent spawn media in a manner that avoids contamination of mushrooms, spawn, substrate, soil or water by pathogenic organisms, heavy metals, or residues of prohibited substances. In § 205.210(c), AMS proposes requirements for what mushroom substrate and spawn media can be made of and what materials may be used in substrate production. This proposed paragraph is divided into subparagraphs to address the acceptable use of four types of materials: composted plant and animal materials, uncomposted plant materials, non-agricultural natural substances, and synthetic substances. Proposed paragraph (c)(1) describes requirements for composted plant and animal materials for use in mushroom substrate and spawn media. This section details time, temperature, and composition requirements for composting plant and animal materials for use in mushroom production. The proposed rule would require that compost feedstock reach at least 131 °F for at least three days during the composting process. The compost must not be treated with any prohibited substances per the existing requirements at § 205.203(e)(1). AMS does not propose a maximum temperature for mushroom compost production. The proposed mushroom compost requirements are consistent with industry standards. The proposed minimum temperature requirement would allow mushroom producers the flexibility to compost their feedstock at higher temperatures for a longer period if warranted. AMS proposes in § 205.210(c)(2) that uncomposted plant materials for use in mushroom substrate and spawn media must be organically produced if commercially available. However, nonorganically produced uncomposted plant materials may be used in mushroom production when an equivalent organically produced variety is not commercially available. In this case, prohibited substances may not be applied to the nonorganically produced uncomposted plant materials after harvest. Certifiers must use the definition of commercial availability in § 205.2 to validate an operation’s claim that organically produced plant materials necessary for mushroom production are not commercially available. PO 00000 Frm 00007 Fmt 4702 Sfmt 4702 Paragraphs (c)(3) and (4), together with the proposed amendment to the definition of ‘‘crop’’ in § 205.2 to include mushrooms, would allow mushroom operations to use natural (nonsynthetic) substances and/or synthetic substances in accordance with the National List of Allowed and Prohibited Substances for organic crop production. These provisions are appropriate for crop operations and are consistent with the framework in § 205.105(a) and (b) regarding allowed and prohibited substances in organic production. Paragraph (c)(3) would allow the use of natural (nonsynthetic) substances in mushroom substrate and spawn media. Examples include mined gypsum, chalk, and clay. However, operations must not use nonsynthetic substances prohibited for use in organic production in § 205.602 of the National List. Paragraph (c)(4) would also permit the use of synthetic substances allowed for use in organic crop production listed at § 205.601 of the National List. Examples include sanitizers, including chlorine products (like sodium hypochlorite) and hydrogen peroxide; micronutrients listed at § 205.601(j)(7); and microcrystalline cheesewax (which is on the National List at § 205.601(o)(1) and annotated for use as a production aid exclusively in log-grown mushrooms). Use of these substances in mushroom substrate and spawn media must also follow all applicable substance-specific restrictions included in the National List. Paragraph (c)(4), along with the proposed revision to the definition of ‘‘crop’’ in § 205.2 to include mushrooms, would enable mushroom operations to select from the already familiar list of substances allowed in crop production. AMS proposes in § 205.210(d) that spawn used in organic mushroom production must be organic. Organic spawn must (1) use organic agricultural products (e.g., organic grain) in the spawn media and (2) the spawn must be under continuous organic management once mycelium is applied to the organic spawn media. However, if organic spawn is not commercially available, an operation may use nonorganic spawn to produce a crop of organic mushrooms. Certifiers must use the definition of commercial availability in § 205.2 to validate an operation’s claim that organic spawn is not commercially available. Sec. 205.601 (National List) Finally, AMS proposes to update § 205.601 to clarify that mushrooms are within the scope of organic crop production. The current regulations at § 205.601(i) and (j) use the phrases ‘‘As E:\FR\FM\11MRP1.SGM 11MRP1 Federal Register / Vol. 89, No. 48 / Monday, March 11, 2024 / Proposed Rules plant disease control’’ and ‘‘As plant or soil amendments’’ to describe types of synthetic substances, grouped by function, that may be used in organic crop production. AMS proposes to replace the term ‘‘plant’’ with ‘‘crop’’ in these phrases. Because AMS is proposing to revise the definition of crop (§ 205.2) to include mushrooms, the proposed changes would allow the use of the materials on the National List in paragraphs (i) and (j) in mushroom production. This is discussed in additional detail above (see § 205.210(c)(3) and (4)). AMS notes that certifying agents who currently apply the crop production standards to mushroom production currently permit these substances in mushroom production. ddrumheller on DSK120RN23PROD with PROPOSALS1 V. Organic Pet Food Standard A. Pet Food Background AMS proposes in this rule to regulate organic claims on pet food using the existing regulatory framework for processed organic products (§ 205.270, Organic handling requirements) to clarify the composition and labeling requirements for organic pet food. These amendments would allow organic pet food to be labeled and sold as ‘‘100% organic,’’ ‘‘organic,’’ or ‘‘made with organic (specified ingredients or food group(s)).’’ The proposed changes would clarify that pet food is distinct from livestock feed, which has its own composition and labeling requirements (see §§ 205.237 and 205.301(e)). This proposed rule defines ‘‘pet’’ as ‘‘Any domestic animal not used for the production and sale of food, fiber, or other agricultural-based consumer products.’’ The rule defines ‘‘pet food’’ as ‘‘Any commercial feed prepared and distributed for pet consumption.’’ Throughout this proposed rule, the term ‘‘pet food’’ is used to refer to all pet foods, including food for pets other than dogs and cats, unless otherwise noted. Feed for zoo animals (such as large cats) falls outside the scope of the proposed definitions for pet food, since zoo animals fall outside the definition of ‘‘pet’’—they are not domestic animals. This rule proposes to regulate only the organic claims of organic pet food: specifically, what it can contain and how it must be labeled. Other aspects of the manufacture, marketing, and sale of pet food—including its healthfulness and safety, nutritional value and composition, and suitability for pets— fall under the Food and Drug Administration’s (FDA) authority. All pet food manufacturers, organic or otherwise, must comply with relevant federal and state regulations pertaining VerDate Sep<11>2014 17:20 Mar 08, 2024 Jkt 262001 to pet food safety. The framework for pet food regulation, summarized below, provides context for several provisions in the proposed organic pet food standards. Pet Food Regulations Pet food labels are regulated at the federal and state levels. At the federal level, the FDA is responsible for overseeing and enacting the requirements of the Federal Food, Drug, and Cosmetic Act (FD&C Act), which requires that pet food be safe, properly manufactured, and adequately labeled.22 The FDA requires certain information on all animal feed labels: proper identification of the product, net quantity statement, name and place of manufacturer or distributor, and a proper listing of all ingredients.23 Some states enforce their own labeling regulations in addition to those administered by FDA. Most of these states follow the recommendations of the Association of American Feed Control Officials (AAFCO), an independent trade organization. They require a product name that complies with AAFCO pet food labeling rules, the species of pet for which the product is intended, a guaranteed analysis showing the basic nutrient composition, and in some cases a statement of nutritional adequacy and feeding directions.24 Pet food is often formulated as a complete nutrition product—i.e., the sole source of nourishment for pets. It typically contains ingredients from agricultural sources and supplemental nutrients to meet the nutrient requirements of the animal. These ingredients (including supplemental nutrients) do not require FDA’s premarket approval if they are on an FDAmaintained list of ingredients Generally Recognized As Safe (GRAS).25 The National Academy of Sciences’ National Research Council (NRC) and AAFCO provide information on the nutrient requirements of dogs and cats at each stage of life (e.g., growth, reproduction, adult maintenance) to guide the formulation of nutritionally adequate pet foods. The NRC has listed and 22 FDA. (February 17, 2022). ‘‘FDA’s regulation of pet food.’’ https://www.fda.gov/animal-veterinary/ animal-health-literacy/fdas-regulation-pet-food. 23 FDA. (February 3, 2023). ‘‘Pet food.’’ https:// www.fda.gov/animal-veterinary/animal-food-feeds/ pet-food. FDA’s animal food labeling regulations are located at 21 CFR part 501. 24 AAFCO. ‘‘Labeling & labeling requirements.’’ Accessed May 1, 2023. https://www.aafco.org/ resources/startups/labeling-labeling-requirements/. 25 FDA. (August 4, 2023). ‘‘Current animal GRAS notices inventory.’’ https://www.fda.gov/animalveterinary/generally-recognized-safe-grasnotification-program/current-animal-food-grasnotices-inventory. PO 00000 Frm 00008 Fmt 4702 Sfmt 4702 17329 described essential nutrients in its 2006 publication, ‘‘Nutrient Requirements of Dogs and Cats.’’ 26 AAFCO maintains on its website more recently updated Nutrient Profiles for the various stages of life. The minimum nutrient levels specified in the AAFCO Nutrient Profiles are generally consistent with NRC Nutrient Requirement tables and are updated periodically as NRC recommendations change. This proposed rule would not supersede the requirements of the FDA or state regulatory bodies, including nutrient requirements established according to the guidance of NRC or AAFCO. Instead, this rule is intended to work jointly with those requirements and more narrowly regulate what manufacturers must do to label their pet food ‘‘organic’’ or claim it is ‘‘made with organic (specified ingredients or food group(s)).’’ Additionally, by including organic pet food in the organic regulations, the proposed rule would clarify the process for adding substances to the National List specifically for use in organic pet food. Future amendments to the National List could be made, as necessary, in accordance with the process, requirements, and criteria described in OFPA (see 7 U.S.C. 6517 and 6518). Organic Pet Food Industry and Market The U.S. pet food market is a large and growing market in the United States. According to recent data from the American Pet Products Association (APPA), 66 percent of U.S. households own a pet, which is around roughly 86.9 million homes.27 In 2022, the pet food market in the United States was valued at $58.1 billion and is projected to increase to $62.7 billion in 2023. While the conventional pet food market is already substantial, the organic pet food market is relatively new, with few organic brands able to penetrate the market. In 2022, the organic pet food market was valued at $129 million but had substantial growth of 5.3 percent over 2021, which was the highest recorded growth since 2013.28 As of 2021, the organic pet food market is still less than one percent of the total pet 26 NRC. (2006). ‘‘Nutrient requirements of dogs and cats.’’ https://nap.nationalacademies.org/ catalog/10668/nutrient-requirements-of-dogs-andcats. 27 American Pet Products Association. ‘‘Pet industry market size, trends & ownership statistics.’’ Retrieved May 5, 2023. https:// www.americanpetproducts.org/press_ industrytrends.asp. 28 Organic Trade Association. 2022 Organic Industry Survey. p. 108. https://ota.com/marketanalysis/organic-industry-survey/organic-industrysurvey. E:\FR\FM\11MRP1.SGM 11MRP1 17330 Federal Register / Vol. 89, No. 48 / Monday, March 11, 2024 / Proposed Rules ddrumheller on DSK120RN23PROD with PROPOSALS1 food market,29 and AMS believes there is potential for further growth. AMS expects that as the number of organic options for pets increases, an untapped market of organic consumers may seek out and purchase organic pet food for the same reasons that they purchase other organic foods. Additionally, demand for pet food was driven up by the COVID–19 pandemic when many people chose to adopt pets while living and working from home. According to an American Society for the Prevention of Cruelty to Animals (ASPCA) survey, around 23 million homes (nearly one in five homes in the United States) adopted a cat or dog during the pandemic.30 Most dry and wet pet foods are multiingredient products because multiple ingredients are needed to meet the nutritional needs of a pet. The multiingredient nature of most pet foods creates a challenge for manufacturers— the organic regulations describe requirements for processed human food, but it is not clear if pet food should follow the same rules. In addition, there is uncertainty about which ingredients are allowed and how certain ingredients can be used in organic pet food. An example is synthetic taurine, which is a necessary ingredient in some pet food, but is not on the National List for use in organic pet food. This limits the types of pet food that can be certified as organic to single-ingredient pet food and treats, in turn limiting the size of the organic pet food market overall. Revising the organic regulations to clearly state how pet food can be labeled organic would allow companies to produce multi-ingredient dry and wet food products that are certified organic and still meet the complete nutritional needs of pets. Additionally, under the current organic regulations, it is unclear if pet food manufacturers may use meat or slaughter by-products in organic pet food, which likely limits the production of organic pet food. AMS expects that these changes would encourage additional growth in the small organic pet food market and other latent organic markets that support it, such as organic slaughter by-products. B. Need for Organic Pet Food Standard The lack of specific standards for organic pet food creates inconsistency and uncertainty around labeling and 29 Organic Trade Association. 2022 Organic Industry Survey. p. 108. 30 ASPCA. ‘‘New ASPCA survey: Vast majority of dogs and cats acquired during pandemic still in their homes.’’ Retrieved May 5, 2023. https:// www.aspcapro.org/resource/new-aspca-survey-vastmajority-dogs-and-cats-acquired-during-pandemicstill-their-homes. VerDate Sep<11>2014 17:20 Mar 08, 2024 Jkt 262001 composition requirements for organic pet food. These regulatory gaps increase the risk for businesses in the organic pet food market, hinder production innovation, and limit the market for organic slaughter by-products. For example, some certifying agents have used the composition requirements for organic livestock feed (§ 205.301(e)) to certify pet food as organic, but livestock feed produced under the organic standards may not sufficiently address pets’ nutrient needs. Specifically, the organic livestock feed composition requirements (§ 205.301(e)(2)) state that livestock feed must be produced ‘‘in conformance with § 205.237.’’ Section 205.237(a) requires that all agricultural ingredients be organically produced and handled, and § 205.237(b)(5) prohibits feeding slaughter by-products to mammals or poultry; however, slaughter by-products are a commonly used protein source in pet food. Furthermore, although the organic livestock feed standards allow the use of vitamins and minerals (§ 205.603(d)), the composition requirements for livestock feed do not allow certain synthetic amino acids that are commonly used in pet food, such as taurine. In some cases, certifying agents may not adhere strictly to the livestock feed standards and some may allow organic slaughter by-products while others do not. This type of inconsistency creates uncertainty for companies considering entering the market. It also reduces the organic premiums that livestock producers and slaughterhouses could otherwise gain. While some certifying agents have used the composition requirements for organic livestock feed (§ 205.301(e)) to certify pet food as organic, others have used only the handling standards in § 205.270 to certify pet foods as organic. These standards allow organic ingredients (e.g., organic slaughter byproducts) and allow nonorganic ingredients that appear on the National List at §§ 205.605 and 205.606, but the standards do not explicitly allow the vitamin and mineral ingredients that appear on the National List for livestock production at § 205.603(d). This proposed rule would resolve these problems by, first, establishing that pet food is not to be regulated as organic livestock feed and thereby allowing organic slaughter by-products in organic pet food. Allowing slaughter by-products in organic pet food would also increase demand for certified organic slaughter by-products and create new income streams for organic livestock producers and slaughterhouses. Second, the proposed rule would clarify that vitamins, PO 00000 Frm 00009 Fmt 4702 Sfmt 4702 minerals, and taurine are allowed ingredients in organic pet food. Third, the rule would clarify that certain nonorganic content is permitted in pet food, in accordance with the labeling categories at § 205.301(a) through (d). The product that forms the largest share of the entire pet food market— kibble 31 or dry ‘‘complete and balanced’’ 32 pet food intended to supply a pet’s daily nutritional needs— is a processed product, but the current handling regulations do not allow additive nutrients and vitamins (such as taurine) that pets need to meet nutritional requirements. The proposed rule would resolve this problem by explicitly allowing the vitamin and mineral feed additives referenced in §§ 205.603(d)(2) and (3) for use in pet food and by adding taurine to the National List in § 205.605(b) as an allowed substance in pet food. The natural form of taurine, which is present in raw meat, is lost when heated—a step in the processing of many pet food products.33 Because of this, synthetic forms of taurine are often added to certain pet foods. By adding synthetic taurine to the National List for use in organic pet food only, this proposed rule would provide for the use of taurine in organic pet food. Additionally, this proposed rule would regulate pet food under the composition and labeling requirements for processed products referenced in § 205.270. This would allow producers to use both the ‘‘organic’’ and ‘‘made with organic (specified ingredient or food group(s))’’ labeling claims on multi-ingredient products that contain some nonorganic content. These two labeling claims are regulated under the USDA organic regulations (§§ 205.301, 205.303, and 205.304) and are used extensively by certified organic handlers. ‘‘Organic’’ products must contain at least 95 percent organic ingredients, while ‘‘made with organic’’ products must contain at least 70 percent organic ingredients. In both cases, any nonorganic ingredient(s) must also meet specific criteria.34 This 31 Kibble was 62.8 percent of all pet food sales in 2020. Pet Food Processing. (December 1, 2020). ‘‘State of the US pet food and treat industry, 2020.’’ https://www.petfoodprocessing.net/articles/14294state-of-the-us-pet-food-and-treat-industry-2020. 32 FDA. (February 28, 2020). ‘‘Complete and Balanced Pet Food.’’ https://www.fda.gov/animalveterinary/animal-health-literacy/complete-andbalanced-pet-food. 33 Spitze, A.R., Wong, D.L., Rogers, Q.R., & Fascetti, A.J. (2003). ‘‘Taurine concentrations in animal feed ingredients; cooking influences taurine content.’’ Journal of Animal Physiology and Animal Nutrition, 87(7–8), 251–262. 34 USDA, AMS. (April 2018). ‘‘Organic Labels Explained.’’ https://www.ams.usda.gov/sites/ default/files/media/OrganicLabelsExplained.png. E:\FR\FM\11MRP1.SGM 11MRP1 Federal Register / Vol. 89, No. 48 / Monday, March 11, 2024 / Proposed Rules proposed rule would provide pet food manufacturers flexibility to use organic ingredients in a ‘‘made with organic’’ pet food product without having to reach the higher 95 percent ingredient threshold for ‘‘organic’’ products. This clarification would allow pet food companies to increase organic content in their product line. Finally, under the current organic regulations, it is unclear if pet food manufacturers may use meat or slaughter by-products in organic pet food, limiting the production of pet food and demand for organic slaughter byproducts based on certifier interpretation. AMS estimates that by clarifying slaughter by-products are allowed, this rule will allow for more flexible and affordable organic pet food options and could ensure consistent demand for over 7 million pounds of organic by-products annually.35 Based on feedback from stakeholders, AMS finds it likely that this clarification will also increase growth in these markets. In conclusion, this rule would address inconsistencies in how certifying agents are applying the current organic regulations to pet food. It would also resolve regulatory uncertainties that artificially increase risk in the organic pet food market. Addressing these inconsistencies and uncertainties would create the conditions necessary for the organic pet food and related markets to grow. 17331 C. Overview of Proposed Amendments This proposed rule would amend the USDA organic regulations (7 CFR part 205) by defining ‘‘pet’’ and ‘‘pet food’’ in the regulations and adding a new paragraph for pet food in § 205.270, organic handling requirements. This action would integrate organic pet food standards into existing USDA organic labeling categories for agricultural products (subpart D of part 205) and specify the ingredients that can be included in pet food labeled ‘‘organic’’ or ‘‘made with organic (specified ingredients or food group(s)).’’ Table 2 provides a summary of the proposed amendments to the USDA organic regulations to incorporate pet food composition and labeling standards. TABLE 2—OVERVIEW OF PROPOSED REGULATORY CHANGES TO ESTABLISH PET FOOD STANDARDS Section title Type of action Summary of proposed action 205.2 ............................................... 205.270 ........................................... 205.605(b) ....................................... Adds new terms ............................. Adds new paragraph ..................... Adds substance to the National List. Defines terms ‘‘pet’’ and ‘‘pet food’’. Adds composition and labeling requirements specific to pet food. Adds taurine to the National List as an allowed ingredient in pet food. Sec. 205.2 (Terms Defined) AMS is proposing to amend § 205.2 by adding two new terms, ‘‘pet’’ and ‘‘pet food.’’ ddrumheller on DSK120RN23PROD with PROPOSALS1 1. Pet Federal or State laws and regulations, see proposed § 205.270(c)). This distinction is significant for pet food production because current regulations do not allow slaughter by-products in livestock feed (§ 205.237(b)(5)), but slaughter by-products are commonly used as a protein source in pet food. Additionally, organic livestock must consume only organic agricultural products (§ 205.237(a)), whereas the proposed rule would allow nonorganic agricultural ingredients to be used in pet food under the same labeling categories as other processed organic foods. Together, these clarifications are expected to increase the types of usable ingredients in organic pet food production and increase the commercial viability of organic pet food. AMS is proposing to define ‘‘pet’’ as ‘‘any domestic animal not used for the production and sale of food, fiber, or other agricultural-based consumer products.’’ This term establishes a distinction between animals raised as pets and animals raised for food or fiber (i.e., ‘‘livestock,’’ as defined at § 205.2). Animals used for food or in the production of food, fiber, feed, or other agricultural-based consumer products are ‘‘livestock’’ under the USDA organic regulations (§ 205.2) and must be produced under all applicable organic livestock requirements. Feed requirements for organic livestock are described at § 205.237 and would not apply to organic pet food, and vice versa. By creating a regulatory distinction between pets and other animals whose feed is subject to organic regulation, the proposed rule would allow organic pet food to contain organic slaughter byproducts (except when prohibited by 2. Pet Food AMS is proposing to define ‘‘pet food’’ as ‘‘any commercial feed prepared and distributed for pet consumption.’’ The proposed definition for ‘‘pet food’’ distinguishes organic pet food products from organic livestock feed products. This action is consistent with the NOSB recommendation.36 It also addresses a concern expressed by pet food manufacturers that applying the 35 Data from the Institute for Feed Education & Research indicates that approximately 23 percent of the ingredient weight in conventional pet food is animal by-product and meal. This estimate is then applied to the estimate pounds of organic pet food as reported by the Organic Trade Association and current market prices. Institute for Feed Education & Research. (March 2020). ‘‘Pet food production and ingredient analysis.’’ Organic Trade Association. (2022). Organic Industry Survey. p. 56. 36 NOSB. (November 19, 2008). ‘‘Formal recommendation by the National Organic Standards VerDate Sep<11>2014 17:20 Mar 08, 2024 Jkt 262001 PO 00000 Frm 00010 Fmt 4702 Sfmt 4702 livestock feed composition requirements to pet food could limit product formulation and participation in the organic market because of the lack of available organic protein sources, particularly rendered products such as poultry meal. Unless otherwise noted, the term ‘‘pet food’’ refers to all pet foods, including food for pets other than dogs and cats. Feed for zoo animals (such as large cats) is not included in the proposed definition, as zoo animals are not domestic animals and therefore fall outside the definition of ‘‘pets.’’ Sec. 205.270 (Organic Handling Requirements) This proposed rule would add a new paragraph (c) to § 205.270—Organic handling requirements—to describe requirements for the composition, processing, and labeling of organic pet food. The requirements would permit the types of processing allowed in paragraph (a) and the types of nonorganic ingredients allowed in paragraph (b) and proposed paragraph (c), and prohibit the practices and materials not allowed in paragraph (d) (please note that the proposed rule would redesignate, or rearrange, current paragraph (c) of this section as Board (NOSB) to the National Organic Program (NOP): Organic pet food standards recommendation.’’ https://www.ams.usda.gov/sites/ default/files/media/NOP%20Final%20Rec%20 Pet%20Food.pdf. E:\FR\FM\11MRP1.SGM 11MRP1 ddrumheller on DSK120RN23PROD with PROPOSALS1 17332 Federal Register / Vol. 89, No. 48 / Monday, March 11, 2024 / Proposed Rules paragraph (d)). By including pet food criteria as part of the handling standards but clearly separating the criteria from the livestock feed composition and labeling standards, the proposed rule would ensure that pet food is not subject to the prohibition of slaughter by-products that exists for livestock feed. The proposed rule would allow slaughter by-products in pet food under the same composition and labeling requirements for other multi-ingredient products described at § 205.301(a) through (d) and (f). Paragraph (b) would permit organic pet food, like any other processed organic product, to contain nonagricultural and nonorganic substances allowed by the National List in § 205.605 (such as taurine, as proposed) and § 205.606. These ingredients may be used in processed pet food products sold as ‘‘organic’’ or ‘‘made with organic (specified ingredients or food group(s)).’’ Additionally, the proposed rule would allow vitamins and minerals in § 205.603(d)(2) and (3) for enrichment or fortification of pet food. Vitamins and minerals are often required to meet the nutritional needs of pets. The proposed rule would also clarify that pet food labeled as organic must be labeled pursuant to the applicable portions of subpart D of the organic regulations (proposed § 205.270(c)). In particular, this means that organic pet food should be labeled according to the product composition requirements at § 205.301(a) through (d), and that pet food may use the following labeling categories: (1) ‘‘100 percent organic;’’ (2) ‘‘organic,’’ (3) ‘‘made with organic (specified ingredients or food group(s));’’ or (4) products containing less than 70 percent organic ingredients. This proposed action would allow the labeling of organic pet food using the same framework as most processed organic products (rather than the labeling requirements for livestock feed at § 205.301(e)). The proposed changes to § 205.270 would not replace or modify requirements pertaining to pet food that are applicable under other federal or state laws or regulations. Any ingredients in pet food must comply with all applicable federal and state laws and regulations. AMS only regulates the organic claims of organic pet food. All other aspects of pet food production and sale must follow the relevant federal and state laws and regulations. Sec. 205.605 (National List) AMS proposes to modify the National List to allow the use of synthetic taurine VerDate Sep<11>2014 17:20 Mar 08, 2024 Jkt 262001 in pet food. The rule proposes to add taurine to § 205.605, which describes nonagricultural substances allowed as ingredients in or on processed products labeled as ‘‘organic’’ or ‘‘made with organic (specified ingredients or food group(s)).’’ The proposed listing for taurine also specifies that taurine can be used only in pet food and not in other organic multi-ingredient products. Taurine is an amino sulfonic acid that many pets (all cats and some dog breeds) require but cannot obtain in adequate amounts by consuming pet food that does not contain added taurine. For that reason, AAFCO’s cat nutrient profiles require taurine, and it is a common synthetic additive in pet foods. This proposed addition follows an NOSB recommendation to add taurine to the National List as an allowed substance for use exclusively in pet foods. The NOSB concluded that taurine is necessary to meet nutritional requirements for cats. Also, based on public comment, the NOSB determined that taurine can also be necessary for dogs’ nutrition, and, therefore, recommended taurine be allowed in pet food generally. AMS agrees with the NOSB’s rationale and recommendation since taurine is essential for pet health and adequate taurine levels cannot be achieved using organic agricultural ingredients alone when pet food is cooked. This proposed rule, if finalized, would amend the regulations to provide for the use of taurine. Individuals may petition to add other substances to the National List for use in organic pet food. Because organic pet food must meet all applicable federal and state laws and regulations, any person or organization petitioning to add a substance to the National List for use in organic pet food must ensure the use of that substance is consistent with applicable federal and state laws and rules. Synthetic substances petitioned for use in pet food would also be evaluated according to the existing criteria in OFPA (7 U.S.C. 6517 and 6518) and the USDA organic regulations (§ 205.600). VI. Regulatory Analyses Executive Orders 12866, 13563, 14094, and the Regulatory Flexibility Act This rule does not meet the criteria of a ‘‘significant regulatory action’’ under Executive Order 12866, as supplemented by Executive Order 13563 and updated by Executive Order 14094. Therefore, the Office of Management and Budget (OMB) has not reviewed this rule under those orders. PO 00000 Frm 00011 Fmt 4702 Sfmt 4702 The Regulatory Flexibility Act (RFA) (5 U.S.C. 601–612) requires agencies to consider the economic impact of each rule on ‘‘small entities’’ and evaluate alternatives that would accomplish the objectives of the rule without unduly burdening small entities or erecting barriers that would restrict their ability to compete in the market. The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to the action. Section 605 of the RFA allows an agency to certify a rule in place of preparing an analysis if the rulemaking is not expected to have a significant economic impact on a substantial number of small entities. AMS has concluded that this rule, if promulgated, will not have a significant economic impact on a substantial number of small entities, and, therefore, an analysis is not included. Below, AMS presents information about the industry and the possible effects of the rule on small entities to support this conclusion. The Small Business Administration (SBA) sets size criteria for each industry described in the North American Industry Classification System (NAICS) to delineate which operations qualify as small businesses. SBA’s size standards are expressed in terms of number of employees or annual receipts and indicate the maximum allowed for an entity to be considered small.37 Mushroom Producers. AMS has considered the economic impact of this rulemaking on small mushroom producers. At the time of this analysis, small organic mushroom producers were listed under NAICS code 111411 (Mushroom Production) as grossing equal to or less than $4,500,000 per year.38 AMS estimates that out of 229 domestic operations reporting sales of organic mushrooms, 14 operations exceed that threshold.39 While most organic mushroom operations that would be affected by this rule are small entities, this rule has the potential to impose only minor costs on them related to paperwork burden (see Paperwork Reduction Action section below) and costs associated with 37 U.S. SBA. (March 17, 2023). Table of size standards. https://www.sba.gov/document/supporttable-size-standards. 38 U.S. SBA. (March 17, 2023). Table of size standards. https://www.sba.gov/document/supporttable-size-standards. 39 The National Agricultural Statistics Service was unable to supply a precise tabulation of large organic operations due to disclosure concerns. AMS estimated the number of large mushroom operations and sales from large mushroom operations using the proportion of conventional mushroom operations by sales from the USDA’s 2017 Census of Agriculture, available here: https:// www.nass.usda.gov/Publications/AgCensus/2017/ index.php. The same distribution is assumed to apply to organic mushroom operations. E:\FR\FM\11MRP1.SGM 11MRP1 Federal Register / Vol. 89, No. 48 / Monday, March 11, 2024 / Proposed Rules ddrumheller on DSK120RN23PROD with PROPOSALS1 sourcing organic spawn and substrate materials, when commercially available. AMS concludes that this rule, if promulgated, will not have a significant economic impact on a substantial number of these small entities. Pet Food Operations. AMS has considered the economic impact of this rulemaking on small organic pet food producers. At the time of this analysis, small organic pet food producers were listed under NAICS code 311111 (Dog and Cat Food Manufacturing) as employing equal to or fewer than 1,250 employees.40 AMS estimates that given the small size of the organic pet food market, most organic pet food operations are small entities. Pet food operations may incur small one-time paperwork costs (see Paperwork Reduction Act section below), but the proposed rule would establish standards for organic pet food handling that align with many existing industry practices. Additionally, the rule could allow operations to use additional inputs (e.g., taurine) in pet food. AMS concludes that this rule, if promulgated, will not have a significant economic impact on a substantial number of these small entities. Certifying agents. This proposed rule would also affect certifying agents that certify organic mushroom or pet food operations. At the time of this analysis, the SBA defined small agricultural service firms, which include certifying agents, as those having annual receipts equal to or less than $19,500,000 (NAICS code 541990—All Other Professional, Scientific and Technical Services). There are currently 74 USDAaccredited certifying agents, and AMS believes most of these certifying agents are small entities. Certifying agents must already comply with the current regulations and already certify these operations. Certifying agents may incur minor one-time paperwork costs (see Paperwork Reduction Act section below). However, this rule would reduce the current burden of creating and maintaining individual policies for organic mushroom production and organic pet food handling. AMS concludes that this rule, if promulgated, will not have a significant economic impact on a substantial number of these small entities. Executive Order 12988 Executive Order 12988 instructs each executive agency to adhere to certain requirements in the development of new and revised regulations to avoid unduly 40 U.S. SBA. (March 17, 2023). Table of size standards. https://www.sba.gov/document/supporttable-size-standards. VerDate Sep<11>2014 17:20 Mar 08, 2024 Jkt 262001 burdening the court system. This proposed rule complies with these requirements. This rule would not be applied retroactively. Additionally, to prevent duplicative regulation, States and local jurisdictions are preempted under OFPA from creating accreditation programs for private persons or state officials who want to become certifying agents of organic farms or handling operations. A governing state official would have to apply to USDA to be accredited as a certifying agent, as described in OFPA (7 U.S.C. 6514(b)). States are also preempted under sections 6503 through 6507 of OFPA from creating certification programs to certify organic farms or handling operations unless the state programs have been submitted to, and approved by, the Secretary as meeting the requirements of OFPA. Pursuant to section 6507(b)(2) of OFPA, a state organic certification program that has been approved by the Secretary may, under certain circumstances, contain additional requirements for the production and handling of agricultural products organically produced in the state and for the certification of organic farm and handling operations located within the state. Such additional requirements must (a) further the purposes of OFPA, (b) not be inconsistent with OFPA, (c) not be discriminatory toward agricultural commodities organically produced in other States, and (d) not be effective until approved by the Secretary. In addition, pursuant to section 6519(c)(6) of OFPA, this rulemaking would not supersede or alter the authority of the Secretary under the Federal Meat Inspection Act (21 U.S.C. 601–624), the Poultry Products Inspection Act (21 U.S.C. 451–471), or the Egg Products Inspection Act (21 U.S.C. 1031–1056), concerning meat, poultry, and egg products, respectively, nor any of the authorities of the Secretary of Health and Human Services under the Federal Food, Drug and Cosmetic Act (21 U.S.C. 301–399i), nor the authority of the Administrator of the Environmental Protection Agency under the Federal Insecticide, Fungicide and Rodenticide Act (7 U.S.C. 136–136y). OFPA at 7 U.S.C. 6520 provides for the Secretary to establish an expedited administrative appeals procedure under which persons may appeal an action of the Secretary, the applicable governing State official, or a certifying agent under the statute that adversely affects such person or is inconsistent with the organic certification program established under OFPA. OFPA also provides that the U.S. District Court for PO 00000 Frm 00012 Fmt 4702 Sfmt 4702 17333 the district in which a person is located has jurisdiction to review the Secretary’s decision. Executive Order 13132 Executive Order 13132 mandates that federal agencies consider how their policymaking and regulatory activities impact the policymaking discretion of States and local officials and how well such efforts conform to the principles of federalism defined in said order. This executive order only pertains to regulations with clear federalism implications. AMS has determined that this proposed rule conforms with the principles of federalism described in E.O. 13132. The rule would not impose substantial direct costs or effects on States, would not alter the relationship between States and the federal government, and would not alter the distribution of powers and responsibilities among the various levels of government. States have the opportunity to comment on any potential federalism implications during this proposed rule’s comment period. AMS will consider these comments when assessing the federalism implications of any final rule. Executive Order 13175 Executive Order 13175 requires Federal agencies to consult and coordinate with Tribes on a government-to-government basis on policies that have Tribal implications, including regulations, legislative comments, or proposed legislation. Additionally, other policy statements or actions that have substantial direct effects on one or more Indian Tribes, the relationship between the Federal Government and Indian Tribes, or on the distribution of power and responsibilities between the Federal Government and Indian Tribes also require consultation. After consultation with the USDA Office of Tribal Relations, AMS has determined that a Tribal consultation for this rulemaking is not necessary, as it is unlikely to impact Tribes. However, AMS will conduct a Tribal consultation if stakeholders request one. Civil Rights Impact Analysis AMS has reviewed this rulemaking in accordance with the Departmental Regulation 4300–4, Civil Rights Impact Analysis, to address any major civil rights impacts the rule might have on minorities, women, and/or persons with disabilities. After a careful review of the rule’s intent and provisions, AMS determined that there is no evidence that this proposed rule would have E:\FR\FM\11MRP1.SGM 11MRP1 17334 Federal Register / Vol. 89, No. 48 / Monday, March 11, 2024 / Proposed Rules adverse civil rights impacts on organic producers identifying as minorities, women, and/or persons with disabilities. Additionally, this proposed rule would not impose any requirements related to eligibility for benefits and services on protected classes, nor would the rule have the purpose or effect of treating classes of persons differently. Protected individuals have the same opportunity to participate in NOP as non-protected individuals. USDA organic regulations prohibit discrimination by certifying agents. Specifically, 7 CFR 205.501(d) of the current regulations for accreditation of certifying agents provides that ‘‘No private or governmental entity accredited as a certifying agent under this subpart shall exclude from participation in or deny the benefits of the National Organic Program to any person due to discrimination because of race, color, national origin, gender, religion, age, disability, political beliefs, sexual orientation, or marital or family status.’’ Section 205.501(a)(2) requires certifying agents to ‘‘[d]emonstrate the ability to fully comply with the requirements for accreditation set forth in this subpart,’’ including the prohibition on discrimination. The granting of accreditation to certifying agents under § 205.506 requires the review of information submitted by the certifying agent and an on-site review of the certifying agent’s client operation. Further, if certification is denied, § 205.405(d) requires that the certifying agent notify the applicant of their right to file an appeal to the AMS Administrator in accordance with § 205.681. These regulations provide protections against discrimination, thereby permitting all producers, regardless of race, color, national origin, gender, religion, age, disability, political beliefs, sexual orientation, or marital or family status, who voluntarily choose to adhere to the rules and qualify, to be certified as meeting NOP requirements by an accredited certifying agent. This action in no way changes any of these protections against discrimination. ddrumheller on DSK120RN23PROD with PROPOSALS1 Paperwork Reduction Act In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501– 3521) (PRA), AMS is requesting OMB approval for a new information collection totaling 851 hours for the VerDate Sep<11>2014 17:20 Mar 08, 2024 Jkt 262001 reporting and recordkeeping requirements contained in this proposed rule. OMB previously approved information collection requests (ICR) associated with the NOP and assigned OMB control number 0581–0191. AMS intends to merge this new information collection, upon OMB approval, into the approved 0581–0191 collection. Below, AMS describes and estimates the annual burden, i.e., the amount of time and cost of labor, for entities to prepare and maintain information to participate in this proposed voluntary labeling program. OFPA, as amended, provides authority for this action. Title: National Organic Program: Market Development for Mushrooms and Pet Food. OMB Control Number: 0581–NEW. Expiration Date of Approval: Three years from OMB date of approval. Type of Request: New collection. Abstract: Information collection would be necessary to implement reporting required by the proposed standards for organic mushroom production and pet food handling under the USDA organic regulations (§§ 205.210 and 205.270). This proposed rule would establish USDA organic requirements in these sectors to support consistent interpretation and remove regulatory uncertainty. By doing so, it would support the purposes of OFPA, ‘‘to assure consumers that organically produced products meet a consistent standard’’ and to ‘‘establish national standards’’ for products marketed as organic (7 U.S.C. 6501). Additional information on the purpose and need for this rule is included in the BACKGROUND section of this rule. Overview Information collection and recordkeeping would be required to demonstrate compliance with proposed new § 205.210 and proposed amendments to § 205.270 of the USDA organic regulations, 7 CFR part 205, that establish standards for mushroom production and pet food handling. Historically, while mushrooms have been managed as a crop and pet food has been manufactured in compliance with the livestock feed and/or handling standards, AMS has received reports that the lack of specific standards for mushrooms and pet food handling deters business investment and creates inefficiencies in these markets. PO 00000 Frm 00013 Fmt 4702 Sfmt 4702 Mushrooms are not plants. They do not photosynthesize and are generally grown in controlled environments. While mushrooms can comply with most of the existing regulations governing crop production, including §§ 205.200–202 and 205.206, they have very distinct growing requirements that differ from plant crops and are not directly addressed in the current organic regulations. AMS is proposing to add § 205.210 to the USDA organic regulations to describe the specific practice standards for mushrooms that codify the processes and materials allowed in organic mushroom operations. This includes mushroom substrate requirements instead of the soil fertility and crop nutrient management requirements in § 205.203 and spawn production requirements in lieu of the parallel seeds and planting stock practice requirements in § 205.204. AMS is proposing to apply the existing framework for the organic handling requirements at § 205.270 to pet food composition and labeling. Some parties interested in creating organic feed stated that it was not clear if organic pet food was allowed to contain slaughter by-products, which are prohibited in livestock feed. This proposed rule would clearly permit the use of slaughter by-products from organic livestock in organic pet food by establishing pet food regulations outside of the livestock feed standards. These amendments would require one-time additional reporting for already certified pet food and mushroom operations, accredited certifying agents, and inspectors. Existing organic mushroom and pet food operations would need to review their existing organic system plans for compliance, certifiers would have to review the updated plans, and certifiers/ inspectors would need training on the new regulation. The reporting burden for new and exempt operations in these sectors would remain unchanged from the current ICR, and recordkeeping burdens from the current ICR would remain unchanged for all respondents. Beyond the first year, AMS expects no increase in reporting and recordkeeping burden for any respondents. The continuing reporting and recordkeeping requirements are routine activities that are currently identified in the NOP’s approved ICR. E:\FR\FM\11MRP1.SGM 11MRP1 17335 Federal Register / Vol. 89, No. 48 / Monday, March 11, 2024 / Proposed Rules Respondents Six respondent types—certified operations (producers and handlers), accredited certifying agents, inspectors, foreign governments, state organic programs, and petitioners—have been identified in our currently approved information collection (0581–0191). AMS has identified three primary types of entities (respondents) that would need to submit new information because of this proposed rule: certified organic operations, accredited certifying agents, and organic inspectors. AMS does not expect this rule to impact any new operation, foreign governments, state organic programs, and petitioners as it only seeks to establish specific standards for mushroom and pet food operations, which would only require changes from existing operations and certifiers. The reporting burden for new and exempt operations in these sectors would remain unchanged from the ICR, and recordkeeping burdens from the current ICR would remain unchanged for all respondents. Calculating Reporting and Recordkeeping Burden AMS identifies three types of entities (respondents) that would need to submit and maintain information to participate in organic pet food and mushroom certification: 1. Organic pet food and mushroom operations. 2. Accredited certifying agents. 3. Inspectors. To understand the reporting and recordkeeping costs of this rulemaking more precisely, AMS calculated the potential impacts utilizing domestic and foreign labor rates (per hour) plus benefits. AMS calculates the time burden of the new reporting and recordkeeping requirements of this rulemaking by estimating the following: 1. The number of respondents. 2. Frequency of response. 3. Total number of burden hours per year. The number of respondents is based on operation, certifier, inspector, and State Organic Program data from the Organic Integrity Database. The frequency of responses is estimated to be the total annual responses and the number of responses per respondent in twelve months. The total number of burden hours per year is estimated to be the total annual responses multiplied by the number of hours per response. AMS estimates the cost (financial) burden of the new reporting and recordkeeping requirements of this rulemaking by estimating the following: 1. Total hours per respondent. 2. Total hours for all respondents. 3. Capital and other non-labor costs per respondent. 4. Total capital and other non-labor costs for all respondents. The total hours per respondent and for all respondents were estimated based on the number of respondents and the amount of time AMS estimates would be needed to report and record new information based on this rulemaking. 1. Operations: Mushroom Producers and Pet Food Manufacturers Domestic and foreign producers and handlers that are updating their organic system plan must address how their operation complies with the proposed mushroom or pet food standards. Operations would be required to update any changes in their operation or practices to their certifying agent at least annually. AMS has identified 229 domestic and 43 foreign-based operations that produce mushrooms and 31 domestic and 5 foreign-based operations that manufacture pet food requiring 308 reporting responses.41 The proposed mushroom production and pet food handling standards are estimated to require each current mushroom producer or pet food manufacturer to spend one hour to verify the compliance of their organic system plan with the proposed standards. AMS estimates the costs of the one-time reporting burden for all mushroom producers and pet food manufacturers to review and verify the compliance of their new or updated organic system plan at $15,391.55. This is based on 260 labor hours at $52.18 per labor hour (including benefit costs) 42 for 260 domestic operations, totaling $13,565.64; and 48 labor hours at $38.04 per labor hour (including benefit costs) 43 for 48 foreign operations, totaling $1,825.91 (See Table 3: USDA Certified Operations Reporting Burden). No new recordkeeping burden is incurred by this proposed rule as these operations are already certified and covered by existing recording keeping in the current Information Collection Request.44 TABLE 3—USDA CERTIFIED OPERATIONS (MUSHROOM PRODUCERS AND PET FOOD HANDLERS) REPORTING BURDEN Number of respondents ddrumheller on DSK120RN23PROD with PROPOSALS1 Respondent categories Wage + benefits Total reporting hours Total costs USDA Certified Producers & Handlers—Domestic ......................................... USDA Certified Producers & Handlers—Foreign ............................................ 260 48 $52.18 38.04 260 48 $13,565.64 1,825.91 USDA Organic Operations—All ................................................................ 308 ........................ 308 15,391.55 41 USDA. Organic Integrity Database. https:// organic.ams.usda.gov/IntegrityPlus/Search.aspx. To obtain the relevant data, search for ‘‘mushroom’’ and ‘‘pet,dog,canine,cat,feline’’ in the ‘‘Certified Products’’ field. Accessed May 9, 2023. 42 The cost of labor per hour for domestic operations was obtained by calculating the sum of the mean hourly wage for agricultural workers and the hourly cost of worker benefits. In May 2022, the mean hourly wage for Farmers, Ranchers, and Other Agricultural Managers (Standard Occupational Classification code 11–9013) was $40.29. U.S. Bureau of Labor Statistics. (April 25, 2023). ‘‘Occupational employment and wage statistics: VerDate Sep<11>2014 17:20 Mar 08, 2024 Jkt 262001 May 2022 national occupational employment and wage estimates United States.’’ https://www.bls.gov/ oes/current/oes_nat.htm#top. Domestic benefits were reported to be 29.5 percent of total average civilian employer compensation costs. U.S. Bureau of Labor Statistics. (June 16, 2023). ‘‘Employer costs for employee compensation summary.’’ USDL–23– 0488. https://www.bls.gov/news.release/ ecec.nr0.htm. 43 Wages in foreign countries are estimated to be 70.15 percent of U.S wages. This percentage was derived by dividing the World Bank estimates of Organization for Economic Co-Operation and Development (OECD) member countries in 2021 by PO 00000 Frm 00014 Fmt 4702 Sfmt 4702 the wages of the United States in 2021. The World Bank. ‘‘GDP per capita PPP—OECD members.’’ Accessed August 2023. https://data.worldbank.org/ indicator/NY.GDP.PCAP.PP.CD?locations=OE. Foreign worker benefit rates are based on the average OECD member countries’ tax wedge rate of 34.59 percent in 2021. OECD. ‘‘Taxing Wages— Comparative tables.’’ Accessed May 9, 2023. https:// stats.oecd.org/Index.aspx?DataSetCode=AWCOMP. 44 The current Information Collection Request can be found at https://www.reginfo.gov/public/do/ PRAViewICR?ref_nbr=202001-0581-001. E:\FR\FM\11MRP1.SGM 11MRP1 17336 Federal Register / Vol. 89, No. 48 / Monday, March 11, 2024 / Proposed Rules 2. Certifying Agents Certifying agents are State, private, or foreign entities accredited by the USDA to certify domestic and foreign producers and handlers as organic in accordance with OFPA and the USDA organic regulations. Certifying agents determine whether a producer or handler meets the organic requirements, using detailed information from the operation about its specific practices and on-site inspection reports from organic inspectors. There are 39 certifying agents (31 domestic and 8 foreign) accredited by USDA certifying organic mushroom operations and 12 certifying agents (8 domestic and 4 foreign) accredited by USDA certifying organic pet food processing that would require 308 reporting responses to certify each organic operation and 51 responses for staff training.45 The proposed mushroom production and pet food handling standards would require certifying agents of current mushroom producers and pet food manufacturers to spend one hour for each producer or manufacturer to verify their compliance with the proposed standards. In addition, it is estimated that certifying agents would need to provide one hour of training regarding the proposed mushroom production and pet food handling standards to their certification review personnel. Each certifying agent certifying organic mushroom production would incur approximately eight hours of first-time reporting burden (one hour for training and seven hours for approximately seven operations per certifier) 46 but no new recordkeeping burden due to this proposed rule. Each certifying agent certifying organic pet food processing would incur approximately four hours of first-time reporting burden (one hour for training and three hours for approximately three operations per certifier) 47 but no new recordkeeping burden due to this proposed rule. AMS estimates the costs of the one-time reporting burden for all certifying agents to review and verify the compliance of the new or updated organic system plan of mushroom producers and pet food manufacturers and the provision of training at $16,170.00. This is based on 279 labor hours at $47.93 per labor hour (including benefit costs) 48 for 39 domestic certifying agents, totaling $13,381.73; and 80 labor hours at $34.94 per labor hour (including benefit costs) 49 for 12 foreign certifying agents, totaling $2,788.27. (See Table 4: USDA Certifying Agents Reporting Burden). TABLE 4—USDA CERTIFYING AGENTS (CERTIFYING MUSHROOM PRODUCERS AND PET FOOD HANDLERS) REPORTING BURDEN Number of respondents Respondent categories USDA USDA USDA USDA Wage + benefits Total reporting hours Total costs U.S.-Based Certifiers—Mushrooms ...................................................... Foreign-Based Certifiers—Mushrooms ................................................ U.S.-Based Certifiers—Pet food ........................................................... Foreign-Based Certifiers—Pet food ...................................................... 31 8 8 4 $47.93 34.94 47.93 34.94 247.21 64.79 32 16 $11,848.04 2,229.18 1,533.69 559.09 USDA Certifiers—All ................................................................................. * 51 ........................ 359 16,170.00 * Some certifiers may certify both pet food and mushroom operations but are counted as separate entities in this column. Inspectors conduct on-site inspections of certified operations and operations applying for certification and report the findings to the certifying agent. Inspectors may be independent contractors or employees of certifying agents. Inspectors provide an inspection report to the certifying agent for each operation inspected (§ 205.404(a)). Currently, AMS estimates that inspectors would receive one hour of training on the proposed mushroom production and pet food handling standards. Inspectors do not have recordkeeping obligations, as certifying agents maintain the records of inspection reports. According to the International Organic Inspectors Association, there are approximately 184 inspectors in the world that inspect organic crop, livestock, handling, and/or wild crop operations’ compliance with USDA organic standards.50 Thus, the proposed rule would require approximately 184 reporting responses from inspectors. AMS estimates the costs of the one-time reporting burden for all inspectors to receive one hour of training on the proposed mushroom production and pet food handling standards at $5,111.82. This is based on 123 labor hours for 123 U.S.-based inspectors to receive training in the U.S. at $30.52 per labor hour, (including benefit costs),51 totaling $3,754.35 in costs; and 61 labor hours for 61 foreign-based inspectors to receive training at $22.25 per hour (including benefit costs),52 totaling $1,357.47 in costs. (See Table 5: Inspectors Reporting Burden). 45 USDA. Organic Integrity Database. https:// organic.ams.usda.gov/IntegrityPlus/Search.aspx. To obtain the relevant data, search for ‘‘mushroom’’ and ‘‘pet,dog,canine,cat,feline’’ in the ‘‘Certified Products’’ field. Accessed May 9, 2023. 46 This is the calculated average number of mushroom operations (272) per certifier certifying mushrooms (39). 47 This is the calculated average number of pet food operations (36) per certifier certifying pet food (12). 48 The cost of labor per hour for domestic certifying agents was obtained by calculating the sum of the mean hourly wage for compliance officers and the hourly cost of worker benefits. In May 2022, the mean hourly wage for Compliance Officers (Standard Occupational Classification (SOC) code 13–1041) was $37.01. U.S. Bureau of Labor Statistics. (April 25, 2023). ‘‘Occupational employment and wage statistics: May 2022 national occupational employment and wage estimates United States.’’ https://www.bls.gov/oes/current/ oes_nat.htm#top. Domestic benefits were reported to be 29.5 percent of total average civilian employer compensation costs. U.S. Bureau of Labor Statistics. (June 16, 2023). ‘‘Employer costs for employee compensation summary.’’ USDL–23–0488. https:// www.bls.gov/news.release/ecec.nr0.htm. 49 See footnote 48. 50 This estimate is based on data from the International Organic Inspectors Association Membership Directory, available at: https:// www.ioia.net/member-directory. 51 The cost of labor per hour for domestic inspectors was obtained by calculating the sum of the mean hourly wage for agricultural inspectors and the hourly cost of worker benefits. In May 2022, the mean hourly wage for Agricultural Inspectors (Standard Occupational Classification (SOC) code 45–2011) was $23.57. U.S. Bureau of Labor Statistics. (April 25, 2023). ‘‘Occupational employment and wage statistics: May 2022 national occupational employment and wage estimates United States.’’ https://www.bls.gov/oes/current/ oes_nat.htm#top. Domestic benefits were reported to be 29.5 percent of total average civilian employer compensation costs. U.S. Bureau of Labor Statistics. (June 16, 2023). ‘‘Employer costs for employee compensation summary.’’ USDL–23–0488. https:// www.bls.gov/news.release/ecec.nr0.htm. 52 See footnote 48. ddrumheller on DSK120RN23PROD with PROPOSALS1 3. Organic Inspectors VerDate Sep<11>2014 17:20 Mar 08, 2024 Jkt 262001 PO 00000 Frm 00015 Fmt 4702 Sfmt 4702 E:\FR\FM\11MRP1.SGM 11MRP1 17337 Federal Register / Vol. 89, No. 48 / Monday, March 11, 2024 / Proposed Rules TABLE 5—INSPECTORS REPORTING BURDEN Number of respondents Respondent categories Wage + benefits Total reporting hours Total costs USDA U.S.-based Inspectors .......................................................................... USDA Foreign based inspectors ..................................................................... 123 61 $30.52 22.25 123 61 $3,754.35 1,357.47 USDA Inspectors—All .............................................................................. 184 ........................ 184 5,111.82 Summary of Reporting Burden Total (Domestic and Foreign) Information Collection Cost (Reporting) of Proposed Rule: $36,673.37 (See Table 6: Total Reporting Burden) AMS estimates the public reporting burden for this information collection to be 851 hours at a total cost of $36,673.37 with a total number of 543 respondents. Respondents comprise currently certified organic mushroom producers and pet food manufacturers, USDA accredited certifying agents, and inspectors. TABLE 6—TOTAL REPORTING BURDEN Total number of reporting respondents Total reporting hours—all Total all costs 543 851 $36,673.37 Summary of Tables 1, 2, & 3 ...................................................................................................... Total All Reporting Burden Cost: $36,673.37. Estimate of Burden: Public reporting burden for the collection of information is estimated to average 1.57 hours per year per response. Respondents: Certified operations, certifying agents, and inspectors. Estimated Number of Reporting Respondents: 543. Estimated Number of Reporting Responses: 851. Estimated Total Reporting Burden on Respondents: 851 hours. Estimated Total Annual Reporting Hours per Reporting Respondent: 1.57 reporting hours per reporting respondent. Estimated Total Annual Reporting Responses per Reporting Respondent: 1.57 reporting responses per reporting respondent. Estimated Total Annual Reporting Hours per Reporting Response: 1.57 hours per reporting response. ddrumheller on DSK120RN23PROD with PROPOSALS1 Total Domestic Reporting Burden Cost: $30,701.72 Respondents: Certified operations, certifying agents, and inspectors. Estimated Number of Domestic Reporting Respondents: 422 respondents. Estimated Number of Domestic Reporting Responses: 662 responses. Estimated Total Annual Reporting Burden on Domestic Respondents: 662 hours. VerDate Sep<11>2014 17:20 Mar 08, 2024 Jkt 262001 Total Foreign Reporting Burden Cost: $5,971.65 Respondents: Certified operations, certifying agents, and inspectors. Estimated Number of Foreign Reporting Respondents: 121 respondents. Estimated Number of Foreign Reporting Responses: 189 responses. Estimated Total Annual Reporting Burden on Foreign Respondents: 189 hours. Summary of Recordkeeping Burden There are no expected recordkeeping burdens as a result of the proposed rule. Comments AMS is inviting comments from all interested parties concerning the information collection that would be required as a result of the proposed amendments to 7 CFR part 205. AMS seeks comment on the following subjects: 1. Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information would 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. PO 00000 Frm 00016 Fmt 4702 Sfmt 4702 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. List of Subjects in 7 CFR Part 205 Administrative practice and procedure, Agricultural commodities, Agriculture, Animals, Archives and records, Fees, Imports, Labeling, Livestock, National List, National Organic Standards Board (NOSB), Organically produced products, Plants, Reporting and recordkeeping requirements, Seals and insignia, Soil conservation, Sunset. For the reasons stated in the preamble, AMS proposes to amend 7 CFR part 205 as follows: PART 205—NATIONAL ORGANIC PROGRAM 1. The authority citation for part 205 continues to read as follows: ■ Authority: 7 U.S.C. 6501–6524. 2. Amend § 205.2 by: a. Revising the definitions of ‘‘Compost’’ and ‘‘Crop’’; ■ b. Adding in alphabetical order definitions for ‘‘Mushroom’’, ‘‘Mushroom substrate’’, ‘‘Mycelium’’, ‘‘Pet’’, ‘‘Pet food’’, ‘‘Spawn’’, and ‘‘Spawn media’’; and ■ c. Revising the definition of ‘‘Wild crop’’. ■ ■ E:\FR\FM\11MRP1.SGM 11MRP1 17338 Federal Register / Vol. 89, No. 48 / Monday, March 11, 2024 / Proposed Rules The revisions and additions read as follows: § 205.2 Terms defined. * * * * * Compost. The product of a managed process through which microorganisms break down plant and animal materials into more available forms suitable for application to the soil or as a component of mushroom substrate. * * * * * Crop. Pastures, cover crops, green manure crops, catch crops, mushrooms, or any plant or part of a plant intended to be marketed as an agricultural product, fed to livestock, or used in the field to manage nutrients and soil fertility. * * * * * Mushroom. The edible, fleshy, sporebearing fruiting body of a fungus. Mushroom substrate. The base material, such as grain, wood, and/or other agricultural materials, from which mushrooms are cultivated or grown. This base material can include composted material. Mycelium. A mass of branching, thread-like hyphae (fungal structures). * * * * * Pet. Any domestic animal not used for the production and sale of food, fiber, or other agricultural-based consumer products. Pet food. Any commercial feed prepared and distributed for pet consumption. * * * * * Spawn. Spawn media that has been colonized by mycelium, which is used to inoculate mushroom substrates. Spawn media. A carrier, such as grains or minerals, that, when colonized with mycelium, creates spawn. * * * * * Wild crop. Any mushroom, plant, or portion of a plant that is collected or harvested from a site that is not maintained under cultivation or other agricultural management. * * * * * ■ 3. Add § 205.210 to read as follows: ddrumheller on DSK120RN23PROD with PROPOSALS1 § 205.210 Mushroom production practice standard. (a) The producer must manage mushroom production in accordance with the provisions of §§ 205.200, 205.201, 205.202 as applicable, 205.203(e), 205.206(a)(2) and(3), and 205.206(b) through (f). The producer may manage crop nutrients for mushroom production in accordance with the provisions of § 205.203(d)(1) through (5). (b) The producer must manage mushroom substrate and spawn media, VerDate Sep<11>2014 17:20 Mar 08, 2024 Jkt 262001 including spent mushroom substrate and spawn media, in a manner that does not contribute to contamination of crops, spawn, mushroom substrate, soil, or water by pathogenic organisms, heavy metals, or residues of prohibited substances. (c) Mushroom substrate and spawn media may be composed of the following materials in accordance with the conditions specified in this paragraph (c): (1) Composted plant and animal materials. Compost used in mushroom production must be described in the organic system plan. It must be produced through a process that maintains a temperature of at least 131 °F for at least three days; (2) Uncomposted plant materials. Uncomposted plant materials must be organically produced: Except, that, nonorganically produced uncomposted plant materials may be used in mushroom production when an equivalent organically produced variety is not commercially available. Prohibited substances may not be applied to nonorganically produced uncomposted plant materials after harvest. (3) Nonsynthetic substances, except those on the National List of nonsynthetic substances prohibited for use in organic crop production (§ 205.602); and (4) Synthetic substances on the National List of synthetic substances allowed for use in organic crop production (§ 205.601). (d) Spawn must be organic: Except, that, nonorganic spawn may be used to produce an organic crop when an equivalent organically managed variety is not commercially available. Organic spawn must use organic agricultural products as the spawn media and be under continuous organic management after the mycelium is applied to the organic spawn media. ■ 4. Amend § 205.270 by redesignating paragraph (c) as paragraph (d) and adding new paragraph (c) to read as follows: § 205.270 Organic handling requirements. * * * * * (c) In addition to the substances described in paragraph (b) of this section, substances allowed under § 205.603(d)(2) and (3) may be used in or on pet food intended to be sold, labeled, or represented as ‘‘organic’’ or ‘‘made with organic (specified ingredients or food group(s)),’’ pursuant to § 205.301(b) and (c). Pet food labeled as organic must be labeled pursuant to PO 00000 Frm 00017 Fmt 4702 Sfmt 4702 the applicable portions of subpart D of this part. * * * * * ■ 5. Amend § 205.601 by revising paragraphs (i) introductory text and (j) introductory text to read as follows: § 205.601 Synthetic substances allowed for use in organic crop production. * * * * * (i) As crop disease control. * * * * * (j) As crop or soil amendments. * * * * * ■ 6. Amend § 205.605 by redesignating paragraphs (b)(36) and (37) as paragraphs (b)(37) and (38), respectively, and adding new paragraph (b)(36) to read as follows: § 205.605 Nonagricultural (nonorganic) substances allowed as ingredients in or on processed products labeled as ‘‘organic’’ or ‘‘made with organic (specified ingredients or food group(s)).’’ * * * * * (b) * * * (36) Taurine—for use only in pet food. * * * * * Erin Morris, Associate Administrator, Agricultural Marketing Service. [FR Doc. 2024–04973 Filed 3–8–24; 8:45 am] BILLING CODE 3410–02–P DEPARTMENT OF ENERGY 10 CFR Part 430 [EERE–2024–BT–STD–0002] Energy Conservation Program: Energy Conservation Standards for Dishwashers, Residential Clothes Washers, and Consumer Clothes Dryers Office of Energy Efficiency and Renewable Energy, Department of Energy. ACTION: Request for information. AGENCY: In light of the United States Court of Appeals for the Fifth Circuit recently granting a petition for review of a final rule published by the U.S. Department of Energy (‘‘DOE’’) on January 19, 2022, and remanding the matter to DOE for further proceedings, DOE is initiating an information and data gathering effort on whether ‘‘shortcycle’’ product classes for dishwashers, residential clothes washers, and consumer clothes dryers are warranted under the Energy Policy and Conservation Act. In this request for information, DOE solicits data and information from the public to help SUMMARY: E:\FR\FM\11MRP1.SGM 11MRP1

Agencies

[Federal Register Volume 89, Number 48 (Monday, March 11, 2024)]
[Proposed Rules]
[Pages 17322-17338]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-04973]


========================================================================
Proposed Rules
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of 
the proposed issuance of rules and regulations. The purpose of these 
notices is to give interested persons an opportunity to participate in 
the rule making prior to the adoption of the final rules.

========================================================================


Federal Register / Vol. 89, No. 48 / Monday, March 11, 2024 / 
Proposed Rules

[[Page 17322]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 205

[Doc. No. AMS-NOP-22-0063]
RIN 0581-AE13


National Organic Program; Market Development for Mushrooms and 
Pet Food

AGENCY: Agricultural Marketing Service, USDA.

ACTION: Proposed rule.

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SUMMARY: The United States Department of Agriculture (USDA) 
Agricultural Marketing Service (AMS) proposes to amend the USDA organic 
regulations to clarify standards for organic mushrooms and organic pet 
food. Specific standards for these products do not currently exist. 
Instead, these products have been certified organic using the general 
organic standards for crops, livestock, and handling. However, this 
approach is not ideal as the current regulations do not address unique 
aspects of either product. AMS expects this rule would promote 
development of these markets by increasing regulatory certainty that 
would, in turn, encourage investment in the markets. The topics 
addressed by the proposed rule include sourcing of substrate and spawn 
in organic mushroom production, composting requirements for organic 
mushroom production, composition and labeling requirements for organic 
pet food, and the use of certain synthetic substances in organic pet 
food.

DATES: Electronic or written comments on the proposed rule must be 
submitted by May 10, 2024.

ADDRESSES: You may submit electronic comments on this proposed rule 
through the Federal eRulemaking Portal at https://www.regulations.gov 
(docket number AMS-NOP-22-0063). Instructions for submitting electronic 
comments are available at https://www.regulations.gov. Comments may 
also be sent by mail to: Erin Healy, Director, Standards Division, 
National Organic Program, USDA-AMS-NOP, 1400 Independence Ave. SW, Room 
2642-So., Ag Stop 0268, Washington, DC 20250-0268.
    Instructions: All comments should include the docket number (AMS-
NOP-22-0063), and/or the Regulatory Information Number (RIN 0581-AE13) 
for this rulemaking. You should clearly indicate the topic and section 
number of this proposed rule to which your comment refers, state your 
position(s), offer any recommended language change(s), and include 
relevant information and data to support your position(s) (e.g., 
scientific, environmental, manufacturing, industry, or industry impact 
information, etc.). All comments and relevant background documents 
posted to https://www.regulations.gov will include any personal 
information provided.

FOR FURTHER INFORMATION CONTACT: Erin Healy, Director, Standards 
Division, National Organic Program. Telephone: 202-720-3252. Email: 
[email protected].

SUPPLEMENTARY INFORMATION: 

Table of Contents

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

I. Executive Summary

A. Purpose and Need for the Rule

    This proposed rule would amend the USDA organic regulations to 
establish specific standards for organic mushroom production and 
organic pet food handling. Specific standards are necessary to resolve 
inconsistency and uncertainty in these two markets. AMS is addressing 
standards for pet food and mushrooms together in this rule because both 
markets are currently hampered by the lack of specific regulations that 
are suitable for these particular products. Both markets exhibit 
inconsistent interpretations of the organic regulations by certifiers 
and uncertainty around regulatory requirements that are likely to deter 
investments in the sectors. In addition, the National Organic Standards 
Board (NOSB) has made recommendations to revise the regulations for 
these organic products, and these changes are supported by the organic 
industry. Finally, both organic mushrooms and pet food are developing 
markets that would benefit from clearer standards to facilitate and 
promote growth.
    The organic regulations do not currently include standards specific 
to mushrooms and pet food. Although some mushrooms and pet food 
products are currently being certified using the general organic 
standards, the current regulations are an imperfect fit for both 
mushroom and pet food production and do not address unique aspects of 
either product. For example, some certifying agents use the current 
crop production standards to certify organic mushrooms or the handling 
standards for processed products to certify organic pet food. In both 
cases, certifying agents and operations extrapolate from the organic 
standards to fit organic mushroom and pet food production. This creates 
varying and inconsistent interpretations of the organic regulations, 
such that some mushroom producers are required to use organic inputs 
where others are not, and some pet food manufacturers are allowed to 
use slaughter by-products where others are not. The inconsistent 
certification and enforcement practices for organic mushrooms and pet 
food fail to meet one of the purposes of the Organic Food Production 
Act (OFPA), that is, to assure consumers that organically produced 
products meet a consistent standard (7 U.S.C. 6501(2)).

[[Page 17323]]

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

B. Summary of Provisions

    Through the amendments in this proposed rule, AMS would establish 
standards for organic mushroom production and pet food handling. The 
proposed rule would:
     Add the term ``mushroom'' to the definitions of ``crop'' 
and ``wild crop;''
     Establish definitions for ``mushroom,'' ``mushroom 
substrate,'' ``mycelium,'' ``spawn,'' and ``spawn media;''
     Create a new section titled Mushroom Production Practice 
Standard;
     Require that operations use organic mushroom spawn and 
substrate when commercially available;
     Add mushroom-specific requirements for organic compost 
production;
     Establish definitions for ``pet'' and ``pet food'' for the 
purposes of the USDA organic regulations only;
     Add a new paragraph to the organic handling standard 
describing the requirements for production and labeling of pet food, 
including composition (what can be included in organic pet food) and 
labeling requirements; and
     Add synthetic taurine (an amino acid) to the National List 
to allow its use in organic pet food.

II. General Information

A. Does this proposed rule apply to me?

    You may be affected by this proposed rule if you are engaged in 
organic mushroom production or pet food handling. Potentially affected 
entities may include, but are not limited to, the following:
     Organic pet food manufacturers;
     Organic mushroom producers;
     Individuals or business entities that are considering 
organic certification for pet food or mushrooms;
     Existing livestock, mushroom, and handling operations that 
are currently certified organic under the USDA organic regulations; and
     USDA-accredited certifying agents, inspectors, and 
certification review personnel.
    This list is not exhaustive but identifies key entities that this 
rule may affect. Other types of entities may also be affected. To 
determine whether you or your business may be affected by this action, 
you should carefully examine the regulatory text and discussion below. 
If you have questions regarding the applicability of this rule to a 
particular entity, contact the person listed under FOR FURTHER 
INFORMATION CONTACT.

B. What should I consider as I prepare my comments for AMS?

    AMS seeks comment from the public and organic stakeholders 
regarding the proposed amendments, especially on the following topics:
    1. Is the regulatory language and accompanying discussion in this 
document clear enough to allow producers, handlers, and certifying 
agents to comply with the proposed requirements?
    2. Do the proposed amendments create any conflict with current 
organic regulations?
    3. Would a one-year implementation period (from the effective date 
of a final rule) be appropriate for affected operations to comply with 
these proposed changes? If not, what timeframe would be appropriate?
    4. Are there any concerns about the proposed requirements for 
compost used in organic mushroom operations? Are there any additional 
health and sanitary issues that AMS has not considered? Would the 
proposed requirements hinder any current methods of substrate 
preparation? Would the proposed changes impact other organic sectors 
and if so, how?
    5. Are there any concerns about the proposed requirements for 
producing certified organic spawn? What are the barriers to producing 
certified organic spawn for mushroom production? How would this rule 
affect these barriers?
    6. Stakeholders and data indicate that many organically produced 
mushrooms are sold as conventional mushrooms. Why are certified organic 
mushroom operations producing significantly more organic mushrooms than 
they are selling as certified organic? What could be included in this 
rule to help ensure that mushrooms that are produced organically can be 
sold as organic?
    7. What factors have kept pet food manufacturers from seeking 
organic certification? Are there barriers that the proposed rule does 
not address?
    8. Are there any additional synthetic, nonsynthetic, or nonorganic 
substances required in pet food to meet pet health needs that are not 
included in the proposed rule?
    9. Are slaughter by-products commonly used in organic pet food? Are 
there obstacles to greater use of organic slaughter by-products in 
organic pet food? Is there existing data on the organic slaughter by-
product market utilization and prices?

III. Background

A. Purpose and Need for the Rule

    This proposed rule would amend the USDA organic regulations to 
establish specific standards for organic mushroom production and 
organic pet food handling. The purpose of these amendments is to 
resolve uncertainty and inconsistency in how the organic regulations 
apply to these two products. Based on market penetration data and 
feedback from stakeholders, AMS believes that removing regulatory 
uncertainty as a barrier will create conditions that offer a reasonable 
expectation for growth in these two markets and other latent markets 
that support them, such as mushroom substrate and organic slaughter by-
products.
    New rulemaking is needed because the current organic regulations do 
not include standards specific to mushrooms and pet food. Some 
certifying agents certify organic mushrooms using the current crop 
production standards and some certify pet food using a combination of 
livestock feed standards and handling standards for processed products; 
however, the current regulations do not address the unique needs of 
either product. The current crop production standards are intended 
primarily for plant production and do not fully address the unique 
biology of mushrooms. This is because mushrooms are fungi, not plants, 
and have different production practices and materials requirements. 
Plants are usually grown outdoors and photosynthesize energy from the 
sun; however, mushrooms are most commonly grown in indoor, controlled 
environments and draw energy from substrate material. These biological 
and production differences mean the organic crop production standards 
do not always fit mushrooms well. Certifier requirements are

[[Page 17324]]

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

    \1\ Institute for Feed Education & Research. (March 2020). ``Pet 
food production and ingredient analysis.''
---------------------------------------------------------------------------

    This rule would also address feedback from the organic industry, 
which has asked USDA to implement NOSB recommendations more generally, 
including implementing standards for these two products. AMS hosted a 
virtual prioritization listening session in spring 2022. Oral and 
written comments encouraged AMS to prioritize rulemaking for additional 
practice standards, including organic pet food and mushrooms. The 
proposed changes in this rule are based on NOSB recommendations for 
mushroom production and pet food handling in response to the organic 
industry's interest in further developing the organic standards.
    Market penetration data supports the idea that the organic mushroom 
and organic pet food markets have a reasonable expectation of growth if 
uncertainty and inconsistency are removed as barriers. Both markets 
currently lag behind their most-comparable organic sectors. In 2021, 
sales of organic fruits and vegetables accounted for a 15.5 percent 
share of all fruit and vegetable sales in the United States,\2\ but 
organic mushrooms only accounted for 10.8 percent of all mushroom 
sales.\3\ Considering that the consumer experience of purchasing 
mushrooms is typically no different than purchasing fruits and 
vegetables (they are packaged similarly and found in the same section 
of the grocery store) it is reasonable to conclude that some external 
barrier is inhibiting the organic mushroom market. Similarly, organic 
pet food accounts for only 0.41 percent of all pet food sales, whereas 
sales of organic non-food products (the closest analog to pet food, as 
a product that is purchased not for humans to eat) accounted for 1.2 
percent of all non-food sales.\4\
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    \2\ Organic Trade Association. (2022). Organic Industry Survey. 
p. 56. Note that AMS uses the 2021 data available in the Organic 
Trade Association's 2022 survey because that was the data available 
while our economic analysis was under development. The 2022 data 
(released in May 2023), however, also demonstrates lagging market 
penetration: Mushroom sales lagged the 14.9 percent share that 
organic fruits and vegetables claimed, and organic pet food 
accounted for only 0.38 percent of all pet food sales.
    \3\ USDA, National Agricultural Statistics Service, Agricultural 
Statistics Board. (August 26, 2022). ``Mushrooms.'' https://www.nass.usda.gov/Publications/Todays_Reports/reports/mush0822.pdf.
    \4\ Organic Trade Association. (2022). Organic Industry Survey. 
p. 5.
---------------------------------------------------------------------------

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

B. NOSB Recommendations on Mushrooms and Pet Food

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

    \5\ NOSB. (April 24-28, 1995). ``Final minutes of the National 
Organic Standards Board full board meeting.'' https://www.dairyprogramhearing.com/getfile32e532e5.pdf?dDocName=STELPRDC5057442.
    \6\ USDA, AMS. ``NOSB recommendations: Fall 2011.'' Accessed May 
8, 2023. https://www.ams.usda.gov/rules-regulations/organic/nosb/recommendations/fall2001.
    \7\ The NOSB's November 2008 recommendation on organic pet food 
is available online at: https://www.ams.usda.gov/rules-regulations/organic/nosb/recommendations/fall2008.
    \8\ USDA, NOP. (April 2013). ``The Organic Integrity 
Quarterly.'' https://www.ams.usda.gov/sites/default/files/media/NOP%202013%20April%20Newsletter.pdf.
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NOSB Recommendations on Mushroom Production
    In 2001, the NOSB recommended:
     Preventing contact between organically produced mushrooms 
or mushroom growth substrates and prohibited substances;
     Requiring the use of organic spawn when commercially 
available;
     Requiring organically produced agricultural materials in 
mushroom substrate; and
     Allowing nonorganic wood products (e.g., sawdust) in 
mushroom substrate if trees have not been treated with prohibited 
substances for three years prior to harvest and have not been treated 
with prohibited substances after harvest.
    AMS investigated rulemaking following this recommendation but did 
not publish a proposed rule.

[[Page 17325]]

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

    \9\ NOSB. (November 19, 2008). ``Formal recommendation by the 
National Organic Standards Board (NOSB) to the National Organic 
Program (NOP).'' https://www.ams.usda.gov/sites/default/files/media/NOP%20Final%20Rec%20Pet%20Food.pdf.
---------------------------------------------------------------------------

     Clarifying which animals the pet food requirements would 
apply to by defining ``pets'' in the regulations;
     Labeling organic pet food using a framework consistent 
with labeling for organic human food, allowing the ``organic'' claim 
that requires a minimum of 95 percent organic ingredients and the 
``made with organic (specified ingredients or food group(s))'' claim 
that requires a minimum of 70 percent organic ingredients;
     Clarifying that organic slaughter by-products can be a 
component of organic pet food; and
     Adding taurine for use in pet food to the National List of 
allowed synthetic substances.\10\
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    \10\ The 2008 recommendation listed taurine and other additives 
as ``materials for possible petition to the National List for use in 
Pet Food.'' In 2013, the NOSB passed a motion to specifically 
recommend listing taurine ``as a feed additive for use in pet food, 
only.'' See NOSB. (April 11, 2013). ``Formal recommendation from: 
National Organic Standards Board (NOSB) to: the National Organic 
Program (NOP).'' https://www.ams.usda.gov/sites/default/files/media/NOP%20Livestock%20Final%20Rec%20Pet%20Food%20Amino%20Acid%20amended.pdf.
---------------------------------------------------------------------------

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

C. Community and Stakeholder Feedback

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

    \11\ USDA, NOP. (March 21, 2022). ``National Organic Program 
priorities listening session.'' https://www.ams.usda.gov/event/national-organic-program-priorities-listening-session.
---------------------------------------------------------------------------

    AMS also engaged directly with mushroom experts, producers, and 
trade associations about organic mushroom production. These discussions 
affirmed that specific standards for the production and handling of 
organic mushrooms are needed. These industry stakeholders stated that 
recognizing mushrooms as a fungal crop cultivated under unique and 
specialized conditions would foster greater consistency in how organic 
mushrooms are cultivated and certified. AMS also learned what aspects 
of mushroom production need mushroom-specific requirements: compost 
requirements, origin and composition of substrate materials used for 
growing mushrooms, and origin and composition of spawn.
    Discussions with experts in the pet food industry revealed that the 
key challenge with labeling pet food as organic is uncertainty around 
the allowance of certain ingredients. For example, under the current 
organic regulation, it is unclear if pet food manufacturers may use 
meat (e.g., edible part of animal muscle and organs) or slaughter by-
products (e.g., animal and poultry by-product meal; animal liver) in 
organic pet food, and whether some necessary synthetic ingredients in 
pet food, such as taurine, are allowed. Inconsistencies in organic 
claims on pet food can also contribute to consumer uncertainty or 
mistrust of organic labels. Additionally, stakeholders have noted that 
allowing organic slaughter by-products in organic pet food would allow 
livestock producers and slaughter facilities to earn organic premiums 
for these organic slaughter by-products, which would otherwise be sold 
without a premium for use in nonorganic products. AMS estimates that 
this rule could ensure consistent demand for over 7 million pounds of 
organic slaughter by-products annually, which is likely to grow over 
time.\12\
---------------------------------------------------------------------------

    \12\ Data from the Institute for Feed Education & Research 
indicates that approximately 23 percent of the ingredient weight in 
conventional pet food is animal by-product and meal. This estimate 
is then applied to the estimate pounds of organic pet food as 
reported by the Organic Trade Association and current market prices. 
Institute for Feed Education & Research. (March 2020). ``Pet food 
production and ingredient analysis.'' Organic Trade Association. 
(2022). Organic Industry Survey. p. 56.
---------------------------------------------------------------------------

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

D. Authority

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

    \13\ The Organic Foods Production Act of 1990, 7 U.S.C. 6501-
6524, is the statute from which the Agricultural Marketing Service 
derives authority to administer the NOP, and authority to amend the 
regulations as described in this proposed rule. This document is 
available at: https://uscode.house.gov/view.xhtml?path=/prelim@title7/chapter94&edition=prelim.
---------------------------------------------------------------------------

    USDA administers organic standards through the Agricultural 
Marketing Service (AMS) National Organic Program (NOP). Final 
regulations establishing the NOP and the USDA organic regulations were 
published on December 21, 2000 (65 FR 80548) \14\ and were first 
implemented on October 21,

[[Page 17326]]

2002.\15\ Through these regulations, AMS oversees national standards 
for the production, handling, labeling, and sale of organically 
produced agricultural products.
---------------------------------------------------------------------------

    \14\ USDA, AMS. (December 21, 2000). ``National Organic 
Program.'' Final Rule. 65 FR 80548 (codified at 7 CFR part 205). 
https://www.federalregister.gov/documents/2000/12/21/00-32257/national-organic-program.
    \15\ USDA, AMS. (March 20, 2001). ``National Organic Program; 
Correction of the effective date under Congressional Review Act 
(CRA).'' Final Rule. 66 FR 15619. https://www.federalregister.gov/documents/2001/03/20/01-6836/national-organic-program-correction-of-the-effective-date-under-congressional-review-act-cra.
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IV. Organic Mushroom Standard

A. Mushroom Background

Mushroom Biology and Production
    Mushrooms are the fleshy, spore-bearing, fruiting body of some 
species of fungus. Mushrooms grow from mycelium, which grows below the 
surface as a root-like network of cells. Commercial mushrooms are grown 
from spawn, a combination of mycelium and a media (like grains or 
minerals to carry the mycelium), in controlled indoor environments. In 
commercial mushroom production, spawn is introduced onto mushroom 
substrate to grow mushrooms, comparable to how seeds are planted to 
grow crops.
    The mushroom lifecycle is a circular phenomenon that cultivators 
seek to mimic. In this cycle, spores germinate and then produce hyphae 
that form mycelium. Mycelium grows by consuming nearby organic material 
in the cropping container substrate. Fruiting (i.e., formation of 
mushrooms) occurs when particular conditions are met, such as when the 
mycelium is well developed, and the humidity and temperature conditions 
are favorable. The fruiting bodies (i.e., the mushrooms) then create 
more spores to continue the cycle.
    Mushroom growers use spawn--a small amount of material with 
mycelium growing on it--to produce mushrooms. Spawn can be compared to 
plant seeds in an agricultural setting; however, an important 
distinction is that spawn lacks the energy storage of a seed. Seeds 
store energy to use during germination, whereas spawn must draw energy 
from substrate materials such as compost. Because of this dependence on 
the production substrate and the fact that spawn consumes the 
substrate, the materials used in it are an important part of the 
composition and growth of the mushrooms.
    Mushroom substrate is generally made of composted and/or 
uncomposted materials, depending on the species of mushroom, and may 
contain grain, wood, vermiculite, or other ingredients. In mushroom 
production, inoculation refers to the introduction of spawn to mushroom 
substrate. Inoculation methods vary depending on the species of 
mushroom and the mushroom substrate material it grows on. Mycelium 
grows within the production substrate after it is inoculated, 
ultimately producing mushrooms. Depending on the type of mushroom, 
producers may sometimes harvest multiple crops of mushrooms from one 
batch of inoculated substrate. Once the production cycle is complete 
and mushrooms are harvested, a new batch of inoculated mushroom 
substrate is generally needed to produce a new batch of mushrooms.
The U.S. Mushroom Market
    For the 2021-2022 growing season, the U.S. mushroom crop volume was 
702 million pounds with sales of $1.02 billion.\16\ The Agaricus 
bisporus species of mushrooms accounted for approximately 97 percent of 
the total sales volume and approximately 93 percent of the total 
value.\17\ Agaricus includes white mushrooms (including common, button, 
and champignon varieties, among others) and brown mushrooms (including 
crimini/cremini, Swiss, Roman, Italian, and Portobello/Portabello/
Portabella varieties, among others). Outside of the Agaricus varieties, 
there are a multitude of cultivated ``specialty'' mushrooms including 
shiitake, oyster, enoki, maitake, pompom, and others. Some of these 
specialty mushrooms include foraged (wild) mushrooms and specialty 
mushrooms that are intentionally cultivated outdoors. In 2021, 10.8 
percent of all mushrooms produced were sold as organic, compared to 
15.5 percent of all fruits and vegetables.^{18 19} Agaricus 
mushrooms accounted for approximately 82 percent of the total 
production volume of organic mushrooms; the remainder were specialty 
mushrooms.\20\
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    \16\ USDA, National Agricultural Statistics Service, 
Agricultural Statistics Board. (August 26, 2022). ``Mushrooms.'' 
https://www.nass.usda.gov/Publications/Todays_Reports/reports/mush0822.pdf.
    \17\ USDA, National Agricultural Statistics Service, 
Agricultural Statistics Board. (August 26, 2022). ``Mushrooms.'' . 
https://www.nass.usda.gov/Publications/Todays_Reports/reports/mush0822.pdf.
    \18\ Organic Trade Association. 2022 Organic Industry Survey. p. 
56. https://ota.com/market-analysis/organic-industry-survey/organic-industry-survey.
    \19\ USDA, National Agricultural Statistics Service, 
Agricultural Statistics Board. (August 26, 2022). ``Mushrooms.'' 
https://www.nass.usda.gov/Publications/Todays_Reports/reports/mush0822.pdf.
    \20\ USDA, National Agricultural Statistics Service, 
Agricultural Statistics Board. (August 26, 2022). ``Mushrooms.'' 
https://www.nass.usda.gov/Publications/Todays_Reports/reports/mush0822.pdf.
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B. Need for Organic Mushroom Standard

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

    \21\ USDA, Organic Integrity Database. https://organic.ams.usda.gov/Integrity/Home. Advanced search features can be 
accessed at https://organic.ams.usda.gov/Integrity/Search. Certified 
mushroom producers may be found by narrowing a certified product 
search for ``mushrooms'' to operations with a certification status 
of ``certified'' and limiting results to the ``Crops'' scope. Output 
was manually cleaned to remove unrelated entries.
---------------------------------------------------------------------------

    A key challenge is that the organic crop standards are designed for 
terrestrial plants, while mushrooms are the fruiting bodies of fungi--a 
different kingdom of organisms. Fungi require different growing 
conditions than plants. Mushrooms are grown from spawn, not seed. 
Generally, mushrooms are not grown in soil like plants; they are grown 
in substrate material made of composted plant material, minerals, 
sawdust, and/or logs. Finally, mushrooms do not photosynthesize like 
plants; they absorb compounds from their environment to use as sources 
of energy.
    The current organic regulations do not address the unique 
biological differences noted above. Specifically, the regulations lack 
detail and requirements for spawn, substrate, and compost used in 
organic production. Consequently, certifying agents have developed 
their own policies about spawn, substrate, and compost in mushroom 
production, leading to variation in how organic mushrooms are certified 
and creating confusion around what practices operations should use. The 
absence of consistent standards also creates an uneven playing field 
and encourages ``certifier shopping''--as operations learn about 
discrepancies,

[[Page 17327]]

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

C. Overview of Proposed Amendments

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

  Table 1--Overview of Proposed Regulatory Changes To Establish Organic
                      Mushroom Production Standard
------------------------------------------------------------------------
         Section title            Type of action      Proposed action
------------------------------------------------------------------------
205.2.........................  Adds new terms...  Mushroom; Mushroom
                                                    substrate; Mycelium;
                                                    Spawn; Spawn media.
205.2.........................  Amends existing    Compost; Crop; Wild
                                 terms.             crop.
205.210.......................  Adds new section.  Adds mushroom-
                                                    specific standards
                                                    to Subpart C.
205.601.......................  Amends language    Replaces the term
                                 at (i)-(j).        ``plant'' with the
                                                    term ``crop''.
------------------------------------------------------------------------

Sec. 205.2 (Terms Defined)
    AMS proposes to amend Sec.  205.2 by adding five new terms 
(``mushroom,'' ``mushroom substrate,'' ``mycelium,'' ``spawn media,'' 
and ``spawn'') and revising three existing terms (``compost,'' 
``crop,'' and ``wild crop''), as described below.
1. Mushroom
    AMS proposes to define ``mushroom'' as the fruiting body of a 
fungus. The term ``mushroom'' is primarily used to describe the 
agricultural product that consumers purchase.
2. Mushroom Substrate
    AMS proposes to define ``mushroom substrate'' as the base material 
from which mushrooms are cultivated or grown. This substrate acts as a 
media for fungus to grow on to produce mushrooms and provides the 
energy and nutrients required for mushrooms to grow. This substrate may 
be composed of composted material, uncomposted materials, or both, as 
described under Sec.  205.210(c).
3. Mycelium
    AMS proposes to define ``mycelium'' as a mass of branching, thread-
like hyphae (fungal structures). Mycelium is the main body portion of a 
fungus from which mushrooms grow. In commercial mushroom production, 
mycelium is also used to colonize or inoculate spawn media to produce 
spawn and a subsequent crop of mushrooms.
4. Spawn Media
    AMS proposes to define ``spawn media'' as a carrier, such as grains 
or minerals, that, when colonized with fungal mycelium, creates spawn. 
Spawn media, once combined with mycelium, is defined separately as 
``spawn.'' Grain, sawdust, and vermiculite are common ingredients in 
spawn media.
5. Spawn
    AMS proposes to define ``spawn'' as spawn media that has been 
colonized by fungal mycelium, which is used to inoculate mushroom 
substrate (i.e., mushrooms are not harvested from spawn). Spawn, a 
combination of mycelium and spawn media, is used to inoculate mushroom 
substrate. Mushrooms grow from mushroom substrate after spawn is 
applied to (and inoculates) the mushroom substrate.
6. Compost
    AMS proposes to simplify the definition of ``compost'' so that the 
definition would cover compost for use in mushroom production. The 
current definition of ``compost'' includes compost production 
requirements (e.g., minimum time and temperature) that are specific to 
plant production. However, compost for mushroom production is typically 
made using lower temperatures and shorter timeframes. The current 
definition of compost, with its plant production-specific details, is 
therefore not ideal for producers who need to create or use compost for 
mushroom production.
    This rulemaking proposes to remove the plant production-specific 
composting requirements from the current definition of compost and add 
``or substrate'' to the end of the definition. This leaves a general 
definition that allows the production of compost that meets the 
specific needs of either plants or mushrooms: the product of a managed 
process through which microorganisms break down plant and animal 
materials into more available forms suitable for application to the 
soil or substrate. Plant production-specific composting requirements 
remain in the regulation at Sec.  205.203(c)(2)--Soil fertility and 
crop nutrient management practice standard. This rule also adds 
mushroom-specific composting requirements, as described below in the 
section titled Mushroom production practice standard (Sec.  205.210).
7. Crop and Wild Crop
    AMS proposes to amend the terms ``crop'' and ``wild crop'' to 
include mushrooms. AMS proposes to include mushrooms in these 
definitions to clarify that operations may use certain crop production 
standards in subpart C to produce mushrooms.
Sec. 205.210 (Mushroom Production Practice Standard)
    AMS proposes to add a new section (Sec.  205.210) to the USDA 
organic regulations to describe production practice standards for 
organic mushrooms. Many of the existing production requirements in 
subpart C can be applied to mushroom production. However, because of 
their unique biology, mushroom production demands certain practices 
that are different from plant production. This new section clarifies 
which of the existing crop production requirements a mushroom producer 
should use and adds several mushroom-specific requirements.
    AMS proposes in Sec.  205.210(a) that mushroom operations must 
manage their operations following most of the existing regulations 
governing crop production, including Sec. Sec.  205.200, 205.201, 
205.202 as applicable, 205.206(a)(2) and (3), and 205.206(b) through 
(f). These sections cover general production requirements (Sec.  
205.200); organic production and handling system plans (Sec.  205.201); 
land requirements

[[Page 17328]]

(Sec.  205.202); and crop pest, weed, and disease management (Sec.  
205.206). Organic mushroom operations, like all other organic 
operations, must have an organic system plan that describes how the 
operation complies with applicable parts of the USDA organic 
regulations.
    Because mushrooms have unique biology and production needs, not all 
existing crop production requirements apply to organic mushroom 
production. This means that mushroom operations do not need to follow 
all the requirements in the soil fertility and crop nutrient management 
practice standard at Sec.  205.203, the seeds and planting stock 
practice standard at Sec.  205.204, or the crop rotation practice 
standard at Sec.  205.205. Unlike plants, which acquire energy from 
photosynthesis, mushrooms absorb sources of energy (like sugars and 
other organic compounds) from their surroundings. Therefore, most of 
the soil fertility and nutrient management practices in Sec.  205.203 
are not appropriate for mushroom production. However, mushroom 
producers would have to follow the same nutrient management 
requirements as plant producers described in Sec.  205.203(d)(1) 
through (5) and (e). These paragraphs describe acceptable and 
prohibited forms of nutrient management.
    Similarly, mushroom production does not involve seeds or planting 
stock, and mushrooms are not grown in rotations for fertility or 
disease suppression, so Sec. Sec.  205.204-205.205 are not appropriate 
for mushroom production.
    Proposed paragraph 205.210(b) would require operations to manage 
mushroom substrates and spawn media in a way that avoids environmental 
contamination. AMS proposes that mushroom substrates, spawn media, 
spent mushroom substrates, and spent spawn media must be managed to 
avoid the contamination of any mushrooms, spawn, substrate, soil, or 
water by pathogenic organisms, heavy metals, or residues of prohibited 
substances. This provision aligns with the requirement in Sec.  
205.203(c), which requires operations to prevent environmental 
contamination from materials applied to soil. Likewise, this proposed 
requirement also aligns with the requirement in Sec.  205.200 to 
protect natural resources. Section 205.210(b) would require operations 
to handle materials in a way that avoids contamination throughout the 
entire mushroom production process, from spawn creation, to growing 
mushrooms, to disposal of spent substrate.
    Operations that only produce organic spawn and do not produce 
organic mushrooms would also be subject to the provisions in paragraph 
(b). Spawn media is usually incorporated into the substrate when spawn 
is applied to a mushroom production bed. In cases where a spawn 
producer decides not to use a batch of spawn and disposes of the spawn, 
the operations would need to dispose of spent spawn media in a manner 
that avoids contamination of mushrooms, spawn, substrate, soil or water 
by pathogenic organisms, heavy metals, or residues of prohibited 
substances.
    In Sec.  205.210(c), AMS proposes requirements for what mushroom 
substrate and spawn media can be made of and what materials may be used 
in substrate production. This proposed paragraph is divided into 
subparagraphs to address the acceptable use of four types of materials: 
composted plant and animal materials, uncomposted plant materials, non-
agricultural natural substances, and synthetic substances.
    Proposed paragraph (c)(1) describes requirements for composted 
plant and animal materials for use in mushroom substrate and spawn 
media. This section details time, temperature, and composition 
requirements for composting plant and animal materials for use in 
mushroom production. The proposed rule would require that compost 
feedstock reach at least 131 [deg]F for at least three days during the 
composting process. The compost must not be treated with any prohibited 
substances per the existing requirements at Sec.  205.203(e)(1). AMS 
does not propose a maximum temperature for mushroom compost production. 
The proposed mushroom compost requirements are consistent with industry 
standards. The proposed minimum temperature requirement would allow 
mushroom producers the flexibility to compost their feedstock at higher 
temperatures for a longer period if warranted.
    AMS proposes in Sec.  205.210(c)(2) that uncomposted plant 
materials for use in mushroom substrate and spawn media must be 
organically produced if commercially available. However, nonorganically 
produced uncomposted plant materials may be used in mushroom production 
when an equivalent organically produced variety is not commercially 
available. In this case, prohibited substances may not be applied to 
the nonorganically produced uncomposted plant materials after harvest. 
Certifiers must use the definition of commercial availability in Sec.  
205.2 to validate an operation's claim that organically produced plant 
materials necessary for mushroom production are not commercially 
available.
    Paragraphs (c)(3) and (4), together with the proposed amendment to 
the definition of ``crop'' in Sec.  205.2 to include mushrooms, would 
allow mushroom operations to use natural (nonsynthetic) substances and/
or synthetic substances in accordance with the National List of Allowed 
and Prohibited Substances for organic crop production. These provisions 
are appropriate for crop operations and are consistent with the 
framework in Sec.  205.105(a) and (b) regarding allowed and prohibited 
substances in organic production. Paragraph (c)(3) would allow the use 
of natural (nonsynthetic) substances in mushroom substrate and spawn 
media. Examples include mined gypsum, chalk, and clay. However, 
operations must not use nonsynthetic substances prohibited for use in 
organic production in Sec.  205.602 of the National List. Paragraph 
(c)(4) would also permit the use of synthetic substances allowed for 
use in organic crop production listed at Sec.  205.601 of the National 
List. Examples include sanitizers, including chlorine products (like 
sodium hypochlorite) and hydrogen peroxide; micronutrients listed at 
Sec.  205.601(j)(7); and microcrystalline cheesewax (which is on the 
National List at Sec.  205.601(o)(1) and annotated for use as a 
production aid exclusively in log-grown mushrooms). Use of these 
substances in mushroom substrate and spawn media must also follow all 
applicable substance-specific restrictions included in the National 
List. Paragraph (c)(4), along with the proposed revision to the 
definition of ``crop'' in Sec.  205.2 to include mushrooms, would 
enable mushroom operations to select from the already familiar list of 
substances allowed in crop production.
    AMS proposes in Sec.  205.210(d) that spawn used in organic 
mushroom production must be organic. Organic spawn must (1) use organic 
agricultural products (e.g., organic grain) in the spawn media and (2) 
the spawn must be under continuous organic management once mycelium is 
applied to the organic spawn media. However, if organic spawn is not 
commercially available, an operation may use nonorganic spawn to 
produce a crop of organic mushrooms. Certifiers must use the definition 
of commercial availability in Sec.  205.2 to validate an operation's 
claim that organic spawn is not commercially available.
Sec. 205.601 (National List)
    Finally, AMS proposes to update Sec.  205.601 to clarify that 
mushrooms are within the scope of organic crop production. The current 
regulations at Sec.  205.601(i) and (j) use the phrases ``As

[[Page 17329]]

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

V. Organic Pet Food Standard

A. Pet Food Background

    AMS proposes in this rule to regulate organic claims on pet food 
using the existing regulatory framework for processed organic products 
(Sec.  205.270, Organic handling requirements) to clarify the 
composition and labeling requirements for organic pet food. These 
amendments would allow organic pet food to be labeled and sold as 
``100% organic,'' ``organic,'' or ``made with organic (specified 
ingredients or food group(s)).'' The proposed changes would clarify 
that pet food is distinct from livestock feed, which has its own 
composition and labeling requirements (see Sec. Sec.  205.237 and 
205.301(e)). This proposed rule defines ``pet'' as ``Any domestic 
animal not used for the production and sale of food, fiber, or other 
agricultural-based consumer products.'' The rule defines ``pet food'' 
as ``Any commercial feed prepared and distributed for pet 
consumption.'' Throughout this proposed rule, the term ``pet food'' is 
used to refer to all pet foods, including food for pets other than dogs 
and cats, unless otherwise noted. Feed for zoo animals (such as large 
cats) falls outside the scope of the proposed definitions for pet food, 
since zoo animals fall outside the definition of ``pet''--they are not 
domestic animals.
    This rule proposes to regulate only the organic claims of organic 
pet food: specifically, what it can contain and how it must be labeled. 
Other aspects of the manufacture, marketing, and sale of pet food--
including its healthfulness and safety, nutritional value and 
composition, and suitability for pets--fall under the Food and Drug 
Administration's (FDA) authority. All pet food manufacturers, organic 
or otherwise, must comply with relevant federal and state regulations 
pertaining to pet food safety. The framework for pet food regulation, 
summarized below, provides context for several provisions in the 
proposed organic pet food standards.
Pet Food Regulations
    Pet food labels are regulated at the federal and state levels. At 
the federal level, the FDA is responsible for overseeing and enacting 
the requirements of the Federal Food, Drug, and Cosmetic Act (FD&C 
Act), which requires that pet food be safe, properly manufactured, and 
adequately labeled.\22\ The FDA requires certain information on all 
animal feed labels: proper identification of the product, net quantity 
statement, name and place of manufacturer or distributor, and a proper 
listing of all ingredients.\23\ Some states enforce their own labeling 
regulations in addition to those administered by FDA. Most of these 
states follow the recommendations of the Association of American Feed 
Control Officials (AAFCO), an independent trade organization. They 
require a product name that complies with AAFCO pet food labeling 
rules, the species of pet for which the product is intended, a 
guaranteed analysis showing the basic nutrient composition, and in some 
cases a statement of nutritional adequacy and feeding directions.\24\
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    \22\ FDA. (February 17, 2022). ``FDA's regulation of pet food.'' 
https://www.fda.gov/animal-veterinary/animal-health-literacy/fdas-regulation-pet-food.
    \23\ FDA. (February 3, 2023). ``Pet food.'' https://www.fda.gov/animal-veterinary/animal-food-feeds/pet-food. FDA's animal food 
labeling regulations are located at 21 CFR part 501.
    \24\ AAFCO. ``Labeling & labeling requirements.'' Accessed May 
1, 2023. https://www.aafco.org/resources/startups/labeling-labeling-requirements/.
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    Pet food is often formulated as a complete nutrition product--i.e., 
the sole source of nourishment for pets. It typically contains 
ingredients from agricultural sources and supplemental nutrients to 
meet the nutrient requirements of the animal. These ingredients 
(including supplemental nutrients) do not require FDA's pre-market 
approval if they are on an FDA-maintained list of ingredients Generally 
Recognized As Safe (GRAS).\25\ The National Academy of Sciences' 
National Research Council (NRC) and AAFCO provide information on the 
nutrient requirements of dogs and cats at each stage of life (e.g., 
growth, reproduction, adult maintenance) to guide the formulation of 
nutritionally adequate pet foods. The NRC has listed and described 
essential nutrients in its 2006 publication, ``Nutrient Requirements of 
Dogs and Cats.'' \26\ AAFCO maintains on its website more recently 
updated Nutrient Profiles for the various stages of life. The minimum 
nutrient levels specified in the AAFCO Nutrient Profiles are generally 
consistent with NRC Nutrient Requirement tables and are updated 
periodically as NRC recommendations change.
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    \25\ FDA. (August 4, 2023). ``Current animal GRAS notices 
inventory.'' https://www.fda.gov/animal-veterinary/generally-recognized-safe-gras-notification-program/current-animal-food-gras-notices-inventory.
    \26\ NRC. (2006). ``Nutrient requirements of dogs and cats.'' 
https://nap.nationalacademies.org/catalog/10668/nutrient-requirements-of-dogs-and-cats.
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    This proposed rule would not supersede the requirements of the FDA 
or state regulatory bodies, including nutrient requirements established 
according to the guidance of NRC or AAFCO. Instead, this rule is 
intended to work jointly with those requirements and more narrowly 
regulate what manufacturers must do to label their pet food ``organic'' 
or claim it is ``made with organic (specified ingredients or food 
group(s)).'' Additionally, by including organic pet food in the organic 
regulations, the proposed rule would clarify the process for adding 
substances to the National List specifically for use in organic pet 
food. Future amendments to the National List could be made, as 
necessary, in accordance with the process, requirements, and criteria 
described in OFPA (see 7 U.S.C. 6517 and 6518).
Organic Pet Food Industry and Market
    The U.S. pet food market is a large and growing market in the 
United States. According to recent data from the American Pet Products 
Association (APPA), 66 percent of U.S. households own a pet, which is 
around roughly 86.9 million homes.\27\ In 2022, the pet food market in 
the United States was valued at $58.1 billion and is projected to 
increase to $62.7 billion in 2023. While the conventional pet food 
market is already substantial, the organic pet food market is 
relatively new, with few organic brands able to penetrate the market. 
In 2022, the organic pet food market was valued at $129 million but had 
substantial growth of 5.3 percent over 2021, which was the highest 
recorded growth since 2013.\28\ As of 2021, the organic pet food market 
is still less than one percent of the total pet

[[Page 17330]]

food market,\29\ and AMS believes there is potential for further 
growth.
---------------------------------------------------------------------------

    \27\ American Pet Products Association. ``Pet industry market 
size, trends & ownership statistics.'' Retrieved May 5, 2023. 
https://www.americanpetproducts.org/press_industrytrends.asp.
    \28\ Organic Trade Association. 2022 Organic Industry Survey. p. 
108. https://ota.com/market-analysis/organic-industry-survey/organic-industry-survey.
    \29\ Organic Trade Association. 2022 Organic Industry Survey. p. 
108.
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    AMS expects that as the number of organic options for pets 
increases, an untapped market of organic consumers may seek out and 
purchase organic pet food for the same reasons that they purchase other 
organic foods. Additionally, demand for pet food was driven up by the 
COVID-19 pandemic when many people chose to adopt pets while living and 
working from home. According to an American Society for the Prevention 
of Cruelty to Animals (ASPCA) survey, around 23 million homes (nearly 
one in five homes in the United States) adopted a cat or dog during the 
pandemic.\30\
---------------------------------------------------------------------------

    \30\ ASPCA. ``New ASPCA survey: Vast majority of dogs and cats 
acquired during pandemic still in their homes.'' Retrieved May 5, 
2023. https://www.aspcapro.org/resource/new-aspca-survey-vast-majority-dogs-and-cats-acquired-during-pandemic-still-their-homes.
---------------------------------------------------------------------------

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

B. Need for Organic Pet Food Standard

    The lack of specific standards for organic pet food creates 
inconsistency and uncertainty around labeling and composition 
requirements for organic pet food. These regulatory gaps increase the 
risk for businesses in the organic pet food market, hinder production 
innovation, and limit the market for organic slaughter by-products.
    For example, some certifying agents have used the composition 
requirements for organic livestock feed (Sec.  205.301(e)) to certify 
pet food as organic, but livestock feed produced under the organic 
standards may not sufficiently address pets' nutrient needs. 
Specifically, the organic livestock feed composition requirements 
(Sec.  205.301(e)(2)) state that livestock feed must be produced ``in 
conformance with Sec.  205.237.'' Section 205.237(a) requires that all 
agricultural ingredients be organically produced and handled, and Sec.  
205.237(b)(5) prohibits feeding slaughter by-products to mammals or 
poultry; however, slaughter by-products are a commonly used protein 
source in pet food. Furthermore, although the organic livestock feed 
standards allow the use of vitamins and minerals (Sec.  205.603(d)), 
the composition requirements for livestock feed do not allow certain 
synthetic amino acids that are commonly used in pet food, such as 
taurine. In some cases, certifying agents may not adhere strictly to 
the livestock feed standards and some may allow organic slaughter by-
products while others do not. This type of inconsistency creates 
uncertainty for companies considering entering the market. It also 
reduces the organic premiums that livestock producers and 
slaughterhouses could otherwise gain.
    While some certifying agents have used the composition requirements 
for organic livestock feed (Sec.  205.301(e)) to certify pet food as 
organic, others have used only the handling standards in Sec.  205.270 
to certify pet foods as organic. These standards allow organic 
ingredients (e.g., organic slaughter by-products) and allow nonorganic 
ingredients that appear on the National List at Sec. Sec.  205.605 and 
205.606, but the standards do not explicitly allow the vitamin and 
mineral ingredients that appear on the National List for livestock 
production at Sec.  205.603(d).
    This proposed rule would resolve these problems by, first, 
establishing that pet food is not to be regulated as organic livestock 
feed and thereby allowing organic slaughter by-products in organic pet 
food. Allowing slaughter by-products in organic pet food would also 
increase demand for certified organic slaughter by-products and create 
new income streams for organic livestock producers and slaughterhouses. 
Second, the proposed rule would clarify that vitamins, minerals, and 
taurine are allowed ingredients in organic pet food. Third, the rule 
would clarify that certain nonorganic content is permitted in pet food, 
in accordance with the labeling categories at Sec.  205.301(a) through 
(d).
    The product that forms the largest share of the entire pet food 
market--kibble \31\ or dry ``complete and balanced'' \32\ pet food 
intended to supply a pet's daily nutritional needs--is a processed 
product, but the current handling regulations do not allow additive 
nutrients and vitamins (such as taurine) that pets need to meet 
nutritional requirements. The proposed rule would resolve this problem 
by explicitly allowing the vitamin and mineral feed additives 
referenced in Sec. Sec.  205.603(d)(2) and (3) for use in pet food and 
by adding taurine to the National List in Sec.  205.605(b) as an 
allowed substance in pet food. The natural form of taurine, which is 
present in raw meat, is lost when heated--a step in the processing of 
many pet food products.\33\ Because of this, synthetic forms of taurine 
are often added to certain pet foods. By adding synthetic taurine to 
the National List for use in organic pet food only, this proposed rule 
would provide for the use of taurine in organic pet food.
---------------------------------------------------------------------------

    \31\ Kibble was 62.8 percent of all pet food sales in 2020. Pet 
Food Processing. (December 1, 2020). ``State of the US pet food and 
treat industry, 2020.'' https://www.petfoodprocessing.net/articles/14294-state-of-the-us-pet-food-and-treat-industry-2020.
    \32\ FDA. (February 28, 2020). ``Complete and Balanced Pet 
Food.'' https://www.fda.gov/animal-veterinary/animal-health-literacy/complete-and-balanced-pet-food.
    \33\ Spitze, A.R., Wong, D.L., Rogers, Q.R., & Fascetti, A.J. 
(2003). ``Taurine concentrations in animal feed ingredients; cooking 
influences taurine content.'' Journal of Animal Physiology and 
Animal Nutrition, 87(7-8), 251-262.
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    Additionally, this proposed rule would regulate pet food under the 
composition and labeling requirements for processed products referenced 
in Sec.  205.270. This would allow producers to use both the 
``organic'' and ``made with organic (specified ingredient or food 
group(s))'' labeling claims on multi-ingredient products that contain 
some nonorganic content. These two labeling claims are regulated under 
the USDA organic regulations (Sec. Sec.  205.301, 205.303, and 205.304) 
and are used extensively by certified organic handlers. ``Organic'' 
products must contain at least 95 percent organic ingredients, while 
``made with organic'' products must contain at least 70 percent organic 
ingredients. In both cases, any nonorganic ingredient(s) must also meet 
specific criteria.\34\ This

[[Page 17331]]

proposed rule would provide pet food manufacturers flexibility to use 
organic ingredients in a ``made with organic'' pet food product without 
having to reach the higher 95 percent ingredient threshold for 
``organic'' products. This clarification would allow pet food companies 
to increase organic content in their product line.
---------------------------------------------------------------------------

    \34\ USDA, AMS. (April 2018). ``Organic Labels Explained.'' 
https://www.ams.usda.gov/sites/default/files/media/OrganicLabelsExplained.png.
---------------------------------------------------------------------------

    Finally, under the current organic regulations, it is unclear if 
pet food manufacturers may use meat or slaughter by-products in organic 
pet food, limiting the production of pet food and demand for organic 
slaughter by-products based on certifier interpretation. AMS estimates 
that by clarifying slaughter by-products are allowed, this rule will 
allow for more flexible and affordable organic pet food options and 
could ensure consistent demand for over 7 million pounds of organic by-
products annually.\35\ Based on feedback from stakeholders, AMS finds 
it likely that this clarification will also increase growth in these 
markets.
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    \35\ Data from the Institute for Feed Education & Research 
indicates that approximately 23 percent of the ingredient weight in 
conventional pet food is animal by-product and meal. This estimate 
is then applied to the estimate pounds of organic pet food as 
reported by the Organic Trade Association and current market prices.
    Institute for Feed Education & Research. (March 2020). ``Pet 
food production and ingredient analysis.'' Organic Trade 
Association. (2022). Organic Industry Survey. p. 56.
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    In conclusion, this rule would address inconsistencies in how 
certifying agents are applying the current organic regulations to pet 
food. It would also resolve regulatory uncertainties that artificially 
increase risk in the organic pet food market. Addressing these 
inconsistencies and uncertainties would create the conditions necessary 
for the organic pet food and related markets to grow.

C. Overview of Proposed Amendments

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

 Table 2--Overview of Proposed Regulatory Changes To Establish Pet Food
                                Standards
------------------------------------------------------------------------
                                                    Summary of proposed
         Section title            Type of action           action
------------------------------------------------------------------------
205.2.........................  Adds new terms...  Defines terms ``pet''
                                                    and ``pet food''.
205.270.......................  Adds new           Adds composition and
                                 paragraph.         labeling
                                                    requirements
                                                    specific to pet
                                                    food.
205.605(b)....................  Adds substance to  Adds taurine to the
                                 the National       National List as an
                                 List.              allowed ingredient
                                                    in pet food.
------------------------------------------------------------------------

Sec. 205.2 (Terms Defined)
    AMS is proposing to amend Sec.  205.2 by adding two new terms, 
``pet'' and ``pet food.''
1. Pet
    AMS is proposing to define ``pet'' as ``any domestic animal not 
used for the production and sale of food, fiber, or other agricultural-
based consumer products.'' This term establishes a distinction between 
animals raised as pets and animals raised for food or fiber (i.e., 
``livestock,'' as defined at Sec.  205.2). Animals used for food or in 
the production of food, fiber, feed, or other agricultural-based 
consumer products are ``livestock'' under the USDA organic regulations 
(Sec.  205.2) and must be produced under all applicable organic 
livestock requirements. Feed requirements for organic livestock are 
described at Sec.  205.237 and would not apply to organic pet food, and 
vice versa.
    By creating a regulatory distinction between pets and other animals 
whose feed is subject to organic regulation, the proposed rule would 
allow organic pet food to contain organic slaughter by-products (except 
when prohibited by Federal or State laws and regulations, see proposed 
Sec.  205.270(c)). This distinction is significant for pet food 
production because current regulations do not allow slaughter by-
products in livestock feed (Sec.  205.237(b)(5)), but slaughter by-
products are commonly used as a protein source in pet food. 
Additionally, organic livestock must consume only organic agricultural 
products (Sec.  205.237(a)), whereas the proposed rule would allow 
nonorganic agricultural ingredients to be used in pet food under the 
same labeling categories as other processed organic foods. Together, 
these clarifications are expected to increase the types of usable 
ingredients in organic pet food production and increase the commercial 
viability of organic pet food.
2. Pet Food
    AMS is proposing to define ``pet food'' as ``any commercial feed 
prepared and distributed for pet consumption.'' The proposed definition 
for ``pet food'' distinguishes organic pet food products from organic 
livestock feed products. This action is consistent with the NOSB 
recommendation.\36\ It also addresses a concern expressed by pet food 
manufacturers that applying the livestock feed composition requirements 
to pet food could limit product formulation and participation in the 
organic market because of the lack of available organic protein 
sources, particularly rendered products such as poultry meal. Unless 
otherwise noted, the term ``pet food'' refers to all pet foods, 
including food for pets other than dogs and cats. Feed for zoo animals 
(such as large cats) is not included in the proposed definition, as zoo 
animals are not domestic animals and therefore fall outside the 
definition of ``pets.''
---------------------------------------------------------------------------

    \36\ NOSB. (November 19, 2008). ``Formal recommendation by the 
National Organic Standards Board (NOSB) to the National Organic 
Program (NOP): Organic pet food standards recommendation.'' https://www.ams.usda.gov/sites/default/files/media/NOP%20Final%20Rec%20Pet%20Food.pdf.
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Sec. 205.270 (Organic Handling Requirements)
    This proposed rule would add a new paragraph (c) to Sec.  205.270--
Organic handling requirements--to describe requirements for the 
composition, processing, and labeling of organic pet food. The 
requirements would permit the types of processing allowed in paragraph 
(a) and the types of nonorganic ingredients allowed in paragraph (b) 
and proposed paragraph (c), and prohibit the practices and materials 
not allowed in paragraph (d) (please note that the proposed rule would 
redesignate, or rearrange, current paragraph (c) of this section as

[[Page 17332]]

paragraph (d)). By including pet food criteria as part of the handling 
standards but clearly separating the criteria from the livestock feed 
composition and labeling standards, the proposed rule would ensure that 
pet food is not subject to the prohibition of slaughter by-products 
that exists for livestock feed. The proposed rule would allow slaughter 
by-products in pet food under the same composition and labeling 
requirements for other multi-ingredient products described at Sec.  
205.301(a) through (d) and (f).
    Paragraph (b) would permit organic pet food, like any other 
processed organic product, to contain nonagricultural and nonorganic 
substances allowed by the National List in Sec.  205.605 (such as 
taurine, as proposed) and Sec.  205.606. These ingredients may be used 
in processed pet food products sold as ``organic'' or ``made with 
organic (specified ingredients or food group(s)).'' Additionally, the 
proposed rule would allow vitamins and minerals in Sec.  205.603(d)(2) 
and (3) for enrichment or fortification of pet food. Vitamins and 
minerals are often required to meet the nutritional needs of pets.
    The proposed rule would also clarify that pet food labeled as 
organic must be labeled pursuant to the applicable portions of subpart 
D of the organic regulations (proposed Sec.  205.270(c)). In 
particular, this means that organic pet food should be labeled 
according to the product composition requirements at Sec.  205.301(a) 
through (d), and that pet food may use the following labeling 
categories: (1) ``100 percent organic;'' (2) ``organic,'' (3) ``made 
with organic (specified ingredients or food group(s));'' or (4) 
products containing less than 70 percent organic ingredients. This 
proposed action would allow the labeling of organic pet food using the 
same framework as most processed organic products (rather than the 
labeling requirements for livestock feed at Sec.  205.301(e)).
    The proposed changes to Sec.  205.270 would not replace or modify 
requirements pertaining to pet food that are applicable under other 
federal or state laws or regulations. Any ingredients in pet food must 
comply with all applicable federal and state laws and regulations. AMS 
only regulates the organic claims of organic pet food. All other 
aspects of pet food production and sale must follow the relevant 
federal and state laws and regulations.
Sec. 205.605 (National List)
    AMS proposes to modify the National List to allow the use of 
synthetic taurine in pet food. The rule proposes to add taurine to 
Sec.  205.605, which describes nonagricultural substances allowed as 
ingredients in or on processed products labeled as ``organic'' or 
``made with organic (specified ingredients or food group(s)).'' The 
proposed listing for taurine also specifies that taurine can be used 
only in pet food and not in other organic multi-ingredient products. 
Taurine is an amino sulfonic acid that many pets (all cats and some dog 
breeds) require but cannot obtain in adequate amounts by consuming pet 
food that does not contain added taurine. For that reason, AAFCO's cat 
nutrient profiles require taurine, and it is a common synthetic 
additive in pet foods.
    This proposed addition follows an NOSB recommendation to add 
taurine to the National List as an allowed substance for use 
exclusively in pet foods. The NOSB concluded that taurine is necessary 
to meet nutritional requirements for cats. Also, based on public 
comment, the NOSB determined that taurine can also be necessary for 
dogs' nutrition, and, therefore, recommended taurine be allowed in pet 
food generally. AMS agrees with the NOSB's rationale and recommendation 
since taurine is essential for pet health and adequate taurine levels 
cannot be achieved using organic agricultural ingredients alone when 
pet food is cooked. This proposed rule, if finalized, would amend the 
regulations to provide for the use of taurine.
    Individuals may petition to add other substances to the National 
List for use in organic pet food. Because organic pet food must meet 
all applicable federal and state laws and regulations, any person or 
organization petitioning to add a substance to the National List for 
use in organic pet food must ensure the use of that substance is 
consistent with applicable federal and state laws and rules. Synthetic 
substances petitioned for use in pet food would also be evaluated 
according to the existing criteria in OFPA (7 U.S.C. 6517 and 6518) and 
the USDA organic regulations (Sec.  205.600).

VI. Regulatory Analyses

Executive Orders 12866, 13563, 14094, and the Regulatory Flexibility 
Act

    This rule does not meet the criteria of a ``significant regulatory 
action'' under Executive Order 12866, as supplemented by Executive 
Order 13563 and updated by Executive Order 14094. Therefore, the Office 
of Management and Budget (OMB) has not reviewed this rule under those 
orders.
    The Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612) requires 
agencies to consider the economic impact of each rule on ``small 
entities'' and evaluate alternatives that would accomplish the 
objectives of the rule without unduly burdening small entities or 
erecting barriers that would restrict their ability to compete in the 
market. The purpose of the RFA is to fit regulatory actions to the 
scale of businesses subject to the action. Section 605 of the RFA 
allows an agency to certify a rule in place of preparing an analysis if 
the rulemaking is not expected to have a significant economic impact on 
a substantial number of small entities. AMS has concluded that this 
rule, if promulgated, will not have a significant economic impact on a 
substantial number of small entities, and, therefore, an analysis is 
not included. Below, AMS presents information about the industry and 
the possible effects of the rule on small entities to support this 
conclusion.
    The Small Business Administration (SBA) sets size criteria for each 
industry described in the North American Industry Classification System 
(NAICS) to delineate which operations qualify as small businesses. 
SBA's size standards are expressed in terms of number of employees or 
annual receipts and indicate the maximum allowed for an entity to be 
considered small.\37\
---------------------------------------------------------------------------

    \37\ U.S. SBA. (March 17, 2023). Table of size standards. 
https://www.sba.gov/document/support-table-size-standards.
---------------------------------------------------------------------------

    Mushroom Producers. AMS has considered the economic impact of this 
rulemaking on small mushroom producers. At the time of this analysis, 
small organic mushroom producers were listed under NAICS code 111411 
(Mushroom Production) as grossing equal to or less than $4,500,000 per 
year.\38\ AMS estimates that out of 229 domestic operations reporting 
sales of organic mushrooms, 14 operations exceed that threshold.\39\ 
While most organic mushroom operations that would be affected by this 
rule are small entities, this rule has the potential to impose only 
minor costs on them related to paperwork burden (see Paperwork 
Reduction Action section below) and costs associated with

[[Page 17333]]

sourcing organic spawn and substrate materials, when commercially 
available. AMS concludes that this rule, if promulgated, will not have 
a significant economic impact on a substantial number of these small 
entities.
---------------------------------------------------------------------------

    \38\ U.S. SBA. (March 17, 2023). Table of size standards. 
https://www.sba.gov/document/support-table-size-standards.
    \39\ The National Agricultural Statistics Service was unable to 
supply a precise tabulation of large organic operations due to 
disclosure concerns. AMS estimated the number of large mushroom 
operations and sales from large mushroom operations using the 
proportion of conventional mushroom operations by sales from the 
USDA's 2017 Census of Agriculture, available here: https://www.nass.usda.gov/Publications/AgCensus/2017/index.php. The same 
distribution is assumed to apply to organic mushroom operations.
---------------------------------------------------------------------------

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

    \40\ U.S. SBA. (March 17, 2023). Table of size standards. 
https://www.sba.gov/document/support-table-size-standards.
---------------------------------------------------------------------------

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

Executive Order 12988

    Executive Order 12988 instructs each executive agency to adhere to 
certain requirements in the development of new and revised regulations 
to avoid unduly burdening the court system. This proposed rule complies 
with these requirements. This rule would not be applied retroactively. 
Additionally, to prevent duplicative regulation, States and local 
jurisdictions are preempted under OFPA from creating accreditation 
programs for private persons or state officials who want to become 
certifying agents of organic farms or handling operations. A governing 
state official would have to apply to USDA to be accredited as a 
certifying agent, as described in OFPA (7 U.S.C. 6514(b)). States are 
also preempted under sections 6503 through 6507 of OFPA from creating 
certification programs to certify organic farms or handling operations 
unless the state programs have been submitted to, and approved by, the 
Secretary as meeting the requirements of OFPA.
    Pursuant to section 6507(b)(2) of OFPA, a state organic 
certification program that has been approved by the Secretary may, 
under certain circumstances, contain additional requirements for the 
production and handling of agricultural products organically produced 
in the state and for the certification of organic farm and handling 
operations located within the state. Such additional requirements must 
(a) further the purposes of OFPA, (b) not be inconsistent with OFPA, 
(c) not be discriminatory toward agricultural commodities organically 
produced in other States, and (d) not be effective until approved by 
the Secretary.
    In addition, pursuant to section 6519(c)(6) of OFPA, this 
rulemaking would not supersede or alter the authority of the Secretary 
under the Federal Meat Inspection Act (21 U.S.C. 601-624), the Poultry 
Products Inspection Act (21 U.S.C. 451-471), or the Egg Products 
Inspection Act (21 U.S.C. 1031-1056), concerning meat, poultry, and egg 
products, respectively, nor any of the authorities of the Secretary of 
Health and Human Services under the Federal Food, Drug and Cosmetic Act 
(21 U.S.C. 301-399i), nor the authority of the Administrator of the 
Environmental Protection Agency under the Federal Insecticide, 
Fungicide and Rodenticide Act (7 U.S.C. 136-136y).
    OFPA at 7 U.S.C. 6520 provides for the Secretary to establish an 
expedited administrative appeals procedure under which persons may 
appeal an action of the Secretary, the applicable governing State 
official, or a certifying agent under the statute that adversely 
affects such person or is inconsistent with the organic certification 
program established under OFPA. OFPA also provides that the U.S. 
District Court for the district in which a person is located has 
jurisdiction to review the Secretary's decision.

Executive Order 13132

    Executive Order 13132 mandates that federal agencies consider how 
their policymaking and regulatory activities impact the policymaking 
discretion of States and local officials and how well such efforts 
conform to the principles of federalism defined in said order. This 
executive order only pertains to regulations with clear federalism 
implications.
    AMS has determined that this proposed rule conforms with the 
principles of federalism described in E.O. 13132. The rule would not 
impose substantial direct costs or effects on States, would not alter 
the relationship between States and the federal government, and would 
not alter the distribution of powers and responsibilities among the 
various levels of government. States have the opportunity to comment on 
any potential federalism implications during this proposed rule's 
comment period. AMS will consider these comments when assessing the 
federalism implications of any final rule.

Executive Order 13175

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

Civil Rights Impact Analysis

    AMS has reviewed this rulemaking in accordance with the 
Departmental Regulation 4300-4, Civil Rights Impact Analysis, to 
address any major civil rights impacts the rule might have on 
minorities, women, and/or persons with disabilities. After a careful 
review of the rule's intent and provisions, AMS determined that there 
is no evidence that this proposed rule would have

[[Page 17334]]

adverse civil rights impacts on organic producers identifying as 
minorities, women, and/or persons with disabilities. Additionally, this 
proposed rule would not impose any requirements related to eligibility 
for benefits and services on protected classes, nor would the rule have 
the purpose or effect of treating classes of persons differently.
    Protected individuals have the same opportunity to participate in 
NOP as non-protected individuals. USDA organic regulations prohibit 
discrimination by certifying agents. Specifically, 7 CFR 205.501(d) of 
the current regulations for accreditation of certifying agents provides 
that ``No private or governmental entity accredited as a certifying 
agent under this subpart shall exclude from participation in or deny 
the benefits of the National Organic Program to any person due to 
discrimination because of race, color, national origin, gender, 
religion, age, disability, political beliefs, sexual orientation, or 
marital or family status.'' Section 205.501(a)(2) requires certifying 
agents to ``[d]emonstrate the ability to fully comply with the 
requirements for accreditation set forth in this subpart,'' including 
the prohibition on discrimination. The granting of accreditation to 
certifying agents under Sec.  205.506 requires the review of 
information submitted by the certifying agent and an on-site review of 
the certifying agent's client operation. Further, if certification is 
denied, Sec.  205.405(d) requires that the certifying agent notify the 
applicant of their right to file an appeal to the AMS Administrator in 
accordance with Sec.  205.681.
    These regulations provide protections against discrimination, 
thereby permitting all producers, regardless of race, color, national 
origin, gender, religion, age, disability, political beliefs, sexual 
orientation, or marital or family status, who voluntarily choose to 
adhere to the rules and qualify, to be certified as meeting NOP 
requirements by an accredited certifying agent. This action in no way 
changes any of these protections against discrimination.

Paperwork Reduction Act

    In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 
3501-3521) (PRA), AMS is requesting OMB approval for a new information 
collection totaling 851 hours for the reporting and recordkeeping 
requirements contained in this proposed rule. OMB previously approved 
information collection requests (ICR) associated with the NOP and 
assigned OMB control number 0581-0191. AMS intends to merge this new 
information collection, upon OMB approval, into the approved 0581-0191 
collection. Below, AMS describes and estimates the annual burden, i.e., 
the amount of time and cost of labor, for entities to prepare and 
maintain information to participate in this proposed voluntary labeling 
program. OFPA, as amended, provides authority for this action.
    Title: National Organic Program: Market Development for Mushrooms 
and Pet Food.
    OMB Control Number: 0581-NEW.
    Expiration Date of Approval: Three years from OMB date of approval.
    Type of Request: New collection.
    Abstract: Information collection would be necessary to implement 
reporting required by the proposed standards for organic mushroom 
production and pet food handling under the USDA organic regulations 
(Sec. Sec.  205.210 and 205.270). This proposed rule would establish 
USDA organic requirements in these sectors to support consistent 
interpretation and remove regulatory uncertainty. By doing so, it would 
support the purposes of OFPA, ``to assure consumers that organically 
produced products meet a consistent standard'' and to ``establish 
national standards'' for products marketed as organic (7 U.S.C. 6501). 
Additional information on the purpose and need for this rule is 
included in the BACKGROUND section of this rule.
Overview
    Information collection and recordkeeping would be required to 
demonstrate compliance with proposed new Sec.  205.210 and proposed 
amendments to Sec.  205.270 of the USDA organic regulations, 7 CFR part 
205, that establish standards for mushroom production and pet food 
handling. Historically, while mushrooms have been managed as a crop and 
pet food has been manufactured in compliance with the livestock feed 
and/or handling standards, AMS has received reports that the lack of 
specific standards for mushrooms and pet food handling deters business 
investment and creates inefficiencies in these markets.
    Mushrooms are not plants. They do not photosynthesize and are 
generally grown in controlled environments. While mushrooms can comply 
with most of the existing regulations governing crop production, 
including Sec. Sec.  205.200-202 and 205.206, they have very distinct 
growing requirements that differ from plant crops and are not directly 
addressed in the current organic regulations. AMS is proposing to add 
Sec.  205.210 to the USDA organic regulations to describe the specific 
practice standards for mushrooms that codify the processes and 
materials allowed in organic mushroom operations. This includes 
mushroom substrate requirements instead of the soil fertility and crop 
nutrient management requirements in Sec.  205.203 and spawn production 
requirements in lieu of the parallel seeds and planting stock practice 
requirements in Sec.  205.204.
    AMS is proposing to apply the existing framework for the organic 
handling requirements at Sec.  205.270 to pet food composition and 
labeling. Some parties interested in creating organic feed stated that 
it was not clear if organic pet food was allowed to contain slaughter 
by-products, which are prohibited in livestock feed. This proposed rule 
would clearly permit the use of slaughter by-products from organic 
livestock in organic pet food by establishing pet food regulations 
outside of the livestock feed standards.
    These amendments would require one-time additional reporting for 
already certified pet food and mushroom operations, accredited 
certifying agents, and inspectors. Existing organic mushroom and pet 
food operations would need to review their existing organic system 
plans for compliance, certifiers would have to review the updated 
plans, and certifiers/inspectors would need training on the new 
regulation. The reporting burden for new and exempt operations in these 
sectors would remain unchanged from the current ICR, and recordkeeping 
burdens from the current ICR would remain unchanged for all 
respondents. Beyond the first year, AMS expects no increase in 
reporting and recordkeeping burden for any respondents. The continuing 
reporting and recordkeeping requirements are routine activities that 
are currently identified in the NOP's approved ICR.

[[Page 17335]]

Respondents
    Six respondent types--certified operations (producers and 
handlers), accredited certifying agents, inspectors, foreign 
governments, state organic programs, and petitioners--have been 
identified in our currently approved information collection (0581-
0191). AMS has identified three primary types of entities (respondents) 
that would need to submit new information because of this proposed 
rule: certified organic operations, accredited certifying agents, and 
organic inspectors. AMS does not expect this rule to impact any new 
operation, foreign governments, state organic programs, and petitioners 
as it only seeks to establish specific standards for mushroom and pet 
food operations, which would only require changes from existing 
operations and certifiers. The reporting burden for new and exempt 
operations in these sectors would remain unchanged from the ICR, and 
recordkeeping burdens from the current ICR would remain unchanged for 
all respondents.
Calculating Reporting and Recordkeeping Burden
    AMS identifies three types of entities (respondents) that would 
need to submit and maintain information to participate in organic pet 
food and mushroom certification:
    1. Organic pet food and mushroom operations.
    2. Accredited certifying agents.
    3. Inspectors.
    To understand the reporting and recordkeeping costs of this 
rulemaking more precisely, AMS calculated the potential impacts 
utilizing domestic and foreign labor rates (per hour) plus benefits.
    AMS calculates the time burden of the new reporting and 
recordkeeping requirements of this rulemaking by estimating the 
following:
    1. The number of respondents.
    2. Frequency of response.
    3. Total number of burden hours per year.
    The number of respondents is based on operation, certifier, 
inspector, and State Organic Program data from the Organic Integrity 
Database. The frequency of responses is estimated to be the total 
annual responses and the number of responses per respondent in twelve 
months. The total number of burden hours per year is estimated to be 
the total annual responses multiplied by the number of hours per 
response.
    AMS estimates the cost (financial) burden of the new reporting and 
recordkeeping requirements of this rulemaking by estimating the 
following:
    1. Total hours per respondent.
    2. Total hours for all respondents.
    3. Capital and other non-labor costs per respondent.
    4. Total capital and other non-labor costs for all respondents.
    The total hours per respondent and for all respondents were 
estimated based on the number of respondents and the amount of time AMS 
estimates would be needed to report and record new information based on 
this rulemaking.
1. Operations: Mushroom Producers and Pet Food Manufacturers
    Domestic and foreign producers and handlers that are updating their 
organic system plan must address how their operation complies with the 
proposed mushroom or pet food standards. Operations would be required 
to update any changes in their operation or practices to their 
certifying agent at least annually. AMS has identified 229 domestic and 
43 foreign-based operations that produce mushrooms and 31 domestic and 
5 foreign-based operations that manufacture pet food requiring 308 
reporting responses.\41\
---------------------------------------------------------------------------

    \41\ USDA. Organic Integrity Database. https://organic.ams.usda.gov/IntegrityPlus/Search.aspx. To obtain the 
relevant data, search for ``mushroom'' and 
``pet,dog,canine,cat,feline'' in the ``Certified Products'' field. 
Accessed May 9, 2023.
---------------------------------------------------------------------------

    The proposed mushroom production and pet food handling standards 
are estimated to require each current mushroom producer or pet food 
manufacturer to spend one hour to verify the compliance of their 
organic system plan with the proposed standards. AMS estimates the 
costs of the one-time reporting burden for all mushroom producers and 
pet food manufacturers to review and verify the compliance of their new 
or updated organic system plan at $15,391.55. This is based on 260 
labor hours at $52.18 per labor hour (including benefit costs) \42\ for 
260 domestic operations, totaling $13,565.64; and 48 labor hours at 
$38.04 per labor hour (including benefit costs) \43\ for 48 foreign 
operations, totaling $1,825.91 (See Table 3: USDA Certified Operations 
Reporting Burden). No new recordkeeping burden is incurred by this 
proposed rule as these operations are already certified and covered by 
existing recording keeping in the current Information Collection 
Request.\44\
---------------------------------------------------------------------------

    \42\ The cost of labor per hour for domestic operations was 
obtained by calculating the sum of the mean hourly wage for 
agricultural workers and the hourly cost of worker benefits. In May 
2022, the mean hourly wage for Farmers, Ranchers, and Other 
Agricultural Managers (Standard Occupational Classification code 11-
9013) was $40.29. U.S. Bureau of Labor Statistics. (April 25, 2023). 
``Occupational employment and wage statistics: May 2022 national 
occupational employment and wage estimates United States.'' https://www.bls.gov/oes/current/oes_nat.htm#top. Domestic benefits were 
reported to be 29.5 percent of total average civilian employer 
compensation costs. U.S. Bureau of Labor Statistics. (June 16, 
2023). ``Employer costs for employee compensation summary.'' USDL-
23-0488. https://www.bls.gov/news.release/ecec.nr0.htm.
    \43\ Wages in foreign countries are estimated to be 70.15 
percent of U.S wages. This percentage was derived by dividing the 
World Bank estimates of Organization for Economic Co-Operation and 
Development (OECD) member countries in 2021 by the wages of the 
United States in 2021. The World Bank. ``GDP per capita PPP--OECD 
members.'' Accessed August 2023. https://data.worldbank.org/indicator/NY.GDP.PCAP.PP.CD?locations=OE. Foreign worker benefit 
rates are based on the average OECD member countries' tax wedge rate 
of 34.59 percent in 2021. OECD. ``Taxing Wages--Comparative 
tables.'' Accessed May 9, 2023. https://stats.oecd.org/Index.aspx?DataSetCode=AWCOMP.
    \44\ The current Information Collection Request can be found at 
https://www.reginfo.gov/public/do/PRAViewICR?ref_nbr=202001-0581-001.

         Table 3--USDA Certified Operations (Mushroom Producers and Pet Food Handlers) Reporting Burden
----------------------------------------------------------------------------------------------------------------
                                                                                       Total
              Respondent categories                  Number of        Wage +         reporting      Total costs
                                                    respondents      benefits          hours
----------------------------------------------------------------------------------------------------------------
USDA Certified Producers & Handlers--Domestic...             260          $52.18             260      $13,565.64
USDA Certified Producers & Handlers--Foreign....              48           38.04              48        1,825.91
                                                 ---------------------------------------------------------------
    USDA Organic Operations--All................             308  ..............             308       15,391.55
----------------------------------------------------------------------------------------------------------------


[[Page 17336]]

2. Certifying Agents
    Certifying agents are State, private, or foreign entities 
accredited by the USDA to certify domestic and foreign producers and 
handlers as organic in accordance with OFPA and the USDA organic 
regulations. Certifying agents determine whether a producer or handler 
meets the organic requirements, using detailed information from the 
operation about its specific practices and on-site inspection reports 
from organic inspectors. There are 39 certifying agents (31 domestic 
and 8 foreign) accredited by USDA certifying organic mushroom 
operations and 12 certifying agents (8 domestic and 4 foreign) 
accredited by USDA certifying organic pet food processing that would 
require 308 reporting responses to certify each organic operation and 
51 responses for staff training.\45\
---------------------------------------------------------------------------

    \45\ USDA. Organic Integrity Database. https://organic.ams.usda.gov/IntegrityPlus/Search.aspx. To obtain the 
relevant data, search for ``mushroom'' and 
``pet,dog,canine,cat,feline'' in the ``Certified Products'' field. 
Accessed May 9, 2023.
---------------------------------------------------------------------------

    The proposed mushroom production and pet food handling standards 
would require certifying agents of current mushroom producers and pet 
food manufacturers to spend one hour for each producer or manufacturer 
to verify their compliance with the proposed standards. In addition, it 
is estimated that certifying agents would need to provide one hour of 
training regarding the proposed mushroom production and pet food 
handling standards to their certification review personnel. Each 
certifying agent certifying organic mushroom production would incur 
approximately eight hours of first-time reporting burden (one hour for 
training and seven hours for approximately seven operations per 
certifier) \46\ but no new recordkeeping burden due to this proposed 
rule. Each certifying agent certifying organic pet food processing 
would incur approximately four hours of first-time reporting burden 
(one hour for training and three hours for approximately three 
operations per certifier) \47\ but no new recordkeeping burden due to 
this proposed rule. AMS estimates the costs of the one-time reporting 
burden for all certifying agents to review and verify the compliance of 
the new or updated organic system plan of mushroom producers and pet 
food manufacturers and the provision of training at $16,170.00. This is 
based on 279 labor hours at $47.93 per labor hour (including benefit 
costs) \48\ for 39 domestic certifying agents, totaling $13,381.73; and 
80 labor hours at $34.94 per labor hour (including benefit costs) \49\ 
for 12 foreign certifying agents, totaling $2,788.27. (See Table 4: 
USDA Certifying Agents Reporting Burden).
---------------------------------------------------------------------------

    \46\ This is the calculated average number of mushroom 
operations (272) per certifier certifying mushrooms (39).
    \47\ This is the calculated average number of pet food 
operations (36) per certifier certifying pet food (12).
    \48\ The cost of labor per hour for domestic certifying agents 
was obtained by calculating the sum of the mean hourly wage for 
compliance officers and the hourly cost of worker benefits. In May 
2022, the mean hourly wage for Compliance Officers (Standard 
Occupational Classification (SOC) code 13-1041) was $37.01. U.S. 
Bureau of Labor Statistics. (April 25, 2023). ``Occupational 
employment and wage statistics: May 2022 national occupational 
employment and wage estimates United States.'' https://www.bls.gov/oes/current/oes_nat.htm#top. Domestic benefits were reported to be 
29.5 percent of total average civilian employer compensation costs. 
U.S. Bureau of Labor Statistics. (June 16, 2023). ``Employer costs 
for employee compensation summary.'' USDL-23-0488. https://www.bls.gov/news.release/ecec.nr0.htm.
    \49\ See footnote 48.

     Table 4--USDA Certifying Agents (Certifying Mushroom Producers and Pet Food Handlers) Reporting Burden
----------------------------------------------------------------------------------------------------------------
                                                                                       Total
              Respondent categories                  Number of        Wage +         reporting      Total costs
                                                    respondents      benefits          hours
----------------------------------------------------------------------------------------------------------------
USDA U.S.-Based Certifiers--Mushrooms...........              31          $47.93          247.21      $11,848.04
USDA Foreign-Based Certifiers--Mushrooms........               8           34.94           64.79        2,229.18
USDA U.S.-Based Certifiers--Pet food............               8           47.93              32        1,533.69
USDA Foreign-Based Certifiers--Pet food.........               4           34.94              16          559.09
                                                 ---------------------------------------------------------------
    USDA Certifiers--All........................            * 51  ..............             359       16,170.00
----------------------------------------------------------------------------------------------------------------
* Some certifiers may certify both pet food and mushroom operations but are counted as separate entities in this
  column.

3. Organic Inspectors
    Inspectors conduct on-site inspections of certified operations and 
operations applying for certification and report the findings to the 
certifying agent. Inspectors may be independent contractors or 
employees of certifying agents. Inspectors provide an inspection report 
to the certifying agent for each operation inspected (Sec.  
205.404(a)). Currently, AMS estimates that inspectors would receive one 
hour of training on the proposed mushroom production and pet food 
handling standards. Inspectors do not have recordkeeping obligations, 
as certifying agents maintain the records of inspection reports.
    According to the International Organic Inspectors Association, 
there are approximately 184 inspectors in the world that inspect 
organic crop, livestock, handling, and/or wild crop operations' 
compliance with USDA organic standards.\50\ Thus, the proposed rule 
would require approximately 184 reporting responses from inspectors. 
AMS estimates the costs of the one-time reporting burden for all 
inspectors to receive one hour of training on the proposed mushroom 
production and pet food handling standards at $5,111.82. This is based 
on 123 labor hours for 123 U.S.-based inspectors to receive training in 
the U.S. at $30.52 per labor hour, (including benefit costs),\51\ 
totaling $3,754.35 in costs; and 61 labor hours for 61 foreign-based 
inspectors to receive training at $22.25 per hour (including benefit 
costs),\52\ totaling $1,357.47 in costs. (See Table 5: Inspectors 
Reporting Burden).
---------------------------------------------------------------------------

    \50\ This estimate is based on data from the International 
Organic Inspectors Association Membership Directory, available at: 
https://www.ioia.net/member-directory.
    \51\ The cost of labor per hour for domestic inspectors was 
obtained by calculating the sum of the mean hourly wage for 
agricultural inspectors and the hourly cost of worker benefits. In 
May 2022, the mean hourly wage for Agricultural Inspectors (Standard 
Occupational Classification (SOC) code 45-2011) was $23.57. U.S. 
Bureau of Labor Statistics. (April 25, 2023). ``Occupational 
employment and wage statistics: May 2022 national occupational 
employment and wage estimates United States.'' https://www.bls.gov/oes/current/oes_nat.htm#top. Domestic benefits were reported to be 
29.5 percent of total average civilian employer compensation costs. 
U.S. Bureau of Labor Statistics. (June 16, 2023). ``Employer costs 
for employee compensation summary.'' USDL-23-0488. https://www.bls.gov/news.release/ecec.nr0.htm.
    \52\ See footnote 48.

[[Page 17337]]



                                      Table 5--Inspectors Reporting Burden
----------------------------------------------------------------------------------------------------------------
                                                                                       Total
              Respondent categories                  Number of        Wage +         reporting      Total costs
                                                    respondents      benefits          hours
----------------------------------------------------------------------------------------------------------------
USDA U.S.-based Inspectors......................             123          $30.52             123       $3,754.35
USDA Foreign based inspectors...................              61           22.25              61        1,357.47
                                                 ---------------------------------------------------------------
    USDA Inspectors--All........................             184  ..............             184        5,111.82
----------------------------------------------------------------------------------------------------------------

Summary of Reporting Burden
Total (Domestic and Foreign) Information Collection Cost (Reporting) of 
Proposed Rule: $36,673.37 (See Table 6: Total Reporting Burden)
    AMS estimates the public reporting burden for this information 
collection to be 851 hours at a total cost of $36,673.37 with a total 
number of 543 respondents. Respondents comprise currently certified 
organic mushroom producers and pet food manufacturers, USDA accredited 
certifying agents, and inspectors.

                                         Table 6--Total Reporting Burden
----------------------------------------------------------------------------------------------------------------
                                                               Total number of
                                                                  reporting     Total reporting  Total all costs
                                                                 respondents       hours--all
----------------------------------------------------------------------------------------------------------------
Summary of Tables 1, 2, & 3..................................             543              851       $36,673.37
----------------------------------------------------------------------------------------------------------------

    Total All Reporting Burden Cost: $36,673.37.
    Estimate of Burden: Public reporting burden for the collection of 
information is estimated to average 1.57 hours per year per response.
    Respondents: Certified operations, certifying agents, and 
inspectors.
    Estimated Number of Reporting Respondents: 543.
    Estimated Number of Reporting Responses: 851.
    Estimated Total Reporting Burden on Respondents: 851 hours.
    Estimated Total Annual Reporting Hours per Reporting Respondent: 
1.57 reporting hours per reporting respondent.
    Estimated Total Annual Reporting Responses per Reporting 
Respondent: 1.57 reporting responses per reporting respondent.
    Estimated Total Annual Reporting Hours per Reporting Response: 1.57 
hours per reporting response.
Total Domestic Reporting Burden Cost: $30,701.72
    Respondents: Certified operations, certifying agents, and 
inspectors.
    Estimated Number of Domestic Reporting Respondents: 422 
respondents.
    Estimated Number of Domestic Reporting Responses: 662 responses.
    Estimated Total Annual Reporting Burden on Domestic Respondents: 
662 hours.
Total Foreign Reporting Burden Cost: $5,971.65
    Respondents: Certified operations, certifying agents, and 
inspectors.
    Estimated Number of Foreign Reporting Respondents: 121 respondents.
    Estimated Number of Foreign Reporting Responses: 189 responses.
    Estimated Total Annual Reporting Burden on Foreign Respondents: 189 
hours.
Summary of Recordkeeping Burden
    There are no expected recordkeeping burdens as a result of the 
proposed rule.
Comments
    AMS is inviting comments from all interested parties concerning the 
information collection that would be required as a result of the 
proposed amendments to 7 CFR part 205. AMS seeks comment on the 
following subjects:
    1. Whether the proposed collection of information is necessary for 
the proper performance of the functions of the agency, including 
whether the information would 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.
    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.

List of Subjects in 7 CFR Part 205

    Administrative practice and procedure, Agricultural commodities, 
Agriculture, Animals, Archives and records, Fees, Imports, Labeling, 
Livestock, National List, National Organic Standards Board (NOSB), 
Organically produced products, Plants, Reporting and recordkeeping 
requirements, Seals and insignia, Soil conservation, Sunset.

    For the reasons stated in the preamble, AMS proposes to amend 7 CFR 
part 205 as follows:

PART 205--NATIONAL ORGANIC PROGRAM

0
1. The authority citation for part 205 continues to read as follows:

    Authority:  7 U.S.C. 6501-6524.

0
2. Amend Sec.  205.2 by:
0
a. Revising the definitions of ``Compost'' and ``Crop'';
0
b. Adding in alphabetical order definitions for ``Mushroom'', 
``Mushroom substrate'', ``Mycelium'', ``Pet'', ``Pet food'', ``Spawn'', 
and ``Spawn media''; and
0
c. Revising the definition of ``Wild crop''.

[[Page 17338]]

    The revisions and additions read as follows:


Sec.  205.2  Terms defined.

* * * * *
    Compost. The product of a managed process through which 
microorganisms break down plant and animal materials into more 
available forms suitable for application to the soil or as a component 
of mushroom substrate.
* * * * *
    Crop. Pastures, cover crops, green manure crops, catch crops, 
mushrooms, or any plant or part of a plant intended to be marketed as 
an agricultural product, fed to livestock, or used in the field to 
manage nutrients and soil fertility.
* * * * *
    Mushroom. The edible, fleshy, spore-bearing fruiting body of a 
fungus.
    Mushroom substrate. The base material, such as grain, wood, and/or 
other agricultural materials, from which mushrooms are cultivated or 
grown. This base material can include composted material.
    Mycelium. A mass of branching, thread-like hyphae (fungal 
structures).
* * * * *
    Pet. Any domestic animal not used for the production and sale of 
food, fiber, or other agricultural-based consumer products.
    Pet food. Any commercial feed prepared and distributed for pet 
consumption.
* * * * *
    Spawn. Spawn media that has been colonized by mycelium, which is 
used to inoculate mushroom substrates.
    Spawn media. A carrier, such as grains or minerals, that, when 
colonized with mycelium, creates spawn.
* * * * *
    Wild crop. Any mushroom, plant, or portion of a plant that is 
collected or harvested from a site that is not maintained under 
cultivation or other agricultural management.
* * * * *
0
3. Add Sec.  205.210 to read as follows:


Sec.  205.210  Mushroom production practice standard.

    (a) The producer must manage mushroom production in accordance with 
the provisions of Sec. Sec.  205.200, 205.201, 205.202 as applicable, 
205.203(e), 205.206(a)(2) and(3), and 205.206(b) through (f). The 
producer may manage crop nutrients for mushroom production in 
accordance with the provisions of Sec.  205.203(d)(1) through (5).
    (b) The producer must manage mushroom substrate and spawn media, 
including spent mushroom substrate and spawn media, in a manner that 
does not contribute to contamination of crops, spawn, mushroom 
substrate, soil, or water by pathogenic organisms, heavy metals, or 
residues of prohibited substances.
    (c) Mushroom substrate and spawn media may be composed of the 
following materials in accordance with the conditions specified in this 
paragraph (c):
    (1) Composted plant and animal materials. Compost used in mushroom 
production must be described in the organic system plan. It must be 
produced through a process that maintains a temperature of at least 131 
[deg]F for at least three days;
    (2) Uncomposted plant materials. Uncomposted plant materials must 
be organically produced: Except, that, nonorganically produced 
uncomposted plant materials may be used in mushroom production when an 
equivalent organically produced variety is not commercially available. 
Prohibited substances may not be applied to nonorganically produced 
uncomposted plant materials after harvest.
    (3) Nonsynthetic substances, except those on the National List of 
nonsynthetic substances prohibited for use in organic crop production 
(Sec.  205.602); and
    (4) Synthetic substances on the National List of synthetic 
substances allowed for use in organic crop production (Sec.  205.601).
    (d) Spawn must be organic: Except, that, nonorganic spawn may be 
used to produce an organic crop when an equivalent organically managed 
variety is not commercially available. Organic spawn must use organic 
agricultural products as the spawn media and be under continuous 
organic management after the mycelium is applied to the organic spawn 
media.
0
4. Amend Sec.  205.270 by redesignating paragraph (c) as paragraph (d) 
and adding new paragraph (c) to read as follows:


Sec.  205.270  Organic handling requirements.

* * * * *
    (c) In addition to the substances described in paragraph (b) of 
this section, substances allowed under Sec.  205.603(d)(2) and (3) may 
be used in or on pet food intended to be sold, labeled, or represented 
as ``organic'' or ``made with organic (specified ingredients or food 
group(s)),'' pursuant to Sec.  205.301(b) and (c). Pet food labeled as 
organic must be labeled pursuant to the applicable portions of subpart 
D of this part.
* * * * *
0
5. Amend Sec.  205.601 by revising paragraphs (i) introductory text and 
(j) introductory text to read as follows:


Sec.  205.601  Synthetic substances allowed for use in organic crop 
production.

* * * * *
    (i) As crop disease control.
* * * * *
    (j) As crop or soil amendments.
* * * * *
0
6. Amend Sec.  205.605 by redesignating paragraphs (b)(36) and (37) as 
paragraphs (b)(37) and (38), respectively, and adding new paragraph 
(b)(36) to read as follows:


Sec.  205.605  Nonagricultural (nonorganic) substances allowed as 
ingredients in or on processed products labeled as ``organic'' or 
``made with organic (specified ingredients or food group(s)).''

* * * * *
    (b) * * *
    (36) Taurine--for use only in pet food.
* * * * *

Erin Morris,
Associate Administrator, Agricultural Marketing Service.
[FR Doc. 2024-04973 Filed 3-8-24; 8:45 am]
BILLING CODE 3410-02-P

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