The United States Department of Agriculture’s (USDA) Agricultural Marketing Service (AMS) will be issuing a further 6-month delay of the National Organic Program’s Organic Livestock and Poultry Practices (OLPP) Final Rule.  In an advance Public Inspection Document published today, the notice announces that as of November 9, 2017, the effective date of the final rule will be further delayed until May 14, 2018.

The OLPP final rule was originally scheduled to become effective on March 20, 2017.  The “Regulatory Freeze Pending Review” memorandum issued on February 9, 2017 by the Assistant to the President and Chief of Staff delayed the effective day to May 19, 2017.  This was followed by a further delay of the effective date to November 14, 2017 by USDA AMS citing significant policy and legal issues in the final rule.  The Agency additionally published proposed rulemaking requesting public comments on whether USDA should implement, suspend, delay, or withdraw the OLPP final rule.

The proposed rulemaking received over 40,000 comments, 34,600 of which were form letters. NCC in July 2016 wrote to USDA siting specific concerns about the proposed organic rule, including outdoor access and increased biosecurity risks, increased on-farm mortality, increased costs and the potential for market exclusion for poultry producers due to the requirements.  NCC’s comments in July of this year then urged a suspension of the rule to allow for the construction of a coordinated biosecurity framework for organic poultry production, as well as the conduction of a cost analysis and risk assessment on the impact of the Final Rule.

“We’re pleased that USDA has allowed additional time to work through some of these and other controversial aspects of this rule,” noted Ashley Peterson, Ph.D., NCC senior vice president of scientific and regulatory affairs.

The Agency has chosen to delay the final rule, citing the following concerns which AMS will be requesting public comment on:

  1. Animal Welfare: In the Notice, AMS states their belief that the Organic Foods Production Act’s (OFPA) “reference to additional regulatory standards ‘for the care’ of organically produced livestock is limited to health care practices similar to those specified by Congress in the statute, rather than as reflecting a stand-alone concern for animal welfare”.  The Agency will be seeking public comment on the interpretation of regulatory standards “for the care” of organically produced livestock and poultry.
  2. Revised Calculation of Benefits: AMS has announced the discovery of a “significant, material error” in the calculation of the estimate of benefits from the final rule.  The Agency will seek public comments on the revised calculation of benefits, explaining that it is “not appropriate for AMS to allow a final rule to become effective based on a record containing such a material error”.
  3. Statutory Objectives: Executive Orders 12866 and 13563 require that rulemaking should determine that the benefits of a regulation justify its costs; impose the least burden possible on society; and be harmonized with existing regulation.  The Agency has expressed concern that the OLPP final rule does not meet these requirements, and will be seeking public comment on whether the final rule’s requirements are the most innovative and least burdensome means to carrying out the OFPA.

NCC looks forward to continuing to work with AMS over the next six months to address these and other concerns about the rule.