As previously covered on this blog, on January 19, 2017, USDA published a controversial final rule on organic livestock and poultry which establishes minimum indoor and outdoor space requirements for chickens as a function of type of production and stage of life, as well as adds new provisions for livestock handling and transport for slaughter. 82 FR 7042.  The effective date for this rule was initially March 20, 2017.  On February 9, 2017, USDA delayed the effective date to May 19, 2017.  On May 10, 2017, USDA published a Notice in the Federal Register (82 FR 21677) delaying the effective date of the final rule for an additional six months to November 14, 2017.  The Agency also concurrently published a Second Proposed Rule (82 FR 21742) requesting comments on the final rule through June 9, 2017.

On November 9, 2017, USDA announced a further delay of the effective date of the Final Rule to May 14, 2018.

As industry is well aware, the rule has come under scrutiny from some trade groups who contend that the new standards would force farmers to make expensive modifications to existing animal enclosures and drive up costs for consumers. On the other hand, certain industry and advocacy groups believe that the new requirements will serve to bolster the integrity of the organic label and want the new requirements in place sooner rather than later.  For example, on September 13, 2017, the Organic Trade Association (OTA) filed a complaint against the USDA seeking judicial review of the Agency’s delay of the final rule.  The lawsuit cites violations of standard public process established by Congress in the Administrative Procedure Act as well as the Organic Foods Production Act. It further contends that the President’s regulatory freeze should not apply to standards in the voluntary organic program.  The lawsuit is pending and the USDA is expected to respond to it by mid-November.

Given the controversial nature of the Final Rule, its ultimate fate continues to remain unclear.