Industry Group Sues USDA Over Delay of Organic Livestock Rule

The Organic Trade Association has filed a lawsuit to compel the U.S. Department of Agriculture (USDA) to implement the Organic Livestock Rule, which was scheduled to take effect on March 18, 2017. Organic Trade Ass’n v. U.S. Dep’t of Agric., No. 17-1875 (D.D.C., filed September 13, 2017). After 10 years of public process and hearing, USDA published the final rule in January 2017 along with formal recommendations from the National Organic Standards Board (NOSB) resulting from consultations required by the Organic Foods Production Act (OFPA).

On January 20, 2017, former White House Chief of Staff Reince Priebus issued a memorandum to federal agencies directing them to temporarily postpone effective dates for regulations that had been published but had not yet taken effect. The complaint alleges that public comment should have been permitted on whether the Priebus memo applied to the Organic Livestock Rule because its standards affect only those who opt into the program and impose no duty or obligation on entities that do not.

The complaint asserts that USDA twice delayed the effective date of the rule without prior notice, opportunity for public comment or consultation with NOSB. The advocacy group further argues that on May 10, 2017, USDA published a new proposed rule that would either (i) allow the Organic Livestock Rule to become effective on November 14, 2017; (ii) suspend the rule indefinitely; (iii) further delay the effective date; or (iv) withdraw it, “unwinding years of public process by mere fiat.”

Claiming violations of the OFPA and the Administrative Procedures Act, the Organic Trade Association seeks declaratory and injunctive relief, including an order to enjoin USDA from further delay of the rule’s implementation.