[Federal Register Volume 88, Number 238 (Wednesday, December 13, 2023)]
[Rules and Regulations]
[Pages 86259-86260]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-27255]



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 Rules and Regulations
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  Federal Register / Vol. 88, No. 238 / Wednesday, December 13, 2023 / 
Rules and Regulations  

[[Page 86259]]



DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 205

[Doc. No. AMS-NOP-21-0073]
RIN 0581-AE06


National Organic Program (NOP); Organic Livestock and Poultry 
Standards; Delay of Effective Date and Update of Compliance Date

AGENCY: Agricultural Marketing Service, Department of Agriculture 
(USDA).

ACTION: Final rule; delay of effective date and update of compliance 
date.

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SUMMARY: The Agricultural Marketing Service (AMS) is delaying the 
effective date of the Organic Livestock and Poultry Standards (OLPS) 
final rule, published on November 2, 2023, to meet the requirements of 
the Small Business Regulatory Enforcement Fairness Act of 1996 
(Congressional Review Act (CRA)). The CRA requires that agencies 
provide Congress with at least 60 days to review a major rule before it 
takes effect. For the OLPS final rule, AMS provided the required notice 
to Congress on November 13, 2023, after publication of the rule. 
Therefore, the published effective date did not provide 60 days for 
congressional review. This final rule delays the effective date of the 
OLPS final rule by 10 days to meet the 60-day requirement. AMS is 
making a technical correction to the compliance date of January 5, 
2029, for indoor and outdoor stocking density requirements and soil and 
vegetation requirements for broiler operations to January 2, 2029. All 
other compliance dates of the OLPS final rule remain unchanged. 
Additionally, in acknowledgement of the U.S. Government Accountability 
Office assessment of the final rule, AMS confirms that the 
Administrative Pay-As-You-Go Act of 2023 does not apply to the OLPS 
final rule because it does not increase direct spending.

DATES: 
    Effective date: The effective date of the Organic Livestock and 
Poultry Standards final rule amending 7 CFR part 205, published at 88 
FR 75394 on November 2, 2023, is delayed until January 12, 2024.
    Compliance dates: All organic operations must comply with the 
requirements of the OLPS final rule by January 2, 2025, except:
    (1) Currently certified organic layer operations and layer 
operations that are certified before January 2, 2025, must comply with 
Sec.  205.241(c)(2), (4), and (5), concerning outdoor stocking density 
requirements and soil and vegetation requirements, by January 2, 2029.
    (2) Currently certified organic broiler operations and broiler 
operations that are certified before January 2, 2025, must comply with 
Sec.  205.241(b)(10) and (c)(2) and (6), concerning indoor and outdoor 
stocking density requirements and soil and vegetation requirements, by 
January 2, 2029.
    (3) Currently certified organic poultry operations and poultry 
operations that are certified before January 2, 2025, must comply with 
Sec.  205.241(b)(4), concerning poultry house exit area requirements, 
by January 2, 2029.

FOR FURTHER INFORMATION CONTACT: Erin Healy, Director, Standards 
Division; Telephone: (202) 720-3252; Email: [email protected].

SUPPLEMENTARY INFORMATION: The OLPS final rule published on November 2, 
2023, at 88 FR 75394. It amends the USDA organic regulations (7 CFR 
part 205) related to the production of livestock, including poultry, 
marketed as organic. The rule adds detailed regulations related to 
animal health care, indoor and outdoor space standards, manure 
management, temporary confinement of livestock, access to the outdoors, 
transportation conditions, and humane euthanasia and slaughter. The 
rule clarifies aspects of the existing USDA organic regulations that 
are not interpreted or enforced in a consistent manner. In turn, the 
detailed regulations in the final rule will better assure consumers 
that organic livestock products meet a consistent standard, as intended 
by the Organic Foods Production Act of 1990 (OFPA).
    This final rule delays the effective date of the OLPS rule in order 
to meet the requirements of the Congressional Review Act or ``CRA'' (5 
U.S.C. 801-808). The CRA requires that before a rule can take effect, a 
report must be submitted to each House of the Congress and to the 
Comptroller General that includes a copy of the rule, a concise general 
statement of the rule, and its proposed effective date (5 U.S.C. 
801(a)(1)). Furthermore, the effective date of a ``major rule,'' as 
defined at 5 U.S.C. 804, must be ``the later of the date occurring 60 
days after the date on which . . . the Congress received the [required] 
report . . . or . . . the rule is published in the Federal Register . . 
..'' (5 U.S.C. 801(a)(3)). For the OLPS final rule (which meets the 
criteria of a major rule), the required information was not received by 
Congress until November 13, 2023,\1\ so the rule cannot be effective 
until 60 days after that date, i.e., January 12, 2024. Therefore, the 
published effective date, which was calculated as 60 days after the 
date of publication of the rule in the Federal Register, is erroneous. 
This final rule delays the previously published effective date from 
January 2, 2024, to January 12, 2024.
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    \1\ U.S. Government Accountability Office. Report B-335744, 
November 16, 2023, available at https://www.gao.gov/products/b-335744.
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    In this action, AMS is not changing any of the compliance dates in 
the OLPS final rule, except to correct the compliance date for indoor 
and outdoor stocking density requirements and soil and vegetation 
requirements for broiler operations from January 5, 2029, as stated in 
the OLPS final rule, to January 2, 2029. This technical correction will 
make the date consistent with the other compliance dates in that rule. 
AMS has previously publicly discussed the OLPS final rule's compliance 
dates with certifiers, producers, and stakeholders and believes 
maintaining them will minimize confusion and allow existing plans for 
compliance by the original compliance dates to be maintained.
    AMS acknowledges that the preamble text of the OLPS final rule is 
now incorrect when it states compliance dates are ``one year following 
the effective date of the final rule'' or ``five years from the 
effective date.'' All compliance dates should be understood as one year 
or five years from the original effective date of January 2, 2024.
    Section 553 of the Administrative Procedure Act, 5 U.S.C.553(b)(B), 
provides that, when an agency for good cause finds that notice and 
public

[[Page 86260]]

procedure are impracticable, unnecessary, or contrary to the public 
interest, an agency may issue a rule without providing notice and an 
opportunity for public comment. AMS has determined that there is good 
cause for making this rule final without prior proposal and opportunity 
for comment because AMS is merely delaying the effective date and 
correcting one compliance date. AMS is delaying the effective date of 
the OLPS rule to be consistent with the requirements of the CRA as a 
matter of law and has no discretion in this matter. The compliance 
dates erroneously listed as January 5, 2029, in the OLPS final rule 
will now be corrected to January 2, 2029. These changes are 
administrative and minor in nature. Accordingly, AMS finds that there 
is good cause to dispense with notice and public procedure under 5 
U.S.C. 553(b)(B).

Administrative Pay-As-You-Go-Act of 2023

    The U.S. Government Accountability Office (GAO) assessment of the 
OLPS final rule reported that AMS did not discuss the Administrative 
Pay-As-You-Go-Act of 2023 (Pub. L. 118-5, div. B, title III, 137 Stat 
3) (Act) in the final rule.\2\ The Office of Management and Budget 
memorandum on the Administrative Pay-As-You-Go-Act of 2023 stated that 
the requirements of the Act ``apply to all rules that have not yet been 
submitted to the Office of Information and Regulatory Affairs (OIRA) as 
of the date of this memorandum.'' \3\ Based on AMS' understanding, 
analysis was not required. AMS submitted the OLPS final rule to OIRA on 
July 31, 2023, before the memorandum was published on September 1, 
2023. However, AMS does confirm the Act does not apply to the OLPS 
final rule because it does not increase direct spending.
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    \2\ U.S. Government Accountability Office. Report B-335744, 
November 16, 2023, available at https://www.gao.gov/products/b-335744.
    \3\ Office of Management and Budget. Memorandum for the Heads of 
Executive Departments and Agencies, September 1, 2023, available at 
https://www.whitehouse.gov/wp-content/uploads/2023/09/M-23-21-Admin-PAYGO-Guidance.pdf.

Erin Morris,
Associate Administrator, Agricultural Marketing Service.
[FR Doc. 2023-27255 Filed 12-12-23; 8:45 am]
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