Republicans and Democrats have alternated control of the presidency five times over the last 25 years. During such transitions, policy and regulatory priorities often shift to align with the goals of the newly elected party when a new administration takes office, with the outgoing party's priorities being paused, revised or reversed.
The organic community experienced this firsthand in 2017 when the Organic Livestock and Poultry Practices (OLPP) rule was paused and later attempted to be rescinded. This action led the Organic Trade Association to file a lawsuit challenging the decision under the Administrative Procedure Act (APA). Ultimately, the Biden administration finalized a similar rule called the Organic Livestock and Poultry Standards (OLPS). Unlike OLPP, OLPS is not expected to face the same fate despite the action happening under the previous Trump administration.
In this post, we explain the status of organic rules finalized and pending under the Biden administration and what could happen next.
Authority of Congress and the New Administration
When a new administration takes office, it has the authority to review and potentially alter rules finalized by the previous administration. However, Congress also plays a significant role in determining the fate of these rules through the Congressional Review Act (CRA).
The CRA allows Congress to rescind any rule published within the final 60 legislative days of a congressional session. This period, known as the lookback period, is somewhat tricky to calculate because it excludes times when Congress is adjourned. Given congressional calendars one could estimate that the current lookback period applies to any rule published after August 1,2024. If Congress wants to rescind a rule during this period, at least 30 senators must sign a discharge petition to bring the issue to a vote in the Senate. If the majority votes in favor of disapproval, the rule is overturned.
It is also standard practice for a new administration to pause on a rule not yet in effect when they take office. This pause allows time to review any regulations that have been finalized in the last days of the outgoing administration. During this review, the new administration can delay the effective and implementation dates of these rules. However, if they want to make changes, roll back rules, or rescind a rule, they must follow the procedures outlined in the Administrative Procedure Act (APA), which include a new notice-and-comment rulemaking process. Rules that are still in the proposed stage can be withdrawn or altered at the new administration's discretion.
In short, the power to change or halt regulations is shared between the incoming administration and Congress, each with its own legal processes and also clear limitations.
Status of Organic Rules Under the Biden Administration
Final Rules:
Since taking office, the Biden administration has made significant progress in finalizing and implementing over 12 organic regulations. These rules fall into two main categories: those that are fully effective and those that are effective but not yet fully implemented.
- Finalized and Fully Effective Rules: Many of the finalized rules under the Biden administration are routine updates to the National List of Allowed and Prohibited Substances. These updates ensure that the National Organic Program (NOP) remains current and reflects the recommendations made by the National Organic Standards Board (NOSB). These rules include various sunset reviews and amendments that address substances allowed in organic crop production, handling, and livestock management. All but one of these routine rules have been fully implemented and are now in effect.
In addition to these routine updates, the administration finalized two major rules that have a significant impact on the organic industry. The Strengthening Organic Enforcement (SOE) rule enhances oversight and enforcement to prevent fraud in organic supply chains. The Origin of Livestock (OOL) rule clarifies the requirements for transitioning dairy animals into organic production. Both of these rules have been fully implemented, providing greater integrity and transparency within the organic sector. They cannot be revised or rescinded in a CRA process. - Finalized Rules – Effective but Not Fully Implemented: One major rule, the Organic Livestock and Poultry Standards (OLPS), was finalized and became effective on January 12, 2024. However, not all parts of this rule are currently in effect. Most of the implementation requirements are scheduled for January 2, 2025. Some provisions, such as those related to indoor and outdoor stocking rates and poultry housing exits, will not be enforced until January 2, 2029. Making changes to these implementation dates would require a new rulemaking process under the Administrative Procedure Act (APA) or would face legal challenges.
- Rules Subject to the Congressional Review Act (CRA): One rule falls within the scope of the Congressional Review Act (CRA), the 2025 Sunset Review and Substance Renewals. This rule was published after the estimated CRA threshold of August 1, 2024, making it eligible for congressional review. However, since it deals with routine updates to the National List of Allowed and Prohibited Substances, it is considered non-controversial. Therefore, delays or disapproval by Congress are unlikely.
Proposed Rules:
A key proposed rule under consideration is the Market Development for Mushrooms and Pet Food. On the Unified Agenda USDA estimated the completion date of this rule to be December 2024 – however these dates are often missed. If this rule is finalized before January 20, 2025, it could be subject to review by the incoming administration. The new administration might choose to delay its implementation for further review, and it would also be eligible for potential disapproval by congress under the CRA.
On the other hand, if the rule is not finalized by January 20, 2025, its fate will be in the hands of the new administration. The incoming administration could decide whether to proceed with finalizing the rule or withdraw it entirely. While this rule is less controversial compared to other organic regulations, its priority level under a new administration is uncertain.
Rules on the Unified Agenda:
Two rules currently listed on the Unified Agenda are still in the development phase. The first addresses Inert Ingredients in Pesticides for Organic Production, and the second focuses on Nitrogen Fertilizers for Crops, including substances like sodium nitrate and ammonia extracts. Because these rules are still being developed, their future will largely depend on the priorities of the incoming administration. If a new administration decides these rules are not a priority, they could delay or halt their progress.
Funding for the Organic Transition Initiative (OTI):
Concerns have been raised about whether funds allocated for the Transition to Organic Partnership Program (TOPP) and the Organic Market Development Grants (OMDG) could be clawed back by a new administration.
TOPP funding comes from the American Rescue Plan Act (ARPA). Although ARPA funds faced claw backs under the Fiscal Responsibility Act (FRA) of 2023, any funds that had already been obligated were not subject to claw backs. Since TOPP funds are already obligated and contracted, any recission would likely face legal challenges. Some OTI funds for the Natural Resources Conservation Service (NRCS) organic practice standard were not obligated by the time the FRA was passed and were clawed back. Funding for these programs continued from other sources such as the Inflation Reduction Act (IRA) and some could be at risk. This risk doesn't extend to the Organic Specialist component of NRCS funding as those funds are similarly obligated.
Similarly, OMDG funding is also protected and unlikely to be challenged. The funds have already been obligated and contracted through grants, making it legally difficult to claw them back.
Lastly, the Organic Dairy Promotion Grants were established to support organic milk purchasing in schools via Dairy Business Innovation Centers. If these grants are obligated before a new administration takes office, they will have the same legal protections as the other OTI funds, making them difficult to rescind.
Conclusion
The Organic Trade Association closely monitors these regulatory actions and funding decisions on a day-to-day basis. Our goal is to ensure that organic standards continue to meet the needs and expectations of both our members and organic consumers and work to safeguard the availability of critical funds that support the growth and integrity of the organic industry.