In a sign of progress, the Office of Management and Budget (OMB) received the U.S. Department of Agriculture’s (USDA) final rule for the National Bioengineered Food Disclosure Standard (NBFDS) on August 31, 2018 – less than two months after the comment period closed on the proposed rule for the NBFDS on July 3, 2018. As previously reported on this blog, on August 7, 2018, USDA filed an additional six bioengineered food symbols with the U.S. Patent and Trademark Office, signaling that USDA was working to finalize its final rule. The statutory deadline for completion of the final regulations was July 29, 2018.

As an economically significant regulatory action under Executive Order 12866, the final rule must go through the 12866 review process, which involves interagency Executive Branch review before final publication, coordinated by the Office of Information and Regulatory Affairs (OIRA) in OMB.  The period for OIRA review is limited to 90 calendar days after the date of submission, which can be extended indefinitely by the agency head or by the OMB Director for no more than 30 days.

However, OMB went over the 90 day limitation when USDA submitted its proposed rule for the NBFDS to OMB on December 26, 2017, and when asked about the publication date for the proposed rule in April 2018, Secretary Perdue placed responsibility for the delay of the proposed rule in part on OMB. At that time, Perdue noted that the Department requested the process be expedited but struggled to receive timely input from OMB, “we turned in our papers on time; the teachers didn’t grade them on time,” Perdue said of OMB. OMB ultimately completed their review on April 30, 2018, well over the 90-day limitation under EO 12866. If OMB sticks within the 90-calendar day review period, publication of the final rule for the NBFDS could occur by the end of November 2018.