I would propose the unwillingness to seek guidance and authority for
understanding and critiquing the Proposed Organic Rule from OFPA is the reason
for USDA/NOP staffs' 115 violations of OFPA within the first Proposed Organic
Rule and the "wildly inaccurate and misrepresented" information circulated by
Ronnie Cummins. OFPA is the anchor for national organic standards. If the
USDA/NOP staff had chosen to follow its language and intent, there would have
been no legal violations, only questions of better ways to fulfill its
purposes through the rule writing process. Such wholesale violations of an
Act of Congress is either incompetence, purposeful or because of an unclear
job description. When a federal agency so violates a Congressional mandate,
reactions in the private sector are likewise exaggerated.
In the interest of understanding the USDA/NOP staff thinking on one issue I
asked Gershuny the following question:
"What is the authority and what is the logic for not allowing an accredited
organic certifying agent to use their logo to indicate "performance standards"
other than the USDA/NOP?"
In two parts, here is the response:
"I'm not sure what you mean here, but in the example I gave it is the
manufacturer who has an interest in promoting its label as meaning "no
detectable pesticide residues." Since you are familiar with ISO, you can
appreciate that competition among certifiers based on the standards to which
they certify is fraught with problems. Also, the effect could be to make it
look like USDA is somehow approving the claim of "no detectable pesticide
residues," but in fact, the certifier would not be accredited to perform this
I hope this is clear enough--
"I'm not interested in a back-and-forth with you on points of law. Even
though you think you are the world's foremost authority on the OFPA, not to
mention regulatory law, it isn't so.
The only objection raised to the certifier seal use provision by our lawyers
was that it is something that should be obvious and why do we need to state it
I find it very refreshing to receive personal notes from USDA/NOP staff in
response to professional questions. But, the questions organic certifiers
have raised remain to be understood in light of OFPA, as Lockeretz points out:
"So the question remains: May an organic certifier choose to impose stricter
standards than those of USDA (where "stricter" means requiring everything that
USDA requires, plus more)? I can understand limiting what they say to
characterize their standards (i.e., not calling them "better"). But if they
confine their characterization to a strictly factual, noncomparative statement
of their requirements -- e.g., "We permit at most 5% of livestock feed to be
nonorganic" -- I believe the answer should be "yes." Right now, though, it's
not clear what the answer is."
Actually, USDA administrative employees publicly clarified this issue a couple
of years ago, consistent with OFPA. Why there public policy statement was not
followed in the Proposed Organic Rule raises questions of who is
administrating who and do administration employees read a Proposed Rule or
merely turn it over to the USDA lawyers for review, leading to the question of
do USDA lawyers know what the administrative level policy statements are or
what a Congressional Act says.
Two years ago, the USDA took the following approach.
Concurrent with Lockeretz's thoughts, USDA pointed out subjective wording by
private or State USDA accredited organic certifiers like "better," "higher,"
etc. do not contribute towards the stated purposes of OFPA and undermine
assuring "consumers that organically produced products meet a consistent
OFPA §2102 PURPOSES.
It is the purpose of this title
(1) to establish national standards governing the marketing of certain
agricultural products as organically produced products;
(2) to assure consumers that organically produced products meet a consistent
(3) to facilitate interstate commerce in fresh and processed food that is
Therefore, such value judgement wording like "higher" is not certifiable.
What is certifiable as Lockeretz points out, is confining an USDA accredited
organic certifying agent's "characterization to a strictly factual,
noncomparative statement of their requirements." has been indicated by USDA
administrative employees as perfectly acceptable.
Confirmation, I believe, can be obtained from Illeen Stommes, Director of
Transportation and Marketing Division of the Agricultural Marketing Services.
For the USDA/NOP staff to propose to prohibit an accredited private certifier,
not an employee of USDA, from making "characterization to a strictly factual,
noncomparative statement of their requirements." is not authorized under OFPA.
(OFPA does allow accredited State organic certification programs to make "more
restrictive requirements" for products sold and labeled as "organically
produced" if three conditions are met and USDA approves the "requirements.")
This discussion brings us back to the legal question: if a practice is not
prohibited in law is it allowed? If a practice is not prohibited, does not
threaten public health or general welfare nor abridge other rights of
citizens, a practice is allowed. And, does a private sector accredited
certifying agent only represent USDA/NOP under OFPA? Under the language and
intent of OFPA, by the very nature of being in the private sector, such an
accredited private certifying agent does not exclusively represent USDA/NOP in
its dealings with certifying applicants.
The content of Cummins and Gershuny's statements are frothing with issues
wanting discussion, but without agreeing to examine the ailing USDA/NOP under
the light of OFPA rather than continuing disagreement on subjective opinion
and biased outlook, very little will be gained.
Eric Kindberg, certified organic farmer
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